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

Posted on May 20, 2024 by Michael Lowe.

For anyone facing allegations of violating one or more federal criminal statutes, as well as their loved ones, the complexities of the United States criminal justice system can be overwhelming. Understandably so: the federal structure is notoriously intricate.

This is often true for professionals who have never had any encounters with law enforcement before, aside from the occasional traffic ticket. People like doctors and health care providers facing charges of health care fraud or bankers investigated for involvement in money laundering schemes often feel blindsided. It may seem outrageous, scandalous, and shocking to the accused, their family, their friends, and their colleagues to find they have come within the sights of federal investigators.

In response to their common questions, “How did this happen?” and “What is going on?” comes the following summary of how arrests for federal crimes happen here in Texas.

Of course, this is from a criminal defense perspective from a lawyer who has practiced before the federal bar throughout the Lone Star State for many years. Let’s start with an overview.

The Federal Criminal Justice System

Consider the following chart provided by the Department of Justice’s Bureau of Justice Statistics, depicting the “sequence of events in the criminal justice system”:

This chart explains what happens not only for adults but for those who become part of the juvenile justice system under federal law.

The focus of this article will be how someone comes into the focus of federal agents or investigators, to formally entering into the federal criminal justice system as a person accused of a crime, through arraignment as a defendant. Of course, this is only the beginning of the involvement of the government in the process of pursuing conviction and punishment of the accused. The topics shown in orange, red, yellow, or the majority of the purple sections of the chart are outside the scope of today’s article.

Legal Protections Within the Federal Criminal Justice System

Within the system itself, there are all sorts of legal parameters that control things aside from the criminal statutes being pursued in the particular matter. There are the core protections provided by the United States Constitution, such as the Fourth Amendment protections against illegal search and seizure; the Fifth Amendment protections against self-incrimination and the right to a grand jury; the Sixth Amendment right to representation by counsel, trial by an impartial jury, and to know one’s accusers; and the Fifth and Fourteenth Amendment rights to due process.

There are also rules of evidence and procedure, such as Federal Rules of Criminal Procedure or United States Code provisions that delineate each step to be taken in the case once charges are filed. See, Criminal Justice Act Handbook provided online by the United States District Court for the Northern District of Texas.

How Did They Find You? Origins of the Investigations into the Accused

Investigations begin on the desks of employees who are tasked with the collection and providing of information to federal prosecutors (Assistant United States Attorneys, or “AUSAs”) at any one of a number of federal agencies, operating independently or in joint efforts, explained by the Department of Justice (DOJ) to include:

The Federal Bureau of Investigation (FBI);
The Drug Enforcement Administration (DEA);
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF);
The United States Secret Service (USSS); and
The Department of Homeland Security (DHS).

As the DOJ describes the role of these agency employees, they are tasked with working full-time in (1) investigating crimes and gathering evidence for use in prosecution; and (2) helping the government attorneys “understand the details of the case.”

The federal investigator has lots of power, regardless of agency affiliation. They can get search warrants, for instance, in order to search someone’s home, office, car, storage facility, computer cloud storage, phone, and more as they try and find facts that may be argued as admissible evidence of a federal crime being committed.

These investigators can also interview people, too, lots of people. These question-and-answer sessions can turn into witness statements and witness testimony used by the government to prove up various elements of a criminal statute being violated. It’s amazing how fast word can spread through a local community that questions are being asked by a federal agent.

So, how do the investigations begin? According to the FBI, a crime “is brought to the attention of federal authorities,” in various ways; they are tipped off by crime victims or witnesses to a crime. Criminal defense lawyers are also very well aware that local law enforcement can invites the participation of a federal agency, and that there are various “joint task forces” busily at work here in Texas.

For more on joint forces, see our discussions in Medicaid Fraud in Texas: Federal and State Prosecutions; Buying Sex in Texas: Solicitation of Prostitution and Law Enforcement Focus on “John Stings”; Cryptocurrency and Money Laundering: Digital Money Felony Arrests; and Jalisco New Generation Cartel Arrests in Texas: 2023.

Key here are the limitations of a federal investigation. The federal investigation will work to find federal offenses. State crimes cannot be prosecuted in federal court, so for instance a homicide as a general rule will not be investigated by federal authorities.

From the FBI: “Federal law enforcement agencies will investigate a crime only if there is reason to believe that the crime violated federal law.”

Different federal agencies investigate different things, too. The FBI does not do the same thing as the ATF or Homeland Security. But if an FBI agent stumbles upon a possible federal crime, it’s only a phone call away to get another agency investigator looking into it.

Different Roles in the Federal Investigation

The federal investigator is going to pursue leads that bring all sorts of people into the matter; some of these people may be the focus of a potential arrest but lots of folk will be tangential to the ultimate case.

