Federal Arraignment: What to Expect.

Most federal arraignments conclude in under thirty minutes. Most defendants plead not guilty, even when they expect to reach a negotiated disposition later in the process. Most judges also set discovery deadlines, motion deadlines, and perhaps a trial date at the arraignment. While it is a brief procedure that rarely takes more than an hour, federal arraignments can prove important; preparation is key to avoiding mistakes and making the most of the available procedural and substantive options. Rule 10 of the Federal Rules of Criminal Procedure governs federal arraignments. Rule 10(a) requires the judge to read the indictment aloud (or state its substance in plain language) and ask the defendant to plead. Rule 10(b) provides that a defendant need not be present for the arraignment if the defendant has been charged by indictment or misdemeanor information, has waived appearance in a written waiver signed by both the defendant and defense counsel affirming that the defendant received a copy of the indictment or information and that the plea is not guilty, and the court accepts the waiver. This waiver is available only when the defendant doesn’t intend to plead guilty at the arraignment.

As a consequence of Rule 10(b), federal defendants are not required to appear in person at the courthouse. They are not required to have a public appearance recorded in the media. They are also not required to appear in the courtroom with prosecutors or face the risk of being arrested on additional charges. While Rule 10(b) does make appearance optional in these circumstances, it does not necessarily make appearance advisable. The decision to appear is just one of many that needs to be made as part of an informed defense strategy, and we work closely with our clients to protect them and their freedom at every stage of the federal criminal process.

How is an Arraignment Different from Other Early Federal Hearings?

The federal initial appearance is a distinct proceeding from federal arraignment. While these events may occur on the same day, they are separate hearings. Federal Rule 5 requires federal defendants who are charged by complaint or criminal rule 7 information to be “presented before a magistrate without unnecessary delay.” Criminal Rule 10 governs arraignments after an indictment or information is filed. For cases charged by complaint or information, criminal rule 5.1 requires the court to conduct a preliminary hearing before the grand jury’s indictment:

• With respect to detained defendants, within fourteen days of the defendant’s initial appearance
• With respect to defendants who have been released on bond or on their own recognizance, within twenty-one days of the defendant’s initial appearance.

These hearings involve examination of witnesses by prosecutors and defense counsel, the submission of the government’s evidence, and the judge’s determination of probable cause. Under 18 U.S.C. § 3161(b), the grand jury must issue an indictment within thirty days from the date of a defendant’s arrest. In federal cases where the government continues to seek a hearing to detain the defendant during a grand jury investigation, the government may continue the hearing by consent up to three days, and the defense counsel may obtain a continuance of up to five days from the date of the first appearance. While federal arraignments and detention hearings follow nearly the same procedural and substantive guidelines in indictment and complaint cases, it is important to remember that a case charged by complaint has no federal arraignment. Until an indictment or information is filed, the defendant has no opportunity to plead not guilty (or guilty) to charges, enter into discovery, or address any motions. A preliminary hearing in a case charged by complaint or information is different from a detention hearing in all federal cases. In a preliminary hearing, the evidence against the defendant is examined and its sufficiency is considered, and the defendant may be released on bond with certain conditions as imposed. By contrast, a detention hearing does not test whether the evidence is sufficient to support the charge, although the court must still weigh the evidence against the defendant under 18 U.S.C. § 3142(g)(2) and the parties may present evidence and cross-examine witnesses; the focus is on whether conditions of release could reasonably assure the defendant’s appearance and the safety of the community.

Section 3142(f) of the U.S.C. requires the detention hearing to be held at the time of the defendant’s first appearance unless both the court and the defendant consent to a continuance.

What Can and Cannot Happen at a Federal Arraignment?

Here are examples of what can happen (and what cannot) at a federal arraignment. There is an extensive list of items that can happen. But there is an extensive list of items as well that cannot (or are unlikely to) happen at an arraignment.

What Can Happen at a Federal Arraignment

1. An In-Person Hearing Record (Rule 10) A federal arraignment is a court procedure and, unless the defendant waives appearance under Rule 10(b), Rule 10(a) requires it to be conducted in open court with a complete record made. Rule 10 requires the arraignment to be conducted in open court, to ensure that the defendant has a copy of the indictment or information, to read the charging document or state its substance, and to ask the defendant to plead; 28 U.S.C. § 753(b) requires the proceeding to be recorded verbatim by a court reporter or by electronic sound recording.

2. Confirmation of Receipt of the Charging Document (Rule 10) A key part of a federal arraignment is the court’s confirmation that the defendant has received a copy of the charging document (indictment or information). The arraignment is not designed to allow the court to serve as a messenger.

3. Magistrate Judges Presiding (Rule 5.1) The vast majority of federal arraignments are presided over by magistrate judges. The district judges only conduct them in very rare cases.

What Does Not Happen at a Federal Arraignment

1. Asserting Factual Innocence Pleading not guilty at a federal arraignment does not necessarily assert factual innocence. The not guilty plea is a procedural decision and it preserves options at the arraignment to consider later. It is a not-guilty-at-this-stage plea, not a not-guilty-period plea.

