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Federal Criminal Defense Attorney

Federal Criminal Defense Attorney

MICHAEL DEVEREUX

Michael Devereux is one of the more highly respected attorneys in Los Angeles. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Devereux a top rated federal criminal defense attorney in Los Angeles. Mr. Devereux started his own firm in 2004 after working for the Cochran Firm, and assisting with the Robert Blake and Michael Jackson defense teams.

Mr. Devereux is admitted to practice in the Central District of California (federal court in Los Angeles), the Southern District of California (federal court in San Diego), the Northern District of California (federal courts in the San Francisco area), the Eastern District of California (federal courts in Sacramento, Fresno, Redding, Yosimite and Bakersfield), along with being an exceptional appellate attorney with a published opinion in the Ninth Circuit Court of Appeals.

As the sole proprietor of Wexford Law, Mr. Devereux has been successfully representing clients for close to 20 years. Former clients, their family and friends repeatedly return to Wexford Law for help in matters involving appeals, civil rights, cyber crimes, defamation, forfeiture, Internet matters, litigation, restraining orders and white-collar crime.

Mr. Devereux, from the blood line of the Viking Rollo, the first Duke of Normandy, to William the Conqueror to King Richard the Lionheart, is a battler and loves taking on the government and major corporations.

Investigation

In the Federal Government, there are agencies that employ criminal investigators to collect and provide information to the United States Attorneys in the respective district.

You may already know some of the agencies, such as:

  • Federal Bureau of Investigation (FBI)
  • Drug Enforcement Administration (DEA)
  • Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
  • United States Secret Service (USSS)
  • Homeland Security Investigation (DHS/HSI)


The investigators at these agencies investigate the crime and obtain evidence, and help prosecutors understand the details of the case. The prosecutor may work with just one agency but, many times, several investigating agencies are involved.

Part of the investigation may involve a search warrant. The Fourth Amendment of the Constitution usually requires that police officers have probable cause before they search a person’s home, their clothing, car, or other property. Searches usually require a search warrant, issued by a “neutral and detached” judge. Arrests also require probable cause and often occur after police have gotten an arrest warrant from a judge.

Depending on the specific facts of the case, the first step may actually be an arrest. If police have probable cause to arrest a suspect (as is the case if they actually witnessed the suspect commit a crime), they will go ahead and make an arrest.
Direct Evidence

A prosecutor evaluates a case, and uses all the statements and information he has to determine if the government should present the case to the Federal Grand Jury — one in which all the facts lead to a specific person or persons who committed the crime. However, before the prosecutor made that conclusion, he had to look at both direct and circumstantial evidence. Direct evidence is evidence that supports a fact without an inference. Testimony of an eyewitness to a crime would be considered direct evidence because the person actually saw the crime. Testimony related to something that happened before or after the crime would be considered circumstantial.

Circumstantial Evidence

The second type of evidence is circumstantial evidence — statement(s) or information obtained indirectly or not based on first-hand experience by a person. Circumstantial evidence includes people’s impressions about an event that happened which they didn’t see. For example, if you went to bed at night and there was no snow on the ground but you awoke to snow, while you didn’t actually see it snowing, you assume that it snowed while you slept.

Charging

After the prosecutor studies the information from investigators and the information he gathers from talking with the individuals involved, he decides whether to present the case to the grand jury. When a person is indicted, he is given formal notice that it is believed that he committed a crime. The indictment contains the basic information that informs the person of the charges against him.

For potential felony charges, a prosecutor will present the evidence to an impartial group of citizens called a grand jury. Witnesses may be called to testify, evidence is shown to the grand jury, and an outline of the case is presented to the grand jury members. The grand jury listens to the prosecutor and witnesses, and then votes in secret on whether they believe that enough evidence exists to charge the person with a crime. A grand jury may decide not to charge an individual based upon the evidence, no indictment would come from the grand jury. All proceedings and statements made before a grand jury are sealed, meaning that only the people in the room have knowledge about who said what about whom. The grand jury is a constitutional requirement for certain types of crimes (meaning it is written in the United States Constitution) so that a group of citizens who do not know the defendant can make an unbiased decision about the evidence before voting to charge an individual with a crime.

Grand juries are made up of approximately 16-23 members. Their proceedings can only be attended by specific persons. For example, witnesses who are compelled to testify before the grand jury are not allowed to have an attorney present. At least twelve jurors must concur in order to issue an indictment.

States are not required to charge by use of a grand jury. Many do, but the Supreme Court has interpreted the Constitution to only require the federal government to use grand juries for all felony crimes (federal misdemeanor charges do not have to come from the federal grand jury).

