Federal Procedure Q & A

FEDERAL PRETRIAL STAGES

What is the target or pre-indictment phase?

The target or pre-indictment phase is the period prior to Grand Jury presentation that prosecutors are investigating a case. At this point, charges have not been filed, but prosecutors and agents are investigating.


How would I hear that I am under investigation?

White-collar offenders typically find out prior to indictment that they are under federal investigation. There are a number of ways that you might obtain such information:

  • Federal prosecutors routinely send out what they call “target letters” to individuals who are targets of federal white-collar investigation. The target letter is a short, one-page letter advising you that you are the target of a federal investigation and which charges prosecutors are investigating.
  • Federal agents may approach you at your home or office, advise that you are a target, and ask to speak with you.
  • You may be issued a grand jury subpoena wherein you are required to produce certain documents at a federal building.
  • Your friends, neighbors, partners, co-workers, etc., may tell you that federal agents contacted them about your activities.

What do I do if federal investigators are investigating my activities?

Hire a white collar crimes attorney experienced in federal criminal defense. You may be better served by a lawyer who has a working relationship with prosecutors and agents in the jurisdiction where the investigation is on-going. Your lawyer can contact federal prosecutors and determine whether or not you are a target of an investigation. If you are indeed a target, many times, especially if your attorney has a good working relationship in the jurisdiction, prosecutors will share information with your attorney regarding the evidence that they have assembled. Your attorney can begin to advise you as to possible strategies.


My family lawyer advised that there's not much that can be done until I am charged or indicted; therefore, I should just wait to be indicted or arrested.

This is bad advice. Again, the target phase is many times the most important phase of the process. It is easier to convince a prosecutor to decline to prosecute a case than it is to convince him or her to dismiss an indictment once that indictment is returned. Further, before battle lines become firmly set, your white collar crime attorney will have a better chance to explain away any misunderstandings and keep you from being indicted. Finally, if yours is the kind of case that should be plea bargained, your lawyer can usually work out a more favorable plea bargain prior to indictment.


I received a grand jury subpoena. Should I just deliver the documents to the federal building, as I appear to be ordered to do?

Not necessarily. Your first step should be to hire a lawyer experienced in federal criminal matters and provide him a copy of the subpoena. Your decision to deliver documents, and which documents to deliver, could potentially affect the outcome of the case. You should not make a decision until you retain counsel and your counsel has outlined strategy. Once strategy is in place, every move that you make should be consistent with said strategy. Therefore, don’t make a move that will affect the outcome of the case until you have representation and your strategy has been established.


Federal agents contacted me and stated that they just wanted to talk to me. They told me that at this point I am not the target of an investigation.

All it takes is one meeting to go from witness to target. Consult a lawyer experienced in white collar crime and get his advice. Many times your attorney will recommend that he accompany you to your meeting with federal agents. Federal agents are accustomed to attorneys accompanying witnesses to meetings with agents. The agents will not take the position that you have something to hide because you have hired a white collar crimes attorney to represent you. Usually, the presence of an experience defense attorney on your side makes the process run more efficiently. Agents typically welcome the presence of competent and professional counsel.


Can I find out if an indictment is returned against me?

Usually, no. However, if you hire counsel, the federal prosecutor may advise your lawyer as to when he or she will present your case to the grand jury.


Will agents arrest me at home or at my business when an indictment is returned?

If you are underrepresented, they usually will. However, in most white-collar cases, if you retain counsel federal prosecutors will allow you to self-surrender. This means that shortly after the indictment is returned, you and your attorney will be expected to appear before a federal magistrate. The magistrate will then make a determination as to whether you are released on bond pending the outcome of the case or whether you must remain in custody.


What does the magistrate judge consider when determining whether to release a white collar offender on bond?

Federal magistrates consider (1) whether or not the defendant poses a risk of harm to the community, and (2) whether the defendant poses a risk of flight (i.e., is it likely that the defendant will flee to avoid prosecution).

Many white-collar offenders have strong ties to their community. Many are homeowners with strong financial and family ties. Further, white-collar offenders tend to be nonviolent and the sentences they are facing tend to be lower than violent or drug offenses in federal court. Therefore, the typical white-collar defendant is a good candidate for bond.

If you expect that you will be indicted in the near future, don’t simply assume that because you are a white-collar offender you will be granted bond. There are some white-collar offenders who have difficulties in the bond process. Defendants who have problems include those who have residences overseas, have limited ties to the United States, or routinely travel abroad. If you fit into one of these categories, it is important that you discuss bond considerations with your attorney as far in advance as possible. Magistrates are instructed by federal law to release defendants if there is a condition or a combination of conditions that can assure the defendant’s appearance at trial. If your case is one that is likely to present issues regarding whether or not you are a flight risk, magistrates usually appreciate a proposal submitted by your attorney outlining the conditions that you will submit to. Many times a defendant who frequently travels abroad will surrender his passport as a condition of pretrial release. In any case, it is important that you discuss these matters with your attorney prior to indictment if you can.


What is the typical bond amount that I will be required to post?

Many white-collar offenders are released on their own recognizance. This means that they are released simply based upon their promise to appear at all future proceedings. In other cases, moneys must be posted with the US District Clerk. The law requires that judges not use high bonds as a means to keep individuals in custody. Judges are to set bonds only high enough to ensure that defendants will appear as required.


What happens to my bond money after I post it?

Your bond money is held in escrow by the U.S. District Clerk. If you appear as required, it will be returned to you at the end of the proceedings.

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