What happens when you are accused of a federal crime? What should you do if you think you are under investigation?
First, it’s important to know how federal crimes are handled. Federal crimes are prosecuted differently than crimes at the state level. Rather than being brought by a state prosecutor, federal charges are opened and investigated by national agencies like the FBI, IRS or Secret Service. These charges are often quite serious.
The agency might spend weeks or months investigating the case before you even realize that you are under suspicion. Then, once prosecutors feel that have an airtight case, the United States Attorneys Office will formally charge you with the crime.
Because of this head start that federal investigators have given themselves, it’s crucial to quickly begin building your defense.
What is a federal crime?
Laws are created at both the state and federal levels. Laws passed by the California Assembly set the penalties for crimes like DUI, robbery, assault and drug violations. These are investigated by state agencies and prosecuted by state courts.
For some crimes, the federal government is considered to be the victim. These are federal crimes. That is the case with crimes like tax evasion, mail tampering or counterfeiting. In these cases, the federal government will investigate and prosecute the charges.
Because some crimes cross state lines, they are also handled on the federal level. Here are some examples of these types of federal crimes:
Interstate drug trafficking
Crimes committed aboard aircraft
As well, the federal government will involve itself in prosecuting crimes specifically outlawed in laws passed by Congress. These crimes include:
Drug crimes with mandatory minimum sentencing
As mentioned above, the agencies that investigate and prosecute these crimes have ample resources and have likely investigated the case for weeks before you have been formally accused. If you have been charged or believe you are under investigation, it’s important to begin mounting a defense as quickly as possible.
If there is evidence that you have broken a federal law, it will be forwarded to an agency like the FBI, ATF or the IRS. If the investigators feel that there are signs that a crime might have occurred, they will begin an investigation.
During this stage, investigators will collect as much evidence as possible. They will examine circumstantial elements of the case — who was where, and when — while also looking for direct evidence that could tie you to the crime.
It is possible that, at a certain point, federal investigators might attempt to search your home, car, clothing, office or computer. Under the Fourth Amendment, these searches typically require probable cause or a warrant, but they can legally happen without a warrant if you consent to the search.
It’s for this reason that it is often very important to ask to see a warrant if a federal investigator is attempting to search your property. This is also a crystal clear sign that you are under investigation, and at this point, it is a good idea to speak with an attorney.
After this initial phase of evidence gathering, the investigator will make a determination, either:
There is not enough evidence to seek an indictment, and the case will be closed, or
There is enough evidence, and the investigator will now present the evidence to a grand jury.
In order for the federal government to bring charges against a citizen, the charges must come from a grand jury.
A grand jury, like a trial jury, is made up of unbiased members of the public. Grand juries vary in size (usually between 16-23 people), and they are responsible for determining whether or not the investigator has presented enough evidence to formally charge you with a crime.
Much like a trial, the grand jury will hear evidence and it will also hear testimony from witnesses. But unlike a trial, grand juries are not open to the public. All evidence and testimony presented is sealed, and it cannot be discussed outside the grand jury room. Only specific people can be present when testimony or evidence is presented. For example, if you are called to testify in front of a grand jury, your attorney cannot be present.
Also unlike a trial, grand juries do not decide whether someone is guilty or innocent. Instead, they determine whether there is enough evidence to formally charge that person with a crime.
If there is not enough evidence, an indictment will not be issued. The proceedings will remain sealed, and in some cases, the person under investigation will never find out that they were being investigated.
If the grand jury returns an indictment, the US government will begin prosecuting the case. Depending on the nature of the charges, you will either be informed of the indictment and requested to surrender, or you will be arrested by US Marshals.
Shortly after you have been arrested and charged, you will receive your first hearing on the case. This is what is known as the arraignment.
It is a procedural hearing. The judge will read the charges against you, notify you of your rights, make sure you are represented by an attorney, and the judge will determine whether you should be kept in custody until your trial or can be released on bail.
If you are considered to be a flight risk or a danger to the community, then you will likely be held without bail. If this happens, you have the opportunity to appeal to a federal judge to ask that a bail amount be set.
