Mark L. Horwitz

Mark L. Horwitz

The defense of those charged with crimes by the federal government is significantly different from a case in state court. The old saying of “don’t make a federal case out of it” has grown out of the complexities of the defense of a citizen prosecuted by the United States. Some of these major differences include:

1. Florida state prosecutors must provide the defense with a list of its witnesses, who can then be deposed by the defense. In federal prosecutions, the defense is not entitled to a list of witnesses and cannot take depositions, except in extreme circumstances.

2. Juries in state court are drawn from driver’s license records whereas federal jurors are drawn from voter registration lists.

3. Federal cases more often involve extensive investigations into complex white-collar conduct and can result in trials lasting several weeks and, on some occasions, several months.

4. Sentences in federal court are generally much harsher than in state court.

5. Sentencing under federal guidelines is more complicated than in state court and therefore attorneys must understand the complexities to minimize the time in prison.

These 5 differences, as well as others, complicate the defense of an individual in federal court. I have observed many examples of the adverse effects of these differences.

One such example occurred when I was consulted by a defendant who had recently been sentenced to 7 years in prison on a mail fraud case in federal court. The prosecution filed an indictment that contained 10 separate counts of mail fraud. Each count alleged that the defendant had made false representations to obtain money from a different person. The defendant’s lawyer advised him to plead guilty to one of the counts and that the remaining counts would be dismissed. The defendant was also told that the amount of loss would be limited to the money obtained from the person named in the one count to which he pled guilty. This was important, because under the U.S. Sentencing Guidelines a major determining factor in the length of sentence is the amount of loss. The defendant was agreeable to this because he provided false information to only one of the 10 people.

After pleading guilty to the one count, the Presentence Report set the loss as the total received from the 10 individuals. His lawyer told him that this was a mistake and that he would contest this matter and have it corrected at the sentencing. The court rejected the defense lawyer’s argument. The defendant was sentenced to 7 years rather than the 1 ½ to 2 years that his lawyer had predicted.

His defense lawyer practiced in federal court infrequently because most of his practice was in state court. What the defendant’s lawyer did not know was that in federal court the amount of loss includes “Relevant Conduct”, which in this case, included the other 9 charges even though the defendant did not plead guilty to those charges.

To make matters worse, the lawyer advised his client that he should testify at the sentencing to tell the court that he did not make the false statements alleged as to the other 9 victims. As a result of this testimony, the Judge did not give the defendant credit for accepting responsibility for the crime, which also increased the sentencing guideline and the sentence. Unfortunately for the defendant, he was not told that testifying might result in increasing his sentence.

This is only one of many examples of a defendant harmed by advice from a lawyer who is not fully versed and experienced in defending a Federal criminal case.

Law Offices  Mark L. Horwitz, P.A.
17 East Pine St.Orlando, FL 32801
P: 407-843-7733 • F: 407-849-1321
mark@mlhorwitzlaw.com • www.mlhorwitzlaw.com