The Benefits of Hiring Defense Counsel Early On in the Case

In white collar criminal cases, the importance of consulting experienced federal criminal defense counsel at an early stage in the government’s investigation cannot be overstated. The capabilities criminal counsel brings to the table include identifying areas where criminal liability might exist, understanding the pre-indictment process, and being able to influence the government’s charging decisions altogether.

One of the biggest differences between “street crime” cases (murder, drugs, guns) and white collar cases (fraud, bribery, money laundering) is when the government’s investigation takes place. With street crimes, the arrest and investigation usually take place during a compressed time frame. Think gunshot, 911 call, chase, arrest, and charges. With white collar cases, however, you usually have the investigation first—which may span several months or years—and then the arrest. This unique aspect of white collar cases allows experienced federal criminal defense attorneys to get right in the middle of that process and influence the types of charges (if any) that the government brings.

The chief capability defense counsel brings to the table is reviewing the facts and identifying areas where criminal liability might exist. In other words, diagnosing the severity of the problem. Consider the following anecdote.

The biggest difference I see between my clients charged with street crimes and those charged with white collar crimes is this: The street crime defendants usually understand why they’ve been charged and are adamant about cutting the best deal possible. My clients generally avoid questioning the legality of murder or robbery.

The white collar clients, however, often harbor a genuine belief that they didn’t do anything wrong—no matter the weight of the evidence against them. “That’s not tax fraud because everybody does it.” “That can’t be wire fraud. We didn’t lie to investors. What ever happened to buyer beware!?” “This can’t be bribery. I never verbalized what I wanted the guy to do! He just took the money.” The common denominator with arguments like these is they mistakenly assume somebody besides me will care or that these are actual legal defenses to criminal charges. They are not.

The problem, then, is that the white collar crime suspect takes a wait-and-see-what-happens approach, finding it unnecessary to hire a defense attorney until the government brings charges. People who wait for the defecation to hit the rotary oscillator will find themselves in a significantly worse position; indeed, an easy thing put off becomes a hard thing, and a hard thing put off can become an impossible thing. So understanding the severity of the situation will inform defense counsel’s strategy moving forward.

The second capability defense counsel brings to the table is understanding the pre-indictment process and being able to influence the government’s charging decisions. Often overlooked is the fact that the most successful criminal defense attorneys are the ones who prevent a criminal charge in the first place. Although capturing less media attention than a full acquittal at trial, these victories (avoiding charges altogether) are the most cost-effective. Search up any variation of “white collar defense attorney” and you’ll find that among their top achievements are some version of “client not charged” or “government declined prosecution.” 

But once an indictment hits the federal docket, defense counsel will be stuck defending against the charges the prosecutor has selected. Making matters worse, the price point for criminal defense counsel can double once the client is indicted. That’s because the U.S. Attorney’s position has graduated from mere consideration of criminal charges to an intent to convict. And that effort, once triggered, will involve the full force of federal machinery; investigative agencies and the vast array of resources at the government’s disposal. Mounting even a decent barrier to that storm may require assembling a team of multiple defense attorneys, retaining expert witnesses, extensive research and writing for pre-trial motions, dozens of hours spent reviewing discovery, rehearsal and preparation for trial, and ultimately trying the case. Whatever the cost of retaining counsel up front, it will almost always shrink in comparison to the cost of defending against a federal indictment. 

Experienced and knowledgeable criminal counsel may be able to avoid that mess in the pre-indictment stage. First, criminal counsel can make factual arguments when discussing the evidence with the prosecutor and explain why it would be difficult to prove certain things to a jury. Even something as basic as characterizing a witness’s motivations or bias might nudge the prosecutor towards realizing the case will be harder to prove than he initially thought. 

Next, there may be an affirmative defense the prosecutor has overlooked. An affirmative defense is used when the government can prove all the elements of the crime, but the accused presents a set of facts that, if believed by the jury, requires a not guilty verdict. It’s like saying “yes, the government has proved A, B, and C, but I am still not guilty because we proved X, Y, and Z.” Examples of affirmative defenses include the defense of entrapment, which may be available when government agents induce an otherwise law-abiding person to commit a crime; and the defense of withdrawal from a conspiracy, which may be available when the defendant can show that he took affirmative actions inconsistent with the criminal scheme and articulated his intent to withdraw to the co-conspirators. 

Fully developing the facts necessary to present a viable affirmative defense requires defense counsel to conduct a complete and thorough investigation, primarily because it is the defendant (not the government) that has the burden of proving an affirmative defense. Preparing a presentation on one of these defenses for the prosecutor up front may be the wiser course instead of rolling the dice with that defense at trial. If the attorney’s presentation is well-prepared and persuasive, the prosecutor may decline to prosecute altogether. 

Persuading the government to decline prosecution altogether is a best-case scenario. But if the government is adamant about bringing some type of charge, defense counsel can influence which ones are brought to mitigate his client’s sentencing exposure. Consider the following. 

Most federal crimes carry a statutory maximum prison sentence. And many illicit activities can be charged under more than one criminal statute. Let me run that by you again: many illicit activities can be charged under more than one criminal statute. For example, Paycheck Protection Program (PPP) loan fraud can be charged under the wire fraud statute. 18 U.S.C. § 1343. Wire fraud carries a max sentence of up to 30 years. But the government can also charge the suspect with a conspiracy to defraud the United States under 18 U.S.C. § 371. That statute caps the sentencing exposure at 5 years. Same conduct, different sentencing exposure. 

The point here is that if the government is adamant about bringing some type of charge, defense counsel can influence which ones are brought to mitigate his client’s sentencing exposure. But if the suspect sits back and waits until an indictment is issued, defense counsel will have no influence over which charges the government brings.   

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The practice of hiring defense counsel before a grand jury issues an indictment is less of an insurance policy and more of a pre-emptive effort at diplomacy before the first shot is fired. Because for the accused, an indictment is a declaration of war: the government is coming after his liberty and his assets. Once a prosecutor decides to indict, he will likely become intractable; it is often easier to persuade someone not to do something in the future than it is to convince him to roll back something he’s already resolved to carry out.

Adopting a cavalier attitude to federal criminal liability is a bad gamble because the house wins over 95% of those bets. “If I haven’t been charged yet, I cannot justify the expense.” This wait-and-see approach is flawed. The wiser course is to mitigate the potential for criminal charges at the pre-indictment stage. Hire an experienced federal criminal defense attorney—one who is well-steeped in the vast array of potential criminal charges available to a federal prosecutor—who can advise on an appropriate course of action to avoid or mitigate criminal liability and sentencing exposure at an early stage.

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About the Author: John J. Dowling III is a federal criminal defense attorney based in Charlotte, North Carolina. He represents business owners across the country in federal white collar fraud cases.

Disclaimer: This article is for educational purposes. Nothing in it should be construed as legal advice. Fraud charges are complex and unique, requiring a case-by-case review from a defense attorney well-versed in the mechanics of federal criminal law. If you are under investigation for a crime, you should contact an attorney to review your case.