Federal Public Defender
Northern District of California
Barry J. Portman
Federal Defender
Frequently Asked Questions (FAQ), Felony Cases
How much is bail?
There is no fixed bail schedule in federal court. Under the Bail Reform
Act, 18 USC § 3141 et seq, the magistrate releases a defendant on
conditions sufficient to ensure a defendant’s continued appearance. Therefore,
release conditions, including bail,
can vary dramatically depending on the seriousness of the charges, the
defendant’s history, and the defendant’s financial circumstances.
Bail bondsmen are rarely used in federal court. The public defender assigned to
a defendant's case can give his/her family a better feel for the
conditions of release that will be required. In
every case, however, the more family and community support for the
defendant the more likely release will be granted.
How do family or friends post property for bail?
In most cases, federal pretrial release can be satisfied with a mixture of assets;
principally cash, real property (such as homes), and cars. The public defender will be glad to
meet with family and friends of the defendant to discuss different
options for meeting the bond amount.
The public defender can help with the paperwork to transfer a house for
bail. At minimum, posting a house for bail usually requires a recent
appraisal, a copy of all title and mortgage documents, and a deed made
out to the clerk of the Northern District. Family and friends can help
speed up the process by bringing all documents relating to a home –
mortgage documents, title reports, and deed records – to the public
defender for his or her review.
How long will this case take?
Under the Speedy Trial Act, 18 USC § 3161 et seq, a case is supposed to
proceed to trial within 70 days of arraignment on an indictment or
information. Some felony cases do resolve very quickly, within a month
or two from the first appearance.
Most felony cases, however, take much longer. The average felony case in
the Northern District takes one year from the arraignment to sentencing.
Complicated conspiracy cases or fraud cases can often take much longer.
Delays can come from the need to review discovery, interview witnesses,
bring and argue motions, negotiate plea agreements, and prepare for
trial.
The public defender will discuss the timing of the case with the
defendant, and will explain why any delays or continuances are
necessary.
Can you get me moved out of a particular jail?
Although this procedure can change, in general the U.S. Marshal first
holds defendants at Santa Rita jail. Most defendants are then moved to
North County jail in Oakland (Glenn Dyer), and a few are housed at FDC
Dublin.
The US Marshal controls where defendants are housed, and the judges of
the Northern District are very reluctant to order (or recommend) a
different jail. A court will not order a transfer to allow access to a
law library, or because the custodial conditions are better at FDC
Dublin.
If a defendant is having serious health or security problems in their
current jail, they should discuss the situation with their attorney.
I’m coming from another jail. Can you hold my property for me?
The Federal Public Defender cannot, unfortunately, hold property for its
clients because it does not have secured storage. Clients should have
property sent to their family or friends.
I’m fighting state gun charges. Will my case “go federal?”
The sentence for a federal gun case can often exceed three times the
state sentence for the same conduct. The United States Attorney’s Office
has the Triggerlock II program, which brings state gun cases to federal
court. If a defendant is fighting state gun charges, he/she should
discuss the possibility of ‘’federalization” with his or her attorney.
County public defenders or retained counsel are encouraged to call our office and ask for
the duty AFPD, to discuss the danger of “going federal.”
I’ve got a federal warrant on me in another district. What should I
do?
This sounds like an obvious answer, but a fugitive should immediately
surrender – either in the Northern District of California or in the charging district.
If a fugitive is caught by the U.S. Marshal, it makes it much more
difficult (if not impossible) to get bail on the case. Moreover, being a
fugitive can have a negative impact on the main case: it can result in
bad jury instructions, can increase a defendant’s sentence, and can even
result in new charges. If a defendant would like to surrender on a
federal warrant, he/she should call our office and we can arrange an
immediate surrender before a federal magistrate.
I’ve got a notice to testify before the Grand Jury. What do I do?
There are two broad types of grand jury witnesses: “targets” and
“witnesses.” A target is someone who the government may charge with a crime. A general witness just provides evidence to the
grand jury.
Sometimes the letter from the United States Attorney’s office will say
that the witness is a target. At other times, the witness will just
suspect that he or she is a target. In either of those situations, the
witness should either immediately hire an attorney or contact our office
and seek appointment of counsel. A private defense counsel or public
defender can review the facts of the case, contact the prosecutor to
determine the government’s interest, and can either negotiate for immunity
for a grand jury witness or instruct him/her to assert the Fifth Amendment,
if appropriate,
and decline to answer questions.
Federal agents want to talk to me. What should I do?
