Los Angeles Federal Attorney
FAQ about the Criminal Process in Federal Court
Federal agents want to talk to me. What should I do?
If you think you might be the subject of a federal investigation, you
should contact a criminal defense attorney before speaking with law enforcement
agents or their representatives. You have a constitutional right to an
attorney’s advice and counsel in any conversation with law enforcement
agents. Your attorney should arrange all meetings or telephone contact
with them. Even if you do not have an attorney, remind law enforcement
representatives that you wish to have an attorney present.
I received a Summons, ordering me to appear at the U.S. District Courthouse.
What should I do?
The summons is your notice that a criminal case has been filed against
you in federal court. You must respond to the summons and appear in court
on the date and time designated. As soon as you receive the summons, you
should retain an attorney to represent you.
If there is any chance that you might be imprisoned or put on probation,
the court will make sure that you have an attorney before conducting any
proceedings relating to your criminal case. But even before proceedings
begin, an attorney can assist in protecting your rights and gathering
information about your case. An attorney can also refer you to Pre-Trial
Services which recommends bond and the conditions of your continued release
pending final resolution of your case.
I received a letter from the U.S. Attorney’s Office telling me that
I am the target of a federal criminal investigation. What should I do?
You should contact a criminal defense attorney immediately. The “subject”
or “target” of a grand jury investigation is any person who
might be charged with a crime as a result of the grand jury proceedings.
You should not contact the U. S. Attorney’s Office by yourself,
but instead have your attorney call them to determine the government’s
interest in you. A criminal defense attorney can protect important rights
for you, including your right against self-incrimination, and may be able
to successfully negotiate immunity in exchange for your testimony.
What happens at my initial hearing in federal court?
You will come to the federal court either by a summons or in the custody
of federal law enforcement agents. The charges against you will be written
in a criminal complaint or indictment accompanied by an affidavit that
summarizes the evidence against you.
There are no District Attorney's or "DAs" in federal court.
The prosecutor appearing for the government is called an "Assistant
United States Attorney" or "AUSA."
Your first two or three appearances will be in front of a federal magistrate
judge, but ultimately your case will be heard by a federal district court
judge. The magistrate judge will advise you of the charges against you,
explain your rights, and tell you the longest amount of prison time that
a defendant found guilty of your charge could possibly receive. This sentence
is called the “statutory maximum,” and it is rarely the actual
sentence that is given.
The magistrate will then turn to the issue of pretrial release or bail.
You will be remanded to the custody of the U.S. Marshals Service at the
conclusion of their first hearing unless you are released.
What is a detention hearing?
The detention hearing is a proceeding in federal court where a federal
magistrate judge decides whether or not to release a defendant on bond
to await the trial.
What is arraignment?
An arraignment is a court proceeding in which a defendant is brought into
court, told of the charges in an indictment or information, and asked
to plead guilty or not guilty.
What is an indictment?
An indictment is a formal charging document that contains all of the crimes
the federal government has charged you with. An indictment is reviewed
by a grand jury in a grand jury proceeding. If there is sufficient evidence
to force you to face those charges, the grand jury will “sign off”
or “return” the indictment. There can be many indictments
brought in one case. The later indictments are called “superseding
How is my pretrial bond release determined by the court?
Prior to your first hearing, a member of the court's Pretrial Services
Office will speak to you and as many of your family members as possible.
The officer will file a report with the judge, prosecutor, and defense
counsel with recommendations of whether the judge should release you and
under what conditions. However, this officer’s recommendation is
not binding on the judge.
The law presumes that you should not be held in prison while awaiting
your trial. Unless the judge determines that you might endanger the safety
of another person in the community or that you might not appear for trial
if you are released on bond, you will be released on your own personal
recognizance or with an unsecured personal bond. An unsecured personal
bond does not require money or assets as security.
