Federal Procedure
The Federal Criminal Primer
The following is a step by step description of what to expect once you (or someone you know) gets arrested for a federal crime. One very important warning. This is a very, very generalized view of the process. This is not meant to replace a law school course or decades of legal experience. It is only meant to give you a general idea of what to expect. Some of these steps vary from place to place and even from judge to judge. This primer is meant to be basic so please don't rely on it to make decisions. That's what lawyers are for. To fully and carefully explain to you the process as it will apply to your specific facts, circumstances and case consult an attorney.
Federal Criminal Case Flow Chart
Step 1: Are you in the Federal system?
Step 2: The Initial Appearance
Step 3: The bond or PTD hearing
Step 4: The Arraignment.
Step 5: You and your lawyer.
Step 6: The discovery process.
Step 7: Pre-Trial motions.
Step 8: Calendar Call
Step 9: Plea Negotiations
Step 10: Change of Plea
Step 11: The Trial
Step 12: Pre-Sentence Investigation
Step 13: The Sentencing
Step 14: Post Sentencing Procedure
Step 1: Are you in the Federal system?
Usually the first question I ask when someone calls to hire me is "Where are you?" If the answer is "I'm at a federal detention facility" then it's pretty clear that you have a federal case. There are a couple of exceptions. If you are arrested in a place that does not have a federal pre-trial detention facility (most major cities have one) then you will probably be held in your local neighborhood county jail. Also, you could be arrested by a Federal agent for extradition to another state where you are sought for a state crime. The next question then might be "Who arrested you." If the answer is "Agent Jones from the D.E.A./F.B.I./U.S. Customs or some other federal agency" then its probable that your case is a federal one. Again, there are exceptions. Today, federal agents work with a lot of local police departments and so the mere fact that you are arrested by a federal agent does not necessarily mean that you will be prosecuted in Federal Court. In any case whether or not you have a federal case will be revealed in the next step.
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Step 2: The Initial Appearance
Once you are arrested and are processed at the detention facility the next thing that happens (besides calling your loved ones to let them know why you won't be home for dinner) is that you will be transported to the local federal courthouse—usually within 24 hours—to appear before a Federal Magistrate Judge.
Prior to being taken to Court you will probably receive a visit from a pre-trial services officer. This individual will ask you basic questions like your name, your address, your ties to the community (how long have you lived in that city, where you're family resides, etc.), your finances (what do you own, how much money do you have in the bank, etc.) and your criminal history. Do not lie. If you would rather not answer the question—don't. However, if you lie to the pre-trial officer it can later be used against you and it will affect your sentence if you plead guilty or are convicted. In any case, the officer will prepare a pre-trial services report which will recite the information you provided. It will also include your rap sheet. Finally, it will include a recommendation to the judge for bond.
The purpose of the initial appearance is to advise you of the charges against you, to advise you of the arraignment date, to determine if you will hire an attorney or if one needs to be appointed for you, and to determine bond.
At this point you will find out several things. First, you will find out what you have been charged with. Second, you will find out if you have been charged as a result of a complaint or an indictment. Third, you will find out if you have a bond and, if so, how much. Depending on the type of case, and your personal particulars, the Government (that's what the prosecutor is called) may ask for pre-trial detention (PTD). If you have already hired an attorney and he is ready and if the Government is ready to go forward then you might have a bond hearing or PTD hearing at this time. However, if either you haven't hired an attorney or the Government asks for three days (which they are entitled to under the law) to prepare for the PTD hearing a bond hearing will be scheduled for a later date.
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Step 3: The bond or PTD hearing.