After the defendant is charged, he can either hire an attorney or if he is indigent he may choose to be represented by an attorney provided by the Government — a public defender — at no or minimal charge. The defendant’s attorney is referred to as the defense attorney. He assists the defendant in understanding the law and the facts of the case, and represents the defendant just as the prosecutor will represent the Government.

Venue

The location where the trial is held is called the venue, and federal cases are tried in a United States District Court. There are 94 district courts in the United States including the District of Columbia and territories. Many states have more than one district court so the venue will depend on where you live in the state. Within each district, there may be several courthouse locations. Click here to see if you can find the one closest to your neighborhood.

Initial Hearing / Arraignment

Either the same day or the day after a defendant is arrested and charged, he is brought before a magistrate judge for an initial hearing on the case. At that time, the defendant learns more about his rights and the charges against him, arrangements are made for him to have an attorney, and the judge decides if the defendant will be held in prison or released until the trial.

In many cases, the law allows the defendant to be released from prison before a trial if he meets the requirements for bail. Before the judge makes the decision on whether to grant bail, he must hold a hearing to learn facts about the defendant including how long the defendant has lived in the area, if he has family nearby, his prior criminal record, and if he has threatened any witnesses in the case. The judge also considers the defendant’s potential danger to the community.

If the defendant cannot “post bail” (pay the money), the judge may order him remanded into the custody of the U.S. Marshals pending trial.

The defendant will also be asked to plead guilty or not guilty to the charges.

Discovery

Before a prosecutor begins a trial, there is much work to be done. The prosecutor has to become familiar with the facts of the crime, talk to the witnesses, study the evidence, anticipate problems that could arise during trial, and develop a trial strategy. The prosecutor may even practice certain statements he will say during trial.

Meanwhile, the defense attorney is preparing in the same way.

One of the first steps in preparing for trial is talking to witnesses who could be called to testify in court. A witness is a person who saw or heard the crime take place or may have important information about the crime or the defendant.

Both the defense and the prosecutor can call witnesses to testify or tell what they know about the situation. What the witness actually says in court is called testimony. In court, the witness is called to sit near the judge on the witness stand. In order to testify, witnesses must take an oath to agree or affirm to tell the truth.

There are three types of witnesses:

  • • A lay witness — the most common type — is a person who watched certain events and describes what he/she saw.
  • • An expert witness is a specialist — someone who is educated in a certain area. He testifies with respect to his specialty area only.
  • • A character witness is someone who knew the victim, the defendant, or other people involved in the case. Character witnesses usually don’t see the crime take place but they can be very helpful in a case because they know the personality of the defendant or victim, or what type of person the defendant or victim was before the crime. Neighbors, friends, family, and clergy are often used as character witnesses.

To avoid surprises at trial and to determine which of the witnesses to call to testify, the prosecutor talks to each witness to find out what they may say during trial. These conversations will help the prosecutor decide whom to call as a witness in court. Another important part of trial preparation is reading every report written about the case. Based on information in the reports and the information from witnesses, the prosecutor determines the facts of the case. Prosecutors must also provide the defendant copies of materials and evidence that the prosecution intends to use at trial. This process is called discovery, and continues from the time the case begins to the time of trial. A prosecutor has a continuing obligation to provide the defendant documents and other information which may reflect upon the case. A failure of the prosecutor to do so can expose the prosecutor to fines/sanctions by the court. Further, the prosecutor is required to provide the defense with evidence that may hurt his case, called exculpatory evidence. This evidence could show the defendant’s innocence. If the prosecution does not provide it to the defense, it may require a new trial.

Plea Bargaining

When the Government has a strong case, the Government may offer the defendant a plea deal to avoid trial and perhaps reduce his exposure to a more lengthy sentence.

A defendant may only plead guilty if they actually committed the crime and admits to doing so in open court before the judge. When the defendant admits to the crime, they agree they are guilty and they agree that they may be “sentenced” by the judge presiding over the court — the only person authorized to impose a sentence. Sometimes the Government will agree, as part of a plea agreement, not to recommend an enhanced sentence (such as additional time in prison for certain reasons) but it is left up to the judge to determine how the defendant will be punished.

If a defendant pleads guilty, there is no trial, but the next step is to prepare for a sentencing hearing.

Preliminary Hearing

Once the defendant has entered a plea of not guilty, a preliminary hearing will often be held. The prosecutor must show that enough evidence exists to charge the defendant. Preliminary hearings are not always required, and the defendant can choose to waive it.