If you are not considered a risk, the United States Magistrate can grant bail. In federal cases, the judge can set conditions for your bail. Depending on the specifics of your case, this can include:
Surrendering all passports
Surrendering all firearms in your possession
Instructions not to associate with certain people
Instructions to not be in certain areas
A court-ordered mental health evaluation
Monitoring from a GPS tracking device
You’ll then be returned to custody or released on bail, and the pre-trial period will begin.
Immediately after the arraignment, the discovery period begins. This is a time for both the prosecution and the defense to prepare their cases.
During this time, the prosecution will collect as much evidence as possible to support its case. This also includes interviewing witnesses, who will be called upon to testify during the trial. All of this information is shared with the defense, so there are no surprises.
Depending on how the prosecution feels about its case, it might offer you the opportunity to enter a guilty plea in order to avoid a trial. If this happens, you have two options:
Accept the plea deal. This requires admitting your guilt in an open court. The judge will make a determination on your sentencing at that point.
Reject the plea deal. This will bring the case to preliminary hearings.
Preliminary Hearings and Pre-Trial Motions
Once you have pled not not guilty, expect to have a preliminary hearing. It must be held within 14 days of the initial appearance if you are held in jail, 21 days if you are on bail.
Preliminary hearings work like “mini trials,” used to help the judge determine whether or not there is probable cause that the defendant committed a crime. The prosecution will call witnesses and introduce evidence.
At the end of the hearing, depending on the strength of the evidence tying the defendant to the crime, the judge will make a decision either to:
Dismiss the case.
Bring the case to trial.
This will kick off a series of pre-trial motions. When making motions, a prosecutor or defense attorney will request that the court make a decision on a specific issue before the trial officially starts. Common motions include:
Motion to suppress — This is done to keep certain pieces of evidence from being shown during the trial.
Motion to dismiss — A defense attorney can file this motion in an attempt to get the judge to dismiss the case.
Motion for change of venue — Due to pre-trial publicity, it might not be possible to select an impartial jury in the area. This motion would move the trial to another city.
If motions have concluded and the judge has not dismissed the case, it goes to trial.
During the trial, all of the approved evidence in the case is heard before a jury. This includes witness testimonies, as well as arguments made by both attorneys.
After all evidence is presented, all witnesses are heard and closing arguments have been made, the case will be given to the jury. The judge will inform them of the appropriate law being applied and what standard they must meet to reach a verdict.
The jury will deliberate and return when it has made a decision. In federal trials, the jury must make a unanimous decision to return a guilty verdict. If the verdict is innocent, the defendant will be free to go.
If the verdict is guilty, the defendant will be taken into custody and will await sentencing.
Even if the defendant has been proven guilty, the defense attorney still has a number of avenues to reduce or remove a sentence. This begins during the post-trial motions phase, when an attorney can motion for:
A new trial — Rarely granted, but the court has the power to vacate the judgement and allow for a new trial.
Judgment of acquittal — The court can overturn the jury’s decision and allow the defendant to go free.
If those motions fail, the defendant will be sentenced.
Sentencing and Appeals
A few months after the guilty verdict, you will be officially sentenced.
Sentences are taken from the laws themselves, which stipulate minimum and maximum punishments for the crime. The judge then considers factors outlined by the United States Sentencing Commissions for sentence lengths, while also weighing statements from the victims as well as each party’s attorneys.
Depending on the situation, the judge might also consider aggravating factors, like whether you have offended before, as well as mitigating factors, such as if you expressed regret for the crime.
After the decision is made, you will begin serving your sentence. It is at this point that you can begin to appeal your conviction in Circuit Court.
An appeal is an opportunity for the defendant to raise specific errors that might have occurred at trial. If it’s found that one of these errors was made — perhaps the judge incorrectly suppressed a piece of evidence or misinterpreted the sentence — the conviction can be overturned, the sentence can be altered or a new trial can be ordered.
If the appeal fails, your next option is to appeal to the United States Supreme Court.