Life After an Indictment: The Road to Trial.

What Happens After a Federal Indictment?

Rule 9. Arrest, Summons, Bail or Bond.

A federal indictment is far more than just a formal accusation. It is a very formal document that lists the defendant’s alleged offenses and the federal criminal statutes he allegedly violated. However, a federal indictment does not constitute evidence of guilt. While it establishes the probable cause that the grand jury believed warranted criminal charges, it does not prove that the defendant is guilty beyond a reasonable doubt.

After the indictment, Rule 9 authorizes the district court to issue an arrest warrant or a summons. The issue of whether the defendant should be detained pending trial will be addressed at the defendant’s initial appearance.

Rule 10. Arraignment. Following the arrest or summons, Rule 10

requires the defendant’s arraignment in open court. At the arraignment, the defendant will learn of the specific charges, and the defendant will be required to enter a plea.

Rule 6(e). Secrets of Grand Jury Proceedings.

Federal grand juries contain 16 to 23 members, and at least 12 grand jurors must concur in order to return an indictment. Additionally, federal grand jury proceedings are generally secret under Rule 6(e). There are no public transcripts or minutes of the grand jury, and the prosecution’s witnesses and their testimony remain undisclosed.

Defendants have no general right to appear before the grand jury. As a result, defendants will generally learn about the allegations and witness testimony only at the district court stage. At this point, defendants will be able to access the prosecution’s evidence, although this only applies to evidence that the prosecution intends to use at trial.

Will I be arrested or detained after an indictment?

Can I Learn About an Indictment Prior to Arrest?

Yes, although this can be uncommon. Under Rule 6(e)(4), the magistrate judge to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial, and the clerk must then seal the indictment. Under Rule 5(a)(1), a district court must hold the defendant’s initial appearance “without unnecessary delay.”

If you are financially eligible, you can have a federal public defender appointed to represent you. In most cases, defendants will be eligible for court-appointed counsel through the Criminal Justice Act (CJA) or by meeting other eligibility requirements.

Will I Be Granted Release Pending Trial?

Under the Bail Reform Act, the district court will determine at your arraignment whether you will be released pending trial or if detention is warranted. Release pending trial is most common, and this can be either conditional or unconditional. A decision to detain may be based on the following considerations:

• Risk of Flight: The judge may think you pose a flight risk, or that there are reasons to believe that you will flee to avoid prosecution. In such cases, you will need to convince the judge that you are unlikely to flee and that other conditions of release are sufficient.
• Danger to the Community: The judge may also decide that you pose a risk to the community. If this is the case, you will need to convince the judge that there is either no danger to the community or that other conditions of release are sufficient.
• Additional Grounds for Detention: Under some circumstances, the district court may also decide to detain on other grounds. For example, it may detain you if you are believed to pose a risk to the evidence in your case or if you have been convicted of certain other offenses.

  What Will I Learn at My Arraignment?

  At your arraignment, you will learn more about the charges against you, and you will be required to enter a plea. You will also receive a copy of the indictment, and the district court will schedule any further proceedings.

The primary reason that a district court may seal an indictment is to prevent the individual targeted by the indictment from learning about pending charges before a coordinated arrest can be executed. This prevents targets from fleeing their jurisdiction, fleeing the country, destroying evidence, or engaging in any other form of obstruction. However, there is no provision under Rule 6(e)(4) that allows for unsealing the indictment before a target is arrested.

What can my lawyer challenge before a federal trial?

What evidence will I receive and what evidence will the government receive?

The Jencks Act

The Jencks Act is a federal statute that requires government prosecutors to produce a witness’s prior statements. However, the timing of this production depends on whether the witness has testified. Prior to trial, the government may choose to withhold its witnesses’ prior statements. After a witness testifies on direct examination at trial, the government must produce that witness’s prior statements to the defense. With a witness’s prior statements in your hands, you will be able to impeach a witness’s testimony on cross-examination. With this in mind, you will need to consider how to best use this information during a federal trial.

The timing of discovery in a federal criminal case is a very important issue that requires experienced representation. At our firm, our defense attorneys’ experience allows us to effectively navigate the complexities of federal criminal proceedings. We have successfully negotiated favorable settlements and obtained dismissals for a multitude of cases in the federal courts. As a result, we understand the critical nuances of federal court procedures and know how to use this knowledge to our clients’ advantage.

What other pretrial motions can my lawyer file?

There are many other pretrial motions that your lawyer can file in federal court. For example, among others, under Rule 12:

• Motions to Suppress: Your lawyer can file a motion to suppress evidence that was obtained unlawfully by the government. This may include search warrants that were not issued, search warrants that exceeded their scope, and evidence obtained through an illegal search or seizure. Additionally, your lawyer can file a motion to suppress statements made during or after interrogation when your right to remain silent is not being respected.