There are exceptions to the presumption that a defendant should be released
while awaiting trial. For example, usually the judge will not release
you if there is probable cause that you used a firearm to commit a felony
or that you committed a federal drug offense carrying a penalty of 10
or more years. The law specifies certain other crimes which are exceptions
to the presumption to release you. If you were convicted of or you are
presently accused of those crimes, the judge must find that some condition
or combination of conditions of release will ensure your appearance at
trial and safeguard the community. Examples of these conditions are requiring
a secured bond, restricting your travel, and monitoring you electronically.
The judge must choose the least restrictive conditions for what is reasonable
in your case to protect the safety of the community and ensure that you
will appear in court.
What kinds of restrictions can a judge impose for a defendant released on bond?
The magistrate judge may impose conditions on you including electronic
monitoring, travel restrictions, home detention, drug testing, etc. When
you are released on bond, you will most likely have to surrender your
passport. You will also be required to periodically check in with your
pretrial supervisor officer.
What is discovery?
“Discovery” is evidence which supports the charges against
you and an increased sentence. Examples of discovery are crime scene photographs,
an informant’s name and background, DNA samples, drug test results,
and fingerprints. “Discovery” can be five pages long, consisting
of a rap sheet and a police report. It can also be hundreds of thousands
of pages of documents in a complex fraud case.
In a criminal case one of the defense attorney’s first tasks is
to ask for discovery from the government. Defendants have the right to
see all discovery provided by the government. In very rare exceptions
sensitive information relating to a protected witness will be kept from
a defendant’s view.
What kind of pre-trial motions will my defense attorney file on my behalf?
There is an enormous variety of pretrial motions in a federal case. Some
of the most common filed by the defense ask the court to relocate the
trial to a different venue, or to prevent the government from introducing
certain evidence at trial, or to compel the government to share evidence
with the defense.
The defense’s first motion is called the “moving papers”
or “opening brief.” A prosecutor usually has one to three
weeks to respond to the motion with an “opposition.” The defense
then typically has one or two weeks to respond to the “opposition”
with a “reply.” One to two weeks later, the court usually
hears argument on the motion. Sometimes, on a separate date, the court
will hold a hearing to resolve any disputed facts.
What kinds of plea agreements are available to me?
The plea agreement is a written contract between you and the prosecution.
It does not bind the judge. It is prepared by the prosecutor and outlines
facts describing what you admit you did as well as any charges the prosecutor dropped.
The court will take your plea agreement into account in determining your
sentence but may decide to impose a higher sentence. You cannot withdraw
your guilty plea just because the judge has imposed a sentence higher
than your plea agreement unless one of its terms allows withdrawal of
your guilty plea.
Your defense attorney is ethically required to inform you of every plea
offer made by the government. You can expect your attorney to describe
the terms of the plea agreement and discuss your sentencing exposure if
you proceed to trial given the good and bad evidence in your case. You
should only plead guilty if the plea agreement is in your best interest
and that decision is yours alone.
What happens at the change of plea hearing?
At this hearing the judge will conduct what is known as the “plea
colloquy.” The judge will inform you of the rights you gave up by
pleading guilty and the crimes you are admitting that you committed. The
judge will question you under oath about your involvement in the crime.
If the judge determines from your answers that you are not guilty, the
judge will not accept your plea. The case will then proceed to trial.
Usually the judge accepts your plea and sets a date for sentencing generally
twelve weeks after the plea hearing. The judge will ask the Probation
Office to prepare a presentence report. (See the Sentencing Section for
more information on the presentence report).
