Facing federal indictment is an extremely serious matter, and it’s not something to be taken lightly. Every decision you make from this point can impact how your case unfolds and its consequences on you.
If you or someone you love has received notification of a federal grand jury indictment, your first step should be to contact an attorney.
Your attorney should have a history of successfully defending cases like yours. This can be a very anxious and stressful time, but it’s important to not retain the first attorney you call. Interview a number of lawyers until you find one with a track record of success, who you feel can confidently defend your rights.
Once you have hired your attorney, they can closely examine the facts of your case and advise you on the best route forward. Typically in cases of a federal grand jury indictment, you have three options:
- Petition the court to dismiss the indictment
- Plead guilty
- Proceed to a jury trial
We’ll discuss more about those options below, but first, let’s take a step back to explain more about the indictment process.
What is a federal criminal indictment?
A federal grand jury indictment is a notice given to someone that they are believed to have committed a federal crime. It includes basic information that includes the charges against them.
The federal government typically investigates and prosecutes crimes that cross state lines, involve the internet, involve crimes against federal institutions (such as banks) or violate laws passed by congress.
The federal government has virtually infinite resources to investigate and pursue charges if it believes that someone has committed a crime. Agencies like the FBI, DEA and Secret Service can methodically investigate for months or even years, building a case against someone, and in specific circumstances, that evidence is then brought in front of a grand jury.
A grand jury is a panel of 16-23 citizens that will hear witness testimony in the case, as well as the evidence the agency has gathered. If the grand jury determines that it is likely that the person under investigation has committed a crime, it will issue an indictment.
The grand jury
Unlike a trial jury, which determines guilt or innocence in a court case, a grand jury’s purpose is to decide whether there is enough evidence to charge a person with a federal crime.
Grand jury proceedings take place behind closed doors, ensuring confidentiality.
The grand jury process is unique. Unlike a regular trial, there’s no judge present, and the accused often does not have a right to present their defense or even be present (though they may testify if they wish). The standard of proof is also lower than in a criminal trial. Instead of proving “beyond a reasonable doubt,” the prosecutor must only show that there’s enough evidence to justify a trial.
Grand jury members have a significant responsibility. They must impartially review the evidence presented, ask questions to clarify points, and ultimately decide if there’s enough evidence to bring formal charges. Their duty is not to establish guilt, but to ensure there’s a valid basis for a trial.
It’s often said that a skilled prosecutor could “indict a ham sandwich,” a phrase attributed to former New York State Chief Judge Sol Wachtler, which underscores the idea that it’s generally easy for prosecutors to secure indictments. Why is that the case?
- One-sided Presentation: The grand jury process is largely managed by the prosecutor, who presents evidence and calls witnesses. Unlike a trial, the defense does not have the opportunity to cross-examine these witnesses or present counter-evidence. This one-sided process can make it easier for prosecutors to shape the narrative in favor of indictment.
- Lower Standard of Proof: The grand jury doesn’t determine guilt or innocence, but rather whether there’s probable cause to believe a crime has been committed. This is a lower standard of proof than “beyond a reasonable doubt,” which is required for a conviction at trial.
- No Judge: There’s typically no judge present in the grand jury room to oversee the proceedings or provide legal advice to the grand jurors, which gives the prosecutor more control over the process.
What happens after an indictment?
Here’s what typically happens after a federal indictment is issued:
Arraignment
The first step after an indictment is the arraignment, where the federal criminal defendants will appear in court. The charges are formally read, and the defendant is asked to enter a plea. Here, the defendant can enter a not guilty plea, plead guilty or no contest.
Discovery
During the discovery phase, the prosecution and defense exchange information about the evidence and witnesses they plan to introduce at trial. This process allows both sides to prepare their cases. In federal cases, the government often has an extensive amount of information, which can include witness statements, physical evidence, and electronic data.
Pre-Trial Motions
Both the defense and prosecution can file pre-trial motions, which are essentially requests for the court to take specific actions. These could include motions to suppress evidence, to dismiss charges, or to change the venue of the trial.