It must be held within 14 days of the initial appearance if the defendant is being held in jail. If the defendant is out on bail, it must be scheduled within 21 days of the initial appearance.

The preliminary hearing is like a mini-trial. The prosecution will call witnesses and introduce evidence, and the defense can cross-examine witnesses. However, the defense cannot object to using certain evidence, and in fact, evidence is allowed to be presented at a preliminary hearing that could not be shown to a jury at trial.

If the judge concludes there is probable cause to believe the crime was committed by the defendant, a trial will soon be scheduled. However, if the judge does not believe the evidence establishes probable cause that the defendant committed the offence, he will dismiss the charges.

Pre-Trial Motions

One of the last steps a prosecutor takes before trial is to respond to or file motions. A motion is an application to the court made by the prosecutor or defense attorney, requesting that the court make a decision on a certain issue before the trial begins. The motion can affect the trial, courtroom, defendants, evidence, or testimony.

Only judges decide the outcome of motions.

Common pre-trial motions include:

  • • Motion to Dismiss – an attempt to get the judge to dismiss a charge or the case. This may be done if there is not enough evidence, if the alleged facts do not amount to a crime.
  • • Motion to Suppress – an attempt to keep certain statements or evidence from being introduced as evidence. For example, if police conducted a search without probable cause (in violation of the Fourth Amendment), it may be possible to suppress the evidence found as a result of that search.
  • • Motion to Suppress – an attempt to keep certain statements or evidence from being introduced as evidence. For example, if police conducted a search without probable cause (in violation of the Fourth Amendment), it may be possible to suppress the evidence found as a result of that search.
  • • Motion for Change of Venue – may be made for various reasons including pre-trial publicity. If the local news has covered the case a great deal, it may be necessary to move the trial to another venue to protect the defendant’s right to an impartial jury.

Trial

After many weeks or months of preparation, the prosecutor is ready for the most important part of his job: the trial. The trial is a structured process where the facts of a case are presented to a jury, and they decide if the defendant is guilty or not guilty of the charge offered. During trial, the prosecutor uses witnesses and evidence to prove to the jury that the defendant committed the crime(s). The defendant, represented by an attorney, also tells his side of the story using witnesses and evidence.

In a trial, the judge — the impartial person in charge of the trial — decides what evidence can be shown to the jury. A judge is similar to a referee in a game, he’s not there to play for one side or the other but to make sure the entire process is played fairly.

Jury Selection
At trial, one of the first things a prosecutor and defense attorney must do is the selection of jurors for the case. Jurors are selected to listen to the facts of the case and to determine if the defendant committed the crime. Twelve jurors are selected randomly from the jury pool (also called the “venire”), a list of potential jurors compiled from voter registration records of people living in the Federal district.

When selecting the jury, the prosecutor and defense attorney may not discriminate against any group of people. For example, the judge will not allow them to select only men or only women. A jury should represent all types of people, races, and cultures. Both lawyers are allowed to ask questions about their potential biases and may excuse jurors from service. Each side is allowed to excuse certain potential jurors without providing a reason by using a limited number of “peremptory challenges.”

Opening Statements
Opening statements allow the prosecutor and the defense attorney to briefly tell their account of the events. These statements usually are short like an outline and do not involve witnesses or evidence. The prosecutor makes an opening statement first because the Government has the burden of proving that the defendant committed the crime.
Witness Examination
Following opening statements, the prosecutor begins direct examination of his first witness. This is the prosecutor’s initial step in attempting to prove the case, and it can last from a few minutes to several days. During direct examination, the prosecutor can introduce evidence such as a weapon or something from the crime scene.

Following the prosecutor’s examination of a witness, the defense attorney has an opportunity to cross examine or ask questions to the same witness. The purpose of cross examination is to create doubt as to the credibility of the witness.

After the defense attorney cross examines the witness, the prosecutor asks the witness final questions to clarify any confusing testimony for the jury. This is called redirect examination. Once the process of direct examination, cross examination, and redirect of all the witnesses is complete, the prosecutor rests his case. After the prosecutor rests, no more witnesses can be called to the stand or evidence introduced by the government.

After the Government rests, the defense has the opportunity to present witnesses and evidence to the jury. The defense also has the option of not having the defendant testify. There is no burden upon the defendant to prove that he is innocent. It is the government's responsibility to prove the defendant committed the crime as detailed in the indictment. The fact that a defendant did not testify may not be considered by the jury as proof that the defendant committed the crime. The defense may also waive his case. If the defense does not put on any evidence, the jury cannot assume that the defendant is guilty simply because they did not put on a defense. The decision to put on a defense is solely up to the defendant and the defense attorney. However, the defense will usually present its own version of the case.

