About Dr. Nick Oberheiden
Attorney Dr. Nick Oberheiden focuses his practice on federal litigation matters, predominantly federal criminal defense cases. Nick has represented elected officials, politicians, lawyers, prosecutors, federal agents, physicians, nurses, accountants, executives from the entertainment and sports industry, pilots, and business owners from all walks of life.
In far over 500 federal criminal cases, Nick has avoided charges in 94% of all cases. In indicted cases, Nick has avoided jail time for his clients in serious computer offense cases, probation in health care fraud cases despite damage amounts in the hundreds of thousands and more, as well as other unique sentencing outcomes significantly below the recommended range. Those clients of Nick whose best (or only option) was to plead guilty, routinely ended up with the best outcome of all defendants in the case. In terms of dismissals and trial outcomes, you should inquire for your specific offense and situation at 866-Hire-Nick. Just in the past few months, Nick and his team dismissed several fraud cases, including a health care fraud indictment.
The Post-Indictment Options
If you or your business is under investigation or even indicted, you must realize that every step you take or fail to take can have a substantial impact on your future. Don’t experiment with lawyers that lack the specific federal experience needed to protect you and advise you based on proven results obtained in federal cases in the past. Call Nick directly at 866-Hire-Nick for a complimentary assessment, including on weekends. Once you are indicted, there are three main options. First, your lawyer can petition the court to dismiss the indictment. Second, you can, upon the advice of your attorney, plead guilty. Third, you can contest the allegations and invoke your constitutional right to a jury trial. Let’s look at each of these options.
(1) Dismissing an Indicted Case
Dismissal. Most clients ask their lawyers to “get rid of the indictment.” They want their lawyers to dismiss the case. While this practice of asking the court to dismiss the case is a routine approach for any defendant in a civil case in federal court with decent success chances in cases, in which the plaintiff failed to state a claim or failed to assert proper jurisdiction, as two examples. Dismissing a federal indictment, however, is an anomaly.
Procedurally, the defendant must file a motion with the court pursuant to Federal Rules of Criminal Procedure Rules 12, 47 to raise a defect in the prosecution or indictment including improper venue (case is pending in the wrong division or district), unnecessary and unconstitutional delay, a violation of the right to a speedy trial, vindictive prosecution, errors in the grand jury proceeding, combining two or more offenses in the same count, charging the same offense in more than one count, lack of specificity, improper joinder of defendants, failure to state an offense, or reasons of suppression of evidence. Basically, the defendant must show that he or she should not have been charged, should not have been charged for those offenses, or should not have been charged based on a violation of constitutional rights. The request for a dismissal and other pretrial motions must be made timely and in accordance with the court’s case schedule.
Despite the wealth of potential reasons, dismissals in federal criminal cases are rare, for two reasons. First, the system is built on its trust into the grand jury process. That means that a judge cannot simply overturn the decision of the grand jurors who authorized the indictment. It is the constitutional task of the grand jurors to deliberate and decide on whom to charge. Second, almost all requests for dismissals are based on the defendant’s claim that the government’s allegations are wrong. In other words, the defendant will say that he did not commit the offense, the offense is unjust, and that he is not guilty. The problem with this position is that in the federal justice system the questions of innocence and guilt are exclusively assigned to 12 jurors. In other words, a federal judge is not authorized to decide whether the government’s factual accusations or the defendant’s denial of facts ought to be believed. Deciding facts is the jury’s job.
Nonetheless, every defendant is entitled to a careful review of all options by his or her trusted attorney. Doing so, helps honing the strategy and demonstrates to the prosecutor that the defense team is ready to stand up and fight the charges in every way. Also, there are instances in which a request for dismissal is most promising such as instances of prosecutorial misconduct and the statute of limitations. Both of these scenarios are extremely convoluted and therefore often good opportunities for a defense counsel to argue valid legal objections. When you call 866-Hire-Nick, you will learn how our team has obtained dismissals in past cases.
(2) Guilty Plea
Plea Deal. Statistically, most indicted federal cases result in the defendant pleading guilty to one or all of the offenses charged pursuant to Rule 11 of the Federal Rules of Criminal Procedure. This is very unfortunate because each plea waives the defendant’s rights to a jury trial and appeal among other important constitutional privileges. While for many lawyers it is the first or even the logical resort, it should actually be the last of all available options to be considered. Call 866-Hire-Nick if you feel like being pressured into a plea by your attorney without him or her listening enough to your side of the story and without properly convincing you that a plea really is the best and only realistic option. Attorney Dr. Nick Oberheiden has literally taken the pen out of the hands of defendants that have asked Nick for a second opinion and in each of those cases either avoided an indictment or obtained a significantly better deal for his clients.
The most important thing to consider about a plea is this: make sure your lawyer does not merely recommend a plea because he is uncomfortable preparing for trial. The only justification to accept a plea is that the lawyer is absolutely convinced that, after most careful deliberation and after a diligent review of all available evidence and information, your lawyer must reasonably conclude that a plea is the best option for you. Don’t rush to plead guilty, especially if you are a professional like a physician or an accountant. A plea will mean that you will lose your professional license and credentials and with it your ability to practice medicine, law, accounting, real estate etc.
A plea ought to be a negotiation, not a surrender. The government and the defense lawyer may discuss (and then specify in the plea agreement) whether the government will remove other charges, the sentencing range (e.g. concrete provisions of the Federal Sentencing Guidelines or simply a “cap” of “no more than X years”), that certain sentencing factors do or do not apply (e.g. enhancements, upward or downward departures etc.). In all instances the court may or may not approve the plea agreement, see Rule 11(c)(4)(5) of the Federal Rules of Criminal Procedure.
(3) Going to Trial
Trial. The third option should always be your lawyer’s first option, that is to signal the government that you are ready and willing to take the case to trial. Because preparing for trial is a lot of work, requires undivided attention, and calls for strategic legal skillset, few attorneys are able or willing to lead a federal trial defense team. If you have doubts about your lawyer’s ability or skillset, you should immediately consider a second opinion.
To be clear, going to trial always has to be the logical choice in each case. Why? Just like few defense lawyers have a desire to prepare for a lengthy and complex federal criminal jury trial, prosecutors, too, suffer time constraints and can hardly afford the time to abandon all other cases for several months to prepare for a single trial. Further, most Assistant United States Attorneys are relatively young and have joined the Justice Department after less than five years in private practice following law school. No matter how strong a case might look like, every prosecutor is aware of the big elephant in the room: the jury. Jurors have consistently shocked and appalled lawyers since the first jury trial in the American Colonies in 1630. With a mathematical chance of 50% winning and 50% losing, the odds of a slam dunk for the government are never near as high as a prosecutor may suggest.
Even if the evidence against a client is overwhelmingly negative, your lawyer cannot signal to the prosecutor that he or she is afraid or unwilling to consider a trial. Doing so simply eliminates your bargaining power. In other words, even if it is already determined that your lawyer will ultimately ask for a plea, your lawyer should not arrive at the plea table by signaling surrender. Each plea discussion begins with the idea that your lawyer is ready for trial.
What Is Your Best Option? Get a (Real) Case Assessment
If you call 866-Hire-Nick you will be instantly in touch with Nick Oberheiden. No junior lawyer or paralegal will hold you off or waste your time by taking notes for someone else. A federal indictment is an extremely serious matter. Don’t make it even more serious by pursuing the wrong legal strategy or employing lawyers that are not 100% familiar with the federal criminal justice system and the way cases are being resolved in federal court. Call or contact him online today.