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

Posted on September 11, 2024 by Michael Lowe.

All too often, experienced federal criminal defense attorneys have clients and their loved ones reeling from coming into contact with a federal agent or investigator; getting a federal summons; or even being arrested on federal felony charges. It’s a stunning blow for many people, especially doctors, health care providers, bankers, and other white-collar professionals, to enter into the federal criminal justice system after never before crossing paths with any kind of criminal law enforcement officer.

Time and again, there are the questions: “how did this happen?” — “what is going on?” — “what’s going to happen next?” along with “can I get out on bail?” and “what happens to my family (money, kids, etc.)?” Totally understandable.

In the hopes that an overview will be helpful, this article continues our earlier discussion of the complexities of the federal criminal justice system provided in How Arrests Happen: From Investigation to Arraignment, Being Charged for a Federal Crime.

As someone who has practiced before the federal bar here in the State of Texas for many years, I hope this article series helps people understand and cope with the overwhelming complexities of the federal system.

We start here with the federal system as it involves discovery and moves through to the possibility of conviction and sentencing, as shown in the following chart provided by the Department of Justice’s Bureau of Justice Statistics, depicting the “sequence of events in the criminal justice system”:

In summary, we begin our discussion where the accused has already been arrested and charged for alleged violations of federal criminal laws. As a defendant in the federal system, the accused has appeared before the court at the “arraignment,” where a plea has been entered. Bail may or may not have been set at this time. The judge has scheduled some things on the calendar. For details here, read our earlier article.

Discovery Phase: The Exchange of Evidence

At this juncture, the focus becomes how the government intends on proving up those allegations with authenticated and admissible evidence. What do they have against the defendant? See: Felony Charges under Texas and Federal Law: Criminal Defense Overview.

The defense attorney will be very busy now. The defense strategy must move forward on two fronts at the same time.

First, there will be the defense’s independent investigation into the matter to find facts (witnesses, documentary and digital support, etc.) that can be entered of record to thwart the government’s case. Second, the defense will also be diligent in going over every aspect of the government’s case as it is revealed by the AUSA (as well as fighting for access for things that may have been withheld from production).

This part of the process is known as the “discovery phase” of the case. It is extremely important and very vulnerable to abuse by over-zealous prosecutors. Accordingly, it is heavily regulated by statute, court case precedent, and established federal rules governing both evidence and procedure.

In most cases, discovery tends to go in waves. There will be several times when one side or the other “discovers” things intended to be used in the matter by the adversary.

The goal of discovery is fairness. Both sides are to be given access to everything that will be presented in court so there is nothing hidden from the AUSA or the defense attorney. It is not like the old TV shows like the classic “Perry Mason” series with Raymond Burr in the lead, famous for its surprise witnesses and shocking new documents popping up during almost every trial. See, “What Perry Mason Taught Americans About the Criminal Justice System,” written by Jacqui Shine and published by Smithsonian Magazine on June 19, 2020.

During discovery, the accused should be able to review with their defense counsel everything the government considers relevant to the case. This means everything the AUSA think supports their position that felonies have been committed. The AUSA is also required to disclose evidence gathered in their investigation that potentially helps the defense or at least, mitigates (lessens) guilt.

Witness statements, lab reports, all kinds of physical evidence: the defense should have access to it all. And the defense also has the right to request anything be provided to them by the AUSA that the defense thinks may be relevant to the subject matter of the proceeding.

There simply cannot be justice without this exhaustive exchange. Due process and the right to a fair trial are basic constitutional rights. Here in Texas, the AUSA and the defense lawyer may meet and hammer out an agreement on the deadlines for various things to be turned over. This may be a fight in and of itself. The AUSA usually wants to push out that time frame so it is as close to the trial setting as possible, and therefore limiting the amount of time the defense has to evaluate everything.

Why is this a big deal? The experienced defense lawyer may find a number of things in the AUSA’s file that are insupportable as evidence to be used against the accused for any number of reasons during the discovery phase. Each of these items must be brought before the judge in a formal hearing where the defense’s motions will be heard (and challenged by the AUSA).

It will be the job of the federal criminal defense lawyer to set every one of these matters for hearing before the judge and to have both the legal research and any witnesses or documentary evidence available for introduction into the record as support for the defense’s position.

In federal criminal discovery, this means that the defense lawyer will fight under three key legal arguments:

Federal procedure found in Rule 16 of the Federal Rules of Criminal Procedure;
SCOTUS rulings in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) (“Brady”) and Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972) (“Giglio”); and
Congressional directive found in the Jencks Act (18 USC § 3500).

