We often think of federal criminal prosecutions as the most serious of all cases but are there federal misdemeanors as well?   The answer is yes, misdemeanors are routinely prosecuted in U.S. District Courts alongside the major felonies.  Federal prosecutors have hundreds of potential misdemeanor charges in their arsenal – everything from familiar offenses like theft to arcane and little known offenses such as Unlawful Importation of Honeybees.  In this post we discuss how misdemeanors are prosecuted in U.S. District Courts.

What is a federal misdemeanor?

A federal misdemeanor is either an offense that violates federal law or an offense committed on federal property that violates state law.

The United States Code and the Code of Federal Regulations (CFR) contain many misdemeanor offenses.  Under the Assimilative Crimes Act, if a person commits an act on federal property that violates the laws of the state where the property is situated, it can be a misdemeanor under federal law.  For example, in the U.S. District Court in Alexandria, where we often practice, there are entire dockets dedicated to offenses committed on the local military bases.

A complete list of federal misdemeanors would be lengthy indeed as they number in the hundreds.  Examples of federal misdemeanors include theft of public property, failure to file an income tax return, and possession of controlled substances.

Different Classes of Misdemeanors and the Penalties They Carry

Everybody knows that misdemeanors are “less serious” than felonies but the legal definition is much more specific.  In federal court, as in most state courts, a misdemeanor is a criminal offense carrying no more than one year’s imprisonment.

The federal code breaks down misdemeanors into three groups.  Class C misdemeanors carry thirty days or less but more than five days and/or a $5,000 fine.  Class B misdemeanors carry six months or less but more than thirty days and/or a $5,000 fine.  Class A misdemeanors carry one year or less but more than six months and/or a $1000,000 fine.

Class B and C misdemeanors are sometimes referred to as “petty offenses.”

Offenses carrying 5 days or less are considered noncriminal “infractions” and therefore not technically misdemeanors at all.

Additional Consequences of Misdemeanor Convictions

As with any criminal offense, a federal misdemeanor conviction carries punishments beyond any prison and fine imposed.  For less serious misdemeanors and/or defendants with no record, the so-called “collateral consequences” may dwarf the punishments imposed by the judge.  Potential collateral consequences of federal misdemeanors include loss of employment, loss of security clearance, suspension of driving privileges, difficulties securing new employment and the stigma of a criminal record.

Misdemeanor vs. Felony criminal procedures

There are several important procedural differences between felonies and misdemeanors that you should be aware of if you face a misdemeanor charge.  Here is an overview of some of them:

• Grand jury indictment not required; other methods of charging misdemeanors – There is no constitutional requirement that a misdemeanor charge be returned by a grand jury.  The prosecutor does have the option to charge a misdemeanor via grand jury and may do so in some circumstances, for example where the misdemeanor is combined with felony charges that do require a grand jury finding.  Petty offenses (that is, Class B and C misdemeanors) may be charged via a citation or violation notice issued by law enforcement, a document which may resemble a traffic ticket in appearance.  Finally, the prosecutor may charge any misdemeanor via “criminal information.”  A criminal information is simply a written statement of charges drafted by the prosecutor and filed with the court.
• Different judges – Much of the action in misdemeanor cases occurs before federal magistrates rather than U.S. District judges.  Federal magistrates are not appointed by the President, typically handle less serious criminal and civil matters, and are authorized to impose up to 12 months imprisonment in criminal cases.  For petty offenses, or even non petty offenses where the defendant consents, the magistrate judge may handle the entire case from arraignment to sentencing.  Whether to proceed before a magistrate or district judge is obviously an important strategic choice.
• Different prosecutors – In the jurisdictions where we practice, misdemeanors are usually handled by the newer assistant us attorneys or by so-called “special assistants” – government lawyers from other agencies who temporarily act as prosecutors.  For cases arising from the military, the prosecutor will likely be a JAG officer (although he or she will appear in court in civilian attire).
• No right to a jury trial in some cases – There is no right to a trial by jury for Class B and C misdemeanors.  These cases are tried to a judge who decides the facts and renders a verdict.  It is usually an option to waive jury in favor of a bench trial for Class A cases, but this step should not be taken without careful consideration.  Practice tip: Misdemeanor dockets are often crowded and there may be subtle pressure to waive jury trial at the very beginning of the case.  Counsel should resist doing so until before carefully considering the decision and discussing it with the client.
• Appeal to district judge before appealing to Circuit Court of Appeals – For a felony criminal conviction, an appeal goes to whichever Circuit Court of Appeals covers that district.  For misdemeanor cases heard by federal magistrates, the first appeal is to a district judge in the same courthouse who will decide if the magistrate made any errors of law requiring reversal.  To take such an appeal, the defendant must file a notice of appeal with the clerk’s office within 14 days of the magistrate’s final order.  It is not a de novo appeal as is the case in some analogous two-tiered state court systems – that is, you will not have a second trial.  The parties in an appeal to a district judge submit written briefs about alleged errors of law by the magistrate, very much in the manner of an appeal before a Circuit Court of Appeals.  The district judge will decide if that magistrate made an error requiring reversal of the conviction.

