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Just ask any federal criminal defense attorney what their clients thought about being the subject of a federal criminal arrest. They’ll say it isn’t just a frightening experience — it’s a traumatic one.
Picture yourself sleeping, or showering, maybe getting ready for work. You could be playing with your children or relaxing with family in front of the TV. And then, out of nowhere, it happens.
Using the element of surprise, often under the cover of darkness and usually when it’s least expected, armed federal agents swarm your home with a large show of force to arrest you. They tell you you’re being held on suspicion of drug trafficking. Or that you’re involved in a racketeering (RICO) scheme you knew nothing about. Perhaps the agents are accusing you of mail fraud or wire fraud — or a combination of both.
What happens now?
If you’ve already known that you’re under investigation or suspicion of a federal criminal matter — perhaps through a Grand Jury target letter — your best move is to retain one or more reputable federal criminal defense attorneys as soon as possible. This way, your counsel can work with the prosecution and/or government investigators to not just resolve the case, but also avoid anyone from storming your home, your office, or a public setting and slapping the cuffs on you.
But if you were never aware of committing or being part of any federal criminal act, and the Feds take you into custody, it’s crucial that you contact a federal criminal defense attorney immediately. You may be feeling like a nervous wreck, all shaken up on the inside from being take in, but this is the one action you can’t afford to bypass.
Why? Because you have a better chance of having any charges against you dropped, as your lawyer will be able to review all circumstances and accusations from a proper legal defense perspective.
Before any of these things happen to you, it’s important to understand what goes on from the moment that government agents decide to move in you, on through to your federal criminal defense lawyer setting up to defend your case at trial.
If you are the target of a federal criminal matter, and the government files criminal charges, federal agents will quickly seek to make an arrest. These agents work for law enforcement agencies such as the DEA, FBI, Secret Service, and the Department of Homeland Security.
It’s important to understand that unlike most crimes, federal crimes, including those that are considered “white collar,” are investigated for months — even years — before a decision is made to arrest you. And when that decision is made, there are three routes the Government can take to bring a federal criminal case against you.
The first is the Criminal Complaint. Once the federal agents complete an investigation, the case file is given to the U.S. Attorney’s Office for review and to determine whether you committed a federal crime. If so, a Criminal Complaint is presented to a Federal Magistrate Judge, who decides if there is probable cause to issue an arrest warrant. The Criminal Complaint is often used when the Government needs to make an arrest quickly.
The second method is a Federal Indictment. This is a document containing the formal accusation against one or more persons, charging them with violations of federal criminal law. This can only be brought by a Grand Jury, a group of 16 to 23 citizens that hears evidence and testimony from witnesses presented by the Government. The Grand Jury then will vote whether to indict based on “probable cause” to believe the accused is guilty. If an Indictment is returned, an arrest warrant is issued.
The third route is a Criminal Information. This is like a Federal Indictment in that it serves as the document formally accusing someone of committing a crime, but it does not require a grand jury proceeding. Instead, the accused must agree to be charged with a Criminal Information rather than a Federal Indictment. In our roles as federal criminal defense attorneys, we are usually able to negotiate a “surrender” agreement — completely bypassing the frightening, embarrassing arrest process. We then coordinate a convenient day and time for you to appear at the U.S. Marshals Office for booking, fingerprinting, and processing.
Whether you arrive via arrest or surrender, the U.S. Marshals Office will keep you in custody until you are brought to court for the Initial Appearance, also known as an initial hearing.
You will be interviewed by a Pretrial Services (PTS) Officer, who will prepare a short summary of your life background and criminal history. The court will consider this information when determining the possibility of pretrial release and setting bond. The PTS Officer who interviews you will try to verify the information by calling your family and other references, and they will frequently make a recommendation on bond.
The Initial Appearance must take place the business day after your arrest. Keep in mind, there are no Initial Appearances in Federal Court during weekends and holidays. Sometimes, federal agents purposely delay an arrest until Friday, so the defendant remains in jail over the weekend until a Monday Initial Appearance.
The judge who handles the Initial Appearance is called a Magistrate Judge. Thereafter, the case is assigned to a District Judge, who will oversee the matter until its conclusion through plea agreement, trial, or some other alternative resolution.
In Court, the Magistrate Judge will explain to you the charges for your arrest and the statutory maximum possible sentence. Additionally, the Magistrate Judge will inform you of constitutional rights, such as the right to remain silent, also known as your Miranda rights. The Magistrate Judge will ask whether you have retained a private attorney or if you need to apply for the services of the Public Defender’s Office.