If you are lucky you won't have this hearing. That's because either (1) you got a bond at the initial appearance hearing that you were able to post and you're now at home or (2) right before the hearing your lawyer and the Government were able to agree to a bond which you'll be able to post. The other possibility is that for tactical reasons your lawyer has agreed to pre-trial detention. Otherwise, you will have a hearing to either (1) reduce the bond you got or (2) fight the Government from getting a pre-trial detention order from the judge. In either case the main issue is whether or not you are a danger to the community or a risk of flight. In most cases the Government must show the presence of either of these factors. However, in some cases (for example, most drug cases) these factors are presumed to exist and it is up to your lawyer to overcome these presumptions. After the hearing the Magistrate Judge will decide whether to reduce your bond or grant you a bond, depending on the type of hearing. This decision can be appealed by either party to the District Judge. He will either affirm or overrule the Magistrate Judge. Eventually, the end result is that you will either be free on bond pending the resolution of your case or you will be a guest of the Federal Government until the end of the case.
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Step 4: The Arraignment.
By now you have either permanently hired a lawyer or the Court has appointed one for you because you could not afford one. The next time you go to Court will be for the arraignment. The arraignment is for the purpose of reading the indictment to you except chances are your lawyer will waive its reading. Your lawyer will then enter a plea of not guilt on your behalf, request a trial by jury, and request entry of the standard discovery order. At this point, your lawyer will have a copy of the indictment which will be the formal charges against you. The indictment will also tell you who your trial judge will be. If your lawyer is experienced, and he should be, this will give him an idea of what he is up against. Judges are not all the same. Some are fairer than others. (Or, as some cynics would say, some are less unfair than others.) The Magistrate Judge might also inform you at this time when your trial date is. The case has begun!
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Step 5: You and your lawyer.
At some point you have hired a lawyer. I won't discuss that here. (See Choosing a Defense Attorney) Instead, there will come a time when you and your lawyer will meet to discuss the case itself (not just how much money it's going to cost you to defend yourself). This is a crucial meeting because it will set the tone for the rest of your case. First things first. DON'T LIE TO YOU YOUR LAWYER! I have never seen a case where lying to the lawyer was a good idea. It's important for the lawyer to know as much about the case as is possible. He will want to know everything—the good, the bad and the ugly. The sooner he knows where the land mines are the less likely he is to step on them. There are several things that the lawyer should be able to get from this first meeting:
- Are you innocent or guilty? Believe it or not this is important. Because if you're innocent, truly innocent, then there is no sense in exploring a plea at this early stage (and some would say at any stage). But if you are guilty, and after discussing the facts with you it's clear they will be able to easily prove it, then your lawyer might want to explore the possibility of working out a deal early which might be advantageous.
- What is the case really about? Remember the indictment. Well, they all pretty much say the same thing. There are very little facts in the typical indictment. Through this interview the lawyer will at least have some idea about the facts of the case. (Assuming you're telling him the truth or that you know all the facts.)
- What sentence are you facing? Because the sentencing guidelines are offense based this interview might give the lawyer a good idea of what kind of sentence you are facing. For example, an indictment won't say how much drugs you're accused of buying or selling. However, from the interview he now knows that you were selling 6 kilograms of cocaine. He also knows that you've never been arrested before. Therefore, he will know that you are facing a statutory sentence of 10 years to life. Your lawyer will also be able to tell you with a fairly high degree of certainty what sentence you will be facing if you go to trial and lose or if you agree to plead guilty.
- What are some defenses that might be available? From the interview your lawyer finds out that they searched your house/car/mobile home without your consent and without a warrant. This might lead to a motion to suppress based on the exclusionary rule.
- Who's going to testify? This interview will also give the lawyer an idea of who will be the witnesses against you and for you. He might want to have them interviewed by his private investigator before someone else does or before they've had a chance to change their testimony.
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Step 6: The discovery process.
This is probably the longest stage. Between the arraignment and your trial (or change of plea) your lawyer will start receiving from the Government the "discovery." Basically, this is all the documents, reports, tapes, videotapes, etc. that you are entitled to receive and review before the trial. Your lawyer will (or should) review this information with you. What you will not get in discovery is a list of witnesses or the opportunity to take a deposition of these witnesses (unlike some State criminal cases and all civil cases, for example). However, the discovery response can be a treasure trove of information for you and your lawyer. It will often provide the information needed to support one or more of your defenses. It can also serve to convince you and your attorney that a plea might be in your best interests.
