What Are The Stages of a Federal Criminal Case?

A federal criminal case generally begins with an investigation. At this point, the suspect likely will not be aware of the investigation. Once the investigation is complete and if the US Attorney’s Office believes it has enough evidence to convict, the matter, in secret, will be presented to a grand jury, which will listen and view the evidence. If the grand jury believes, after review of all the evidence, that there is probable cause to believe that a crime was committed, it will vote to indict. Since the indictment will be sealed, no one will know about it. Once the indictment is issued, a judge will issue a warrant for that person’s arrest. After the person is arrested, they will be brought for a first appearance, which is called an arraignment. A few things are decided at arraignment, one of which is the question of bail. These cases can go on for years before they get to a jury trial, so the issue of whether the person will be released during the pendency of their case is extremely important. In federal cases bail is usually secured by some property, in addition, guarantors, called suretors, are often required to cosign the bond. Sometimes a person is released on their own recognizance, which means they just sign a piece of paper saying they will return to court.

The judge must consider two factors when deciding on bail. The first factor is whether the person has any ties to the community. Is the defendant from the state where they are being charged? Does the defendant have a job, family, and friends in the area, and therefore a reason to come back to court? The second factor is whether there will be a danger to the community if Defendant is released.

Foreign defendants and those who get extradited to the US, generally lack any ties to the community and as a result, it is exceedingly difficult to overcome the first factor. Unless there is an agreement with the government to release the defendant on bail, these defendants will generally be held in jail during the pendency of their case.

During the arraignment, the Court will ask Defendant whether he reviewed the indictment and how he pleads to it. The person will say, “I plead not guilty,” and once the issues of bail are decided the court will adjourn the case for a status conference. Sometimes during arraignment defendants consent to detention without prejudice, which means they can again request bail at any time in the future. This is done so the defendant’s counsel can try to negotiate with the Government some bail package, or if the Government will not consent to bail under any circumstances, prepare and file a strong motion for bail. After arraignment, the government will provide discovery to the defendant’s counsel, which is the incriminating information that the government will use during the trial to prove the defendant’s guilt. However, discovery can also contain exculpatory or Brady material, which is information that is favorable to the defendant or shows that the defendant is innocent.

If the defendant is not cooperating and is going to a jury trial, then the court will set a motions schedule, which is the date or the deadline by which the defense must file its pretrial motions. It might include a motion to dismiss an indictment, a motion to suppress evidence due to an invalid search warrant, a motion to compel additional discovery, or any other type of motion that addresses some issue in the case. Once all motions are considered fully briefed the court will issue a decision and based on those decisions the case will go to trial, plead out, or will be dismissed. If the case is not dismissed and no plea is taken then there will be a standard jury trial that results in a verdict, and usually, a prison term if the person is found guilty. The defendant would not go to sentencing right away, but first to a pre-sentencing interview with probation, and that is a complicated process.

In the US, about 95 to 97 percent of cases end up with a plea. In most cases, after a review of the discovery following arraignment, the client will be given an option to either take a plea with cooperation or take a plea without cooperation. Whether the defendant takes a plea with cooperation or without cooperation will depend on many things, such as whether the defendant has information that the government wants.

The way cooperation works is extremely complicated. There are no promises upfront; the defendant must provide substantial assistance, and the government decides in its discretion whether such substantial assistance was provided. If it was, the government will give the defendant a 5K1 letter, which under the sentencing guidelines, gives the judge power to substantially reduce the sentence. However, even if the defendant did not receive a 5K1 letter because the government did not believe the cooperation was of a substantial value, the defendant could still show the judge how he or she cooperated and request a downward departure based on that.

After negotiating a plea agreement with the government, the defendant will usually sign a plea agreement, which is a document that will give the defendant an idea as to what type of sentence they will be getting. Again, there are no promises when it comes to sentencing in federal cases. In federal cases Judge’s look at the total offense level to calculate the recommended sentence under the guidelines. A total offense level is calculated in accordance with the sentencing guidelines and includes various upward and downward departures that can be argued by the defense and the government. Since there are no promised sentences in federal cases, a person could sign a 10-year plea agreement and get 15 years, or 3 years, the only sentence court cannot issue is above the statutory maximum set by Congress.

Even if the prosecutor recommends a specific sentence, it is still up to the judge. The defendant can make arguments based on their personal history, such as having been abused as a child or growing up without parents. In essence, these arguments can be made in order to show the judge why the defendant should not get a guideline sentence. For example, when asking for probation during the pandemic it was often argued that being in prison would be extremely dangerous.

In some federal cases, the defendant can cooperate after being sentenced. Criminal Procedure Law Rule 35 states that if a defendant cooperates with the government and the government files a motion within one year of the sentence stating that the defendant provided substantial assistance, then the judge can further reduce the sentence post-sentencing. If a defendant waited more than a year to cooperate after they were sentenced, they might still get a reduction under Rule 35 if they can show that during the first year, they did not know the information, but only became aware of it a year after being sentenced.

Can a Criminal Charge Ever Be Prosecuted at Both the State and Federal Levels?

