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What You Need To Know About The Federal Criminal Process

Federal Arrest

An accused individual is arrested by the federal agency which has subject-matter jurisdiction over the offense (such as the DEA, FBI, INS, or ICE). Initially, the person arrested will be held for some hours by the arresting agency.

Once the arresting agency processes the individual for arrest (and interrogates or attempts to interrogate the person), the arresting officers turn the person over to the U.S. Marshals, who have the responsibility to house persons arrested for a federal charge. The Marshals will usually house the person in a metropolitan correctional center. The person is kept in the Marshals’ custody until he/she is bailed out, the charges are dismissed, or the person is sentenced.

If the person is sentenced to a term of imprisonment, the responsibility for housing the person passes to the Bureau of Prisons (BOP).

Federal Arraignment/Initial Appearance

After being arrested and turned over to the Marshals’ custody, the individual is taken before a U.S. Magistrate Judge to be arraigned on the first available business day. This arraignment typically happens within 48 hours of arrest but can occur up to 5 days later if the person is arrested on a Thursday and turned over to the Marshals on a Friday before a weekend with a Monday holiday.

The arraignment consists merely of the defendant being told of the charges in the Indictment and of the defendant’s entry of a plea (not guilty). At the arraignment, the individual will be interviewed by someone from the Federal Public Defenders’ office. Unless the person has already hired an attorney, Federal Defenders represent everyone at the initial arraignment.

At the arraignment, the defendant will be informed of the charge(s) against him or her; legal counsel will be appointed if the defendant cannot afford to hire counsel and bail will be set if the government does not move for detention. If the government pushes for detention, a detention hearing will be held and the court will determine whether the defendant poses either a flight risk or threat to the community. If it is determined that the defendant poses either risk, he/she will continue to be held by the Marshals without bond.

After the arraignment, the defense counsel will be given a date to return to court for a preliminary hearing in approximately ten days.

Federal Bond

In the federal system, you cannot be released on bond until you are brought before a Magistrate Judge, who sets the conditions of release, including a bond amount.

Usually bond will consist of one of the following, or a combination thereof:

  • A signature bond, where the defendant or a number of relatives or close friends will promise to pay money if the defendant fails to appear or violates the other conditions of his release, or
  • A cash bond, where the defendant or a number of relatives or close friends will post a cash deposit, or
  • A property bond, where the defendant or a number of relatives or close friends will post real estate as security for his/her release.

If the defendant fails to appear for any required court appearances or violates the conditions of release, the court may revoke the bond, giving the government the posted money or a lien on the title to the posted property. If the defendant satisfies all conditions of his/her bond, the bond will be discharged, and the money returned or property lien released at the conclusion of the case.

Pre-Trial Motions

Motions are requests for the court to grant relief. The most common motions are:

  • A motion for discovery, where the defendant is asking the judge to order the prosecutor to turn over all of its evidence against the defendant as required by law;
  • A motion to suppress statements of the defendant because of Miranda violations or the coercion of the statements;
  • A motion to suppress evidence due to an illegal search or seizure of that evidence; and,
  • A motion to sever the defendant’s case (in a case with a large number of co-defendants), where the defendant is asking to have a separate trial from the other co-defendants.

Other common motions ask the court to exclude or include certain evidence under the rules of evidence.

Discovery

A defendant is entitled to receive a copy of any evidence the government is going to use against him/her at trial, including oral or written statements the defendant made to agents, tangible objects, scientific tests or reports which the prosecutor intends to use in evidence, and witness statements. Some discovery is required to be turned over to the defendant well before trial; however, some information, such as witness statements, is not required to be turned over until after that witness testifies.

The Due Process Clause of the U.S. Constitution provides that the government must turn over any evidence in its possession which is tends to prove a defendant’s innocence (this is also mandated under the U.S. Supreme Court case Brady v. Maryland), as well as evidence which might cast doubt upon the credibility of government witnesses (such as inconsistent statements, evidence of bias, or motive to fabricate).

Federal Plea

Because the government has a staggering conviction rate of approximately 95% of the cases it indicts, entering a plea to the charges in the Indictment is an option that many defendants explore. An individual is usually looking at less time when he/she enters a plea, and, in a multi-count Indictments, the government will require the defendant to plead to only 1 or 2 counts and dismiss all the other charges.

The plea hearing is also called a Rule 11 hearing in federal court. Generally, the defendant enters a guilty plea under a negotiated plea agreement. The plea agreement outlines the government’s recommendations and typically contains an appeal waiver. Although it is rare, it is sometimes possible for a defendant to tender a “nolo contedere” plea. This rare plea can be done only with special permission from the court.

After a plea is entered, the case is referred to a U.S. Probation Officer for the preparation of a presentence investigation report (PSR). The PSR is an in-depth report prepared for the judge, which details the defendant’s background and calculates the recommended sentencing guidelines range. Sentencing is typically conducted 1-3 months after entering a plea.

