Office of the Federal Public Defender-Northern District of California

 

San Jose Courthouse

 

Frequently Asked Questions

General Information | Petty Offenses | Felony Offenses | Parole | Treaty Transfer

Frequently Asked Questions - Petty Offenses (Minor Tickets on Federal Property)

I have received a ticket while on federal property, now what do I do? If you have received a ticket for a minor offense while on federal property, you generally have the option of either paying the fine or appearing in federal court to contest your ticket. If you choose to pay the fine, please follow the instructions on the ticket you received. If you choose to contest your ticket, do not pay. You will soon receive a letter giving you a date on which to appear in federal court. If the officer wrote a date on your ticket, please call our office prior to your date to see if you are on the court's calendar

I want to protest my ticket. How can I do that? You will soon be sent a letter with a court date. You must appear on that date at the place and time specified in the letter. You should bring with you everything that supports your argument. For instance, photographs, witnesses (or a witness’ statement, signed under penalty of perjury, as to what occurred), and/or diagrams can sometimes help to prove that you were given the ticket unfairly.

What is the "Petty Offense Calendar?" "Court" for minor infractions on federal property is often called the "Petty Offense Calendar." It is not like a typical federal court appearance; there is no judge, and you are not entitled to an attorney. The petty offense calendar is more like a structured settlement or negotiation proceeding, with representatives of the United States Attorney's Office making offers to resolve the case.

The petty offense calendar can be slow, crowded, and frustrating for those fighting tickets. The procedure, however, often produces deals that are in the defendant's interest when compared to the original fine amount, or with the consequences of a conviction at trial. Remember, moreover, that someone who has resolved a ticket can always assert the right to go to trial in front of a magistrate.

D.U.I. offenses, and many drug offenses, do not qualify for the petty offense procedure. These cases begin directly before a federal magistrate.

What will happen at the "Petty Offense Calendar?" If you have received a ticket and wish to contest your ticket, you will receive a notice giving you a court date on which to appear. When you appear on that date, you will not see a judge. Instead, you will have the opportunity to meet with a representative of the United States Attorney’s Office in an effort to settle your ticket. After hearing your side of what happened, the U.S. Attorney’s representative can do one of three things – dismiss the ticket, reduce the fine amount and ask you to pay that, or ask you to pay the full fine amount. You can accept or reject their offer to settle your ticket. If you reject their offer to settle, you are effectively asking to go to trial. If the U.S. Attorney’s representative asks you to pay a fine and you agree to pay the fine, the US Attorney's office in San Francisco does not consider it a conviction. Other jurisdictions may consider payment to be a conviction. It is called a forfeiture of collateral and, according to the United States Attorney’s Office present policy (2/8/2005), it will not be reported to the Department of Motor Vehicles, the State of California, or to your insurance company. If you do not agree with what the U.S. Attorney’s representative is asking you to do, you can tell her that you want to exercise your right to go to trial. The clerk of the court will then give you another court date for the trial or will make arrangements to notify you by letter of your court date for trial. Please keep in mind that if you are found guilty following your trial, it will be considered a conviction and the judge can choose to report it to the Department of Motor Vehicles, the state of California, and/or your insurance company. Any vehicle code vilation is not generally reported to the DMV per the US Attorney's past policy (12/2012).

I received my letter with my court date and I cannot make it on that date. What do I do?
You should call the clerk’s office right away and ask to reschedule your court date. Their phone number is 415.522.2000.

Can I get a payment plan or community service?
You must appear at your court date in order to request either a payment plan or community service. If you want to pay the fine or if you choose to accept the U.S. Attorney’s representative’s offer of paying a particular fine, you can ask for either a payment plan or community service. You should be prepared to share details of your financial situation in order to demonstrate that either a payment plan or community service is necessary. The U.S. Attorney’s Office will not let you do community service for religious groups. You may generally perform any other charitable/community work for an established organization and receive credit towards your fine. If the U.S Attorney’s representative permits you to do community service, she will give you the appropriate forms which must be completed by the organization. Usually, at the completion of your community serivce, the ticket will be dismissed

General Information | Petty Offenses | Felony Offenses | Parole | Treaty Transfer

Frequently Asked Questions: 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 lodged against 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 a 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 Northern District of California's Court Clerk's office.

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 federal 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.

General Information | Petty Offenses | Felony Offenses | Parole | Treaty Transfer

Frequently Asked Questions: Parole

What is the difference between supervised release and parole?
Supervised release and parole are similar in many ways. Supervised release and parole are both forms of post-incarceration supervision by the United States Probation Office. The rules and regulations governing supervised releasees and parolees are similar. Violations of either supervised release or parole can result in additional time in custody. Both supervised releasees and parolees are entitled to an attorney when charged with violating the terms of their release. There are, however, important differences between parole and supervised release.

Persons sentenced in federal court for conduct occurring before November 1, 1987 were sentenced under so-called “old law” or “pre-Guidelines” law and are subject to parole. Parole involves release from incarceration before the end of a sentence. Parole is a form of custody served in the community under the supervision of the Probation Office and under the jurisdiction of the United States Parole Commission. Parolees remain in the custody of the Attorney General while on parole. Violations of parole are handled by the Parole Commission. Parolees are not entitled to a hearing before a federal judge.