For instance, an FBI agent may contact someone connected with a hospital or clinic who may know very little about anything, like the part-time file clerk who is earning some extra money for college tuition. Others may provide more information – or they may be more involved in the suspected illegalities.

These people may become (1) witnesses providing sworn testimony in the AUSA’s case; (2) persons of interest; (3) subjects; (4) targets; or (5) an arrested accused.

Witnesses

Witnesses know things that help build the prosecution’s case. They saw something, or they heard something that is a relevant fact which may lead to authentic and admissible evidence.

Witnesses in any federal investigation have a right to their own lawyer to advise them of their involvement. Witnesses need to understand they have a right to remain silent, and when it is best to assert that legal right. Witnesses need to understand the importance of a “proffer agreement.”

Understanding all the rights of a witness in a federal investigation is very important because of the potential allegation of Obstruction of Justice, a felony crime with a possible five years imprisonment sentence upon conviction.

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

Person of Interest

Under federal law, there is no specific definition for a “person of interest” but it is still a common term used by federal authorities. Its use is first attributed to FBI investigations undertaken in the aftermath of the 1996 Olympics bombing in Atlanta, Georgia, where the term was used by agents to describe Richard Jewell, who went thru horrific federal criminal investigations until he was finally exonerated of any wrongdoing and heralded as a hero who found and reported the backpack bomb to the police. Read, “Richard Jewell, American security guard,” written by Britannica and published on May 13, 2024.

Today, someone may be labelled as a “person of interest” by investigators and AUSAs when they don’t have enough in their files to formally consider the individual as a “suspect” or a “target” much less as someone arrested and accused of a federal crime.

If someone knows or suspects that they are being viewed as a “person of interest” by federal authorities, then it is very (VERY) wise for them to obtain a criminal defense advocate to be at their side whenever any agent asks questions or wants a formal written statement. This is because it is only one small step from being “person of interest” to becoming a “suspect,” which is a serious concern.

For more, see “What’s the difference between a suspect and person of interest?” written by Steph Whiteside and published by NewsNation on October 26, 2023.

Subjects and Targets

Things get much more serious for anyone who gets labelled a “suspect” or a “target” in a federal investigation. It’s a big hint that there is an ongoing grand jury investigation into matters involving the individual’s life or pursuits in some way.

To be clear, “suspect” and “target” are two official terms defined in the Justice Manual used by the federal prosecutors, as follows:

A “target” is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant. An officer or employee of an organization which is a target is not automatically considered a target even if such officer’s or employee’s conduct contributed to the commission of the crime by the target organization. The same lack of automatic target status holds true for organizations which employ, or employed, an officer or employee who is a target.

A “subject” of an investigation is a person whose conduct is within the scope of the grand jury’s investigation.

U.S. DEP’T OF JUSTICE, U.S. ATTORNEY’S MANUAL §§ 9-11.151 (Advice of “Rights” of Grand Jury Witnesses) (January 2020) (“Justice Manual”).

Anytime a federal agent refers to someone as either a “suspect” or a “target,” it is imperative that they understand what these terms mean and their impact upon their legal rights.

Criminal defense attorneys know that the investigator may say that the person is a “subject of an investigation,” to a suspect, but add assurances that they are simply a potential witness or that they may have information that can help in something the investigator is checking out. Of course, anything that is provided to the investigator can well be used against that person in a later criminal charge(s).

Targets are a bit different: the government has documents or witness statements (evidence in their files) that connects that person with illegal activity. A target is not under arrest, but that is the goal of the AUSA and the investigators.

The Arrest by Federal Agents

The focus of these federal investigations is to build an evidence file from documents, digital information, and witness testimony (e.g., affidavits, statements) that meets the necessary legal burden to get an indictment from a Grand Jury or to get a federal judge to approve a criminal complaint.

For more on Grand Jury Proceedings, read our earlier discussions in: Grand Jury Proceedings in Texas: Indictment and Defense and Grand Jury in Texas: Defending Witnesses and Targets of Grand Jury Investigations.

The federal agent, as for example someone from the FBI, may have an official arrest warrant signed by a federal judge that allows your freedom to be taken from you. They will appear at your office, your home, your school, or elsewhere. They don’t have to give you a warning before they show up and take you into custody. Federal law enforcement agents also have the power to arrest without obtaining an arrest warrant from the judge in some circumstances.

For more on arrests, read:

Of course, having a criminal defense attorney advocating on your behalf as soon as you intuit or learn that you may be involved in some sort of federal investigation can be extremely important here. An experienced advocate may be able to negotiate things with the AUSA so you avoid the agent’s sudden appearance and instead, arrange for custody, handling, etc.

