Why You May Need a Federal Criminal Defense Lawyer in Texas

Every lawyer in Texas has to graduate from law school and pass the bar prior to licensure allowing them to practice law in this state.  In Texas, lawyers are licensed to practice law by the State Bar of Texas (SBOT) after being approved for admission by the Texas Board of Law Examiners.  Any Texas attorney in good standing can practice Texas law in their chosen field, from corporate law to criminal defense. Some lawyers never enter a courtroom, for instance, as they focus their careers on things like estate planning or in-house corporate transactional work.  For more details, read the SBOT’s Frequently Asked Questions.

Even Texas litigators (who appear in courtrooms to advocate for their client) may never enter a federal courthouse.  This is because it is one thing to practice in our state courts, as for example defending people accused of violating state criminal laws and facing punishment under Texas law that can include things like forfeiture, fines, probation, imprisonment, or even death.  (Texas, after all, is one of the 27 states in this country that carries out the death penalty.)

The Two Criminal Justice Systems:  State vs. Federal Criminal Defense

Representing clients in the federal system is an entirely different ballgame.  There is an independent federal criminal justice system, with its own set of procedural rules and evidentiary standards as well as its own set of statutes and court case precedent.  There are a different set of prosecutors, too, called “AUSAs,” who work for the Attorney General for the United States.

• For more on the structure of the federal criminal justice system, read our earlier discussion in How Arrests Happen: From Investigation to Arraignment, Being Charged for a Federal Crime.

There are even different buildings.  For instance, the federal courthouse in Dallas is located at 1100 Commerce Street, while the state courthouses (there are two) are found at 133 N. Riverfront Boulevard (the Frank Crowley Courts Building; criminal) and at 600 Commerce Street (the George L. Allen Sr. Courts Building; civil).

So, one of the first things that anyone who intuits, suspects, or has reason to believe that they are within the focus of federal investigators realizes is that they may well need a criminal defense advocate.  But that advocate can’t be just any lawyer: it has to be someone licensed to practice within the federal system.  They will need a federal criminal defense attorney. 

In order for the Texas lawyer in good standing to practice in the federal system, there must be a separate approved admission to that particular court, such as: the United States District Court for the Northern District of Texas; the United States District Court for the Eastern District of Texas; and the United States Court of Appeals for the Fifth Circuit.

Over time, an experienced federal criminal defense lawyer will be honored with admission to several different federal courts.  For instance, I have been privileged to have been admitted to practice before the following federal courts:

• United States District Court for the Northern District of Texas;
• United States District Court for the Eastern District of Texas;
• United States District Court for the Southern District of Texas;
• United States District Court for the Western District of Arkansas;
• United States District Court for the District of Columbia; and
• United States Court of Appeals for the Fifth Circuit.

Federal Criminal Defense: Right to Counsel and Indigent Defense

The Sixth Amendment of the United States Constitution provides that “…[i]n all criminal prosecutions, the accused shall … have the Assistance of counsel for his defence.”  This was expanded by the United States Supreme Court (SCOTUS) to mandate that anyone who cannot afford to pay for an attorney has a constitutional right to have counsel provided to them at the government’s expense.  See, Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963) and the correlated Criminal Justice Act (18 U.S.C. § 3006A).

A great many federal criminal proceedings do involve appointed counsel, such as the attorneys employed as federal public defenders (FPDs) at the Federal Public Defender’s office for the Northern District of Texas. However, a significant number of federal criminal matters are undertaken by Texas lawyers in private practice who have dedicated themselves to advocating for those who are facing possibly significant sentencing and punishment for one or more serious federal felony charges.

Within the Texas criminal defense bar, you will find a select group of attorneys who are actively involved in federal defense cases.  Not every person is eligible for representation by an FPD.  Not every Texas criminal defense lawyer practices in federal court. 

Why Practice in Federal Criminal Defense?

For those criminal lawyers who work for people who have entered into the federal criminal justice system, there are many times when they are asked why take that extra step?  Why not stay within the lane of Texas criminal cases?