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Step 7: Pre-Trial motions.
Depending on the facts of the case and/or the legal principles that apply your lawyer may draft certain pre-trial motions which might also require a hearing. The most common pre-trial motion is the Motion to Suppress. This is a motion asking that judge to throw out certain evidence because it was obtained as a result of an illegal search. (It is not a motion to dismiss the case—although if the evidence is thrown out or excluded it might lead to the case being dismissed.) Usually a hearing on a motion to suppress is held before a Federal Magistrate Judge. After the hearing he will issue a report and recommendation to the District Court Judge who will make the final ruling after hearing from the parties. There are other pre-trial motions which your lawyer might file. Examples of these are Bills of Particulars, Motions to Dismiss, Motions to Compel Discovery, etc.
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Step 8: Calendar Call.
Depending on the Judge at some point your lawyer (and sometimes you as well) will appear before the Judge to set the trial date. Either party may ask for more time which they will call a "continuance." Your lawyer should advise you of when the trial date is scheduled for and whether or not he will be asking for a continuance.
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Step 9: Plea Negotiations
You and your lawyer have discussed the case, you've reviewed the discovery, you may even have already litigated some of the pre-trial motions. It now appears certain that going to trial might be a losing proposition. You are not alone. Almost 95% of all federal cases are disposed by way of plea. (Of the remaining cases that go to trial more than 80% result in guilty verdicts.) The time has come for your lawyer to speak with the Government about reaching an agreement. Keep in mind that this discussion might occur throughout any of these steps. There are cases that are resolved even before an arrest takes place. In other instances, plea negotiations begin at the first hearing or right before the trial is to begin. It all depends on the particular circumstances of the case. There really is no bad time to discuss a deal with the Government. The question, however, is whether or not the deal is acceptable to you.
Your lawyer should have, by now, explained to you the specific application of the federal sentencing guidelines to you and your case. This is a good time to discuss what your options are. Basically, there are several options available to any defendant. First option is to go to trial. If you win you walk, if you lose then you will not, in all probability, avail yourself of some of the benefits of the guidelines. Second option, is to work out a plea agreement with the Government which does not include substantial assistance. This plea might include an agreement as to some of the guideline enhancements or reductions. The third option, is to plead but with the opportunity to provide substantial assistance.
If you have chosen the second or third option your lawyer will have to speak with the Government in order to negotiate an agreement which will be reduced to writing and called a "plea agreement." Your lawyer should carefully review the plea agreement with you and negotiate with the Government any changes that you or he feel are absolutely necessary. Once there is a final agreement all of the parties will sign it and you will go on to the next step.
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Step 10: Change of Plea
Assuming a plea agreement has been reached between the parties the next step is the change of plea hearing. The basic purpose of this hearing is for you to change your plea from not guilty to guilty. However, before the Court accepts your change of plea he will ask you a whole litany of questions the purpose of which is to make sure you understand exactly what you are doing. The Court will want to make sure that you are not crazy, drunk or high, that you haven't been threatened or coerced to plead guilty and that you understand all of the rights you are giving up by not going to trial. In some places this hearing will be held in front of a Magistrate Judge and in other places it will be before the District Court Judge. In any case, the District Court Judge must approve the plea.
At the conclusion of the hearing the Judge will find you guilty, adjudicate you guilty and order a pre-sentence investigation report. He will either remand you to custody at that time or allow you to continue out on bond.
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Step 11: The Trial
You've decided to roll the dice and go to trial. If you've seen enough TV you might have some idea of what a trial will be like but since I've seen the same shows (and most of them are totally unrealistic) a brief review of the process might be useful.