The Magistrate Judge then considers the issue of pretrial release or bail. Depending on the severity of the charge and whether it involves violence, the Government may make a Motion for Pretrial Detention in order to keep the accused in federal custody and to deny bond. (This is usually for cases involving drug trafficking, sex crimes, or anything gun related.) The standard the Government must show also includes the defendant being a flight risk or a danger to the community.
After the hearing, the Magistrate Judge will either grant or deny the Government’s Motion for Pre-Trial Detention. If the defendant is detained, an appeal can be made to the District Court Judge. The Government also has the right to appeal the Magistrate Judge’s denial of a Motion for Pre-Trial Detention to the District Judge. In that case, the defendant would be unable to post bond until the District Judge has ruled on the Government’s appeal.
By having a well-seasoned, reputable federal criminal defense attorney on your side, you stand the best chance to be released immediately. That’s because your lawyer can work with the Government on a bond agreement, allowing you to avoid being held in federal custody. There are three types of bonds for Federal Court matters.
When a personal surety bond is set, you, as defendant, and close family members designated by the Court, will sign the bond as sureties. This means everyone who signs is agreeing to be responsible for the full amount of the bond if you should fail to appear in Court.
For example, if the Court sets a $100,000 personal surety bond, and your wife and parents co-sign it, all of you are held liable to pay the Government $100,000 should you not appear in court.
This is most preferred type of bond because there is no requirement that any money be deposited with the Court or paid to a bondsman to post a personal surety bond. White collar crime defense attorneys will often first seek this bond method for their clients.
When the Court orders a 10% Bond, you can post it by depositing 10% of the amount of the face value of the bond with the Clerk of Court. For instance, if the Court orders a 10% Bond at $50,000, then you as defendant may be released when $5,000 is deposited with the Clerk of Court.
Usually, a 10% Bond will be accompanied by a Personal Surety Bond. If you fail to appear in Court, the 10% is forfeited immediately, and the Government will then seek the remainder of the bond from the people who signed the Surety Bond.
The 10% bond is refundable as long as you make all court appearances. At the end of the case, the Clerk of Court will issue a refund of the 10% Bond paid with interest.
A bondsman must be hired to post a Corporate Surety Bond. In Federal Court, the premium that must be paid to the bondsman is 15% of the face amount of the bond. For instance, if the Court orders a $100,000 Corporate Surety Bond, a $15,000 nonrefundable premium must be paid to the bondsman.
Note that the bondsman will want to collateralize the full amount of the bond with assets such as real property, automobiles, jewelry, or anything they are willing to accept.
All federal bonds are subject to the requirement that any assets used — whether money deposited with the Clerk of Court or paid to a bondsman, or collateral proffered to the Court by the signers of a Personal Surety Bond — must be proven to have been legitimately gained before the bond can be posted.
For instance, a defendant who is a physician cannot use money received from illegal kickbacks to post bond. Bond funds must be separate and independent from any money earned from activities alleged in the court case.
The Magistrate Judge who had set the bond will conduct a hearing to determine the source of the funds and collateral. By having a federal criminal defense law firm on your side, your attorney will work to provide proof to the Government that shows the bond money was legitimately gained (investments, loans, employment, property sales, inheritance, etc.). This way, you can avoid a hearing and have your release expedited.
In addition to the financial requirements of a bond, the Court also orders certain restrictions or limitations on a white collar criminal defendant’s release. Everyone will be supervised by a Pretrial Services Officer, who ensures the Court’s bond conditions are followed. Weekly or monthly visits to the PTS officer are usually required.
Many common bond conditions include:
It depends on what you do for a living and the specific allegations in the case. For example, in healthcare-related criminal cases, the judge may impose a condition of preventing employment in the medical/healthcare field.
That being said, we at Chapman Law Group have succeeded in removing this bond restriction so our medical professional clients may keep working. For physicians and pain management specialists, this means keeping their DEA registration and medical license so they can continue prescribing controlled substances and treating patients. For pharmacists, this means the ability to dispense controlled substances and keep working in pharmacies.
For the lawyer representing you, the most important things needed for the case to be successful are diligence and focus. This starts the moment your attorney takes your case, particularly at most crucial stage of any federal criminal defense case: the pretrial preparation.