Fed. R. Crim. P. Rule 16

Federal Rule of Criminal Procedure 16 controls the discovery process in federal criminal courts. It defines the things that each side must do once they have received a demand from the other party. The defense makes a demand on the government, and Rule 16 mandates that the AUSA has to do things like turn over all the defendant’s statements and criminal record, along with witness examinations, lab tests, objects, digital data, and other things that the AUSA is planning to introduce as evidence in trial.

This often includes the defense lawyer sending over a formal “Brady Letter,” even though SCOTUS places these duties to disclose upon the government without defense involvement.

It can also involve challenges to the timing of discovery pursuant to Rule 16. Things may be produced to the defense during the entire life of the matter; it is possible that the AUSA may even provide something after trial has begun. However, the defense must have sufficient time to review all discovery, this is a constitutional guarantee. It is abuse for the AUSA to intentionally hold back something from the defense, or delay its production, and the defense may have a right to argue for exclusion of any evidence that was not produced properly because of an aggressive timing tactic.

SCOTUS Cases: Brady and Giglio

The Supreme Court of the United States has established federal law for criminal discovery in a series of opinions that are founded upon their decision in Brady, which holds that the AUSA has a duty to turn over exculpatory evidence to the defense.

What is “exculpatory” evidence? It is defined as “…[i]nformation that increases a defendant’s probability of innocence or absolutely relieves them of liability. Often used to describe evidence in a criminal trial that justifies, excuses, or creates reasonable doubt about a defendant’s alleged actions or intentions.”

SCOTUS also gives us Giglio. There, the High Court boosted what has come to be known as the “Brady Doctrine” to mandate that the AUSA also has the legal responsibility to turn over to the defense all information within the government’s file that could undermine the credibility of the government’s witnesses in the case.

Jencks Act, 18 USC § 3500

Congress has also passed legislation that helps the defense in federal criminal matters. The Jencks Act requires any party who is calling a witness to provide testimonial evidence to turn over to the other side any recorded statements of that witness that relate to their testimony. The defense lawyer will send a letter to the AUSA requesting that pursuant to the Jencks Act, the government produce all interviews and notes, etc., that involve witness meetings and the statements that any witness has made.

The importance of discovery and its resulting challenges and defense arguments cannot be underestimated. The AUSA may well be holding back information from the defense that the law demands be provided.

One key example here: the Special Agent Report (SAR) compiled by the Internal Revenue Service Criminal Investigation Division and used in a tax crime case. These will be kept back by the AUSA under an argument of “work product” absent a successful defense challenge that the SAR contains exculpatory evidence and is “discoverable” under the law. See, United States v. UVARI, No. 2: 18-cr-00253-APG-NJK (D. Nev. May 26, 2022). For more, read: The IRS Special Agent Criminal Investigation Report: SARs and SOIs.

Pre-Trial Motions for the Defense

Before trial, lots of things may need to be decided by the trial court judge in any federal criminal matter. This is done by filing a written motion in the record and setting the case for hearing on the court’s docket. These are called “pre-trial motions,” and they may include things like:

Defense Motion to Change Venue;
Defense Motion to Suppress Evidence;
Defense Motion to Compel Discovery;
Defense Motion to Dismiss One or More Criminal Charges;
Defense Motion to Dismiss the Case;
Defense Motion to Continuance (Change Trial Setting); or
Defense Motion in Limine (Limit Evidence at Trial).

These are important. Successful rulings on defense motions can exclude charges from being considered at trial; boot out evidence that the AUSA wanted to introduce; change the location of the trial; change the date of the trial; and more.

Pursuant to Rule 12 of the Federal Rules of Criminal Procedure the following motions must be made before trial, “…if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits”:

(A) a defect in instituting the prosecution, including:

(i) improper venue;

(ii) preindictment delay;

(iii) a violation of the constitutional right to a speedy trial;

(iv) selective or vindictive prosecution; and

(v) an error in the grand-jury proceeding or preliminary hearing;

(B) a defect in the indictment or information, including:

(i) joining two or more offenses in the same count (duplicity);

(ii) charging the same offense in more than one count (multiplicity);

(iii) lack of specificity;

(iv) improper joinder; and

(v) failure to state an offense;

(C) suppression of evidence;

(D) severance of charges or defendants under Rule 14; and

(E) discovery under Rule 16.

