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Federal Criminal Process

AGENCY INVESTIGATIONS
    
The federal criminal process starts either as a result of an investigation already in progress or with a complaint made by someone, whether a citizen, a business, or a government agency. In the instances where the investigation arises out of another investigation, the agency already in charge will follow through.  Thus, for example, if the Drug Enforcement Administration is conducting surveillance on an individual and comes across another whom they suspect is involved, they will continue with the investigation and make the arrest and thus commence the criminal process.  In some instances a federal judge refers a matter to the U.S. Attorney’s Office for investigation and prosecution.  

There are many agencies within the several departments of the federal government that handle investigations and commencement of prosecutions.  The more common ones are the Federal Bureau of Investigations (FBI), the Drug Enforcement Administration (DEA), the U.S. Secret Service (USSS), Immigration and Customs Enforcement (ICE), and the Internal Revenue Service (IRS) - Criminal Division.

---  SHOULD YOU TALK TO LAW ENFORCEMENT AGENTS?

     There are a few things that every citizen should know:

  1. No one is ever, ever required to answer questions by police officers.  Never means never.


  2. Police officers (and, of course, that includes federal agents) are not looking to have a target of an investigation “clear up” some things for them.  All they are looking for is to find a way to get statements from a target of their investigation that they can use to incriminate that person, and thus make it easier to charge and convict a defendant.


  3. Many people talk to police officers and federal agents because they believe that if they do not talk to them, the officers will think that person has something to hide or the officers will believe he or she is guilty.  Two things:  First, whether or not a target has something to hide is irrelevant.  The answer here is, “if you have something to hide, don’t give it to them, and if you don’t, then they don’t need to know.”  Second, if someone is being questioned, the officers already think that person is guilty.  So, again, never ever talk to police.


  4. Talking to police officers raises serious problems for a would-be defendant.  First, the questioning process is intimidating and will usually result in a confession or an admission to something.  Also, answering their questions may result in making a statement that the officers and prosecutors later think is false.  That will lead to charges of lying to the FBI, violation of Title 18, United States Code, Section 1001, which is how Martha Stewart ended up in federal prison.  Finally, the person being questioned may say something that the officers believe is a lie.  If the officers did not think that person was guilty before, the perceived lie will now cause them to change their mind and believe him/her to be guilty of something.

Anyone who has watched television has heard actors playing police officers say the following:

YOU HAVE THE RIGHT TO REMAIN SILENT.  ANYTHING YOU SAY CAN AND WILL BE USED AGAINST YOU IN A COURT OF LAW.  YOU HAVE A RIGHT TO AN ATTORNEY.  IF YOU CANNOT AFFORD AN ATTORNEY, ONE WILL BE APPOINTED FOR YOU AT NO COST TO YOU.

Knowing this, why would anyone ever talk to police?

BOTTOM LINE:  DO NOT TALK TO OFFICERS IF YOU ARE ARRESTED.  IF YOU ARE NOT UNDER ARREST, CONSULT WITH A LAWYER BEFORE YOU MAKE ANY STATEMENTS TO ANY AGENTS OF LAW ENFORCEMENT.

---  ABOUT SEARCH WARRANTS

The U.S. Constitution, 4TH Amendment, prohibits searches of homes, businesses, cars, and individuals without a warrant.  A warrant is an order signed by a judge after some evidence (probable cause) is presented by the police that evidence of a crime will likely be found at a particular location.   As with everything else in the law, there are exceptions.  They are too numerous to set them forth here.

Suffice it to say that if the officers show up with a search warrant, the occupants of a home or business must let them in, or they will knock the door down.

During the search the officers may want to establish casual conversations with the occupants to get them to admit to something.  A person is never required to talk to police officers during a search, even one made pursuant to a warrant.  Also, during that search officers have a right to detain and thus handcuff all occupants.  This often serves as intimidation for some individuals to simply confess to a crime because they think that if they do, it will avoid the police taking wives, husbands, children, friends, etc.   As difficult as it may be, if they have no evidence against the wife, husband or child, the officers will be forced to release them.  Of course, by then, they may already have a confession.

