Attorney David A. Faulkner has a strong educational background. He is a former Assistant State Attorney (prosecutor), a former Special Agent with the Federal Bureau of Investigation and a Class C Licensed Private Investigator.
Interviewer: Can you give us several possible scenarios of federal crimes?
Public Corruption, Which Includes A Public Official Using Their Position to Further a Criminal Act, Is a Federal Crime
David: Federal criminal statutes cover a great variety of crimes. Public corruption is one such category of crimes. Public corruption offenses are crimes committed by public officials, where they essentially use their position in public service to further the crime. When I worked as a Special Agent with the Federal Bureau of Investigation, I was assigned to a Public Corruption Unit in Miami, Florida.
As an example, during my service as a Special Agent, I had occasion to investigate an ongoing bank fraud that was being committed by local law enforcement officers. In a different case, I investigated a probation officer who had been taking bribes from probationers he was supervising. Another common example of a public corruption offense would be a politician that is giving special favors to certain constituents who have offered the politician bribes or kickbacks. For example, it is a crime for a politician to award a contract to a company and, in return, received a kickback from the recipient of the contract. Those sorts of offenses would fall under the category of public corruption.
Medicaid and Medicare Fraud Are Federal Crimes
Health care fraud is a huge area of federal involvement. There is a great deal of fraud that occurs in relation to the Medicaid and Medicare programs. For example, there are some unscrupulous healthcare clinics that claim to give services, but not actually provide them.
Possession or Distribution of Child Pornography Can Constitute Federal Crimes
Federal law enforcement is heavily involved in the investigation of the possession and distribution of child pornography. This area of criminal activity is prolific.
One of the largest areas of federal involvement in criminal activity involves the illegal trafficking of narcotics such as cocaine and heroin. A large number of federal cases are created in that area.
There is a wide variety of federal crimes. The categories are growing all the time. There is no shortage of new laws.
Interviewer: What about immigration offenses? Do you find many cases in Florida because of the heavily concentrated immigrant population?
Voter Fraud Is a Federal Crime
David: Yes, there are a variety of immigration related federal criminal offenses. One of the immigration related federal crimes I saw being prosecuted in Miami was voter fraud. Individuals who are here in the United States, who are not citizens yet they vote. For example, there was a case down in Miami where an elderly woman had lived in the United States for approximately 30 years. She knew she was not a citizen, yet she voted in the election.
Believe it or not, they do prosecute voter fraud. That particular individual was found not guilty by the way. There are other immigration-related offenses such as smuggling illegal aliens into the country that will also be prosecuted.
Federal Law Enforcement Officers Sometimes Bring Their Cases to State Officials for Prosecution
Interviewer: When is a criminal case prosecuted in state court versus in federal court?
David: Whether a potential federal criminal offense is prosecuted in state court versus in criminal court is often a decision made by the United States Attorney’s Office. Federal prosecutors tend to be rather picky with regard to the types of cases they will except for federal prosecution. That is because they have limited resources that they want to use sparingly on cases that will give them the biggest bang for their buck.
It is not unusual for federal law enforcement officers to take a criminal offense that could be prosecuted federally to state prosecutors. That sometimes occurs when a federal prosecutor has informed the federal law enforcement officers involved that the case is not suitable for federal prosecution.
In the Federal System, Federal Law Enforcement Will First Go to the U.S. Attorney’s Office to See if Their Case is Prosecutable
In the federal system, federal law enforcement officers will work hand in hand with Assistant United States Attorneys in deciding whether or not to further criminal investigations. They will first go to the U.S. Attorney’s Office to find out if the U.S. Attorney’s Office wants to prosecute the case; otherwise they won’t waste their time.
In the State System, the Police Rarely Contact the State Attorney’s Office Before Pursuing an Investigation
In the state system, it is a rarity for local law enforcement to first contact the State Attorney’s Office before pursuing a criminal investigation or making an arrest. In the federal system, the opposite is true. That is one unique aspect of the federal system versus the state system.
If an Offense Violates Federal Statutes, It Can Be Federally Prosecuted
Interviewer: When a person is facing firearm or drug related charges, at what point would they become federal crimes?
David: If they violate federal statutes, then they can be federally prosecuted. Usually the criminal offense in question needs to have some sort of federal nexus. For example, in child pornography related cases, the mechanisms for transportation or transmittal of the images are a factor. Your typical computer part is made in different states. While a person’s computer may be in Florida, the hard drive or other components of the computer may have been made in Michigan. Therefore, interstate commerce is impacted such that there is a federal nexus.
