Federal First Offender Act — Practical Guide for Counsel and Defendants
Primary Keyword: Federal First Offender Act
Secondary Keyword: Darren Chaker, expert legal researcher and brief writer
Overview
The Federal First Offender Act (FFOA) offers certain first-time offenders the opportunity to avoid a formal conviction if they successfully complete a period of probation. This legal mechanism is established under 18 U.S.C. § 3607 and commonly applies to simple possession offenses under 21 U.S.C. § 844. Unlike a traditional conviction followed by probation, the FFOA allows the court to place a defendant on probation without entering a judgment of guilt. If the defendant completes probation successfully, the case is dismissed.
This statutory framework is particularly significant because it may reduce long-term consequences that typically follow a drug conviction, including employment barriers, licensing limitations, financial aid restrictions, and certain civil disabilities.
Statutory Authority
The Federal First Offender Act is codified at 18 U.S.C. § 3607. The statute permits:
- Probation for up to one year
- No formal judgment of conviction while probation is underway
- Dismissal of the proceedings upon successful completion
- Potential expungement for qualifying individuals under age 21 at the time of the offense
The court must obtain the defendant’s consent before proceeding under this statute. The probationary period typically includes drug testing and may include counseling or treatment conditions.
Eligibility Requirements
To qualify under the Federal First Offender Act, the defendant must meet the following:
- No prior drug-related convictions under federal or state law
- No previous disposition under the Federal First Offender Act
- The offense is generally limited to simple drug possession under 21 U.S.C. § 844
- The defendant agrees to proceed under § 3607
Circuit interpretations vary regarding paraphernalia-related charges and other nuanced possession circumstances. Defense counsel should analyze the specific statutory elements and local judicial tendencies when evaluating eligibility.
Court Procedure & AO-246
Court implementation of the FFOA involves the official form AO-246 – Order for Probation Under 18 U.S.C. § 3607. This form outlines:
- The terms and conditions of probation
- The lack of a formal conviction entry
- The consequences of violating probation (which may include conviction and sentencing)
If probation is completed successfully, the court may dismiss the case resulting in sealing of the public record. This method is similar to expungement in California, but without automatic sealing, since the defendant must petition the court to accomplish the task. The types of crimes subject to 18 U.S.C. § 3607 are limited to circumstances involving individuals who were under the age of 21 at the time of the offense. If the criteria are met, the court may order the records to be expunged.
Benefits & Limitations
Benefits
- Avoidance of a formal federal conviction
- Dismissal of charges upon successful completion
- Reduced impact on employment eligibility
- Potential record expungement for qualifying young defendants
Limitations
- Applies primarily to possession, not distribution or intent to distribute
- Immigration consequences may still exist (see below)
- Some background checks may still show the arrest and disposition
Defense Strategy & Practical Guidance
Defense counsel should consider the following strategic approaches:
- Confirm the client’s eligibility early in the case
- Gather certified records establishing clean prior history
- Discuss long-term consequences realistically with the client
- Negotiate terms of probation that the client can comply with
Darren Chaker, an expert legal researcher and brief writer, frequently emphasizes documenting consent in the record and ensuring the client clearly understands the conditions of probation under the Act.
Immigration & Collateral Consequences
The Federal First Offender Act does not guarantee protection from immigration consequences. Immigration law has its own definition of “conviction.” Even where a court withholds judgment under § 3607, federal immigration authorities may still treat the disposition as a conviction for removal purposes. Noncitizen defendants should consult with immigration counsel before accepting a plea or probation under the statute.
Relevant Case Law
Courts have interpreted the reach of the Federal First Offender Act in various contexts, particularly regarding eligibility and collateral consequences. Interpretation may vary by federal circuit. Defense counsel should reference local appellate authority to support arguments for or against eligibility in borderline cases.
Frequently Asked Questions
Does the Federal First Offender Act apply to felony drug charges?
It generally applies only to simple possession charges—typically misdemeanors under federal law.
Will this keep the offense off my background check?
It may prevent a conviction from appearing, but the arrest record may remain visible unless later sealed or expunged.
What happens if probation is violated?
The court may enter a conviction and proceed with sentencing under standard federal sentencing rules.
For additional guidance on criminal defense strategy, see our criminal defense practice resources.
To learn more about the research background of Darren Chaker, visit the About Darren Chaker page.