Supervised release is an additional term of supervision that must be completed after a person completes his or her term of federal custody. It applies to persons sentenced for offenses committed after November 1, 1987. Such persons are subject to the United States Sentencing Guidelines (also known as “new law” or “Guidelines” law) and are not entitled to release parole before the end of a sentence. Persons on supervised release are supervised by the Probation Office, and remain under the jurisdiction of the United States District Court. Violations of supervised release are handled by the District Court, and supervised releasees are entitled to a hearing before the District Court.

I was sentenced under “old law” and am now on parole. The Parole Commission has issued a warrant against me. What will happen now?
A parolee against whom a warrant or summons has been issued will either be taken into custody or be summoned to appear at a hearing. In the Northern District of California, parolees are usually held at FDC-Dublin. Unless a parolee has been convicted of a new offense, a Probation Officer will personally advise him/her of their legal rights, including the right to an attorney and the right to present witnesses. The Probation Officer will conduct a preliminary interview, which may be postponed to allow you to obtain a lawyer for the preliminary interview. The parolee has the right to an attorney at the preliminary interview, and if you cannot afford one, one will be appointed for him or her.

At the preliminary interview, the Probation Officer will discuss the charges which have been placed against you and will then submit a report to the Commission. In this report, the Probation Officer will recommend whether there is “probable cause” to believe that a violation has occurred and whether you should be held in custody pending a revocation hearing or be reinstated to supervision. The Probation Officer will advise you of the recommendation and the basis for it.

After the Probation Officer’s report is received, the Regional Commissioner will either order you reinstated to supervision or order you held for a revocation hearing by a Hearing Examiner. You also have the right to an attorney at a revocation hearing. Again, if you cannot afford an attorney, one will be appointed for you.

If you have been convicted of a new state or federal offense, you are not entitled to a preliminary interview because the conviction is sufficient evidence that you violated the conditions of release. In such case, you may be transported without delay to a federal institution, usually at the FRC-Oklahoma, for a revocation hearing.

How do I get an attorney for a preliminary interview or a revocation hearing in a parole violation case?
You may contact the Federal Public Defender’s Office in Oakland and ask to speak to the parole attorney. You may also ask the Probation Office or the FDC-Dublin case manager to contact the Federal Public Defender’s Office in Oakland to request counsel. If you qualify financially, counsel will be appointed for you.

General Information | Petty Offenses | Felony Offenses | Parole | Treaty Transfer

Frequently Asked Questions: Treaty Transfer Inmates

My daughter (sister, mother) is an American who was convicted and sentenced in Mexico and has now been brought back to the United States. What is going to happen?
Female federal treaty transfer defendants are often held in the Northern District of California. Therefore, this discussion will assume the inmate is female.

Pursuant to 18 USC § 4106A(b)(1)(A), the United States Parole Commission determines a release date and a period of supervised release for a Treaty Transfer inmate, by applying the Federal Sentencing Guidelines to the sentence for the offense for which the inmate was convicted. This process will begin upon her initial meeting with a lawyer from the Federal Public Defender’s Office in Texas.

Following this meeting (and when the U.S. Marshals can schedule the transfer), she will probably be transferred from the Hudspeth County Jail in Texas to a federal women’s prison in Dublin, California. (If she is very ill or very pregnant, she may stay in Texas. Most women, however, are transferred to California.) Once she is transferred, a lawyer from the Federal Public Defender’s Office in San Francisco will go to the prison to meet with her to explain the process, to complete some paperwork with her and to respond to any questions she may have. If you would like to speak with this lawyer, you may do so by calling our office and requesting to speak with the lawyer who handles the “treaty transfer cases.”

The completed paperwork will then be given to a United States Probation officer who has been assigned to her case. This probation officer will also have a copy of the translated Mexican court documents. After conducting some investigation into the defendant's background and her plans upon her release, the probation officer will interview her. The probation officer will ultimately recommend a sentence to the United States Parole Commission. The lawyer who represents your family member will also submit his or her ideas regarding what the sentence should be to the Parole Commission. The Parole Commission will then determine your family member’s release date.

How long will this process take?
The speed of the sentencing process in the United States depends on the offense of conviction in Mexico, and the amount of custody already served abroad. The process of determining a release date will take at least three months and can take longer if, for instance, the defendant was convicted of transporting a large quantity of drugs, was convicted of murder or has many prior convictions. Keep in mind that her release date may be immediate or it may be months/years in the future. The release date will depend, in part, upon the type of offense she committed and on her background. In no event will the United States sentence be longer than the Mexican sentence.

When will she be released?
Once the Parole Commission determines a release date, the Commission will fax this determination to the prison where the defendant is housed. The prison will then subtract her good time and her work credits from this release date. You can check on your family member’s release date at the Bureau of Prisons website. Please keep in mind that until the Parole Commission has determined a release date and the prison has subtracted all good time and work credits, the website will list the release date based on the Mexican sentence the defendant received and not the date which the Parole Commission and prison might give her.

General Information | Petty Offenses | Felony Offenses | Parole | Treaty Transfer