Because Federal Resources Are Limited, Federal Cases Are Primarily High Impact or They Will Be Prosecuted by the State
Because there are limited federal resources, federal authorities want cases that are of high impact. For example, a fraud case typically needs to involve millions of dollars before they will expend their resources to prosecute. They are unlikely, for example, to take a $20,000 fraud case. Such a small case would most likely be more appropriate for prosecution in the state system.
Volume Is a Factor in Whether a Drug-Related Crime Will Be Prosecuted Federally or by the State
Interviewer: At what point does a drug-related crime become a federal matter versus a state matter?
David: I think It is an issue of volume, mainly. A large percentage of the drugs in the United States originate from Mexico or South America. Again, federal agents are going to focus on larger operations. They are not there to address the local street dealer. They are looking for major operations that are moving multiple kilos of product.
If you are a drug dealer and you are just selling to your small network of friends, that is typically not going to get the attention of federal authorities. If you are moving large quantities from one city to another, that is a different scenario. That volume of product will typically get the attention of the federal authorities.
Interviewer: If someone has a felony conviction and they are subsequently caught with a firearm illegally, does that constitute a felony and a federal offense?
David: A felony is defined as a criminal offense that is punishable by a specific length of incarceration. If the penalty for the crime consists of one year or less of incarceration, then it is considered to be a misdemeanor offense. If the penalty is greater than one year of incarceration, then the offense constitutes a felony.
Federal Offenses Can Be Non-Felony Offenses
That is what really defines what is or is not a felony. There are felony and non-felony federal offenses. For example, I recently handled a case where a couple was on one of the beaches here in Florida that was on a portion of federal land. It was associated with one of the Air Force bases.
They got into an argument with one another and allegedly exchanged physical violence. Federal authorities who were in the area then charged one of them with having committed a battery on federal property.
That is a federal offense, but it is not a felony, yet you will still deal with that in federal court. That particular offense was actually prosecuted by a Judge Advocate General Officer with the Air Force, an Air Force JAG officer.
Ultimately, we were able to get the case dismissed, but nonetheless you can imagine one’s surprise to find out there offense is a federal crime because it occurred occurred on federal property.
Interviewer: How does the federal process differ from the state process? Are there any misconceptions that people have about federal charges?
David: I would say there are several differences between the federal process and the state process. One of the big differences between the two systems relates to what we call “discovery”.
In a Case Prosecuted on the State Level, the Defense Attorney Has Full Access to Any Evidence in the Possession of the Prosecution
Discovery is whatever police reports, witness statements, and/or physical evidence that law enforcement has compiled and which the state may use to prosecute the accused. The defense has the right to examine those materials.
There Is No Open Discovery in a Federal Case
In a Florida state court, the defense is going to know most of the facts ahead of time before ever going to trial. In the federal system they do not have open discovery such as that. They will give you what we call Brady material, which is evidence that might go toward the guilt or towards the innocence of the person, what we call exculpatory evidence.
Other than that, the defense attorney in a federal case may have to actually wait until a witness testifies at trial before receiving a copy of the witness’ written statement. Only then may the defense attorney have the right to a copy of the witness’ written statement.
Then you may say “Well, Your Honor, I need time to review this witness statement and investigate it.” The judge may say “Okay, I’m giving you five minutes.”
State Sentences Tend to Be Lighter Than Federal Sentences
The federal system of sentencing is typically far more draconian than that of the state system. One can typically expect a prison sentence if convicted of a federal criminal offense. Conversely, the same type of offense is likely not to involve prison in the state system. Of course, there are many exceptions, but this is a general rule of thumb.
First Offenders Tried in State Court Have a Greater Chance of Not Receiving a Prison Sentence than do First Offenders Tried in Federal Court
In the state system, a person is not going to go to prison on their first offense as a general rule for most crimes. They may not even go to prison on their second or third offenses. Obviously, if the offense was murder or something serious like that, they may go to prison. In the federal system, first time offenders are typically going to get prison of some length.
That is another one of the major differences between the federal system and the state system. There is much more cause to be concerned about one’s future if you are charged with a federal offense. That causes the stakes to be much higher in the federal system than in the state system.
Interviewer: What are some of the things that clients have done that may hurt their case?
Always Have Your Attorney Present When You Speak with Law Enforcement
David: This may apply to any criminal case. One of the biggest mistakes that is made is talking to law enforcement without having a lawyer present. That is a serious problem, as even an innocent person can incriminate themselves.