Can I get my out-of-district case transferred to the central district of
An out-of-district case can be transferred to this district under Rule
20 of the Federal Rules of Criminal Procedure, but only if (1) you want
to plead guilty and (2) both the United States Attorney’s office
in this district and the United States Attorney’s office in the
district in which you are charged agree to the transfer. If you want to
fight the case or either United States Attorney’s office is unwilling
to agree, the case generally cannot be transferred to this district. And
the case can be transferred under this rule only so long as you are present
in this district, either while you are here in custody before you are
sent back to the other district or while you are residing here while out
Another rule which allows transfer, but is applied only very rarely, is
Rule 21 of the Federal Rules of Criminal Procedure. That rule allows transfer
of a case for trial if a judge in the district in which the defendant
is charged finds it is more convenient for both parties (including the
government) and the witnesses. It is very rare for this rule to be used
to transfer a case, and it can be done only once you return to the charging
district and your attorney in that district makes a motion which is granted
by the court in that district.
What are the Federal Sentencing Guidelines?
Federal sentencing guidelines were established by Congress in 1987 to
create uniform sentences for similar crimes across the country. Unlike
mandatory minimum sentencing laws which can eliminate judicial discretion,
the guidelines require a sentencing judge to consider various facts about
the specific crime and defendant to justify a sentence within the guidelines.
Judicial consideration of these facts lead to a "guideline range,"
for example: 18 to 24 months. Mandatory minimums are "one-size-fits-all,"
but the guidelines allow for upward or downward departures in unusual cases.
Unfortunately, mandatory sentencing laws supersede or "trump"
the sentencing guidelines, so judges first must determine if a defendant
has been convicted of a crime which triggers a mandatory minimum penalty.
If so, the mandatory minimum sentence must be imposed regardless of the
sentencing guidelines recommendation. Current federal sentencing guideline
tables can be found at the U.S. Sentencing Commission's website.
There are only two ways to avoid a mandatory minimum sentence. First,
a defendant can provide "substantial assistance" to the government
by turning in other defendants. Second, a defendant in a drug case only
can qualify as a "safety valve" defendant. Congress created
the “safety valve” in 1994 to address excessive sentences
for nonviolent drug offenders. Congress created the “safety valve”
in 1994 to address excessive sentences for nonviolent drug offenders.
It is very difficult to qualify as a “safety valve” defendant,
and thousands of nonviolent drug defendants are still sent to prison for
decades under mandatory minimum sentencing laws. But a low-level, nonviolent
offender who qualifies for the “safety valve” can be sentenced
at the judge’s discretion under the sentencing guidelines instead
of mandatory minimum laws. You qualify for a “safety valve”
only if your “criminal history category” is a Category I under
the sentencing guidelines, you did not threaten violence or possess a
gun, your offense did not result in death or serious bodily injury; you
were not a leader in the offense; and you agree to provide the prosecutor
with all the information and evidence you have concerning the offense
and related offenses.
What is the sentencing guideline range in my case?
You can estimate your “guideline range” under the sentencing
guidelines but not with 100% certainty since you cannot know exactly how
the law will apply to the facts of your case. Finding your sentencing
range requires computing both an “offense level” and a “criminal
history category.” Your “offense level” is based on
the facts of your case gleaned from investigative reports by law enforcement
and your own defense investigation. Your “criminal history category”
can be even more uncertain since information about prior criminal activity
tends to be incomplete. The official record or “rap sheet”
is very often inaccurate or difficult to read, and defendants sometimes
forget minor convictions or sentences, for example concurrent sentences,
which affect criminal history calculations.
What will my sentence be?
It used to be very likely that a sentence would fall within the sentencing
guidelines range. Departures from the guidelines were unusual. In 2005
the United States Supreme Court decided that mandatory guidelines were
unconstitutional and federal judges could only look to the guidelines
for advice on sentencing. Judges follow the guidelines in most cases,
but some depart from guideline recommendations.
Can the sentencing judge give me a lower sentence than the mandatory minimum
for my crime or lower than predicted by my defense attorney?
Mandatory minimum sentences passed by Congress are the one certainty in
sentencing. Laws mandating minimum sentences exist for most drugs, child
pornography, and child abuse offenses and consecutive mandatory sentences
are required for crimes like identity theft, the use of a gun during drug
trafficking, assault, and bank robbery.