Objections
During direct or cross examination, either attorney can make an objection to a question or a piece of evidence to the judge. For example, a prosecutor or defense attorney may object to the wide range of the direct examination because it is beyond the knowledge of the witness, the attorney may be arguing with the witness rather than asking questions, or the witness may be talking about things irrelevant to the case.

Common objections include:

  • • Hearsay – Statement by a witness who did not see or hear the incident in question but learned about it through secondhand information such as another’s statement, a newspaper, or a document.
  • • Relevance – Testimony and evidence presented at trial must be relevant to the case.
The judge decides the outcome of an objection, sometimes after allowing attorneys on both sides to comment before making a ruling. The judge either “sustains” the objection so that the action stops, or he “overrules” the objection and allows the action to continue.

Closing Arguments
After the defense’s direct testimony and cross examination by the prosecutor of all the witnesses, the defense rests, and the prosecutor and defense attorney prepare for closing arguments.

Closing arguments are the final opportunity for the prosecutor and the defense attorney to talk to the jury. These arguments allow both attorneys to summarize the testimony and evidence, and ask the jury to return a verdict of guilty or not guilty.

Jury Instructions
Following the closing arguments, the judge “charges the jury,” or informs them of the appropriate law and of what they must do to reach a verdict.

Jury Deliberations & Announcement of the Verdict
After being charged, the jury goes into deliberation, the process of deciding whether a defendant is guilty or not guilty. During this process, no one associated with the trial can contact the jury without the judges and lawyers. If the jury has a question on the law, they must write a note to the judge, which the judge will read in court with all parties present. In federal criminal trials, the jury must reach a unanimous decision in order to convict the defendant.

After they reach an agreement on a verdict, they notify the judge, the lawyers, and the defendant in open court. Everyone is present in court for the reading of the verdict. The United States Marshals Service is present during trial to protect the judge and prosecutors from potential harm. If the defendant is found not guilty, they are usually free to go home.

Post-Trial Motions

If the defendant is convicted, there are several motions that can be filed after the trial is over. Common post-trial motions include:

  • • Motion for a New Trial – The court can vacate the judgment and allow for a new trial. This is rarely granted, but may be done “if the interest of justice so requires.”
  • • Motion for Judgment of Acquittal – Court may set aside the jury’s verdict and allow the defendant to go free.
  • • Motion to Vacate, Set Aside, or Correct a Sentence – Often successful for the purpose of correcting a clerical error in the sentence.

Sentencing

A few months after the defendant is found guilty, he returns to court to be sentenced.

The judge receives guidance and assistance from several sources in order to sentence a defendant. Congress has established minimum and maximum punishments for many crimes which the judge uses to craft a sentence. The United States Sentencing Commissions has produced a set of sentencing guidelines that recommend certain punishments for certain crimes while considering various factors. Further, the judge will look at a presentence report and consider statements from the victims as well as the defendant and lawyers.

The judge may consider a variety of aggravating or mitigating factors. These include whether the defendant has committed the same crime before, whether the defendant has expressed regret for the crime, and the nature of the crime itself.

Death Penalty
The death penalty can only be imposed on defendants convicted of capital offenses – such as murder, treason, genocide, or the killing or kidnapping of a Congressman, the President, or a Supreme Court justice. Unlike other punishments, a jury must decide whether to impose the death penalty. Many states have stopped using the death penalty, though the federal government may still use it. The Supreme Court has found that imposing the death penalty on those under age 18 at the time of the crime or the mentally challenged to be “cruel and unusual punishment” under the United States Constitution.

Appeal

Even after a defendant is found guilty, he can appeal to the Circuit Court if he believes he was wrongly convicted or the sentence was too harsh. An appeal is not another trial but an opportunity for the defendant to try to raise specific errors that might have occurred at trial. A common appeal is that a decision from the judge was incorrect – such as whether to suppress certain evidence or to impose a certain sentence. Appeals are complicated and sometimes result in the case going back to the trial court. A specific conviction may be reversed, a sentence altered, or a new trial may be ordered altogether if the Appeals Court decides that particular course of action.

Even after an appeal is decided by a circuit court judge, a defendant can try to appeal that decision to the United States Supreme Court in Washington, D.C.

The United States Supreme Court — the highest appellate court in the American court system — makes the final decision concerning a defendant’s appeal. The Court is not required to hear an appeal in every case and takes only a small number of cases each year.