Frequently Asked Federal Criminal Law Questions – Pre Indictment

Q. 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.

A. 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.A

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

A. 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.

Q. 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. What should I do?

A. 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.

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

A. 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.

Q. There are some white-collar offenders who have difficulties in the bond process. What is the typical bond amount that I will be required to post?

A. 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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