Many people feel, “I’ve got nothing to hide and if I just tell law enforcement the truth, we’re going to get this all straightened out.” People also often believe that the cops are going to be lenient with them and that they might let them go if they cooperate with them.
Even an innocent person can say things that help the prosecution’s case. Let me give you an example. An individual has been charged with a sexual assault. They know they did not do it, but law enforcement comes and they say, “We are investigating a sexual assault. Where were you on such and such particular night at such and such time?” The person replies, “Well, I was at the convenience store just down the road from my home.” Unbeknownst to the individual, however, the alleged sexual assault happened in the immediate vicinity of the convenience store in question. The person would have just told law enforcement they were in the area where the crime occurred and had the opportunity to commit the crime.
Seemingly Innocent Answers to Police Questions Can Lead to Self-Incrimination
Let’s say the allegations involved a child. Law enforcement ask, “Does your child take bath?” Then the accused replies, “Yes, my child takes a bath.” “Do you sometimes assist your child with the bath?” The person responds, “Well, yes, I’m the father. Of course sometimes I assist my child taking baths.”
To the innocent father, what he just said was completely and 100% innocent. However, law enforcement conveniently neglected to inform the father that the allegations involved inappropriate touching of the child while the child was taking a bath. The individual would have just confirmed two things that the child had said with regard to the allegations. That’s just one example of how a completely innocent person may say things that will help confirm parts of the prosecution’s case.
It Is Inadvisable to Resist Law Enforcement
Another mistake to avoid is to resist law enforcement, unless law enforcement is using excessive force that is really endangering the person’s life. They should not resist law enforcement. Resisting law enforcement will only make the situation worse. It creates another charge the person must deal with.
Lying to a Federal Law Enforcement Officer Is a Serious Offense
If someone lies to a federal law enforcement officer they can also face an additional charge. For example Martha Stewart, she did not get convicted of the original charge she faced.
They did not actually go forward with the charges against her. What they actually convicted her of was making false statements to law enforcement investigators. It is better to just not talk to law enforcement officers without an attorney present. Law enforcement officers can sometimes hear what they want to hear and they may contort what you have said.
They may hear the parts that they want to hear, and ignore the parts that they that do not support their position. By choosing to just not answer law enforcement’s questions, the accused can avoid the he said/she said situation where the law enforcement officer claims the accused said one thing, while the accused claims that he or she said something completely different. All things being equal, Courts will typically side with the law enforcement officer.
Federal Law Enforcement Officials Do Not Always Record Conversations and This Can Lead to Your Word against Theirs during Trial
Even in this modern day it is not unusual for federal law enforcement officers not to record statements, believe it or not. Law enforcement will often fail to record statements because they know that judges tend to believe law enforcement officers over the accused. That is why it is very important not to make statements unless you absolutely have to.
Interviewer: What if federal agents try to call you or make contact with you. Are you obligated to meet with them and answer their questions?
All Citizens Have the Right to Remain Silent
David: No! View are never obligated to talk to a law enforcement officer. We all have the right to remain silent, and not to answer questions that are put to us by law enforcement or other government officials in an effort to incriminate us.
It Is Best to Contact an Attorney so They Can Discover What the Nature of the Investigation Is
The best thing to do when contacted by a federal law enforcement officer is to first contact an attorney immediately. That attorney can contact law enforcement back and try to determine what they want, and to then go from there.
As in my earlier example, “I don’t have anything to hide,” is the mentality that most people tend to have. It is not unusual for law enforcement to show up at 5:00 in the morning. The reason they do that is that they want to catch you off guard. They want to catch you when you are surprised, intimidated and most vulnerable.
They want to use that to their advantage. They want you to feel weak and intimidated to the point where you make a statement—that if you had more time and were under different circumstances—you probably wouldn’t make.
Federal Investigations May be Ongoing for Years before an Arrest Is Made
Interviewer: It seems as if, between the local, state and federal agent, that the federal agent has a bit more weight in terms of information that they can ultimately get, what will differ?
David: I do not know that federal law enforcement has greater access to information than does state law enforcement. I find, however, that often times federal law enforcement officers are more thorough federal cases tend to not happen overnight.
In Most Federal Cases, Law Enforcement Can Devote Much More Time to Investigate and Gather Evidence against the Accused
In a typical federal case, federal law enforcement has been investigating the case for years. It is not unusual for a federal case to have been investigated for a year or two before they ever make first contact with the accused.
