Attorney Page Pate explains what happens when someone has been arrested and charged in a federal criminal case. Page walks through the usual steps, discussing the timing and procedures, and helps explain what to expect when facing a federal criminal indictment.
Most of the work that we do at our firm involves representing people in federal criminal cases. And almost everyone who is charged with a federal crime wants to understand what the process is. And it’s not just the person charged, their friends, their family members. It can be a very scary process, and they want to know what’s gonna happen next. So, I thought it might be helpful just to walk through the basic steps of a federal criminal case. Now, every case is a little bit different, but I’m gonna walk through the things that should happen in every case from start to finish. Now, this is gonna take some time, so grab a cup of coffee and let’s do this together.
Now, a federal case will start normally with someone being arrested and brought into federal court. And there’s going to be a couple of hearings that will happen in almost every case. The way you get to federal court, though, is that you’re charged by the federal government. And one way they can charge you is by a criminal complaint. And that basically means that a law enforcement officer has probable cause to believe that someone has violated federal law. They go to a federal prosecutor, they write up an affidavit, and they present it to a federal judge. And if that judge agrees that there’s probable cause that someone’s committed a federal crime, they will sign a criminal complaint, and then the person can be arrested.
Now, another way a federal case can start is with a grand jury indictment. They can bypass the complaint process entirely and investigate someone by using a federal grand jury. They can present witnesses to the grand jury, documents to the grand jury. And most people are not even gonna know what’s happening. Federal grand juries meet in secret. You can’t have a lawyer go there and represent you. You can’t cross-examine the witnesses who are testifying. Most people don’t even know they’ve been indicted until the indictment is issued and they’re arrested. If you have a criminal complaint first, you still have to have the indictment, and that comes about 30 days after the complaint.
Now, another way a federal case can start is with what we call a criminal information. And that basically means that the person has been under investigation, but their lawyer and the prosecutor have talked about the case and they’ve agreed that a certain charge is going to be presented in federal court. Now, that can be a good advantage to the person being charged because if their lawyer has that dialogue going with the prosecutor and they can agree on what the charge is, they may also be able to avoid an arrest, and the time that they go to federal court can be agreed on between the lawyer and the prosecutor. They go into the courthouse, they’re processed, they see the judge, they get a bond, and they’re released. Those are the ways that a federal case can start.
Now, what happens in court? In every federal case, the person being charged has what we call an initial appearance, and that means what it says. It’s their first appearance in federal court. That first appearance, they’re going to go in front of a magistrate judge, usually within about a day or two after being arrested. In some state cases, somebody may sit in jail for days before ever seeing a judge. In federal court, it usually happens within 24 to 48 hours. At that first appearance, the magistrate judge will tell the person what they’re charged with, tell them what their rights are, make sure that they have a lawyer, and then, usually, address bond. Can the person be released from jail pending trial? Now, in cases that start with a criminal complaint and not an indictment, the magistrate judge will also have a preliminary hearing. He will require, or she will require the federal prosecutor to put on evidence, usually the law enforcement officers who are involved in the case to prove that there is probable cause that a case should be brought. Otherwise, they’re gonna release the person who’s being charged.
A detention hearing is another way to describe a bond hearing in federal court. And it’s interesting they use detention instead of bond because, in most cases, where there’s going to be a detention hearing, there’s a presumption for detention, not a presumption for release. In simple cases or in less serious cases, the person charged is going to have a bond set at that initial appearance. But in drug cases or serious fraud cases, the government may ask for detention. They may file a motion saying, “Judge, we don’t want this person let out on bond pending trial. We want you to hold him in custody.” And when they do that, the court has to schedule a detention hearing. At that detention hearing, it is critical for the defense to present evidence, usually witnesses to show that the person being charged is not a flight risk and is not a danger to the community if released on bond. While the judge’s decision can be appealed if he denies bond, very hard to get a bond after that initial detention hearing. So, it’s really important to make sure that the lawyer is prepared so that you have your best chance of being released on bond.
