In Federal Court, Genuine and Verifiable Experience Not Only Matters; It’s Critical to Your Chance at Success and Exoneration

Today, it seems everyone is suddenly an “experienced federal criminal defense lawyer”. Perhaps it’s because internet advertising makes it easier for certain folks to feel free to claim to be things they are not. Perhaps it’s the result of slick marketing and/or marketing acumen. Maybe it’s because many lawyers feel emboldened to go directly to where the “bigger fees” seem to be, even when they have neither the requisite experience nor aptitude to go there. Whatever the reason, for the first time in five decades of active federal practice, I am discerning a troubling epidemic of younger, unseasoned- lawyers attempting to accelerate from 0-60 into an unforgiving venue that demands extensive training, skill, proficiency, achievement, and gravitas. (As examples, one lawyer I know consistently makes every annual state-wide and regional list for “top white-collar criminal defense” despite my knowledge of him not yet having conducted a single white-collar criminal trial in federal court; I personally discovered another to already be advertising himself as a “top-federal criminal defense lawyer” before he had even landed his first federal criminal client.) Because of this, if you find yourself in need of a competent federal criminal defense lawyer, discernment and scrutiny are in order; “caveat emptor” (“buyer beware”) is the applicable catchphrase.

While it is true that many states have recently adopted, if not verbatim certainly near-wholly in concept, the Federal Rules of Evidence (which tends to make the cross-over from state to federal practice seem more familiar), the Federal Rules of Criminal Procedure remain extremely complex and comprehensive, involving proceedings and procedures from start to finish that are alien and confusing to most state-side lawyers. Moreover, the Local Rules of [courtroom] Practice is often unique to the federal jurisdiction in which one is appearing and can easily blindside the uninitiated attorney on mechanical matters as mundane as the mode, method, format, and timing of certain filings. When combined with the esoterica and minutiae of the United States Sentencing Guidelines (USSG), which is the “starting point” for the arithmetic calculation of what are now primarily advisory sentences, lawyers lacking the knowledge, familiarity, and awareness of how to navigate through all-that-is procedurally related are quickly lost, overwhelmed, and ultimately rendered ineffectual.

By contrast, to the litigator highly experienced in federal practice and procedure, and comfortable with the lexicon of the Federal Court, there is a logic, flow, structure, coherence, and “feel” to the federal system that is different from the often-tumultuous, knee-jerk, and gut-reactive dynamic prevalent in most state venues. This isn’t just because federal court is often perceived as the “Big Leagues” but also because the quality of the work product and for the most-part the courtroom lawyering tends to be more refined in federal court; so too are the resumes and qualifications of the sitting judiciary.

In federal court, the same codes of criminal conduct are applied and observed in all 50 states, as well as in all US Territories. The most applied statutes are Title 18 USC (the principal US Criminal Code), Title 21 USC (the Controlled Substances Act), and Title 26 (tax violations under the Internal Revenue Code). Federal Subpoena power extends to all federal jurisdictions, thereby greatly enhancing federal investigatory power and compulsory process, and bail has been replaced by court-approved “conditions of release” which when secured, can still be onerous and restrictive. Contested release is resolved via detention hearings in which the main considerations are community and individual safety and/or risk of flight. Rebuttable presumptions are established either by clear and convincing evidence (safety) or a preponderance of the evidence (flight) and can, and often do, result in detention for the entirety of a pending case. There is no parole for defendants sentenced to federal prison time.

To be a successful advocate for his or her client, amongst many things, a federal defense practitioner must be intimately familiar with the workings and variables of the USSG. At the same time, he must also be aware of strict sentencing enhancements for certain offenders and offenses, including Career Offenders, as well as the mandatory minimum sentencing applications for certain threshold drug quantities, armed career criminals (ACC), and repeat offenders. Moreover, a successful federal lawyer must be aware of, and anticipate, federal prosecutors’ over-reliance on conspiratorial liability to establish primary jurisdiction in a state with minimal contact/nexus to the core alleged criminal activity and the liberal use of co-conspirator statements (and oblique references to a multiplicity of “unindicted co-conspirators”), as well as likely plans to try to introduce potentially damaging “other acts” testimony, to circumvent and bypass normal evidentiary proscriptions. A level playing field Federal Court is not. The best way to even your odds is to be sure to hire a genuinely experienced federal defense lawyer; the surest way to know if you have one, is to hire a verified former federal prosecutor.

If you are under federal investigation or facing federal criminal prosecution, do not rely on paid-for page rankings, online braggadocio, or lawyers only displaying random and questionable internet-created awards and honors. Take the time to ask questions of a prospective lawyer about the depth and extent of their professed federal defense experience. How long have they been practicing in federal court; in how many jurisdictions? How many federal cases have they defended? How many federal jury trials have they conducted? Ask for actual case-names and docket numbers, as well as a list of the types of federal cases defended, as well as specific case/client identifiers that can help verify what will often turn out to be false or exaggerated claims or answers. If a prospective lawyer is vague or evasive, or recently admitted, move on and away. And by any means maintain a preference for hiring former Assistant US Attorneys (while remaining leery of those relying on their one-off status as “Specials”, or of JAG corps alumni, all promoting themselves as “former federal prosecutors”; they aren’t).

Brad Bailey is a decorated former state and federal prosecutor who is admitted to full time practice in five separate federal jurisdictions in three separate states. He is also admitted full-time to the appellate court in his 6-state home jurisdiction (1st Cir Court of Appeals) and has been admitted pro hac vice in a further 4-5 federal jurisdictions. Now in his 5th decade of active federal practice, and in his 25th year exclusively practicing criminal defense, Brad has defended some of the highest-profile cases in the State and Region and has personally handled in-excess of an unprecedented 375 federal cases and matters. For proven and unparalleled federal criminal defense representation, please call Brad and the lawyers at Brad Bailey Law PC now at (617) 500-0252.

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