Military Family Member Indicted.

The truth is that a federal indictment is an accusation, not a determination of guilt. It is a legal document charging the defendant with an offense and thus triggers the subsequent legal proceedings (i.e., the prosecution). While this creates serious implications for the military family member (or any defendant), it by no means constitutes proof that they are guilty or are likely to be convicted. To understand why a federal indictment doesn’t prove guilt, it is important to understand how indictments are issued. Contrary to the common terminology used in the news, investigating agencies like the Department of Justice (DOJ) or Federal Bureau of Investigation (FBI) do not “issue” indictments. Instead, these agencies present evidence to a federal grand jury, and the grand jury, in turn, “returns” the indictment when it finds sufficient evidence to proceed. While a grand jury’s role is to determine whether there is “probable cause” to move forward with the case, this is a significantly lower standard than what is required for a criminal conviction. At a federal criminal trial, the prosecution must prove guilt “beyond a reasonable doubt.” This is the highest standard of proof in the American legal system, meaning there must be sufficient evidence to leave no reasonable doubt in the mind of the judge or jury that the defendant is guilty. The high standard of proof, combined with the presumption of innocence, makes the prosecution’s job difficult. It is never the defendant’s responsibility to prove innocence, as they bear no general burden of proof. This is not like other types of law, it is a key protection afforded to everyone under the American legal system, including military family members facing federal charges.

How Does a Federal Indictment Become a Case that the Defendant Must Answer?

From the time you learn that a grand jury has returned a federal indictment against you, there are several steps involved in the prosecution’s case. During these steps, your attorney will work to get a full picture of the government’s case and will work to build a strong defense.

Who is Investigating, and Who is the Prosecutor?

In federal criminal cases, the investigating agency and prosecutor are not the same people. The investigating agency may be the Federal Bureau of Investigation (FBI), Drug Enforcement Administration (DEA), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Internal Revenue Service (IRS), or some other agency within the federal government. The prosecutor is generally an Assistant United States Attorney representing the United States through the Department of Justice.

What Happens After the Indictment?

The first part of your attorney’s work involves uncovering the government’s case. This is called discovery, and your attorney will use the rules of criminal procedure to ensure your attorney gets all information you are entitled to. The prosecution may then offer a plea agreement, under which the defendant may plead guilty in exchange for concessions such as dismissal of other charges or a sentencing recommendation. If you agree to the terms, you can accept a plea bargain and avoid going to trial. If no plea agreement is reached, the case may proceed to trial.

Are There Rights That Have Been Violated?

As you review the government’s evidence, you and your attorney will examine any procedural errors that the government may have made. In federal cases, this often involves a violation of the Fourth Amendment of the U.S. Constitution. The Fourth Amendment protects against unreasonable searches and seizures, and if any evidence was obtained illegally, you may be able to have it excluded from the case.

What Should You Do if You Are a Military Spouse or Family Member Facing Charges?

If you are a military spouse or family member facing federal charges, your immediate priority should be to find a trusted defense lawyer. At Spodek Law Group, our attorneys are available to discuss the best way to proceed.

When Can the UCMJ Reach a Service Member Rather Than a Civilian Family Member?

The Uniform Code of Military Justice (UCMJ) is a body of laws specifically designed to govern military criminal justice for those members of the U.S. Armed Forces who are covered by the UCMJ. As a result, military courts have the authority to impose various forms of punishment for violations of these laws. This can include rank reduction, pay forfeiture, and punitive discharge, in addition to civil or criminal imprisonment. Within the military justice system, a panel may be convened to hear a case and make a determination as to guilt or innocence. While the military courts allow for members of the panel to be either commissioned officers or eligible enlisted personnel, there are some significant differences from civilian trials and military judges. Among these differences is the notion that military personnel are denied some of the basic rights afforded to civilian defendants. While this has been widely debated, most legal scholars agree that military criminal justice processes afford basic protections to those accused of criminal offenses. Among these protections are the right to counsel, the right to present evidence, and the right to confront witnesses against them. These protections have been established under the Sixth Amendment to the U.S. Constitution and are designed to ensure fair and impartial proceedings. Importantly, military personnel are also subject to military law. As a result, there are cases where defendants must plead guilty or not guilty to criminal charges based on the rules of the military judicial system. However, these circumstances apply to current members of the U.S. Armed Forces, not to their spouses or other family members.

If an Indictment Leads to a Criminal Conviction, How are Federal Penalties Determined?

If you are convicted of a federal offense, then sentencing will occur during a subsequent proceeding. In this proceeding, your attorney will work to have your sentence reduced as much as possible. To accomplish this, he will present arguments regarding why you are entitled to leniency.

1. The Federal Sentencing Guidelines

Sentencing in federal criminal cases is not conducted at random. Instead, the penalties for a conviction are primarily governed by the Federal Sentencing Guidelines (USSG). These guidelines provide advisory sentencing ranges for federal offenses, and they are widely cited by federal judges as they consider appropriate sentences. To determine a defendant’s sentencing range under the guidelines, the presiding judge must calculate a variety of factors, each with its own specific meaning. These include the nature of the offense and the defendant’s level of culpability, criminal history, and any mitigating circumstances. In addition to calculating the Guidelines range, judges must also consider these factors under 18 U.S.C. § 3553(a).

2. A Presentence Investigation Report (PSIR)

Before sentencing, a probation officer ordinarily will prepare a presentence investigation report (PSIR), unless an exception applies. In a PSIR, the probation officer will present a summary of the defendant’s conduct that is the subject of the criminal prosecution, a statement of the defendant’s criminal history, a calculation of the Guidelines range, and any other relevant information. The defendant’s attorney will also review the PSIR before the sentencing proceeding. The attorney will then assess if any errors were made and will use these errors in the sentencing proceeding to argue for leniency.

3. The Final Sentencing Decision

At the end of the sentencing proceeding, the court will impose the sentence, the judge will sign the judgment, and the clerk will enter it; a term of imprisonment commences when the defendant is received in custody awaiting transportation to, or arrives voluntarily to commence service of sentence at, the official detention facility. All these steps are critical to the defendant’s final sentence.

Does Florida’s Alleged 33-Day Rule Govern this Federal Indictment?

While Florida may have some rules regarding civilian, state, or military criminal cases that do not follow federal law, research does not uncover any legal basis for a “33-day rule” that applies to federal indictments. Also, remember that federal, state, military, and civilian cases each have their own governing procedures. If convicted of a federal offense in Florida’s Middle District, the defendant’s appeal would go to the United States Court of Appeals for the Eleventh Circuit. These court proceedings follow strict deadlines and procedural rules, making it imperative to meet all filing deadlines. From there, defendants seeking further federal review would generally need to file a petition with the Supreme Court of the United States. While going to trial may seem like a daunting prospect, it also means that defense attorneys have significant room to fight in order to achieve a dismissal. These grounds include:

• Violations of the defendant’s constitutional rights
• Inadequate evidence to prove guilt beyond a reasonable doubt
• Prosecutorial misconduct or other procedural errors committed by the government
• Inability of the prosecution to meet its burden of proof Because of this complexity, you need a dedicated legal team to help you protect your interests. At Spodek Law Group, our defense lawyers represent clients in federal criminal proceedings. We offer free, confidential consultations for those who would like to discuss how we can help them protect themselves against federal prosecution.

Talk It Through With a Lawyer

Every case turns on its own facts. Todd Spodek is the managing partner of Spodek Law Group, a second generation firm his father opened in 1976, and the firm takes federal criminal and white collar matters nationwide. Call 888 348 8028 to talk it through.