Of note, the U.S. Marshalls Service is responsible for taking custody of anyone under federal arrest, regardless of the agency involved. The U.S. Marshalls take custody of the person who has been arrested or detained pursuant to federal statutes, and they have the duty to provide housing and transport of the individual until the prosecution’s result (acquittal or incarceration).

Where do you go? From the U.S. Marshalls:

The U.S. Marshals Service does not own or operate detention facilities but partners with state and local governments using intergovernmental agreements to house prisoners. Additionally, the agency houses prisoners in Federal Bureau of Prisons facilities and private detention facilities. (The U.S. Marshals Service is implementing the President’s Executive Order on private detention facilities across facilities within the U.S. Marshals Service. As part of the implementation process, the U.S. Marshals Service is carefully examining its existing contracts with these facilities, while also taking care to avoid unnecessarily disrupting meaningful access to counsel, timely court appearances and case resolutions, and access to family visitation and support.)

Initial Appearance and Arraignment

After an arrest, the timetable changes for the accused, depending upon whether or not the taking of freedom has been done without a warrant or an indictment. Absent either of these two supports, the federal agents have a legal duty to quickly bring the person to a courtroom for review of their activity by a magistrate or judge.

Initial Appearance: the First Hearing – Bail

This first hearing is called the “Initial Appearance.” The court will review things and make a ruling on whether or not there was probable cause shown by authenticated and admissible evidence that the person has violated a federal criminal statute. The court will also explain to the accused (1) the criminal charges that have been made; (2) the right to have legal counsel; and (3) the right to keep silent. This proceeding must take place within seventy-two (72) hours from the person being taking into custody (loss of freedom).

As the Justice Manual points out, here is when the accused’s freedom is in clear emphasis. At the Initial Appearance, the judge can decide to keep the defendant behind bars, or allow the accused’s freedom to be returned to them until the trial date.

From the DOJ:

In many cases, the law allows the defendant to be released from prison before a trial if they meet the requirements for bail. Before the judge makes the decision on whether to grant bail, they must hold a hearing to learn facts about the defendant including how long the defendant has lived in the area, if they have family nearby, prior criminal record, and if they have threatened any witnesses in the case. The judge also considers the defendant’s potential danger to the community. If the defendant cannot “post bail” (pay the money), the judge may order the defendant to be remanded into the custody of the U.S. Marshals pending trial.

Obviously, things may go much differently for those who arrive in court for an initial appearance with criminal defense counsel prepared and ready, as opposed to those who have not obtained legal representation prior to arrest.

Of note, there may be occasions where the defense lawyer advises the bail hearing be delayed in order to give the defense sufficient time to prepare arguments for why bail should be granted. This delay request will only be made with the support and approval of the accused.

For more on federal bail, read: Bail after Federal Arrest in Texas and The Bail Reform Act of 1984.

Arraignment – Plea

The “Arraignment” is another court proceeding. Here, the accused gets a copy of the criminal charges being brought by the AUSA and is given an explanation of them from the bench, as well.

It is at this time that the defendant will be asked to “enter a plea” to these allegations. Pursuant to Federal Rule of Criminal Procedure 11, the defendant may plead: (1) not guilty; (2) guilty; or (3) nolo contendere. If the defendant refuses to enter a plea, then the judge will be required under Fed. R. Crim. P. 11 to enter a plea of “not guilty” into the record.

Notice the importance of having legal representation well on board and at work before the time of the arraignment. Criminal defense attorneys with adequate time for preparation can not only review the government’s file for strengths and weaknesses, but discuss potential plea bargains with the AUSA.

For more on plea bargaining, read:

Federal Criminal Defense During Investigation Through Arrest and Arraignment

No time is too early to seek legal advocacy where a suspected federal investigation is involved. Anyone who thinks they may be questioned by federal agents can find great support and help from having a criminal defense attorney at their side.

This is particularly true for those who have had little, if any, prior involvement with the criminal justice system. Health care fraud investigations, for example, often expand to include all sorts of providers that may end up facing criminal charges despite longstanding work in their field, advanced degrees, and great success in their practices.

See:

For those facing arrest by federal authorities, or who have been placed into federal custody, the primary concern may be getting their freedom back while they are fighting the charges. Getting out of jail pending trial in federal court is a much different process from state bail (it’s more difficult), and an experienced lawyer can be imperative here.

Read:

Federal criminal charges are usually felony arrests where the accused will face significant imprisonment upon conviction and sentencing. Federal investigations are well-funded and extensive and any contact with a federal investigator whatsoever must be respected as significant.

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For more, check out our web resources as well as Michael Lowe’s Case Results and read his in-depth article Not A U.S. Citizen And Arrested In Dallas County? How To Get Bonded Out Even With I.C.E. Hold Or Immigration Bond.

Posted on May 20, 2024 by Michael Lowe , on Arrest and Indictment, InDepth Articles

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