Federal Grand Juries in Texas: Criminal Defense

As you read this, grand juries are at work here in Texas as part of both the federal and state criminal justice systems. They are very powerful. And controversial, from a criminal defense perspective.

In past articles, we have considered grand juries operating under Texas law, as well as an overview of grand jury workings under both systems. Read, Grand Jury in Texas: Defending Witnesses and Targets of Grand Jury Investigations; and Grand Jury Proceedings in Texas: Indictment and Defense.

This article will focus upon the federal grand jury system, including particular defense considerations for someone who is a material witness, as well as some defense strategies available in the federal system for the accused, like filing a motion to dismiss an indictment based upon Rule 6 of the Federal Rules of Criminal Procedure (“Rule 6”).

What is a Federal Grand Jury in Texas?

Grand juries are a right guaranteed in criminal proceedings by the Fifth Amendment of the U.S. Constitution. An individual federal grand jury is impaneled pursuant to the power of a United States District Court in accordance with Rule 6.

Lots of Federal Grand Juries in Texas

As for federal grand juries in the Lone Star State, Texas lies within the jurisdiction of the United States Court of Appeals for the Fifth Circuit. Within that federal circuit there are four judicial districts in our state (the Northern, Western, Southern, and Eastern Districts). Each of these districts has its criminal trial courts organized into various divisions. North Texans, for instance, will be within the Northern District’s divisions of Abilene, Amarillo, Dallas, Fort Worth, Lubbock, San Angelo, and Wichita Falls. Every division should be expected to have at least one active grand jury at work at any given time (actual numbers are confidential).

It’s all Secret

We do not know the exact number of federal grand juries, when or where they are meeting, their membership, etc. This is all kept private and secret, based upon arguments that secrecy: (1) helps witnesses to come forward with information; (2) helps to stop witnesses from running away or hiding to avoid testifying; (3) helps the grand jury to get truthful testimony from witnesses; and (4) helps to block public ridicule of the accused (especially if no indictment is forthcoming). Read, Vedrani, Jessica. “Criminal Procedure—Night at the Museum: The Balance Between Learning from History and Maintaining the Secrecy Surrounding Grand Jury Proceedings—Lepore v. United States (In Re Order Directing Release of Recs.), 27 F. 4th 94 (1st Cir. 2022).

Each federal grand jury will usually consist of one to two dozen people, who may serve from 18 – 24 months, as ordered by the judge. During this time, the grand jury will consider a number of criminal matters. The grand jurors meet one or two days a week. Only a very few outside of these jurors and the AUSA have any idea what they are investigating at any given time. For more, read Handbook for Federal Grand Jurors, published by the Administrative Office of the United States Courts, Washington, D.C.

Why have these federal grand juries?

They exist to investigate crimes defined by federal law. They do not investigate state law, treaty violations, etc. These grand juries have the right to indictment someone (or some entity) based upon that investigation. The indictments are returned to that federal district court that impaneled the grand jury. The indictments provide the basis for arrest by federal law enforcement.

It is entirely possible that the accused may have no idea that they are the focus of a federal grand jury investigation until that indictment is issued, and they are arrested and charged.

No right to having a criminal defense lawyer with you at a federal grand jury proceeding

Of immeasurable importance, the accused does not have any legal right to appear before the grand jury while it is investigating potential charges and making its decision to indict. And, if the accused does appear before the federal grand jury, he has no legal right to have legal counsel at his side. Conn. v. Gabbert, 526 U.S. 286, 292 (1999). Additionally, no material witness has the right to have counsel present during questioning at a federal grand jury proceeding. U.S. v. Mandujano, 425 U. S. 564, 581 (1976).

Defense Concerns About Federal Grand Jury Process

Of course, this all works very well for the Assistant United States Attorney (“AUSA”) who runs the show, bringing witnesses and documents to the grand jury for its consideration. The federal grand jury has tremendous subpoena abilities with a wide-ranging power to get information, and works without any defense attorney standing up to object to anything. For details on the process of investigation and indictment, read our earlier overview article, mentioned above.

It is an unbelievably formidable way for prosecutors to target someone (or lots of people or businesses) without their knowledge and to have a field day with witnesses and documents in order to build a criminal case.

Defense attorneys obviously view these things much differently. There are simply too few protections against basic violations of fairness and due process. Simultaneously, there is a huge temptation for zealous investigators and prosecutors to manipulate and abuse the process for their own personal reasons (ambition, vendetta, bias, etc.). For more, see Raffish, Brett. “Making the Fourth Amendment” Real” in Grand Jury Proceedings.” Geo. JL & Pub. Pol’y 19 (2021): 529. Also see, “Federal Grand Jury Reform Report and ‘Bill of Rights,’” published by the National Association of Criminal Defense Lawyers on May 2000.

Defenses Against Federal Grand Juries in Texas

There are all sorts of ways that the experienced federal criminal defense attorney will work for clients dealing with federal grand juries in Texas. Key here is whether or not the client is a target (a potential defendant) or instead, a material witness asked to provide testimony before the grand jury. And, of course, a preliminary consideration about the federal grand jury as a whole.

Some of these include the following:

Motion to Quash Federal Grand Jury

There may be occasions where the defense lawyer will be able to challenge the entirety of the grand jury. This may not be commonplace, but it must always be considered – just in case there are constitutional challenges to be made.

