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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?

In a federal court initial meeting you will be summons by the court or be brought in by federal agents, and because there are no district attorneys (DA) in federal court, you will be seen by an Assistant United States Attorney (AUSA). Your charges will be written in an indictment or criminal complaint and accompanied by an affidavit summarizing the evidence against you.

It is important to note that you will be appearing in front of a federal magistrate judge two to three times before your case is seen by a federal district court judge. The magistrate judge is there to review your rights, review your charges, and detail the extent of your possible prison sentence. The sentence you receive is referred to as the “statutory maximum,” but it is important to know that this is not the sentence they will give you except in rare cases. Lastly, if you have not been released, the magistrate that is present will set the pre-trial bail and you will be handed over to the custody of the U.S. Marshals Service.

What is a detention hearing?

This is the process through which a federal magistrate judge will decide whether you are set released or must await the trail.

What is arraignment?

During an arraignment you will be brought into court and read your charges. You must plead not guilty or guilty to the read charges.

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 indictments.”

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 California?

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 of custody.

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?

The Federal sentencing guidelines were established by Congress in 1987, this created a more uniform standard of sentencing in similar crimes across the U.S. This made it mandatory for a judge to review the facts under the new guidelines before passing sentencing. This has lead to "guideline range" in terms of judicial consideration, for example: 12 to 36 months. However, if the defendant is convicted a judge must first consider the mandatory sentencing as a minimum penalty and this supersedes the sentencing guidelines. You can find the current federal guidelines on the U.S. Sentencing Commission's website.

Two ways to avoid a mandatory minimum sentence are: First, "substantial assistance" can be provided to the government for the act of turning in others and second, a drug case defendant may qualify as a "safety valve". The safety valve was created by Congress in 1994 as a way to address sentences that were excessive for nonviolent drug offenders. Congress created the “safety valve” in 1994 to address excessive sentences for nonviolent drug offenders.

Regardless, it is extremely hard to qualify for a “safety valve”, thousands of nonviolent drug defendants are still sent to prison for decades under mandatory minimum sentencing laws. However, a couple of low-level defendants do qualify and are sentenced under the judges discretion of sentencing guidelines rather than the minimum law. This happens to defendants who fall under a category I due to their criminal history. This category is offered if not threat by violence was observed, no weapon was possessed, no one was hurt or killed as a result of the actions committed, the defendant is not a leading participant, and the defendant agreed to divulge information to other/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 valve" defendant.

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 designation.

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.

Searching for a lawyer for a federal crimes case in Los Angeles? Contact us today to schedule a free consultation!

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