The Feds take their time working up a case. They take months, sometimes years building a case. Sometimes the government will wiretap your phone, send a snitch in to rat you out, and/or talk to everyone around you. I sat in a federal international drug importation trial for weeks where there were thousands of tape recorded phone calls from a series of court approved wiretaps. Not all of the wiretaps were submitted into evidence, but enough were to put the average juror to sleep. The investigation spanned over several years.

During the initial investigation, you may be contacted by Federal agents.  You may be the target of an investigation or receive a target letter.

You should tell them:

In some situations, it may be in your best interest to speak with the Feds. However, it is in your best interest to not make any statements without your federal criminal lawyer present.

If you do make statements without your lawyer present, you will probably regret it. Although you may have good intentions and want to explain your side of the story, they will use your own words to help send you to prison. They may even charge you with making a false statement to the feds if you lie.  This is even though they may not be able to convict you on any other charge.

Many times, the FBI, DEA or other Federal agents will try to contact you when they are investigating a case. You may be the target of an investigation.  Or, maybe, you are just a material witness.  They usually have already made up their mind that they are going to charge you with a crime. They want to see if you will not say anything (smart!), confess or make a false statement. That way, even if they do not get a conviction on what they were going to charge you with, they will still get a conviction because you made a false statement to them.

The assistant united states attorney typically gets the case handed to them after all the work has been completed.  On a silver platter.  All thanks to the case agent.

The complaint, which is a written statement of the essential facts constituting the offense charged, is sometimes filed first. It must be under oath before a judge.  Typically, the indictment will be filed shortly after.

Based on a Complaint, if the judge determines there is probable cause to believe an offense has been committed, he will sign the warrant for your arrest. Federal marshals or other police officers will execute the warrant.

Will you get out of jail? The answer is it depends. The judge can release you O.R. or on your own recognizance, release you on some type of conditions, which must be the least restrictive, or you will be detained before trial, called pre-trial detention.

Most of the time, the government will ask for pre-trial detention. The judge will consider whether you are a flight risk and a danger to the community. There is a presumption that no condition or combination of conditions will get you to show up to court and keep the community safe if you are charged with a drug offense or violent offense that is punishable by ten years or more. In Federal court, they usually say the “presumption applies.”  However, this is a rebuttable presumption, which means you can overcome that by effective cross examination of the agents and possibly putting on witnesses yourself.

The detention hearing is sometimes held at the same time as the arraignment. However, your lawyer can ask for a continuance. The judge will usually grant the request, but for no longer than 5 days. The detention hearing is critical. Your lawyer will generally get one chance (at the detention hearing) to cross examine the agents before trial. The government will know how much of a fight your lawyer is going to put up based, in part, on how he cross examines the agents. A great cross examination at the detention hearing is usually your best shot at getting out of jail before trial.  Your lawyer can also call witnesses to say you’re going to show up for court, and to testify that you are not a danger to the community.

The grand jury hears evidence presented by an assistant United States attorney. Their job is to decide whether they will vote to indict a person or persons. A grand jury must have 16 to 23 members. They are people from the local district. The judge appoints one person as a foreperson and another as the deputy foreperson. The foreperson records the number of people voting to indict. The magic number is 12. At least 12 members of the grand jury must vote to indict. If there are 23 members and only 12 vote to indict, that’s just barely over 50%! A witness called before the grand jury has no right to have a lawyer there at the proceedings.

Assistant United States Attorneys, the witness being questioned, an interpreter (if needed), and a court reporter are the only people allowed while the grand jury is in session. The grand jury deliberates in private (with the possible exception of an interpreter). The proceedings are recorded. The Assistant United States Attorneys usually keep the recording and any transcripts.

The magistrate judge usually seals the indictment. The government wants to keep the indictment a secret because they do not want you leaving the country. They want to arrest you immediately.

Generally, a felony must be prosecuted by indictment. Felonies are punishable by death or imprisonment for more than one year. However, like many other things in law, you can waive just about anything. You can waive the indictment in open court after the judge tells you the nature of the charge and your rights. The government can then prosecute you by an information (charging document). The indictment must state a written statement of the allegations and a citation to the statute you allegedly violated. The government will usually add a criminal forfeiture count to the charging document, which is required if they want to take away your money or personal property.

Generally, you must be taken to a magistrate judge without unnecessary delay. Typically, you will see a magistrate judge within a day or two. In a felony case, (most every case in Federal court), the Judge must tell you:

Generally, you must be present in Federal court for your arraignment. You must have a copy of the charging document (usually an Indictment, but sometimes an information). I always go over the charging document and the maximum penalties with my clients at arraignment. The charges must be read to you. Then, your lawyer will enter a plea of not guilty, ask for the judge to enter a standing discovery order, and demand a jury trial. The judge will usually set the time for pretrial motions to be filed and a trial date. Things move quick in Federal Criminal Court.  Your trial date will probably be set just over a month from your arraignment.

A pretrial motion is a document lawyers file to get the government to do something, raise an objection or raise a defense. The motions are filed electronically. The motion should be addressed to the judge so he can decide on it. A proposed order should be included for the judge to sign if he agrees to the motion.  All pretrial motions should have specific facts that support it.

The most important pretrial motion to be filed for you may be a motion to suppress evidence. If federal agents violate your constitutional rights, the evidence they found should get thrown out of court.  Motions to suppress are usually based on a violation of your rights under the 4th, 5th, and 6th amendments to the United States Constitution.

The judge will usually have a hearing on the motion to suppress before trial. The government puts on the agents and your lawyer cross examines the agents. Most of the time in Federal Court, you will not get depositions (a chance to ask the witnesses questions before trial). One exception may be if someone is dying, to get their testimony recorded before they die. If the judge grants your motion to suppress evidence, your case could get thrown out.

For instance, I filed a motion to suppress in a federal drug case involving two separate grow houses for marijuana in South Florida. My client was facing up to 160 years in prison. Federal agents and police entered into a house just after midnight without a search warrant. The issue was whether consent was freely and voluntarily given by a Spanish speaking couple who did not understand English. The client was initially charged by indictment with:

After the motion to suppress was heard, I negotiated a plea deal for the Federal government to drop all counts (maximum of 160 years in prison). In exchange, my client pled guilty to one count of misdemeanor possession of marijuana with no jail time.

You have a constitutional right to a jury trial in a criminal case. This is in the 6th amendment to the United States Constitution. Trial must be by jury unless you waive it in writing and the government and judge agree. Generally, 12 people will sit on the jury, with a couple of alternates. Most judges like alternates to be there just in case someone gets sick, has to take care of a loved one, etc. However, if everyone agrees in writing before the verdict (defense, government and the judge), the jury may consist of less than 12 people. After the jury starts to deliberate, the judge may permit a jury of 11 people to return a verdict even if we don’t all agree. The judge must have some good reason to excuse the juror.

Many lawyers charge extra for going to trial. I do not. That is the fun part for me. However, in reality, the truth is in Federal criminal court, many times the best thing for my clients is to plead guilty. The government offers clients reductions in their prison sentences for pleading guilty. Many times, the government will want the clients to cooperate with them to get other alleged criminals. In exchange, the government offers even more reductions in their sentences. I always tell my clients of the potential risk (going to prison for a long, long time and getting whacked for being a rat) and potential benefits (being found not guilty or winning a motion to suppress, how good the facts are, the law, the lawyers, the judge, etc.). Ultimately, it will be your decision, one of the most important in your life, whether to plead guilty or take it to trial.

You have only 10 days to file a notice of appeal after conviction in a Federal criminal case. If you want to appeal a federal conviction, you must contact a Federal criminal appeals lawyer immediately.