2. Ruling on Plea Options As a result, entering a not guilty plea is a preliminary step. It is a necessary procedural step to keep a plea of guilty available as an option to enter at a later time, most notably at a Rule 11 hearing.

3. Examination of Witnesses or Evidence No evidence is presented during a federal arraignment, and no witnesses testify.

4. Motions Argument Motions for dismissal are filed and argued in federal cases under Rule 12 of the Federal Rules of Criminal Procedure. Motions to dismiss are generally filed and argued after the arraignment, although Rule 12 permits the court to set motion deadlines and schedule a motion hearing at the arraignment or soon afterward.

5. Finding Probable Cause At a federal arraignment, the judge does not make any findings regarding whether there is probable cause to support charges filed against the defendant.

6. Determining Whether Arrest was Necessary A federal arraignment is not for making determinations as to whether arrest was warranted or whether arrest of the defendant was necessary.

7. Finding Probable Cause of the Grand Jury (Rule 10) Prior to an indictment arraignment, the grand jury has already found sufficient probable cause for the government to seek the indictment.

What Should I Tell Pretrial Services Before the Hearing?

The role of the pretrial services officer is that of an arm of the federal court, even though the officer works in tandem with the court. The officer does not work on behalf of the defense, and the officer does not work on behalf of the prosecution. The interview with the pretrial services officer is part of the inquiry the officer is conducting before the courtroom hearing. The interview includes the following questions (or categories of questions):

• What is your place of employment and salary?
• Where do you live?
• How long have you lived at your current address?
• How many children do you have? Do they live with you?
• Do your parents live nearby?
• What is your financial situation?
• Have you had any other contacts with law enforcement?
• What is your health status? Do you use prescription medications?
• Are you seeing a psychiatrist or counselor?
• Have you been to the police or the prosecutor’s office?

The interview with pretrial services is confidential by statute: under 18 U.S.C. § 3153(c), information obtained by the officer may be used only for the bail determination and is not admissible on the issue of guilt, although the pretrial services report itself is provided to the court and to counsel for both the defense and the government. The best defense strategy is not to disclose information about the alleged offense that could be used to build a case, but not to lie about everything. In most circumstances, the best strategy is to assert that you do not want to discuss the matter at hand and to establish community ties, employment, financial solvency, and any other ties to your community.

• Establish community ties with lease agreements, utility bills, and pay stubs.
• Establish medical needs with medical records and prescriptions lists.
• Bring a proposed third-party custodian who is willing and able to assist in enforcing a court order imposing conditions. He or she should attend the courtroom hearing because the judge may ask questions.

Which Release Conditions Should Be Proposed?

The best release conditions depend on the case, the specific facts, and the specific situation. A case where no one is in danger and there is no danger of flight is very different from one where a violent crime has been charged and there is danger of flight and a risk of future criminal behavior.

In all cases, the goal will be to convince the court to allow the defendant to return home while awaiting trial. In most cases, these conditions can be tailored to the specific situation:

• The defendant is facing substantial financial loss or incarceration.
• The defendant has had no previous involvement with law enforcement.
• The defendant requires medical care, rehabilitation, or psychiatric care.
• The defendant is not considered a danger to the community.
• The defendant has no connection to a foreign country.

The best release conditions can be determined through a thorough examination of the circumstances involved. Todd Spodek and the attorneys at Spodek Law Group handle federal cases of this kind from New York, Brooklyn, Queens and Los Angeles.

How Does a Federal Judge Decide Release or Detention?

In order to determine if release or detention is the proper course of action, federal courts apply the provisions of Section 3142. Although it applies to both types of decisions, it uses different standards for different scenarios. For instance, in a scenario involving detention, the government must show that no condition or combination of conditions will reasonably assure the defendant’s appearance as required (3142(e)) whereas, in a scenario involving pretrial release, the court must release the person subject to “the least restrictive further condition, or combination of conditions,” that will reasonably assure the appearance of the person (3142(c)(1)(B)).

While courts have wide discretion to decide release or detention, there are four factors they must consider in determining whether pretrial release or pretrial detention is appropriate:

• The nature and circumstances of the offense (3142(g)(1))
• The weight of the evidence against the defendant (3142(g)(2))
• The history and characteristics of the defendant (3142(g)(3))
• The nature and seriousness of the danger to any person or the community that would be posed by the defendant’s release (3142(g)(4))

In some circumstances, however, Section 3142(e)(3) also creates a rebuttable presumption that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community. Some cases fall into specific categories, including drug crimes, firearm crimes, other types of crimes involving violence, and others.

The term “rebuttable presumption” can be a very tricky legal phrase. When the burden of rebutting the presumption is on the defendant, this is known as a burden of production. The defendant doesn’t have to prove, by the preponderance of the evidence, that there is no risk of flight or that pretrial detention is not appropriate. Instead, the defendant only has to establish evidence (or the lack of evidence) to trigger the judge’s inquiry into whether there is an adequate basis to presume pretrial detention. If the defendant produces evidence sufficient to meet the burden of production, the presumption remains available for the court to consider in deciding detention or release. Once the presumption has been rebutted, the prosecution then bears the burden of persuasion in its efforts to establish that detention is warranted.