There are two exceptions where a judge can avoid giving you the mandatory
minimum sentence required by law. The prosecutor can move the court for
a lower sentence if you cooperate in a prosecution or investigation of
someone else, or in a drug case only you can qualify as a "safety
Congress created the “safety valve” in 1994 to address excessive
sentences for nonviolent drug offenders. It is very difficult to qualify
as a “safety valve” defendant, and thousands of nonviolent
drug defendants are still sent to prison for decades under mandatory minimum
sentencing laws. But a low-level, nonviolent offender who qualifies for
the “safety valve” can be sentenced at the judge’s discretion
under the sentencing guidelines instead of mandatory minimum laws. You
qualify for a “safety valve” only if your “criminal
history category” is a Category I under the sentencing guidelines,
you did not threaten violence or possess a gun, your offense did not result
in death or serious bodily injury; you were not a leader in the offense;
and you agree to provide the prosecutor with all the information and evidence
you have concerning the offense and related offenses.
Do I have to talk to the probation officer who is going to prepare my presentence report?
Once you are convicted or plead guilty, the judge almost always orders
a probation officer to prepare a “presentence report” describing
your offense, your prior criminal record, and your personal background
information. The sentencing judge will use this information to determine
your sentence range under the guidelines.
The probation officer usually gets information about your offense from
the prosecutor and from law enforcement investigative reports and about
your criminal record from the court records. Input from you about your
background can make a difference in lowering your sentence. It is best
to provide that information in writing rather than in person. Your defense
attorney can help you effectively present yourself and your background
in light of the particular probation officer’s reputation for impartiality.
A good guide for the kind of information a probation officer wants is
the presentence interview worksheet, which can be found at.
Is there anything I should not share with the probation officer who is
preparing the presentence report?
You should not talk about your criminal record unless your attorney advises
otherwise. Prior convictions only increase the sentencing guideline range.
For similar reasons, sharing your alias or other name is rarely helpful.
Unless you feel remorse and can express it sincerely, talking about the
offense or victim is a mistake that might lead enhancements that increase
your sentencing guideline range. Avoid discussing your drug use except
as part of a genuine discussion of a drug problem and a desire to beat
it can be a positive factor. Defendants should remember that it is important
to tell the truth about whatever they do talk about; lying to or misleading
a probation officer is far more damaging than saying nothing at all.
Should my defense attorney attend my presentence interview?
The defense attorney should almost always be present at the presentence
interview to guide the discussion away from harmful factors and toward
those factors which could positively affect your presentence report and
ultimately your sentence. Your defense attorney has experience in these
interviews, knows you and your case, and is on your side. The probation
officer is working for the court and has probably just met you. It is
an important interview, and you should accept help.
Will I have a chance to correct the presentence report with mistakes?
You will get the presentence report at least five weeks before your sentencing
date and you will have two weeks to file objections to the report. This
includes both legal objections about the way the presentence report applies
the sentencing guidelines and factual objections where the presentence
report got the facts wrong. You and your defense attorney should think
carefully about whether to make a particular factual objection. Many factual
errors do not affect the guidelines and objecting to a fact sometimes
just draws more attention to it making it seem more important than it
really is. It is important to carefully review your presentence report
and discuss all errors with your attorney. Any errors, even if they may
not affect your sentence, can affect your security designation in prison.
Why is my sentence being increased because of a prior crime I already served
my time for?
Judges have always considered a person’s prior record in deciding
a prison sentence. A person who has committed more crimes in the past
will generally get a longer sentence than a person who has not. The idea,
for better or for worse, is that harsher punishments are necessary for
people who do not learn a lesson the first time. The guidelines and sentencing
judges tend to take the view that misconduct deserves greater punishment
when it is repeated.
Why does the judge consider dismissed charges when computing my guideline range?