It’s a good question. While both state and federal criminal systems share the common foundation of constitutional protections, things veer off pretty fast.  Federal criminal defense means studying and understanding the Federal Rules of Evidence and the Federal Rules of Criminal Procedure, as well as things like the particular requirements of each federal court.  These are all very detailed and exact.  One example: Local Rule CR-47 of the Criminal Rules for the Eastern District of Texas, where motions must be filed in accordance with Local Rules CV-5 and CV-10, which include requirements like:

 “No single electronic file, whether containing a document or an attachment, may exceed fifty megabytes in size. Documents or attachments in excess of fifty megabytes must be divided into multiple files and accurately described to the court.”

Failure to follow with precision all these varied, specific rules and regulations can mean missing filing deadlines or other very serious consequences for the accused.  It is a tremendous responsibility to practice in federal court.

My answer here has to be that those who continue to practice federal criminal defense, year after year, must do so because of their passion for the job.  The complexities are challenging, yes; but they are necessary hurdles in what for many has become a calling. 

Felony Crimes Prosecuted in Federal Court: Complex Representations

Complications in practicing criminal defense in federal court also involve the types of cases that are built by the AUSAs.  Their law enforcement investigations may take months or years, and they will often involve a multitude of interrelated federal criminal laws when arrests are made.  These are big, multifaceted representations.

Why?  A federal agency like the FBI may work alone, with other federal agencies, or in tandem with state and local authorities under various task forces.  Some in Dallas may remember “Operation 50/50 Love,” for example, as a joint effort between the FBI, DEA, ATF, and the Dallas Police Department  to investigate and arrest alleged drug traffickers in the North Texas area.  Read, “Gangs, trap rooms and party rooms: New details shared on FBI raid at a Dallas apartment complex,” written by Eline de Bruijn and published by WFAA on June 11, 2021.

Their efforts are well-funded.  They will take their time.  And there can be all sorts of people involved here, from experienced investigators to supporting subject-matter experts that help find evidence from facts in things like hard drives, bank documents, etc.

Federal criminal defense lawyers understand that AUSAs and their investigative teams are going to have people with special expertise and education on their side.  These are specialists like forensic accountants who read a balance sheet and track financial records in a money laundering scheme or tax fraud case, or computer programmers and techies who can take a seized hard drive and eek out all its information regardless of where it is hidden or if it has been “deleted.”

• See, Encryption and Law Enforcement Investigations: Police Access to Encrypted Data.

Accordingly, the defense team will have to bring their own experts to the table with their own stellar resumes and proficiencies who will be able to take the witness stand and give their countering opinions, as need be, to thwart the government’s case.  These federal matters may need several different kinds of defense experts who work with the federal defense attorney not only to understand the details of the government’s file but the weaknesses or flaws they reveal when applied to evidentiary requirements or elements of a federal criminal statute.

These cases involve serious felonies.  Federal criminal defense lawyers will fight for those accused of serious things like:

• Federal tax fraud
• Money laundering
• Drug trafficking
• Health care fraud
• Human trafficking
• RICO (racketeering)
• Criminal conspiracy
• Mail fraud and wire fraud
• Immigration violations (entry or re-entry)
• Firearms violations.

To learn more here, read our earlier discussions in articles that include: Racketeering in Texas: Criminal Defense Against RICO Charges; Fentanyl Charges Under Federal Law: Felonies and Range of Sentencing; and Alien Smuggling in Texas: Federal Felonies & United States Sentencing Guidelines.

Federal Representations Involve the United States Sentencing Guidelines

And there’s another big, big distinction between state and federal criminal defense practices:  in federal matters, the defense attorney must understand the interworking of the United States Sentencing Guidelines (USSG).

There are no uniform sentencing guidelines in Texas criminal cases in state courts.  The USSG exist because of the uniqueness of the federal system, in an attempt to make sure that someone convicted of a federal crime in one part of the country will receive similar punishment as someone in another, faraway state.