For more, read Prosecutor Withholding Evidence from Defense in Federal Criminal Case; and FBI Investigations and DOJ Prosecutions: Fighting for Your Privacy Rights.

Plea Deal or Criminal Trial (Jury or Bench)

Federal investigations and prosecutions usually take up significant time and expense. The AUSA’s files usually contain sufficient support that it is rare for the case to be dropped summarily after a defense review. It can happen, but it’s the exception to the rule.

Usually, resolution after charges have been filed are for the defense to enter into plea negotiations with the AUSA resulting in a plea deal, or for the parties to end up in the courtroom for a full trial on the merits.

Plea bargaining is commonplace after the end of the discovery phase. Both sides have sized up the other’s position. The strengths and weaknesses of the government’s case and the defense’s counterarguments have been revealed. In the balance, the defendant may be amenable to entering a plea of guilty if the AUSA will go for a lesser criminal charge or opt for a lower sentence. Here, the defendant may escape years of incarceration, and the AUSA avoids a lengthy trial.

See: Plea Bargaining and Making Deals in Federal Felony Cases: Criminal Defense Overview and Federal Investigations: Target Letters, Proffers, and Plea Deals.

Should plea bargaining fail, then the criminal case will be tried. It may be heard by a jury; sometimes, the defendant may agree to having the judge decide both the facts and the law (called a “bench trial”).

At trial, just like in the movies, both sides are in a federal courtroom. There is a judge who presides; there are bailiffs and other court officials; there is a court reporter whose job is to maintain the evidence that is admitted into the record as well as taking down everything said during the trial (including motions before the bench outside of the jury, the judge’s instructions to the jury, and more).

Trial covers facts, where all the evidence is presented. Trial also covers law, where the lawyers make objections (hearsay! relevance!) and the judge rules on things like admissibility and what written explanations of the law go before the jury (“jury charge”).

The burden of proof for the facts in a federal criminal case is upon the AUSA to prove every element of the alleged federal criminal law violation (each count) beyond a reasonable doubt. Each element. And the defense will work to clarify that doubt, to show the burden has not been met.

Also read: Punishing Defendants for Exercising Their Right to Trial.

Sentencing Hearing

The jury may come back with a non-guilty verdict. If so, the defendant is victorious and is freed. However, if the jury returns a guilty verdict, then there has been a conviction. The defendant faces punishment.

This happens at the sentencing hearing. It is scheduled after the trial. Here, the federal judge – looking at the United States Sentencing Guidelines (USSG) – will decide punishment based on the severity of the crime with guideline considerations (i.e., the defendant’s past criminal history and personal circumstances).

To learn more about how sentences are calculated under the USSG, read our earlier discussions (which include examples with images from the USSG Sentencing Tables) in:

The defense will work here to present mitigating factors that will help the judge have a clear picture of the defendant’s situation and the optimal punishment for this individual. It is possible for the defense to argue successfully for a judge to veer from the Sentencing Guidelines in the interests of justice.

For one specific example, read Fort Worth Federal Judge John McBryde Child Porn Downward Departure Sentence.

Appeals by the Defense

This conviction and sentencing may not end the matter. In some situations, the defendant may appeal the verdict or the sentence. Here in Texas, federal criminal appeals advance to the United States Court of Appeals for the Fifth Circuit. Most appeals end here, regardless of result. In some instances, a request for further review by the Supreme Court of the United States may be granted.

Complexity of Federal Criminal Defense

The federal criminal justice system is much more intricate and complex than the system established under Texas law. Not every criminal defense lawyer in the Lone Star State chooses to work in the federal system.

However, for those who have dedicated their lives to the protection of justice, the federal system is a complicated battleground where each step must be carefully considered with zealous advocacy. Criminal charges are usually more serious here; the discovered evidence to be used at trial more intense and voluminous. The requirement to follow the letter of the law within the federal system is well-known and must be given its warranted respect.

Having an experienced Texas federal criminal defense lawyer advocating in these matters as soon as possible is wise and may be key to maximizing victory in a case. For more, read:

______________________

For more information, check out our web resources, read Michael Lowe’s Case Results, and read “The Early Part of a Texas Criminal Case in State or Federal Court.”

Posted on September 11, 2024 by Michael Lowe , on Arrest and Indictment, Federal Government Watch, InDepth Articles

View More Case Results

Comments are welcomed here and I will respond to you -- but please, no requests for personal legal advice here and nothing that's promoting your business or product. Comments are moderated and these will not be published.