First, the lawyers argue any outstanding pre-trial motions. Once these preliminary matters are taken care of the next step is voir dire which is just a fancy word for picking the jury. I won't bore you with the details but basically your lawyer or the Judge will ask questions from the jury panel. From those questions both sides will either ask the Judge to throw them out (excuse them) because they won't be fair (challenged for cause) or because they don't like them (preemptory challenge). Eventually you'll be left with 12 jurors and two alternate jurors.
The lawyers will then have the opening statement or argument. This is where they tell the jury what they expect to prove during the case. The Government will then call its first witness. They get to ask questions first and then your lawyer will get to cross-examine them. Once the Government has called all its witnesses it will announce that it rests its case. At that point, your lawyer will get up and ask the Judge to dismiss the case because the Government did not prove its case. If the judge dismisses the case you're home free. The judge may also only dismiss some of the charges. If he doesn't then it's your lawyer's turn to present your witnesses. Sometimes your lawyer will not present a defense case (usually not a good sign - but not always). Once your lawyer is finished then he, too, will rest.
The two lawyers will then present their closing arguments to the jury. During the closing argument each lawyer will basically review those facts that have been proven during the course of the trial and argue why based on those facts you should either be acquitted or convicted, depending on who is making the argument. After the closing arguments the Judge will charge the jury which means that the judge will read the jury instructions to them. Jury instructions are how the jury is told what law to apply to the facts as they find them. Eventually the jury will either reach a decision (which must be unanimous in criminal cases) or they will be unable to reach a decision which is called a hung jury. If the jury is hung a mistrial is declared and the whole trial will eventually start again. If the jury reaches a verdict then it will be read. The jury will either find you not guilty of all charges, guilty of some, not guilty of others or guilty of all charges. If you are found guilty of any of the charges then this means you will have to go to sentencing. Again, the Judge might remand you to custody or let you stay out until the sentencing. The Judge will also order a pre-sentence investigation.
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Step 12: Pre-Sentence Investigation
One of the most overlooked stages of the Federal criminal process is the pre-sentence investigation. There are several reasons why this stage is often ignored. First and foremost is the advent of the sentencing guidelines. Why? Because of the perception, not entirely incorrect, that a pre-sentence investigation is fairly meaningless once a plea agreement with the Government has been reached or even once the client has been convicted at trial.
Before you consider the above let's discuss exactly what this step is all about. Upon a plea or a conviction at trial the Judge orders the investigation. At that point a probation officer is randomly assigned to conduct the investigation. The Probation Officer will then obtain a copy of the main pleadings in the case including the indictment and the plea agreement (if there is one). He will then run a rap sheet on you. Next, he or she will schedule an interview with you either at their office or at the jail depending on whether or not you're out on bond. Your lawyer has the right to be present. Personally, I believe that it is imperative for the lawyer to be present during the interview. Mostly for three reasons. One, this is a great opportunity for your lawyer to start molding the probation officer's opinion of you and your case. Second, the interview will give your attorney a chance to hear about your personal background. Third, and most importantly, he will be there to make sure to remind you not to lie to the probation officer. Lying to a probation officer during this interview can be real costly. If the probation officer finds out that you have lied to him or her they might ask the Judge to increase your sentence for obstruction of justice. They will also usually ask that you do not receive the decrease in sentence one normally receives if you plead guilty. All in all, lying to a probation officer during this interview can result in a significant increase in your sentence.
So what exactly will the probation officer ask you during this interview. Well the officer will ask you questions in several general areas: (1) identifying information such as your name, alias, address, date of birth, social security number, etc. (2) your family history such as the names, ages, and occupations of your family as well as a general account of your personal history; (3) your employment history (e.g., where have you worked for the past five years); (4) your physical and mental condition as well as any history of substance abuse and (5) your financial condition including a complete listing of your assets and liabilities. The officer will also ask you about your criminal history. These last two areas are the most important parts of the interview. The financial questions are important for two reasons. First, the information you provide will determine whether or not you are able to pay a fine. Second, because of the first reason this is one of the areas of questioning which most often leads to an obstruction of justice adjustment because many people will lie about their financial condition for fear of having these assets taken away either by the Government through a forfeiture proceeding or by a fine imposed by the Court. The questions about your criminal history are also important because, again, many people will lie for fear (not unfounded) that their answers may increase their sentence. However, this is a mistake because the probation officer will run a rap sheet on you anyway.