Now, after the person is out of jail, you need to start thinking about building the defense. How are we going to respond to the charges and the evidence that the government has? Well, the first step in every federal case, really every state case, is you have to look at the evidence. And in federal court, there are very strict requirements about what the government has to produce to the defense and when they have to produce it. And we call it discovery material, and that’s the way it’s written up in the books, but it’s basically what evidence do you have that this person committed a crime? The lawyers can’t just accept what the government gives them, though. They have to ask for it specifically. So, in every federal case, we send a very formal, detailed letter to the prosecutor, making sure the prosecutor knows we believe we are entitled to certain evidence and if we don’t get it, then we go to the judge.
Now, you also can’t just accept what you get as discovery as being the entire case. In federal court, especially, the agents will write up their notes and their investigative reports from their viewpoint. And so they may say a witness said one thing about our client when, in reality, it was something totally different. So, a good defense lawyer is going to hire investigators and independent experts to challenge the government’s case, to do an independent investigation, an independent analysis of the evidence to see what the weaknesses in the case are. Critically important in any federal case is filing the right pretrial motions. That can be motions to suppress evidence for unlawful searches. In some cases, even a motion to dismiss may be appropriate. When you’re thinking about a trial, we have evidentiary motions to see what evidence can come in or can be excluded from trial.
And some lawyers seem to be reluctant sometimes to file a lot of pretrial motions, and they’ll tell their clients, “Hey, look, we don’t think we have a good issue here. Why waste the time?” It is never a waste of time to file a pretrial motion in federal court that you have some basis for challenging the government’s evidence. The worst case is that the motion can be denied, and then you’re, you know, no worse off than you were before. And you may be able to get a hearing, an evidentiary hearing in front of a judge where the government has to call their agents to testify. Your lawyer can cross-examine those agents, find weaknesses in the case, lock them into a particular version of the facts. And that can be very beneficial if the case goes to trial.
Filing pretrial motions also creates some leverage for the defense that you otherwise wouldn’t have. If you have a good lawyer, a smart lawyer, who’s done his homework, you can file a motion that may make the government nervous about whether they can get certain evidence admitted into trial. And then you have some bargaining power. Without those motions, you cannot expect the government to do the right thing or to try to help you because your lawyer is a nice guy. That is not how it works in federal court. Now a critical decision, probably the most critical decision that someone will face in a federal criminal case, really any criminal case, do I plead guilty or do I go to trial? A lot of factors are gonna weigh into that decision, and you have to have very candid, lengthy in-depth discussions with your lawyer about the right decision for you and your family when you’re facing federal criminal charges.
But I want to talk about plea agreements and why sometimes that may not be in your best interest, even if you want to avoid a trial. Most federal cases that are resolved by guilty pleas are resolved by plea agreements. And that’s a written agreement between you and the government about what the government is going to recommend, about what you’re going to recommend, and it also waives some of your important rights in exchange for that guilty plea. Plea agreements can be helpful if they limit the types of charges you can face, if they reduce the charges in the indictment, if they provide a good recommendation on some of the sentencing guidelines, or if there’s a binding agreement, a binding plea agreement about the specific sentence that you think is favorable.
Plea agreements can help. But make sure you’re getting some value out of the plea agreement. Don’t sign a plea agreement just to resolve the case. You can go in front of a judge and plead guilty without agreeing with the government about what the case’s sentence should be. And without a plea agreement, you’re not waiving your right to appeal certain issues on sentencing. So, don’t give up those rights unless you’re getting something for it in the plea agreement. And ask your lawyer, “I see you’ve presented a proposed plea agreement to me. How does this benefit me?” Not does it resolve the case. “What am I getting out of this deal?” Because if it’s not negotiated in the plea agreement, you’re not going to get it at sentencing.