  Can I challenge the federal indictment?

  There are various reasons that your lawyer can challenge a federal indictment. For example, if the indictment is missing one of the elements of the offense, if the indictment charges you with an offense for which the applicable statute of limitations period has already expired, if the indictment improperly charges you with an offense that does not apply to you, or if the indictment has other deficiencies, your lawyer may be able to challenge the indictment and seek its dismissal. Additionally, your lawyer can challenge the grand jury proceedings that resulted in the indictment.

  What is a bill of particulars?

  A bill of particulars is a formal request that a defendant makes when the indictment is too vague to understand the specific allegations. To seek a bill of particulars, you must file a motion under Rule 7(f). Rule 7(f) provides that the court may direct the government to file a bill of particulars, and that the defendant may move for one before or within 14 days after arraignment, or at a later time if the court permits.

  What is a superseding indictment?

  A superseding indictment is an indictment that replaces a prior indictment or modifies pending charges against a defendant.

  Can federal charges be dropped after an indictment?

  Yes. While you must wait until the federal government decides to dismiss the charges, prosecutors are permitted to dismiss charges, but only with leave of court, under Rule 48(a). As a result, federal charges can be dropped after an indictment. Plea agreements and plea bargains, which are common in criminal cases, also typically include the dismissal of all but a certain number of counts.

  What does this mean for other counts if some charges are dropped?

  If any charges are dropped after a defendant is indicted, this will leave the case open for the remaining charges to move toward trial. Once you receive a conviction on one or more counts, these counts cannot be overturned simply because you have other charges dropped. Once you have received an acquittal or a dismissal on the remaining charges, however, the case is closed. In other words, you will receive a conviction on the charges you are convicted of and be acquitted or the charges will be dismissed on the other counts.

  What does it mean if a case has been dismissed with prejudice versus without prejudice?

  - Dismissed without Prejudice: If a case is dismissed without prejudice, the judge believes the dismissal is justified, but it also believes that prosecutors should be allowed to prosecute a defendant on the same charges at another time. However, when the dismissal was due to the prosecution’s failure to satisfy the deadlines under the Speedy Trial Act, the court decides whether to dismiss with or without prejudice, weighing the seriousness of the offense, the facts and circumstances that led to the dismissal, and the impact of a reprosecution on the administration of justice. In such cases, the judge may dismiss a case with prejudice.

• Dismissed with Prejudice: If a case is dismissed with prejudice, the judge believes that the dismissal is justified and that prosecutors should not be allowed to pursue the same charges. Prosecutors will generally not be allowed to pursue a defendant’s case again, or re-file the same charges.

  Can a case be dismissed if it was not dismissed prior to trial?

  Rule 48(a) states, “The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant’s consent. However, the government can still seek a dismissal during the trial with the defendant’s consent. If a case is dismissed without prejudice, prosecutors may be allowed to prosecute the same charge again at another time.

  Can a target of an indictment be tried on multiple counts?

  Yes, but it depends on the case. In a federal indictment, there can be multiple counts. Each count is decided separately, so you may be convicted on some counts and acquitted on others. If you get convicted on one count and not all counts, you are not considered acquitted. This is because the prosecution succeeded in proving one of the charges. However, once the prosecutor receives a conviction on one count, it is common practice to request dismissal of any other pending charges.

  How long after a federal indictment is the trial?

  The federal Speedy Trial Act, 18 U.S.C. Section 3161, is a federal law designed to provide defendants with a right to a speedy trial. Section 3161(c)(1) requires that trial commence within seventy days, establishing a 70-day clock for federal trials. The statute specifically states, “In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.”

Thus, the federal trial clock starts from the indictment or arrest. However, it is important to note that the federal trial clock is not just a calendar deadline that applies to all cases. Instead, there are many exclusions that make it more of a variable clock.

What are the exclusions for the federal trial clock?

The federal Speedy Trial Act also excludes certain delays under Section 3161(h). Specifically, the federal trial clock excludes:

• The delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, that motion.
• Pretrial motions for ends of justice can also stop the clock, and the length of the pause depends on the specifics of the case.

  Does an “Ends of Justice” Continuance Have to be in the Defendant’s or Government’s Interest?

  In order to decide whether to grant an ends-of-justice continuance, judges will make a case-by-case finding. A judge must find that the ends of justice served by granting the continuance outweigh the best interest of the public and the defendant in a speedy trial, and must set forth the reasons for that finding in the record. With this in mind, “ends of justice” is the most common reason for the pausing of the federal trial clock.

  Does the federal trial clock give a specific calendar deadline for trial?

  The federal trial clock does not provide a specific calendar date for the trial. Rather, it just guarantees the trial will happen within a specific window of time. While it guarantees a trial within 70 days, it is a very variable deadline due to the exclusions in Section 3161(h) of the Speedy Trial Act.