Diversion programs are available for less serious misdemeanors

Many of our federal misdemeanor clients come into our office with a foggy notion that misdemeanor convictions should surely be removed from one’s record after a period of good behavior.

This presumption is understandable but inaccurate.  A federal misdemeanor conviction will never be expunged which brings us to the subject of this section – pretrial diversion programs.  Pretrial diversion programs are a special kind of plea bargain that allows you ultimately to avoid a permanent conviction.  Federal prosecutors are much more willing to consider them in misdemeanor cases than felonies.

One example of pretrial diversion 18 U.S.C. § 3607 which applies to prosecutions for drug possession.  This statute allows a federal judge to place the defendant on a period of probation and to later “without entering a judgment of conviction, dismiss the proceedings against the person and discharge him from probation.” (italics added).  The defendant will not have a permanent conviction if he satisfies the requirements of this statute.

Even where the U.S. Code does not have a special diversion provision for a given offense, it is possible for your defense attorney and the prosecutor to “create” one.  For example, with one recent client we reached an agreement with the prosecutor that a federal misdemeanor case would be continued and eventually dismissed if our client successfully sought treatment for certain conditions underlying the charged conduct.  He did and it was.

Federal Misdemeanor Sentencing

Although misdemeanors carry far less time than felonies, the difference between probation and a year in prison remains vast.  Sentencing proceedings therefore remain very important in misdemeanor cases.

In many ways, federal sentencing for misdemeanors is the same as for felonies.  For both classes of cases, the judge’s sentencing decision will be guided by 18 U.S.C. § 3553, the federal sentencing statute.  It requires the judge to consider a range of factors such as the defendant’s criminal history and the need to impose a just punishment for the crime.

Also as in felony cases, misdemeanor defendants have a right to speak on their own behalf (that is, not through their attorneys) before the Court pronounces sentence.  This is sometimes referred to as the “right of allocution.”

In other respects misdemeanor sentencing is different.  The judge may not order a presentence report and the sentencing proceeding may take place directly following the trial or plea.  However, it often possible request a continuance between trial and sentencing and the judge may agree to order a presentence report if the circumstances seem to warrant it.

In many cases, misdemeanor pleas an sentencings will not involve the often meticulously detailed plea agreements and statements of facts common in federal felony cases.  It is therefore important to work extra carefully with your attorney to address all details of a potential plea bargain before going to court.  Practice tip: Work out an informal written “statement of facts” with the prosecutor via email before going to court to minimize unwelcome surprises during the government’s sentencing allocution.

Another important difference for misdemeanors is the that the federal sentencing guidelines may not apply.  A complete explication of the guidelines is beyond the scope of this post but suffice to say that the guidelines are designed to provide a suggested “range” of sentences for a particular defendant’s case based on what other judges have done in supposedly similar cases.  The guidelines do not apply to Class B or C misdemeanors.

All of these differences place a greater burden on client and counsel to be prepared to persuade the judge to impose a reasonable sentence.

Consult counsel early

As with felony cases, it is important to consult counsel early.  Do not wait until the trial date is coming up to retain the counsel of your choice.  If you would like to speak to an attorney about your misdemeanor case, please contact us.