The sentencing judge must consider all “relevant conduct”
for certain offenses, mostly drug, theft, and fraud offenses where the
“offense level” is based on quantity. “Relevant conduct”
is any conduct that has a common scheme or plan, including charges that
were dismissed as part of a plea agreement. For this reason, plea agreements
are often less beneficial than they first seem. The government still has
to prove that you actually committed the crime dismissed in a prior plea agreement
When the sentencing judge is computing my guideline range why does he or
she consider charges where I was found not guilty?
The sentencing judge must consider all “relevant conduct”
for certain offenses, mostly drug, theft, and fraud offenses where the
“offense level” is based on quantity. “Relevant conduct”
is any conduct that has a common scheme or plan, including charges for
which you were “not guilty.” When a jury finds you “not
guilty,” they have only determined that the prosecution has not
met its burden of proving you guilty of all elements of the crime beyond
a reasonable doubt. The jury has not made the determination that you did
not commit the crime. In a subsequent case a sentencing judge need only
determine whether it is more likely than not that you engaged in the conduct
previously charged against you. Since it seems terribly unfair and is
disrespectful of a jury’s verdict, some judges in some cases refuse
to consider charges for which a person was found not guilty.
If I am convicted, where will I serve my time?
If you are convicted, and sentenced to a term of imprisonment, you will
serve your sentence in a federal detention facility either operated by,
or under contract to, the United States Bureau of Prisons (BOP).
There are five different security levels--minimum, low, medium, high,
or administrative--and you will be designated based on a variety of factors,
including your personal and criminal history, the details of your offense,
and the length of your sentence. The Bureau of Prisons relies heavily
on your presentence report in determining what security level you will
be designated. Therefore, it is important that you carefully review your
presentence report and discuss with your attorney any errors, even if
they may not affect your sentence, because it could affect your security
Although one of the factors the Bureau of Prisons considers in designating
you to a specific facility is the location where you will be released
at the end of your term, prison facilities in California are overcrowded.
Therefore, even when all of your family ties are in California, there
is a chance that you could be sent out of state. Although the judge cannot
guarantee a local placement, it is a good idea to ask your sentencing
judge to recommend that the Bureau of Prisons designate you to a local facility.
How much time will I serve on my sentence?
You will serve almost your entire sentence. There is no such thing as
parole in the federal system for all crimes committed after November 1,
1987. If your sentence is longer than one year, you might qualify for
a small reduction for “good time” which is earned at the rate
of 54 days for every year of the sentence. Although the statute that governs
good conduct time, 18 U.S.C. § 3624(b), states that prisoners may
earn up to 54 days per year, the Bureau of Prisons (BOP) awards a maximum
of 47 days for each year of the sentence imposed. The Federal Public Defender
disagrees with the BOP’s calculation and has challenged this interpretation,
but the challenges have not yet succeeded.
In addition, you may spend the last 10 % of your sentence, up to 6 months,
in a community corrections center, or “half-way house.” The
recently passed Second Chance Act requires the BOP to issue regulations
allowing prisoners to be placed in community corrections centers for up
to twelve months, but the BOP has not yet issued such regulations. Not
all inmates are eligible for half-way house. For example, those with immigration
or other types of detainers are ineligible, as are sex offenders.
Why did my attorney ask the judge to sentence me to a year and a day instead
of just a year?
Because of the “good time” statute, you can actually serve
less time on a sentence of a year and a day. You can only earn “good
time” or a reduction of approximately 47 days when your original
sentence is longer than a year. So a year is 365 days, but a year and
a day can be 319.
How can I get my federal conviction expunged from my record?
Unfortunately, it is not possible to get a federal conviction expunged.
The last federal expungement statute – the Federal Youth Corrections
Act – was repealed in 1984, and even that statute applied only to
offenders under the age of 26 if the judge chose to sentence them under
the Act. The only way a federal ex-offender can get a post-1984 conviction
removed from his record is by getting a pardon from the president. That
process is discussed further below.
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