Under the concept of “dual sovereignty”, state and federal governments may separately prosecute a defendant for the same crime if the criminal act in question violates both state and federal laws. However, in practice, this is rarely done, unless there is some reason for it. For example, if fraud was committed over the internet and the victim was in Chicago but the defendant was in New York, the defendant could get charged by the state of New York, the state of Illinois, and the federal government. In actuality, that would be extremely rare as only one authority will usually prosecute. What’s more, if a state starts prosecution but the federal government later gets involved, the state usually will step back and let federal authorities handle the prosecution.

Can my Attorney Work with Federal Authorities to Arrange My Surrender Before Arrest?

An attorney can work with federal authorities to arrange for a client’s surrender prior to arrest, although this does not generally happen. When it comes to federal cases, suspects are waking up at five in the morning at the crack of dawn with five agents standing outside their door. With that said, under some circumstances, a person’s surrender may be arranged. Usually, this happens in state cases where the detective would reach out to a defense attorney to let them know they are investigating their client, and request the client’s surrender on a certain day and at a certain time. In state cases the defendant goes before the judge during the first hearing and argues to be let out on personal recognizance, which means with no bail. The judge might allow this based on the fact that the defendant voluntarily surrendered, and detectives did not have to look for the defendant. 

What Pre-Trial Conditions Could Federal Court Impose?

Federal courts have the discretion to impose any pre-trial conditions, including incarceration pending a jury trial. When bail is granted, there are usually travel restrictions, meaning the defendant must remain within the state or district. If the case involves a cybercrime, the defendant likely will not be able to use a computer or other electronics. Very often, an order of protection is issued, which bars the defendant from contacting the victim, tampering with evidence, etc. The defendant cannot obstruct justice or break the law while out on bail. Getting arrested while on bail could be a violation of the bail conditions. The courts can get highly creative when it comes to fashioning bail conditions.

Do Most Federal Criminal Cases End Up Going to Trial?

Most federal cases are resolved with a plea, either with cooperation or without cooperation, only about 3% – 5% of federal criminal cases end up going to trial. However, if a person is innocent but is not sure about going to trial for fear of losing, I recommend starting with a full analysis of the case and review all of the government’s evidence, called discovery. Only once it is known what is in the discovery should a decision about going to trial be made. However, there are limitations to this, for example, there are some statements known as “3500 statements”, which are witness statements that the defense will not get until after the witness testified at trial. This means that most of the discovery will be available with plenty of time to review prior to trial, but not all of it.

Preparing a case for trial is a lot of work. Ultimately, the client must decide whether they want to go to trial or accept a plea deal. A careful review of the discovery can indicate whether one option may be better than the other. Perhaps motions can be filed prior to trial, or some hearings can be held. Sometimes, the strength of the government’s case is unknown until the process begins. There is no easy answer.

Do Attorneys Always Go Through the Discovery in a Fraud case with a Fine-Tooth Comb?

No, and there are two reasons: the sheer volume of it, and the nature of it. There is usually about 100 GBs of data to review, and not everyone has time to do that—especially if their client is admitting guilt, cooperating, and ready to accept a plea. What’s more, in fraud cases the nature of the discovery itself is generally extremely complicated. It could involve various data that people do not understand, data that people cannot make sense of, complex financial documents, etc.

If the case is going to trial, then the attorney will have no choice but to go through all of the discovery. It is always recommended to review discovery, regardless of whether the client is cooperating or going to trial. And it’s best done together with your client because usually only clients can make sense of it anyways. Sometimes it is possible to arrange for the jail facility to set up clients with a computer and then mail a hard drive with discovery to the client to review.

Why the Early Intervention of a Federal Criminal Defense Attorney is Critical For My Case?

Most people who are arrested on federal criminal charges have never been in such a situation before, and this is especially true for foreign nationals who are extradited to the United States. Therefore, the defendant will be very anxious and worried as to what is going to happen to them. They do not know the process. Most of all, they want to get out of detention and return home. Then, the prosecutor conveys the message to the defendant that they can go to trial and get 20 years to life, or they can cooperate with the government to help themselves. These types of pressure tactics have a negative psychological effect on defendants and often result in defendants giving up their legal rights in order to start cooperating with the government.

The issue is that the government sometimes greatly exaggerates the strength of its evidence or the case against the defendant. In such situations, talking with a prosecutor or an agent only aggravates the defendant’s situation. For example, a defendant might provide all of the incriminating information during these initial meetings that will later be used to convict them. It is hard in such situations for a defendant to have the discipline to not say anything except “I have to speak to my attorney” or “I am going to invoke my right to counsel,” but that is exactly what needs to be done. For that reason, it is important to speak to an experienced criminal defense attorney before talking to the prosecutor or investigative agent. Your attorney needs to be on board from the start of the case and will be able to explain all of the relevant issues and ensure that any information you provide will not later be used against you.

In addition, a lawyer’s early intervention can make sure that many other constitutional and statutory rights, including such rights as conducting a preliminary hearing, preserving various defenses for trial, or obtaining discovery (incriminating evidence the government will use to convict), are protected. A federal criminal lawyer will also be able to explain the process and calculate a recommended sentence under the federal sentencing guidelines, which may help the defendant decide on the best defense strategy, even before talking to the government.

Unless you are charged with something small like a traffic infraction, it is never a good idea to talk to the police, state, or federal agents, unless you talk to an attorney first.

For more information on Federal Criminal Defense, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling the Litvak Law Firm at (718) 989-2908 today.