Anytime a person is charged with a federal offense it is serious and must not be taken lightly. More than likely, the federal government (specifically, the agencies of the United States) have been building a case against the federally charged person for months. Much different from State court misdemeanor and felony charges, federal offenses can start with any one of these three documents: (1) Indictment; (2) Bill of Information; and (3) Criminal Complaint.
- Indictment – An indictment is a legal document that must be a plain, concise, and definite written statement of the essential facts constituting the offense charged and must be signed by an attorney for the government. For each count in the indictment, there must be information discussing the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated. Further, the United States Attorney presents to the grand jury (a body of common people) the facts and charges to determine if there is probable cause for the United States Attorney to proceed against the defendant.
- Bill of Information – Similar to an indictment, a bill of information is a charging document that lays out the criminal charges against a defendant and the factual basis behind those charges. However, the bill of information is not presented to a grand jury to determine if there is probable cause to prosecute the defendant.
- Criminal Complaint – According to the Federal Rules of Criminal Procedure, a criminal complaint is a written statement of the essential facts constituting the offense charged. Typically, along with a criminal complaint is an affidavit from a local law enforcement officer or a United States agency officer depicting a factual basis for the charges. Additionally, the complaint will contain a sworn oath by the United States prosecutor accusing the defendant of a crime. Generally, a complaint can be filed before or after an arrest of an individual.
However, under the Fifth Amendment to the United States Constitution, a federal defendant cannot be prosecuted for a felony without an indictment by a grand jury or a waiver of the right to indictment. Essentially, this process serves to determine whether there is probable cause to believe a crime has been committed and the protection of citizens against baseless criminal prosecutions. The most important thing to do to help yourself while facing criminal charges is to hire a competent and experienced federal defense attorney. At Jetton and Meredith, we recommend that once a person becomes aware of a Complaint or federal investigation, the person should call us immediately and set up a free consultation. Do not wait until you have government agencies are knocking on your door looking to arrest you.
What happens next?
Initial Appearance: Pursuant to Federal Rules of Criminal Procedure, if a person is arrested (generally, federal defendants are) under federal charges (through indictment, bill of information, or complaint) then the arresting agency or officer must take the defendant without unnecessary delay before a magistrate judge, or before a state or local judicial officer, unless another statute provides otherwise. At that hearing, the magistrate judge will advise the defendant of: (1) the charges against him or her; (2) the right to retain counsel or to request that counsel be appointed if the defendant cannot obtain counsel; (3) the circumstances of obtaining pretrial release; (4) the right to a preliminary hearing; and (5) the defendant’s right to remain silence and that any statement can be used against him in court. As well, the judge must determine whether to release or keep the defendant in custody until the detention and/or preliminary hearing date.
Preliminary Hearing: A preliminary hearing is only conducted when the defendant has been brought into custody through a criminal complaint. Generally, after the initial appearance, the United States prosecutor presents the case to the grand jury and probable cause is established (not needing a preliminary hearing). If charged through a criminal complaint, a preliminary hearing is held in open court in front of a federal judge for the government to present witnesses to establish probable cause. The defendant has the opportunity to confront those witness and ask them questions. Additionally, the defendant (through counsel) will have an opportunity to present their side of the argument that there is not probable cause. However, the Federal Rules of Evidence do not apply in those hearings. Lastly, a preliminary hearing must be held no later than 14 days after the initial appearance if the defendant is in custody and no later than 21 days if not in custody. It is important to note, if the defendant is indicted, the criminal complaint against the defendant will be dismissed.
Detention Hearing: A detention hearing may be held either upon motion of the attorney for the government, or upon the court’s own motion. Typically, the government will move for detention when there is a serious risk of flight or a serious risk that the person will obstruct or attempt to obstruct justice or threaten, injure or intimidate or attempt to do so to a prospective witness or juror. It is important to hire an attorney during these proceedings because an experienced defense team will be able to dispute at the outset of the case any facts that involve risk of flight or obstruction of justice.
Under the Bail Reform Act, a judicial officer has four options when determining pretrial release. Pretrial release is where the defendant is either in county jail during the federal criminal process or out on certain conditions. Those four options include (1) release on personal recognizance or unsecured bond (rarely, if ever happens); (2) release the defendant on conditions; (3) temporarily detain the defendant to permit revocation of conditional release, deportation, or exclusion; or (4) detain the defendant. However, the government may move for detention where the case involves:
- A crime of violence;
- A violation of 18 U.S.C. § 1591;
- Any terrorist offense listed in 18 U.S.C. § 2332b(g)(5)(B) with a penalty of ten years or more;
- An offense for which the maximum sentence is life imprisonment or death;
- A drug offense carrying a maximum sentence of imprisonment of ten years or more;
- Any felony committed after the person has been convicted of two or more of the above offenses (state or federal); and
- Any felony which is not a crime of violence that involves a minor victim, possession of a firearm or destructive device or other dangerous weapon, or failure to register as a sex offender.
A defendant has rights at a detention hearing. Specifically, the defendant has the right to be represented by counsel (appointed or retained), to testify, present witnesses on his behalf, cross-examine witnesses, and present information by proffer (showing them to the judge) or otherwise.
After detention is determined by a federal judge, the case has many different avenues that it can go. It is important to hire an experienced and competent federal criminal defense team that can navigate the dangerous waters of federal felony crimes. Call Jetton and Meredith Law Firm now and get a free consultation for your federal case, 704.333.1114.