After the interview the probation officer will have you sign a bunch of documents which are mostly authorizations to obtain credit records, employment records, income tax records, medical records, etc.
After the interview the probation officer will also obtain information about the offense and your involvement from the prosecutor. He or she will also speak with your family to verify the information you provided during the interview and will also conduct what is called a home visit which just means the probation officer going to your house to speak with your family and observe your home.
Once the probation officer has obtained all the information they will prepare what is called the pre-sentence investigation report (PSR or PSI for short). This report is meant to provide the Judge a general summary of the case and you. However, the most important part of the report is the Probation Officer's calculation of the applicable sentencing guidelines. When I first receive a PSI this is the first part I go to. The next part I go to is the criminal history calculation and finally I turn towards the end of the report where the Probation Officer tells the Court what your sentencing range is. I then go back and read the whole report. I will then personally review the report with my client and note any mistakes it might have. You and your lawyer will have a chance to try to correct these mistakes before the report is sent to the Judge. However, if the Probation Officer does not agree with the proposed changes the lawyer will have to file with the Court it's objections to the report. The Government will usually respond to these objections and they will be resolved at the time of sentencing.
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Step 13: The Sentencing
Along with the change of plea or the reading of the jury verdict this is one of the most nerve wracking steps of the process. By now, however, you should have at least a rough idea of the sentence you will receive. Your lawyer by now has reviewed the P.S.R. with you and, more importantly, the guideline range which will be applicable to you. The hearing begins by the Judge asking you if you have reviewed the P.S.R. with your attorney. Hopefully, your lawyer has reviewed the P.S.R. with you in which case you can honestly answer yes. Unfortunately, I have been retained in cases after the sentencing where my client quietly informs me that he told the Court he had read the P.S.R. when in fact he had never seen it. He merely said yes because he didn't want to make his lawyer look bad. Big mistake!
The Judge then asks your lawyer and the Government if they have any objections or modifications to the P.S.R. Again, if your lawyer had any objections or modifications to the P.S.R. he or she would have already filed them with the Court at least a couple of weeks before this hearing. Here again many lawyers will wait until the last minute to file their objections which only serves to upset the Government, the Probation Officer, and worst of all, the Court. In any case, the Court will then consider the objections and modifications. In some cases the Court may hold an evidentiary hearing. The same goes for the Government's objections and modifications. (Yes, they also get to complain about the accuracy of the P.S.R. but this is rare.)
After the Court has considered all of these matters you will be asked to stand at the lectern or just stand up and the Court will impose the sentence. The Court will then ask if you have any objections as to the manner in which the sentence imposed and will also advise you as to your rights to appeal the sentence.
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Step 14: Post Sentencing Procedures
After you have been sentenced there are only several options left to you. First, is an appeal of your conviction and sentence. It is important to note that an appeal is not a second bite at the apple or a re-trial. Rather, it is an opportunity to ask an appellate court to review the trial court's decisions before, during and after trial. If the Appellate Court finds that the Trial Judge's decision was incorrect and that the decision was not harmless (that is, it affected the fundamental fairness of the trial) then they will order a new trial. On rare occasions the Appellate Court may also find that there was simply insufficient evidence for a reasonable jury to have found you guilty in which case they would simply dismiss the case.
You can also file a 2255 which is petition filed with the District Court asking for a new trial because your lawyer was incompetent.
If you have provided substantial assistance after your sentencing the Government may file a motion under Rule 35 of the Rules of Criminal Procedure whereby they ask the Court to reduce your sentence.
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