Trial can sometimes be the right choice, and it certainly has been for many of our clients. We have gone to trial in federal criminal cases. We have won federal criminal jury trials. And most lawyers, if you try enough cases, you know which ones should go to a jury and which ones need to be resolved. There are, obviously, risk of going to trial, especially if you’re facing mandatory minimum penalties in the indictment. If you go to trial and you lose on one of the charges and there’s a mandatory minimum, the judge has no discretion with a few minor exceptions of giving you anything less than that sentence. But there are also cases where going to trial, you may end up better off than what the government was offering you as a plea before the trial. And I’ve had that happen. And the reason is the judge is going to hear about all of the case. Your lawyer is gonna have a chance to cross-examine those witnesses to challenge the evidence. If you just pled guilty and gave up all those rights, then the judge is gonna assume whatever the government says about the case must be true. And it is so much harder to challenge that evidence at a sentencing hearing than it is at trial. So, don’t give up the option of going to trial just because you think they have a lot of evidence or just because you think the sentence is going to be worse after trial. It’s not always so.
What happens, though, if you are convicted at trial or you work out a plea agreement that’s favorable to you? What’s unusual about the federal system, what’s different than the state system is that most people, when they enter a plea agreement or when they decide to plead guilty, they don’t know what their sentence is. It’s not like, “Okay, we’re gonna give you five years for this.” You go in front of the judge and you get five years. It’s a two-step process. You agree to enter the guilty plea, and then you find out what your sentence is. So, it’s very important not to stop working on the case from the defense lawyer’s standpoint, even after the plea has been entered. A lot of the work, many cases, most of the work is during that sentencing process.
The first step is a change of plea hearing. You reach an agreement with the prosecutor or you don’t, you just wanna plead guilty. You schedule a time to go in front of the judge and admit your guilt to one of the charges, a lesser charge, or you accept a plea agreement. That’s one proceeding. You are not sentenced that day. You go home or you go back into custody, depending upon what the case is about. The next step is that the probation office prepares a pre-sentence investigation report that’s going to be submitted to the judge to help the judge impose the right sentence. Before that report is prepared, you and your lawyer… and your lawyer needs to be there. You and your lawyer meet with the probation officer, probation officer gathers information about your background, your family, educational history, work history, and also some facts about the case to put together in a report that you get to see it, your lawyer gets to see it, the government gets to see it. And if there are any objections or changes you need to make, those can be communicated to the probation office before the report is packaged up and sent to the judge.
This report is crucial. Not only does it set the sentencing guidelines, at least the recommendation for how they should apply, but it also contains personal information about you and your case, which is not just gonna go to the judge. It’s gonna follow you to the Federal Bureau of Prisons. It is critically important that you sit down with your lawyer when that first draft of the report is prepared and you review it carefully. If there are any issues with it, you need to make clear to your lawyer what the issues are and make sure your lawyer gets those corrected. If it’s not corrected in the report before sentencing, you’re stuck with it.
After the report has been prepared, and this is usually about two to three months after you’ve entered the plea, you’re going to go back in front of the same judge for a sentencing hearing. Now, if your lawyer has waited until the sentencing hearing to make arguments in favor of your mitigating arguments, how your sentence should be lower, if you wait until the hearing, it’s far too late to make a difference in the case. In every federal case that we are involved with, we file a sentencing memorandum before the sentencing hearing arguing about why some of the guidelines are too high or incorrectly applied, or suggesting other reasons why this particular client should get a much lower sentence than the guidelines suggest, including character letters, sometimes videos of friends and family members.
We’ve got to give the judge a picture, a true picture of our client before we get to the hearing because, in federal court, the judges already read the presentence investigation report. The judges already read the government’s view of what the case is. And most judges, whether they’ll admit this or not, they come into court the day of the sentencing hearing, they already know what the sentence is. It’s written on a sheet of paper and they’re ready just to fill it out, send it in, and sentence the defendant. So, if you wait until the hearing to present all your good arguments about why a lower sentence is appropriate, you’ve waited too late.
So, those are the basic steps of a federal criminal case. Again, it is a confusing process. It is a lengthy process. It can last anywhere from a few months to several years. If you or someone you know is going through this process and has any questions at all, feel free to give us a call.