  Will My Trial Date Be Changed if I Am Detained?

  The federal Speedy Trial Act also addresses the timing of federal trials for defendants who are continuously detained. Under 18 U.S.C. Section 3164, unless another trial date is established as a result of ends-of-justice delays or other exclusion, a detained defendant must have a trial within 90 days of the beginning of continuous detention. However, like the federal trial clock under Section 3161(c)(1), Section 3164(b) excludes the same periods of delay that are listed in Section 3161(h).

  What percentage of federal indictments go to trial?

  The federal trial rate depends on the percentage denominator chosen and the fiscal year being evaluated. In most cases, the trial rate will be very low, but this is not a good measure of trial success. Trial success depends on whether you were the prosecution or defendant, or whether the conviction rate is among defendants who are tried.

These percentages can be a bit tricky as most federal convictions are not based on trial verdicts but instead result from the admission of guilt.

How often are defendants convicted?

A common way to evaluate trial success is to review the conviction rate among tried defendants. Based on a review of 2023 sentencing data, the conviction rate among tried defendants was about 80%, though more than 20% of defendants who are tried are not convicted.

Do prosecutors promise certain sentences during the plea bargaining process?

Under Rule 11(c)(1)(B), the prosecutor and defendant agree that the prosecutor will make specific sentencing recommendations to the court. This provision expressly states that “the court is not bound by these recommendations.” However, under Rule 11(c)(1)(C), the agreement specifically provides for a “particular sentence or a sentence within a range of sentences.” This form of plea agreement does not explicitly state that the court is not bound. If a court accepts a Rule 11(c)(1)(C) plea agreement, the judge must sentence the defendant in accordance with the agreement. If the judge cannot accept the sentencing terms of the agreement, then the judge cannot accept the plea bargain as well.

What percentage of federal trials are successful?

While most federal trials do not result in a conviction, the trial outcome depends on how you measure “success.” From the perspective of prosecutors, success depends on convincing a jury or judge beyond a reasonable doubt that the defendant is guilty. For a defendant, success depends on the prosecution’s inability to establish the defendant’s guilt beyond a reasonable doubt. The Federal Rules of Criminal Procedure do not include an explanation for indictment “success.”

How is a federal sentencing recommendation calculated?

The calculation of a federal sentencing recommendation for each offense is different. In federal sentencing, for example, the prosecutor may seek a 15-year or 30-year sentence. While there are generally many possibilities, the calculation of these recommendations has developed over decades. Therefore, these determinations will generally have been made based on sentencing agreements and recommendations that are similar to those that the prosecutor or defense attorney has handled in the past.

Can we estimate how likely a conviction is in a federal case?

The U.S. Sentencing Commission collects data based on defendants who are convicted in federal courts. This data is incomplete as a significant percentage of defendants who have an indictment filed will never be sentenced in federal court. If your criminal case is on the threshold of indictment, a criminal defense attorney can consult relevant case statistics and experience to help the defendant determine his options.

What happens after a guilty plea or conviction?

If you have entered a guilty plea or a jury or judge finds you guilty at trial, you will then face a federal sentencing. Following the decision to move toward sentencing, U.S. Probation will prepare a presentence report. Once probation has prepared your presentence report, the court will hold a sentencing hearing. During this time, your defense attorney will present arguments in your favor.

Once you have a sentencing hearing, your sentencing judge will calculate the recommended sentence in accordance with the federal sentencing guidelines. The federal sentencing guidelines are advisory and are not considered mandatory. However, the federal sentencing guidelines provide a specific guideline range for every federal offense.

What are the different kinds of federal sentences?

Depending on the offense, your sentence will depend on the guideline range and the aggravating and mitigating factors of the case. The following are examples of various federal sentences:

• Probation
• Imprisonment
• Special Assessment
• Fines
• Restitution
• Supervised Release

These are only a small portion of the various sentencing options.

What happens after a federal sentencing is handed down?

If the defendant has already been sentenced, the sentencing judge no longer has the authority to amend the sentence. However, the judgment of conviction can be challenged via appeal or collateral review. Under Rule 4(b), the time frame for filing a federal criminal appeal is generally 14 days.

Is a conviction a criminal record?

Yes. If you were found guilty at trial or entered a guilty plea and were acquitted, this will remain on your criminal record. In order to have a conviction not appear on your criminal record, the individual or the government must seek a pardon, or you can apply for expungement under relevant state and federal law.

Can I withdraw a guilty plea after taking it?

Yes. If the defendant has entered a guilty plea, they can withdraw their guilty plea and proceed to trial before the sentencing hearing is held. The defendant must present a fair and just reason to withdraw his guilty plea. If the individual has already been sentenced for his offense, the defendant will need to challenge the conviction through a collateral review or through the appeal process.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.