The USSG enumerate a range of punishments to be applied by the judge as calculated using the Sentencing Manual.  They are not mandatory; the federal judge may have the power to make his or her sentencing decision outside the guideline recommendations.

Defense attorneys at the sentencing hearing may be able to advocate against their application in the particular case.  For example, read Fort Worth Federal Judge John McBryde Child Porn Downward Departure Sentence.

For more on the USSG (including examples of calculations using the Sentencing Tables), see:

• Money Laundering and Federal Sentencing Guidelines;
• Federal Sentencing Guidelines On Federal Child Pornography Cases;
• Federal Crimes and Sentencing Guidelines: Health Care Fraud; and
• Methamphetamine Trafficking and Federal Sentencing.

Bail Is Different in Federal Criminal Cases

Another thing: getting someone’s freedom back after they have been arrested and are awaiting trial is much, much different in federal proceedings than in a Texas case.  It’s not as easy in federal charges to “make bail,” and there are those that argue of a “culture of detention” within the system.  Read, New University of Chicago Study’s Shocking Revelations of Federal Bail Injustice: Systemic Errors and the “Culture of Detention”.

In sum, federal bail proceedings must comport with the Bail Reform Act.  The federal judge makes the decision on whether or not the person may be released (under certain conditions) or if they have to stay behind bars (“detained’) until their trial.

1. Hearing Under Criteria of Bail Reform Act

The defense preparations for the federal bail hearing must be detailed in both the gathering of facts for evidence and legal research for arguments to the court.  The judge is required to consider things like if the accused is a flight risk, or if they will pose a danger to the community at large or to a specific individual if they are freed on bail.

2. Motions for Detention and Presumptions of Pretrial Detention

Additionally, the defense may have to argue against a Motion for Detention filed by the AUSA who wants detention through trial and bail denied.  The defense lawyer must also be alert to federal laws with language that presumes pretrial detention unless the defense lawyer can successfully overcome (“rebut”) this legal presumption.  An example here is a felony drug charge coming with a possible sentence of ten years or more; there is a presumption that this person should be detained within the statute.

• For more on federal bail, read Bail after Federal Arrest in Texas and The Bail Reform Act of 1984.

Plea Negotiations in Federal Criminal Cases: Going to Trial

Most federal cases do not go to trial; instead, plea negotiations happen between the AUSA and the criminal defense attorney.  Plea offers from the AUSA must be given to the federal defendant, and the accused will work with their counsel on how best to respond.

Of note, the United States Constitution is clear that the accused has every right to go to trial and that this is to be done speedily.  Having an experienced criminal defense lawyer with actual trial experience can be very important here.

For instance, my website is clear that I have tried over 150 jury trials.  Years of working with prosecutors at both the state and federal level confirm that going into a courtroom to advocate for my client is something I am prepared to do.  This comes with a very different negotiating stance than someone new to practicing law, or someone who is known to avoid the pressures and anxieties of advocating for someone in a jury trial.

On the flip side, having years of experience also helps in plea bargaining when considering whether or not to enter a guilty plea and “take the deal.”  From my perspective, everything must be prepared before presenting the considerations to the accused, from every piece of possible evidence in the AUSA’s file to the likelihood that some of this stuff may be ruled inadmissible by the judge.  Not everything the AUSA wants to enter into the trial gets to go before the jury!

There has to be a discussion about the impact of the USSG on the matter, as well.  How do the Sentencing Tables work here – what is their past criminal history and what will that do in the pending case?

The experienced federal criminal defense lawyer will be able to calculate the likelihood of success in the AUSA’s ability to prove up their case through witnesses and documentary evidence at the high burden of “beyond a reasonable doubt.”

• How much of the file is fluff and may be excluded on grounds like hearsay?
• How much of the file is solid, supporting every element of the criminal statute(s) allegedly violated by the accused?
• Is this an overconfident AUSA or is this a file where there is a real possibility that the jury might come back with a guilty verdict, resulting in a much harsher sentence than is offered in the plea deal?

