In the federal criminal justice system, a prosecution typically begins one of three different ways:
Criminal Complaint. One way is for a law enforcement agent to file a criminal complaint. A criminal complaint is a sworn statement by a law enforcement officer that accuses a suspect of breaking a federal law. The sworn statement is presented to a United States Magistrate judge who, upon making a preliminary finding of probable cause, signs the complaint and issues a warrant for the suspect’s arrest.
Indictment. Another way to begin a federal criminal case involves the return of an indictment by a grand jury. The grand jury, which meets in secret, reviews evidence, and if it determines that there is probable cause that a federal crime has occurred and the accused committed it, it will return an indictment.
Information. A third way involves the negotiation of a plea agreement before a criminal complaint is sworn or indictment is returned. In these instances, a defendant usually hires (or is appointed) counsel after receiving a target letter, agrees to the allegations contained within a charging document called an information, and enters a guilty plea at an arraignment.
What Will Happen if I am Charged With a Federal Crime?
When a defendant is arrested (or surrenders) on federal charges, he or she is brought before a federal Magistrate judge for an initial appearance. At the initial appearance, the magistrate will advise the defendant of the charges against him, the penalties he may face (including potential imprisonment), and certain rights, including the right to counsel.
When a defendant first appears, the Magistrate judge can order (1) the release on personal recognizance or an unsecured bond, (2) release subject to certain conditions imposed by the judge, (3) temporary detention of the defendant to permit deportation, exclusion, or the revocation of a previous order of conditional release, or (4) temporary detention of the defendant pending the outcome of a detention hearing.
In most federal cases that involve crimes of violence, terrorism, drug charges that can be punished by a maximum term of imprisonment of 10 years or more, recidivist criminal conduct, crimes punishable by life imprisonment (or the death penalty), or other serious felonies, the federal government, represented by an Assistant United States Attorney (AUSA), will ask the Magistrate to enter a temporary order for the defendant’s detention. Such orders are routinely granted. The Magistrate judge also has the authority to order temporary detention for these types of cases. Additionally, for these cases, there typically is a rebuttable presumption that no condition or combination of conditions will reasonably assure the defendant’s appearance and the safety of the community.
In other types cases, such as those involving non-violent white-collar offenses, the government will seek detention if there is a risk that the defendant will flee the jurisdiction or will obstruct or attempt to obstruct justice by injuring or threatening a witness.
Will I Go to Jail if I am Charged With a Federal Crime?
If a defendant is detained following arrest, at the initial appearance the Magistrate judge will schedule a full detention hearing. The purpose of the hearing is for the Magistrate to determine whether any condition or combination of conditions will reasonably assure the appearance of the defendant at the proceedings as well as the safety of any other person and the community.
At the hearing, the defendant has the right to be represented by counsel, the right to testify (though typically not advisable), the right to present witnesses on his behalf, the right to cross-examine the government’s witnesses, and the right to present any other relevant information by proffer, i.e. a showing by counsel.
Excluding the most serious cases, the government has the burden of producing evidence that the defendant should be detained. In any event, once the burden shifts to the defendant (either through a presumption or the government satisfying its own burden of production), the defendant may produce credible evidence demonstrating the reasonable assurance of appearance and/or that the defendant is not a danger to the community.
In the Eastern District of North Carolina, defendants most frequently rebut the presumption through the testimony of third party custodians. A third party custodian is someone with whom the defendant will live while he or she awaits resolution of the case. If the Magistrate judge agrees to release the defendant pursuant to specific conditions, the custodian must be willing to inform a probation officer if the defendant violates the terms of release. Even with a custodian however, a defendant can still be detained pending trial.
We Have Successfully Represented Clients in Federal Cases Throughout North Carolina
As criminal defense attorneys, we have represented clients in white collar prosecutions, investigations, and civil regulatory enforcement actions brought by the U.S. Department of Justice, the North Carolina (and other states’) Attorney General, the Federal Trade Commission, and multiple state regulators. As a result, our federal criminal and civl defense lawyers in Raleigh have the experience to handle complex prosecutions that involve several defendants and claims.
Our approach, as criminal defense lawyers, is to prepare every case as though it were going to trial. To that end, we critically examine the government’s evidence so that we can advise our clients to make decisions that are in their best interest.
We understand the fears that any person facing a federal white collar investigation may face. The most immediate is always what the outcome could might be. If convicted, prison, fines, and asset forfeiture are just some of the potential consequences. As a result, in every single case, we work diligently to help our clients fully understand the Federal Sentencing Guidelines and how they might impact the decision-making process.
What Should I Do if I am Approached by an Investigator?
Someone can easily be in the midst of a white collar federal criminal investigation and not be aware of it. The substantial increase in Paycheck Protection Program (PPP) fraud investigations and prosecutions is a perfect example.
Anyone from corporate counsel to investigators may try to learn whether an individual is willing to share information that incriminates that person, the company, or someone else. For these reasons, anyone approached by an investigator or corporate counsel should, at the very minimum, consult an experienced criminal defense attorney who has experience with white collar cases and federal crimes.
Conversations with corporate counsel have to be handled delicately. Although the company’s in-house lawyer might seem like just another co-worker, his or her client is the company itself and not the employee. This means that the company can waive the attorney-client privilege and divulge anything the employee says to the attorney. Therefore, prudent executives and employees should consult with their own white collar criminal defense attorney to advise them on whether and how to communicate with the company’s lawyer.
Likewise, anyone should exercise extreme caution if approached by an investigator. Suspects in criminal investigations are not under any legal obligation to talk to law enforcement. Moreover, lying to law enforcement is a criminal offense that is frequently prosecuted. As the saying goes, it’s not the crime, it’s the coverup.