What Type of Bond Can Be Imposed?

The federal court has several options when it comes to imposing a bond. Each of these options can be used to mitigate the risks of flight and endangerment of the community. Unsecured bonds, secured bonds, and real property bonds are the typical options available under 18 U.S.C. § 3142(c)(1)(B).

• Unsecured Bond - This is often the case where the bond requires no upfront cash from the defendant. The bond becomes payable only upon a default.
• Cash Bond - The federal court will ask for cash to be held as collateral until the date of the verdict. The cash is returned to the defendant when he has fulfilled the conditions imposed by the court.
• Real Property Bond - This is similar to a cash bond, but the property title is held as security. If the defendant commits a breach, the government can pursue the home or other property at hand for recovery of funds.

Unlike in state court, the federal court does not use commercial bail bond companies. This makes the federal process less of a concern for people without money or property at hand.

Why Might I Remain Jailed After the Release Hearing?

In many cases, a defendant is released after the release hearing. However, in others, the defendant may not be released. This may be due to a detainer, or this may be because the judge ordered detention.

If the judge ordered detention, then the defendant may be eligible for an appeal. Section 3145(b) grants the right to seek review of a magistrate’s order of detention by the district judge. The district judge review is de novo and takes place without deference to the magistrate judge.

Under Section 3142(f), a defendant is also entitled to a new hearing if material new information emerges after the arraignment. With the right counsel, material new information can be presented in time to ensure that the defendant is released. For example, providing a revised release plan, a list of added sureties, a new employer letter, or a psychiatric evaluation can make a difference between pretrial detention and pretrial release.

What Happens While I Am Detained Pending Review?

If detention is ordered, the defendant’s life changes drastically overnight. From the date of the detention to the release hearing, the defendant is subject to strict jail conditions.

These conditions may interfere with the defendant’s ability to review and understand the government’s case. The limitations on telephone access, attorney access, and even sleep can make it impossible for the defendant to prepare a proper defense. While some detentions are temporary, others can last for months or years.

Why Am I Not Being Released After the Release Hearing?

In some cases, the release hearing may result in the judge granting the defendant’s release. Even in these cases, the defendant may not be released. Instead of being sent home, the defendant is sent to another detention facility. This is known as a detainer. A detainer is an order by another government agency. The order instructs the detention facility to hold the defendant even after the release hearing ends. Detainers may be issued by the Immigration and Customs Enforcement Agency (ICE) as well as by state authorities. An ICE detainer may be issued based on a prior入境 violation (such as overstaying a visa). A state detainer may be issued based on criminal charges pending in state court or based on unfulfilled custody requirements.

What Happens While the Hearing is Continued?

The defense can seek a continuance in some circumstances. While the continuance is pending, the defendant remains in the Marshals’ custody. As a result, the defendant’s experience will depend on the duration of the continuance.

What Happens Immediately After a Federal Arraignment?

The federal arraignment is a very short proceeding, but its aftermath is quite long. Many important actions must occur in the days and weeks after the arraignment. This is a challenging time for both sides to put their best foot forward.

One issue that needs to be addressed after the arraignment is timing. Under the Speedy Trial Act of 1974 (codified at 18 U.S.C. § 3161), the government must commence the trial within seventy days after the indictment or first appearance (whichever of the two occurs later).

But there are ten “excludable delays,” enumerated under Section 3161(h), which stop the clock during these seventy days. If an arrest or first appearance occurs within seventy days of the trial, these delays are not computed. They are a function of other legal issues that can arise during the process. For instance, if the government demands a continuance in the name of “the ends of justice,” then, in most cases, the judge must grant it and state the reasons for the continuance on the record.

One other issue that needs to be addressed is Rule 16 discovery. Rule 16 requires the government to provide the defendant with all required discovery. However, Rule 16 discovery does not typically arrive at the arraignment. It typically arrives in the weeks after the arraignment.

What Happens if I Do Not Act Promptly?

If the defendant fails to timely assert affirmative defenses such as statute of limitations defenses, entrapment defenses, or other affirmative defenses under the Federal Rules of Criminal Procedure, then these defenses are waived.

There are ten substantive grounds listed in Rule 12 that warrant pretrial motions. If any of these grounds applies, the defendant must assert it as soon as possible. The first step is to file a written motion with the court, which should be followed by an argument and a legal brief before a federal judge.

Why Does Nothing Happen at My Arraignment?

There are several possible explanations:

• The time has not run out.

The time that counts toward the seventy-day limit in the Speedy Trial Act begins to run from the first appearance, not the arraignment. The trial date has already been set, and the clock is running.

• The time for the prosecution’s response to the not guilty plea expires on the date of the hearing.
• The prosecution has requested a delay and the court has granted it.
• The judge has already issued a decision and the decision is posted online.

The arraignment is the first official interaction for the case. The process only begins after the hearing ends.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 212-300-5196 to speak with our team.