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.
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. Now a days 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 tells 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 some 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 anyways) 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 anyways.
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.
Again, this is just a general overview of the
federal criminal process. There are entire books written
about just some of these steps. However, you should get a
good idea of what you are facing if you or your loved one is
prosecuted in Federal Court. Contact me
if you have any questions regarding the above. I also
welcome suggestions for improving the above.