One clear argument here is that there has been a denial of due process and equal protection when the membership of the grand jury fails to be inclusive and can be shown to exclude an identifiable group of people. Goldberg v. Kelly, 397 US 254 (1970). If, for instance, there has been discrimination based upon race, that “…strikes at the fundamental values of our judicial system as a whole, .. and that the criminal defendant’s right to equal protection of the laws has been denied….” Vasquez v. Hillery, 474 US 254, 262 (1986), citing in part Rose v. Mitchell, 443 US 545, 556 (1979).

Another example might be where the procedural requirements of Rule 6 are violated, as for example where the prosecutor allows the simultaneous presence of two witnesses at a grand jury proceeding. U.S. v. Mechanick, 475 U.S. 66, 84 (1986).

SCOTUS has warned that even if there is a full criminal trial, a grand jury that fails insofar as constitutional error suffers in a way that cannot be cured through the subsequent trial proceedings. Id. at 84.

Material Witnesses Before a Federal Grand Jury in Texas

A material witness in a federal grand jury proceeding is someone who has information that is believed to be pertinent to the grand jury’s investigation. Material witnesses have specific rights under federal law, which include the right to have their own lawyer (presumably an experienced criminal defense attorney) and the right not to be unreasonably detained by the government. There is a legal right to have their testimony taken as soon as possible (prompt hearing). They may also be able to argue in some situations that they are due compensation for lost earnings due to their participation, to minimize or mitigate the financial harm they would otherwise suffer.

Several federal statutes, as well as court case precedent, control the powers and limitations of a federal grand jury to subpoena someone to come before them and testify as well as the power of the grand jury to detain that person. Federal statute 18 USC §3144 empowers the government to detain someone if their testimony is considered material to a criminal proceeding and it is impracticable to secure a subpoena. The Bail Reform Act of 1984 also has procedures for detaining material witnesses.

For anyone in Texas who is being asked to appear before a federal grand jury and give testimony, there is a need for criminal defense advocacy to help maneuver through these legal requirements. Any grand jury witness will face having to go into a courtroom and participate in the process until they are excused. They may face detention, where their right to freedom is balanced against the grand jury’s need for investigation.

It may not be possible to circumvent testifying before a federal grand jury in Texas. However, it is critical to protect individual rights and freedoms against the need for witness testimony. A savvy criminal defense lawyer is invaluable at every step of this process.

• For more, read Federal Investigations: Target Letters, Proffers, and Plea Deals.

Challenging the Grand Jury Indictment

The power of the grand jury lies in the ability to issue an indictment which forms the cornerstone of a criminal prosecution in federal court. For instance, read these two indictments out of the Eastern District of Texas, Beaumont Division, regarding federal arrests of almost three dozen people on RICO charges based upon allegations of two Houston employment referral businesses recruiting illegal aliens as defined by federal law to work in various Chinese restaurants.

• Locals may also find this past article of interest: Dallas County Commissioner John Wiley Price Indictment – Full Text of Federal Grand Jury Indictment July 2014.

Key here is that the indictment is not a conviction. It does not prove up guilt. It contains allegations, or accusations, that federal criminal statutes have been violated. The grand jury has decided that there is enough evidence of wrongdoing to arrest and have a criminal trial.

Once the grand jury issues an indictment, the criminal justice system moves forward. It is the beginning of the road that leads to a full trial with all the constitutional protections (think right to counsel, right to a speedy trial, etc.). The accused’s life will change immediately. Both professional and personal harm results: jobs can be lost; reputations ruined; relationships gutted. All this while the accused remains presumptively innocent.

Experienced criminal defense lawyers will consider every aspect of the indictment:

• Are there any procedural errors?

• Are there violations of the accused’s rights?

• What about the evidence that forms the basis of the grand jury indictment: is is sufficient?

If flaws are found in the indictment, then the defense can move to dismiss it. A successful motion to dismiss the indictment will end the matter.

Federal Grand Juries in Texas: Criminal Defense Representation

Regardless of the particular division of the federal district court system here in Texas, the federal grand jury has the ability to intrude into the lives of witnesses and to alter forever the futures of those who are accused or targeted by their investigations. Any encounter with the federal criminal justice system here in Texas, no matter how small, is intense and complex.

In a grand jury proceeding, there can be a significant time investment, coupled with all sorts of federal agencies (and state officials, as well, in task force activities, etc.). An amazing amount of evidence can be collected by a federal grand jury during its work. And the penalties facing anyone who wants to avoid becoming a part of their process faces some pretty harsh penalties if they do so.

For anyone who has a suspicion that they may become a part of a federal grand jury investigation, whether as a witness or as someone being targeted for prosecution, having a federal criminal defense lawyer is paramount.

For more, read:

• The Case of the Drug Trafficking, Money Laundering Indictment in Eastern District of Texas: Supervised Release

• How Arrests Happen: From Investigation to Arraignment, Being Charged for a Federal Crime

• The Federal Criminal Justice System: After Arrest, From Arraignment to Sentencing

• Why You May Need a Federal Criminal Defense Lawyer in Texas.

________________________

For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, The Case of the Non-Citizen Facing Felony PPP Fraud Indictment: Innocent of All Charges.