State Cases Occur Spontaneously, Such as in a DUI Arrest
A typical state case occurs more spontaneously. For example, if you are pulled over for DUI, the arrest occurs right then and there. Such a DUI case is not an one that lends itself to extended investigation. That’s a major difference between the two entities. Federal agents have more time than your typical state law enforcement has.
David: If someone is in the stage where law enforcement is first contacting them, the best thing they can do is, number one, not resist; number two, do not make any statements unless a lawyer is present and representing them. Those are the two biggest mistakes to avoid. Do not resist and do not make any statements without a lawyer present.
It May Be Advisable to Immediately Seek Counseling or Treatment
In the post arrest stage of events, there are many things an individual can do to increase their likelihood of success in a federal case. If it is a situation where the evidence is pretty clear that the person has done whatever it is that they have been accused of, then they can start by getting counseling.
The Court May Impose a Lighter Sentence If an Effort at Rehabilitation Has Been Made
In my opinion, the more counseling a person undergoes, the better the end result. This is because in the federal system there are federal sentencing guidelines. There are possible grounds for departing below a guideline sentence, for example, for an offense that scores seven years in prison. One of the possible grounds for departing below that seven year sentence is if the person has had undergone extraordinary post-offence efforts at rehabilitation.
That is something that can be started right away. For example, an individual accused of child pornography could immediately begin sex offense related counseling.
If they initiate treatment as soon as possible, when it comes time for sentencing they can have their counselor testify on their behalf. The counselor can speak in front of the judge about the extraordinary efforts that the person has made to try to address their compulsion to look at the offenses materials in question.
In a Fraud Case, the Individual Can Attempt to Gather Funds for Restitution
In a fraud case, the person can try to gather the funds to pay restitution. There are many things that people can do to try to make their situations better. An attorney has to be creative to identify the best tactic to him employ for each particular client. The attorney must assess a client’s particular situation, has the best route to take varies from case to case.
Interviewer: I would imagine that many of the clients that you work with are undergoing various issues like stress, guilt, and remorse. Is this normal first of all and how do you work with clients that are feeling this way? What sort of behavioral insights have you discovered?
David: I think if someone has done something that they know they should not have done that it weighs on their conscience. They may feel bad for what they did. What I often tell people is that you cannot go back and change the past.
It Is Important to Try to Stay in a Positive Frame of Mind
We do things in our life that if we could, we would like to go back and change them, but that is not possible. We do not have time machines where we can go back and undo what is done. The important thing is how we deal with the current situation, which is to address the situation head on and to do everything one can do to handle the matter in a positive way.
I always tell people that you cannot change the past. What matters is how you deal with it moving forward. So that does get into the psychological aspect of things. I think that is important. If someone is feeling guilty or depressed because they did something that they know they should not have, my advice is this: First of all, it is a good emotion to experience. This is because we hope that people have a conscience and if they have done something wrong, that they regret it.
That is not a bad thing. It is important to focus on the positive in terms of what they can do now to address their situation head on.
When law enforcement targets you there are certain things that are out of your control. You cannot stop law enforcement from moving forward with their case. You cannot make the Assistant United States Attorney not file charges.
A Proactive Attitude Can Empower You during a Situation You Have Little Control over
Those are the things you cannot control, but what you can control is how you deal with the situation and your attitude and your positive approach in terms of doing everything that you can that is within your power. If you are proactive and obtain counseling, that is something you can empower yourself with so that you are not totally a victim to circumstances.
Interviewer: Are there any sort of federal crimes that it would be better for someone to feel guilty and throw themselves at the mercy of the court or should they always fight the case?
It Is Imperative to Proceed Cautiously in the Federal System
David: In the federal system, one must proceed very cautiously. This is because acceptance of responsibility in the federal system is huge. It can make a difference of several years of imprisonment. An individual who accepts responsibility can get up to a three point reduction in their sentencing guidelines and that could mean years off their sentence.
You do not want to be aggressive and lose the acceptance of responsibility points unless that is really in your best interest. Usually federal prosecutors, even the discovery rules that we talked about earlier, are not as friendly as they are in the state system.
Federal Prosecutors May Share a Great Deal of Information They Have against You, in the Hope That You Accept a Plea Bargain
Commonly, federal prosecutors will share a great deal of information with defense council because they want to show the defense council the strength of their case. This is because they typically want the client to enter a plea.