Again, never talk to police.

GRAND JURY INVESTIGATION

In the federal system, some investigations start with the convening of a grand jury.   A grand jury is a group of 23 citizens, picked like a trial (or petit) jury from a pool of people in the community.  The grand jury is assembled usually near the prosecutor’s office.  All grand jury proceedings are secret.  Therefore, no one is allowed in the grand jury room except the prosecutor, court reporter, a witness if one has been subpoenaed to appear, and an interpreter for the witness, if necessary.  No defense lawyers or even the witness’ lawyer can be admitted into the grand jury room.
    
This is the only time when someone who asked questions by a prosecutor is required under the law to answer them, unless that person has a good excuse not to do so.  Failure or refusal to answer a question before a grand jury without justification for it may result in imprisonment for contempt.
    
An experienced lawyer is critical here.  If someone is being investigated, a good lawyer would be able to counsel that person in whether to answer certain questions and if not, whether the subpoenaed party has a good reason not to answer them.

INDICTMENT
    
Federal criminal prosecutions must be started by the issuance of an indictment by the grand jury.  An indictment is a document that describes the charges filed against a defendant.  It is obtained by the government’s prosecutor after he or she has presented some evidence to the grand jury.  The prosecutor then presents the indictment to the grand jury for its issuance.  Rarely does a grand jury refuse to indict after the government has presented its case to it.

 ARRAIGNMENT

The arraignment is a time set for a defendant who has been indicted to appear in court and be read the charges.  Usually, the defendant also enters his plea (normally “not guilty”) at the time of arraignment.  Therefore, in some districts, the hearing is called an “Arraignment and Plea.”

The entry of a not guilty plea sets in motion a number of events that lead to trial.

BAIL
    
A defendant is usually entitled to bail at the time that he/she first appears after his or her arrest.
    
The entire bail procedure in federal court is completely different than the state court procedure.
    
The most significant aspect of it is that bail bonds are not commonly taken.  Instead, the court expects someone, called a surety, whether a family member, a friend, or the defendant personally, to sign a promise to pay a fixed amount if the defendant fails to follow the terms of his pretrial release.  Often, the promise to pay has to be secured with “deeding of property.”  That is, a parcel of real property, like someone’s home, is used as security for the payment by the surety.

This is an important and vital aspect of any criminal prosecution and must be carefully handled by a lawyer experienced in federal procedure.

There are some instances, as for example, in drug cases, where the law refuses to extend the right to bail to a defendant.  In those cases, the court must order that the defendant be detained.  That is, the court will not accept any bond.  The defendant will then have to remain in jail until the conclusion of the case.

TRIAL
    
A defendant in a criminal case has a right to trial by jury.  The jury must be unanimous in reaching its verdict.  At trial, the defendant, through his lawyer, and the government, through its lawyers, have a right to eliminate prospective jurors from the panel.  Ultimately, 12 jurors must be selected.  Nearly always, additional jurors, called “alternates” are also selected.  The alternates will serve only if one of the regular jurors is unable to continue with his or her service.

The government puts on its case first.  That is, it calls its witnesses and introduces documents and other exhibits in trying to make its case.
 
The government is required to prove the guilt of the defendant.  The defendant never has to prove his/her innocence.  The government must prove its case “beyond a reasonable doubt.”

There is no greater need for an experienced lawyer than at the time of trial.  A defense trial lawyer must know the rules of evidence and know when to object to evidence; must carefully and ably cross-examine the government’s witnesses; request that proper jury instructions on the law are given by the court and object to the ones that the lawyer believes are not proper; and present opening and final arguments regarding his client’s case. 

A good trial lawyer must also be sure that an adequate record is made in the event that the client is convicted and an appeal is necessary.

Pasadena Federal Criminal Defense Attorney
Contact Attorney Michael V. Severo

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