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The Initial
Investigation
Preliminary Proceedings
Complaint
Arrest Warrant
Bail in Federal Criminal
Court - Getting out of Jail
The Grand Jury: To Indict or not Indict,
that is the question
Indictment
Your Initial Appearance
Arraignment
Pretrial Motions
Example of a Pretrial Motion
Pleading Guilty or
Going to Trial
Appeal
The Initial Investigation
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, or talk to
everyone around you. I sat in 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 should tell them:
- I will not make any statements.
- I do not consent to any search.
- I want to speak with my lawyer, Grey Tesh.
In rare situations, it may be in your best interest to speak with
the Feds. However, it is best to not make any statements without
your 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.
Many times, the FBI, DEA or other Federal agents will try to
contact you when they are investigating a case. 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 fall into the trap of making 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.
Preliminary Proceedings
The assistant united states attorney typically gets the case
handed to them after all the work has been completed.
Complaint
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.
Arrest
Warrant
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.
Bail in Federal Criminal Court -
Getting out of Jail
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: To Indict or not Indict, that is the question
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.
Indictment
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.
Your Initial Appearance
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:
- The complaint filed against you and any affidavit filed with it.
- Your right to a lawyer or an assistant public defender if you
cannot afford a lawyer
- The circumstances, if any, that you may be released pending trial
- Your right to any preliminary hearing
- Your right to not make a statement and any statement may be used
against you
- The judge must give you a reasonable opportunity to talk with a
lawyer.
Arraignment
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.
Pretrial Motions
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 the cops 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.
Example of a Pretrial Motion
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:
- Conspiracy to maintain a place to manufacture or distribute
marijuana, facing 20 years, $500,000 fine and 3 years supervised
release.
- Maintaining a place to manufacture or distribute marijuana,
facing 20 years, $500,000 fine and 3 years supervised release
- Conspiracy to manufacture, distribute and dispense 100 or more
marijuana plants, 5 year minimum mandatory prison sentence, 40 year
maximum, $2,000,000 fine, 5 years supervised release
- Possession with intent to manufacture, distribute, and dispense
100 or more marijuana plants, 5 year minimum mandatory prison
sentence, 40 year maximum, $2,000,000 fine, 5 years supervised
release
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.
Pleading Guilty or Going to Trial
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, 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
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.
Federal Criminal Appeal
You have only 10 days to file a notice of appeal after
conviction. If you want to appeal a federal conviction, you must
contact a Federal criminal appeals lawyer immediately.
Contact Grey Tesh
Federal Criminal Defense Lawyer
Federal Criminal Trial Process Attorney
aaacriminaldefense.com has its principal
office at 1610 Southern Boulevard in West Palm Beach, Florida, Mr.
Tesh represents clients charged with serious federal criminal
offenses before Federal Criminal Courts in Miami, Fort Lauderdale,
West Palm Beach, Stuart, Martin County, Port St. Lucie, Vero Beach,
Jacksonville, Tampa, Orlando, Tallahassee, and all federal courts
throughout the United States of America.
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appealsIf convicted, you have only ten (10) days in Federal Court,
as opposed to thirty (30) days in Florida, to file a notice of
appeal. If you want to appeal a conviction, you must
contact a
Federal criminal appeals attorney immediately as time is of the
essence.
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1610 Southern Blvd.
West Palm Beach, FL 33406
Board Certified
Criminal Trial Specialist
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