Plea Bargaining
In many cases, a plea bargain may be negotiated. This is an agreement in which the defendant pleads guilty to a lesser charge, or to one of several charges, in exchange for a more lenient sentence or the dismissal of other charges.
Jury trial
If no plea agreement is reached, the case goes to trial. During the trial, the government presents its case first, followed by the defense. Both sides have the opportunity to cross-examine witnesses. After both sides have presented their cases, the jury deliberates and reaches a verdict.
Sentencing
If the defendant is found guilty, the judge determines the sentence. This may happen at a separate sentencing hearing, where both sides can present evidence and arguments about what they believe the appropriate sentence should be.
What are my options after a federal grand jury indictment?
Dismissing a federal indictment
When filing a motion for dismissal, the defendant essentially makes the argument that they should not have been charged at all. Either by a mistake in jurisdiction or a violation of the defendant’s Constitutional rights, the government erred in charging them with a crime.
Motions for dismissal are very common in a number of areas of the law, but we see in practice that most motions for dismissal typically fail when dealing with federal grand jury indictments. The reason for this is fairly straightforward: Almost all requests for dismissal argue that the government’s allegations are wrong.
Federal judges can’t simply overturn a case on this basis. It is not the judge’s responsibility to determine whether or not the government was correct in applying the charges. The system is built on the trust of the grand jury to hand down the indictment and the trial jury to determine whether or not the defendant is guilty.
That said, all cases are different and have their nuances. Speak with your attorney about whether or not this could be a productive option for you.
Pleading guilty
There is only one circumstance in which you should consider pleading guilty, and that is if, after carefully and thoroughly reviewing all of the facts of your case, your attorney sees no better route to take. This is especially important if you are a professional like an accountant or physician, this is especially important, because a federal guilty plea will cause you to lose your professional license.
Many attorneys will recommend pleading guilty simply because they are uncomfortable with preparing for trial. Do your best to weed these attorneys out in the interview phase.
If you decide to plead guilty, it’s important to remember that a pleading guilty is a negotiation and not a surrender. Depending on the facts of your case, pleading guilty can allow your attorney to negotiate a reduction in the number of charges against you, sentencing and other penalties (“plea bargain”).
Taking federal cases to trial
While federal agencies have deep resources and numerous tools to investigate and gather evidence against you, the elephant in the room is the simple fact that most Assistant United States Attorneys are young. They typically join the Justice Department after less than five years of private practice.
The federal government uses its extensive investigative powers and the possibility of harsh sentences to play the intimidation game, and it often wins. This is why so many federal cases end in guilty pleas.
Going to trial should always be your lawyer’s first option, and they should only remove it from the table if there is virtually no chance you’ll succeed. Preparing for a federal trial is very difficult. It is painstaking, time consuming and requires a skillset that few truly possess. When interviewing attorneys, find out if your attorney has the aggressive mindset and work ethic needed to take your case to trial. If it does go to trial, you’ll have the benefit of an expert in your corner who’ll do whatever it takes to preserve your Constitutionally guaranteed rights.
If your case is settled with a plea deal, your attorney’s initial signal that they are ready to go to trial will give you more leverage when it’s time to negotiate your penalty.
Hire an experienced federal criminal defense attorney
Throughout this guide, we’ve stressed the importance of thoroughly vetting your attorney before you hire them. There are a number of highly skilled federal defense attorneys throughout California, each with strengths in different types of cases. Find the attorney that is skilled in your case area and can confidently represent you.
Robert M. Helfend is a federal defense attorney based in the Los Angeles area, serving federal clients throughout California and the United States. He has practiced since 1984, working to secure favorable judgments for thousands of clients in that time. He was recently honored by his peers with listings on SuperLawyers, the National Trial Lawyers Top 100 and Lead Counsel. He specializes in internet crimes, drug crimes and financial crimes in federal courts.
As we said above, every situation is different and different attorneys have different strengths, but the first step in finding out is a free evaluation of your case and the charges against you. Call today – 800-834-6434.