We do not discourage witnesses from speaking to law
enforcement officers or agents. However, everyone in the
United States has a constitutional right to refuse to speak to a law
enforcement officer. (Although, in some circumstances, one can be
required to identify themselves to a law enforcement officer). If you
think that you are the subject of an investigation, it would be prudent
to first contact an attorney before speaking to law enforcement – the
attorney can arrange an interview if it is appropriate. It is usually wise to have an
attorney present for all interviews with federal agents, if there is any chance
that you will be the subject of an investigation.
What is “discovery?”
“Discovery” is the evidence relating to the charges or to sentencing
that is produced by the government. “Discovery” can be five pages long,
consisting of a rap sheet and a police report. It can also be hundreds
of thousands of pages of documents in a complex fraud case. Discovery
can include photographs of the scene, an informant’s name and
background, or forensic evidence such as fingerprint or DNA analysis.
When public defender is appointed to represent a defendant, one of
his/her
first jobs is to ask for discovery from the government. Except for very
rare exceptions (such as sensitive information relating to a
confidential informant), a defendant has the right to see all discovery
provided by the government.
Can you help me with my habeas petition?
The Federal Defender represents inmates in habeas actions when a
district court grants a request for counsel, after a petition for writ
of habeas corpus has been filed. Our representation is limited to the
scope of the appointment; sometimes it can last through the entire
habeas litigation, at other times it is limited to a specific issue, or
evidentiary hearing.
Our office cannot offer general habeas advice or help to draft a
habeas petition. Inmates wishing to
file a federal habeas petition should speak to their counsel on the
original case or appeal. The habeas petition form is available
at the North District Court Clerk's office, or online
here.
How much time am I going to get?
That is a complex question that depends on whether a defendant is
convicted, the type of offense, prior criminal history, and a
defendant's unique characteristics.
Sentencing in federal court is controlled by the Sentencing Reform Act
of 1984. Under 18 USC § 3553(a), there are many factors that go into
sentencing in federal court, including the nature of the offense, the
characteristics of the offender, the need to pay restitution, and access
to medical and other treatment.
One factor that the court must consider is the Federal Sentencing
Guidelines. Calculation of the guidelines can provide one rough estimate
of a defendant’s sentence before a plea or trial. The defendant’s
attorney will be able to give more details about the defendant’s
potential sentence.
Can you recommend a private attorney?
If a defendant has too much money or too many assets for appointment of
the Federal Public Defender, our office can provide the names of three
or more attorneys who are on the list of CJA panel attorneys. These are
all experienced federal practitioners in the Northern District of
California. Note that the Federal Public Defender does not seek and
cannot accept referral
fees from private counsel.
I don’t like my public defender. How do I get a new one?
A defendant has the constitutional right to represent him or herself, to
hire the attorney of his/her choice, or to have counsel appointed. There
is, however, no right to appointed counsel of one’s choice.
If a client is unhappy with his/her public defender, the first and
obvious step is to discuss this problem with the attorney.
If the defendant and the attorney cannot resolve their differences, the
defendant can make a motion in court to seek new counsel. Note, however,
that new counsel will only be appointed when there has been a complete
breakdown in communications, and when the attorney can no longer
effectively represent the defendant. A judge will not appoint new
counsel because the defendant is frustrated by the facts of the case, by
law that limits any possible defenses or motions, or by a high sentencing
exposure.
How do I clear my criminal record?
In general, only very minor federal drug offenses can be expunged, under
21 USC § 844(a). Other federal convictions generally cannot be
expunged.
Can a defendant’s family come to court?
In general, the more family support a defendant has, the better it is
for a defendant and the case. In most cases, we encourage as many family
members to come to court appearances as is possible.
There are some situations, however, where a large family showing may not
help. For example, many people in the courtroom may complicate matters
when a confidential informant is testifying in a pretrial evidentiary
hearing.
Also, some judges do not like children in the courtroom. The attorney
appointed to the case can give more details about the best times for the
family to come to court.
Make sure that all cell phones and pagers are turned off before coming
into court.
If I'm convicted, where am I going to serve my time?
The federal Bureau of Prisons determines where a defendant is going to serve his or her time. There are many, many factors that go into this "designation," including a defendant's prior criminal history, the facts of the present case, his or her immigration status, and family ties to a particular community. The public defender appointed to the case can give a more-detailed description of the factors that will go into a particular defendant's designation.
The Bureau of Prisons has a web page
with descriptions of the various facilities, available
here.