To learn more about plea negotiations in federal cases, read: Plea Bargaining and Making Deals in Federal Felony Cases: Criminal Defense Overview; and What Happens When You Plead Guilty to a Federal Drug Crime? From Guilty Plea to Sentencing Hearing in a Drug Case.

Defenses to Federal Crimes

Finally, the reality that someone is facing federal charges based upon federal criminal law means that they are facing tremendous, life-altering realities that must be met with a zealous and aggressive defense.  Just as federal complaints and federal indictments will be multi-faceted, the countering defense may be varied and diverse.

The experienced federal criminal defense lawyer will look to the details of the government’s case as well as simultaneously undertaking an independent investigation of both facts and law to support any number of distinct defense arguments.

It is commonplace for federal defense attorneys to consider defense arguments against the merits of each piece of evidence, for instance.

• Has there been a violation of due process in an illegal search and seizure?
• Has a particular piece of evidence been tainted in some way, making it inadmissible?
• Can something be argued to be improperly authenticated?

Alongside these considerations are coupling the government’s evidence against each element of each criminal statute in the allegations.

• Is there proof of each element?
• Does it meet the burden of proving the case beyond a reasonable doubt?

Finally, there will be independent defenses that may be available, depending upon the particulars of the situation.  These may include things like an alibi; coercion; duress; consent; entrapment; or self-defense.

Several potential defenses are listed in Rule 12(b)(3) of the Federal Rules of Criminal Procedure, which provides that defense motions to be made before trial include the following defenses, objections, or requests:

(A) a motion alleging a defect in instituting the prosecution, including:

(i) improper venue;

(ii) preindictment delay;

(iii) a violation of the constitutional right to a speedy trial;

(iv) selective or vindictive prosecution; and

(v) an error in the grand-jury proceeding or preliminary hearing;

(B) a defect in the indictment or information; including;

(i) joining two or more offenses in the same count (duplicity);

(ii) charging the same offense in more than one count (multiplicity);

(iii) lack of specificity;

(iv) improper joinder; and

(v) failure to state an offense;

(C) suppression of evidence;

(D) severance of charges or defendants under Rule 14; and

(E) discovery under Rule 16.

Representing Federal Defendants in Criminal Cases Filed in Texas

After practicing criminal law here in the Lone Star State for over twenty years, I am proud to be a member of the criminal defense bar.  I am honored to be included among the elite group of 782 Board Certified Criminal Law lawyers in the State of Texas, recognized by the Texas Board of Legal Specialization, having been board certified since 2007.

In representing those who enter into the federal criminal justice system, I advocate for their interests while having compassion for them and their loved ones.  These are some of the most horrendous experiences many of them will ever have to face.

More and more, federal investigations are involving those who are recognized professionals who are devastated to find themselves in need of the services of a federal defense lawyer.  Having federal investigations into their lives is especially devastating.  See, e.g., my discussion in HealthCare Fraud Prosecutorial Trends in 2024: Predictions Based Upon Latest OIG DOJ Enforcement Report.

Finally, in conclusion to the answer of why I represent clients in the federal criminal justice system, I point to the Standard 4-1.2 of the Defense Function established by the American Bar Association which includes:

(a) Defense counsel is essential to the administration of criminal justice…;

(b) …The primary duties that defense counsel owe to their clients, to the administration of justice, and as officers of the court, are to serve as their clients’ counselor and advocate with courage and devotion; to ensure that constitutional and other legal rights of their clients are protected; and to render effective, high-quality legal representation with integrity;

(e) Defense counsel should seek to reform and improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to defense counsel’s attention, counsel should stimulate and support efforts for remedial action….; and

(f) Defense counsel should be knowledgeable about, and consider, alternatives to prosecution or conviction that may be applicable in individual cases, and communicate them to the client….

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read, ”Federal Investigations:  Target Letters, Proffers, and Plea Deals.”