This is where you and your lawyer review all the information that’s necessary to make an informed decision on how best to proceed. Remember, there are only two ways in which a white collar criminal case can be resolved: by plea agreement with the Government or by trial. In either case, pretrial preparation is key, and the following elements are essential.
The first stage of any pretrial preparation is to obtain and review discovery from the Government. Depending on the nature of the prosecution, items produced during discovery may vary but commonly include search warrants (including copies of the documents seized pursuant to those warrants), witness interview reports (which can also include statements made by the defendant), and expert reports (and the data relied on by the expert to form his/her opinion).
Through pretrial discovery review, you and your federal criminal defense lawyer to learn the evidence the Government intends to put forward at trial that it believes will result in a conviction. More importantly, you will find out the nature of how the initial investigation was conducted.
While the fruits of the investigation are paramount to defending against the allegations in the indictment, the conduct of and methods used by the agents in conducting the investigation are equally important. You and your defense counsel will get a glimpse at the level of knowledge and understanding of the agents, and, therefore, how effective they may be as trial witnesses for the Government. Thorough review of the conduct of the investigators may lead to legal defenses against the charges, such as constitutional violations that can be addressed in pretrial motion practice.
Search warrant affidavits are the first glimpse the defense gets into the Government’s theory of the case. Meticulous scrutiny of the search warrants, and the review process of the materials returned pursuant to the warrants, can provide the first line of legal defense. From here, your counsel may be able to make a motion to dismiss the indictment or exclude evidence crucial to the prosecution.
The witness interview reports by the agents simply provide a roadmap to guide the defense investigation. It’s crucial for your federal criminal defense attorney to retain the services of a knowledgeable, experienced, and skilled private investigator, and to provide them with a detailed defense interview strategy. While investigators have some legal knowledge, a defense strategy memorandum is helpful — not only to focus the investigator’s interviews for each witness, but also to prepare them with the information needed to pivot during an interview should the witness have, or offer, more information than previously expected.
A dedicated and experienced investigator can be invaluable to the defense, and not just in the pretrial stage. The defense investigator will attempt to re-interview all of the Government’s relevant witnesses to corroborate or contradict the agents initial interview reports. But they will also conduct and write reports of interviews of witnesses, likely unknown to the prosecution, yet vital the defense.
In some cases, the right investigator will also form relationships with the witnesses, which can be beneficial to the process. These witnesses may have other evidence that supports the defense’s theory, or maintain relationships with other potential defense witnesses, that the defendant does not.
Perhaps not in the initial discovery production, but at some point, the Government will produce a written report by its experts who have reviewed the materials and issued opinions, which undoubtedly will support the allegations in the indictment.
Let’s take, as an example, criminal cases concerning health care fraud and/or Controlled Substance Act violations. Experts are the most critical component to any prosecution and defense related to healthcare-based criminal charges, as these types of trials often become battles of the experts. Therefore, it is imperative to obtain the identities and reports of the Government’s experts as soon as possible to assist the defense in selecting its own experts.
Due to the significance of these witnesses to the likelihood of success on either side, in many instances the Government will attempt to delay identifying its experts and producing their reports.
It’s critical for a federal criminal defense lawyer on the defense side to hold the Government to its duty to produce such key discovery early. They will even go so far as to request that the Court set Government expert report disclosure deadlines as soon as possible after arraignment. Why? Because the Government’s experts’ qualifications and opinions are useful to the defense’s selection and retention of its own experts.
Selecting and utilizing chief defense experts is crucial in establishing and executing a successful trial defense. Of course, the number and kinds of experts are specific to each case. However, as an example, in all prosecutions related to health care, at a minimum a defense medical expert must be engaged. And, in most cases, a billing and coding expert will also be necessary to the defense.
As your federal criminal defense attorneys make a detailed review of the evidence, they will be able to identify the most qualified experts necessary for defending your case.
As part of the federal court process for criminal matters, your federal criminal defense attorney will file motions with the court. These are documents requesting the judge to review a particular, important legal issue — or several issues — about your case and make a ruling. What the judge decides based on these motions will have a substantial effect on the trial.
With more than 35 years’ experience in federal criminal defense, the lawyers at Chapman Law Group know what it takes to succeed at federal trials. It involves developing a plan from the get-go to resolve the allegations against you, aggressively investigating it, having the right experts on your side, and assertively preparing to take on the Feds.
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