There are a number of federal defenses that can be raised in any federal criminal case.  However, because of the fact intensive nature of each case, whether a defense is appropriate will depend upon the particular facts.  Listed below are many of the defenses that can be asserted if the facts and circumstances warrant them.

Specific Intent Federal Defenses

●         Lack Of Intent:  Lack of specific intent to defraud or to seek advantage is a defense to fraud charges.  This defense is the affirmative response to the government’s burden of proving defendant’s intent to commit a specific intent crime.  If there is lack of intent by the defendant, there can be no specific intent which is a necessary element in most fraud crimes. 

●          Negating Mens ReaEvidence of a mental health condition can be submitted to support a contention that a defendant’s mental disease or defect rendered him incapable of forming the requisite intent of the offense.  In United States v. Roberts the United States Court of Appeals for the Fifth Circuit acknowledged evidence presented by a psychologist concerning defendant’s personality type undermining requisite intent was relevant.          

●          Automatism:  This is a condition similar to sleepwalking and is behavior that occurs in a state of unconsciousness or mental disassociation negating any specific intent alleged by the government.  In Government of the Virgin Islands v. Smith, the United States Court of Appeals for the Third Circuit recognized that evidence of defendant’s epilepsy causing him a seizure undermined the negligence element required to prove involuntary manslaughter charge.            

●          Advice of Counsel:  Asking an attorney for an opinion of the legality of a particular action and then relying upon that advice can be a defense.  These Federal defenses are raised in securities and healthcare fraud cases because it can negate the specific intent elements of some federal crimes.        

Affirmative Federal Defenses

●          Entrapment:  The essence of this defense is that defendant was not otherwise predisposed to committing the crime charged but was induced into doing so by law enforcement.  The key to this defense is showing lack of predisposition.            

●          Duress:  This is an appropriate defense where a defendant is under threat of imminent death or serious bodily injury.  The defense of duress does not negate defendant’s state of mind but it does provide a justifiable reason to escape liability.  This defense was recognized by the United States Supreme Court in United States v. Dixon

●          Necessity:  A necessity defense is applicable where a person acts in an emergency and out of necessity commits a crime that is less severe than what would have occurred but for the person’s actions.  A good example of the necessity defense would be an ex-felon who picks up a firearm to defend others being shot and killed during a bank robbery.  While it is illegal for an ex-felon to possess a firearm, the crime is necessary in order to prevent a greater harm – the slaughter of innocents.  While the traditional view has been that necessity is only applicable when the pressure to act comes from some natural event (e.g. fire, hurricane, tornado etc.) rather than other human beings, its viability will turn based upon the severity of the facts. 

●         Self-Defense:  Acting in self-defense is a viable defense to federal charges when a person acts to prevent a real or threatened attack.  However, there can be no self-defense when the defendant creates and inflames the situation or negligently/recklessly places himself in harms way. 

●          Defense of Others:  Defense of others can be a viable defense but only if the defendant uses a reasonable and right amount of force in defending against an attack.  For example, John pushes Steve at a football game and yells profanities at him.  Alan cannot strike John in the head with a baseball bat and claim this defense because his response is disproportionate to the threat.   

●          Withdrawal:  A defendant can assert this defense in response to a federal conspiracy charge if he withdrew from the conspiracy but in order to succeed, he must be able to show that he took affirmative steps inconsistent with the objective of the conspiracy and communicated his intent to withdraw to his co-defendants. 

Pretrial Defenses

●          Alibi:  This defense is available when defendant can show he was not present when the crime was committed.  This defense attacks the government’s proof as to an essential element of the offense. 

●          Insanity:  This defense requires defendant to prove that at the time of the crime charged he

(1) suffered from severe mental disease or defect and

(2) was unable to appreciate the nature and quality of the wrongfulness of his actions.  A defendant can obtain the service of a psychiatric expert if he plans to assert this defense.   

●          Public Authority:  To assert this defense, a defendant must show

(1) he was affirmatively told his conduct would be lawful,

(2) he was told this by an official of the United States government,

(3) the defendant actually relied on what the official told him prior to taking action and

(4) defendant’s reliance on what he was told by the official is reasonable in light of the circumstances.  This defense is similar to the defense of “entrapment by estoppel.”    

●          Outrageous Government ConductAt the heart of this defense is an allegation that the government engaged in such extreme and outrageous conduct that it offends basic notions of due process and fairness.  The focal point of this defense is on the conduct of government agents.  This defense is rarely successful and requires very extreme facts to succeed. 

●          Vindictive ProsecutionThis defense is also predicated on notions of fairness and due process.  A defendant must show that the prosecutor is acting in a retaliatory manner in order to prevent defendant from exercising some legal right.  The elements of this defense are (1) defendant’s exercise of a protected right, (2) a prosecutorial interest in the outcome of the exercise of that right, (3) unreasonableness of the prosecutor’s conduct and (4) the intent to punish the defendant for exercising the protected right. 

●          Selective ProsecutionThis defense can be raised when the government’s decision to prosecute is based upon an unjustifiable standard such as race, religion or some other completely arbitrary decision.  A defendant has to show that a federal prosecutorial policy or decision has a discriminatory effect and that it was motivated by a discriminatory purpose.  This a very hard defense to raise. 

●          VenueA claim challenging “venue” will not result in charges being dropped but instead a change in the forum where the case is being prosecuted.  For example, a defendant being prosecuted for mail fraud may challenge his prosecution in New York if the majority of conduct relating to the case occurred in California.


The law is very nuanced. Federal prosecutors have almost unlimited advantages and resources at their disposal. Having attorneys on your team that understand the law, keep abreast of legal developments in the law, have the experience dealing with the complexities of federal statutes and, finally, possess the skills to stand before a jury to make a compelling case on behalf of a client are not just important qualities, they’re critical. At The Federal Defenders. we pride ourselves on being advocates for our clients. With decades of experience with all variety and manner of federal criminal issues and defenses, we understand what it takes to put our clients in a winning position. For a free and confidential consultation, call us today at (800) 712-0000. Just like our toll-free number, we operate nationwide.