If after reviewing the material the prosecutor has provided it becomes clear that the government has a strong case against the accused then you may not want to proceed aggressively because that could really lengthen the amount of time that the individual receives in terms of a sentence of incarceration.
On the other hand, if the government’s case is weak and if their evidence is questionable, then you may want to be more aggressive. I don’t think the decision about whether to be aggressive or not is really based on the offense itself.
I think it has to be decided based upon the strengths or weaknesses of the government’s case and the defense’s case. I would focus more on the evidence in deciding whether to be aggressive or not rather than the actual nature of the charge itself.
Interviewer: If it appears that an individual is being investigated, are they going to need to contact a lawyer? Do many people feel overwhelmed when researching what attorney to retain?
What would you recommend for that person to look for in a lawyer to handle a federal crime? What are some warning signs this attorney isn’t the right one for you?
It Is Advisable to Seek an Experienced Attorney That Is Well Versed in Federal Law
David: I think they need to look for a lawyer first and foremost that has the necessary experience. The federal cases that we have been talking about are very serious cases. You may not want to get a lawyer who is fresh out of law school.
You want a seasoned lawyer who is experienced and who has time working in the federal system under their belt. There are many lawyers out there who have little or no experience in terms of handling federal cases.
For example, in our firm we have handled many federal cases. I am a former Special Agent with the Federal Bureau of Investigation, so we have that kind of experience to bring to bear on a federal case.
How Heavy Is This Attorneys Caseload? Will Your Case Receive the Attention It Deserves?
You want to make sure that you find a lawyer who is going to work hard. Part of that is quite frankly pricing. In the current economic climate, there are lawyers who will quote very low fees. They will take any type of case because they are just trying to get business in the door. Oftentimes, those types of what I call low quote lawyers make their business through volume.
Getting What You Pay for: Don’t Make a Decision Only Based on Price
The more cases that you have, the less individual treatment you can give to a particular client. It is just human nature as a general rule, and so if a lawyer is quoting a fee that is too good to be true, it probably is.
The better lawyers, your experienced lawyers who know what they are doing in federal cases are typically going to charge higher fees. If you talk to a lawyer and they are quoting a low fee for a case, I think that you have to question, as a consumer, why they are quoting such a low fee.
Federal Criminal Defense Case History
Interviewer: Could you think back and share with us one of your more unique cases that you’ve worked with?
David: Oftentimes in federal cases, for the individual who is facing charges in a case where the government has strong evidence in terms of proof, an issue of cooperation may arise. Many times, the degree of cooperation an accused may provide to the government in prosecuting co-defendants in the case or other individuals who have not even been named can be a factor in the resolution of their case.
For example, I represented a young woman whose boyfriend had become involved with bank fraud. He would essentially commit fraud in obtaining loans for various different vehicles with no intent to pay them back and he would also have to legitimize stolen vehicles.
This young lady who worked at the bank was this gentleman’s girlfriend and she had no knowledge of his activities. She thought it was some sort of legitimate business enterprise that he was involved in. She would assist him in various different ways that to her, were innocent.
When he was arrested, the authorities discovered her involvement and she was facing potential federal bank fraud charges. I became involved in the case. We assisted her in cooperating with federal law enforcement authorities. As a result of her work, as guided by our service, she was able to avoid not only federal charges but state charges as well.
Getting an experienced attorney involved, for example, a former federal agent like me, who knows how to work with law enforcement, can sometimes make all the difference in the world. The right attorney can influence whether or not charges are going to be brought against the person. That is just one example of a case where we had great success for our client.
Interviewer: What would be the best way to contact you?
David: The best way to contact us it to call us at 321-332-6864. We answer our phones 24 hours a day. We understand that law enforcement will contact people at all hours of the day.
We make ourselves available at any hour to assist people. We certainly do get calls where the police are knocking on the door and we will answer those calls and assist that person. If they call 321-332-6864, we will be in a position to assist them.
Interviewer: Is there a website or email they can contact as well?
David: If someone wants to contact us on the web they can go to www.kplegalteam.com. There is a wealth of information on that website as well as our contact information. On the site, you can be connected to a live chat feature. The person you are connected with can answer questions for you as well.
We have a lot of resources on the site to help people get in contact with the lawyer when they really need one and to provide information.
In conclusion, I would just like to add that there is no reason to go this alone. At Katz & Phillips we are extremely experienced. We have many years of legal experience and you do not have to face the challenges and the accompanying emotional stress alone. I would like to advise anyone facing charges that it is always beneficial to contact us early and often.