Federal Trial

The Fifth and Sixth Amendments to the U.S. Constitution provide that any person charged with a crime has the following rights:

  • The right to a speedy and public trial by a jury selected from the community;
  • The right to have the trial take place in the community where the offense occurred;
  • The right to have the government prove all elements of the crime beyond a reasonable doubt;
  • The right to subpoena witnesses to testify on his/her behalf and the right to present evidence on his/her behalf (or no evidence if you so choose);
  • The right to confront and cross-examine witnesses against him/her, and
  • The right to not incriminate him/herself at trial (i.e., the right to not testify).

The government has the burden of proof, so the trial begins with the prosecution presenting its case against the defendant, presenting their evidence in the form of witnesses, documents and other physical objects, such as drugs, weapons, etc. After the prosecutor questions their witnesses during direct examination, defense counsel has the right to cross-examine the witnesses. After the prosecution has presented all its evidence, it rests.

It is then appropriate for defense counsel to move for a direct verdict, which is a request for the judge to find that no reasonable jury could convict the defendant on the evidence presented by the government. If the judge agrees, he or she will enter a judgment of acquittal.

If the judge disagrees, the defendant then has the right to present evidence for its defense (or to decline to do so). The process is similar to the government’s presentation of their case. Once the defense rests, the government has the right to present a rebuttal to the defense’s evidence.

Once the evidence is closed, the government and defense counsel present their closing arguments. The government usually presents their argument first, then the defense presents theirs, and then the government once again gets a chance to rebut the defense argument. The court will then instruct the jury on the law that applies to the case, and the jurors then retire to deliberate the case. The verdict is returned as either guilty on all charges, guilty on some charges, not guilty on some charges, or not guilty on all charges.

If the defendant is convicted on any charges, the next phase will be sentencing. If the defendant is acquitted on all charges, he/she is free to go.

Federal Sentencing

Federal crime sentencing is determined by two things: (1) the statute of conviction, which sets the maximum penalty in the form of a fine or imprisonment; and (2) the federal sentencing guidelines.

The federal sentencing guidelines are a series of sentencing rules established by the U.S. Sentencing Commission. The guidelines are set up on a scoring basis and take into account the nature of the offense and aggravating and mitigating factors of the crime. This “score” results in the offense level.

The appropriate sentencing guidelines range is determined on a grid system known as the sentencing table. The vertical axis is comprised of the offense level; the horizontal axis is comprised of 6 criminal history categories. Each grid contains a range of custodial time (in months) which the judge is authorized to impose. The grid is also divided into 4 zones: Zone A is straight probation, Zone B is a combination of house arrest and probation, Zone C is a combination of prison time and house arrest, and Zone D is straight prison time.

Each federal crime has an assigned point value. This value can be adjusted upwards or downwards based upon characteristics of the offense, the defendant’s behavior, the victim’s role and relationship to the defendant, whether the defendant played aggravating or mitigating role in the offense, and whether the defendant accepted responsibility by entering a plea.

Once the court has calculated the defendant’s offense level and his/her criminal history category, a presumptive sentence range is determined. At that point, the judge is authorized to depart upwards or downwards from the presumptive range if there are circumstances about the defendant or the crime that were not adequately considered by the guidelines. This decision whether to depart is subject to the court’s discretion and typically cannot be reviewed on appeal, although the actual calculation for the presumptive guidelines range can be appealed.

A defendant’s criminal history category is based upon the nature of his/her prior convictions. Some convictions count more than others, and some do not count at all based upon either the person’s age or the nature of the offense. Points can be added if the defendant was on probation or parole when he/she committed the offense conduct, or if he or she was recently released from custody when the offense was committed. The length of custody greatly increases along with the criminal history category.

Once the defendant’s sentence has been announced, the defendant is either taken into custody by the Marshals or allowed to surrender at their custodial institution on a certain date voluntarily. There is no parole in the federal system, but if a person behaves well in custody, he or she can receive 15% credit for every year he or she is to serve. That means that a person will typically end up serving 85% of his or her sentence. If the defendant is a citizen, he or she will spend the last six months of the sentence in a halfway house to transition back into society. If the defendant is a citizen of another country, he/she will be deported once their prison term is completed.

Generally, a defendant is placed on a period of supervised release after his/her release from prison, as determined by the sentencing judge. Supervised release is similar to probation, and if the defendant violates the terms (including committing a new offense), he/she can be returned to prison for up to the maximum of the term of supervised release.

Get Answers To Your Federal Criminal Defense Questions

You can talk to a federal criminal defense attorney by calling the Law Office of Ann Fitz. You can contact the firm’s West Palm office by calling 561-264-2431. The attorney is also available by email.