HOW CAN THEY DO THAT?

That is usually a question I get from a new client who is charged with a federal crime.  When I meet with the person after being retained, I try to explain how the federal criminal system works and what they should expect as their case is being prosecuted.  Usually, the client will have some idea of how the state court system works, either because they have been charged in state court before or they know somebody who has experienced the state court system.  However, there is not much that occurs in state court that is similar to federal court.

From an initial perspective, the client is usually detained and I am meeting them in custody while they are being held by the U.S. Marshal service.  They have been arrested that day and their first appearance is at 3:00 that afternoon.  The client will ask how much their bond is going to be and how soon will they be able to be back out on the street.  The magistrate judge who will see the client must follow the statutory mandates of Title 18 USC Section 3142, which lays out the guidelines for determining whether a person will stay in custody or will be allowed to be released.

For most federal charges, it is presumed that there are conditions of release which can be imposed which will assure the safety of the community and that the person will appear for court.  These two standards are referred to as "risk of flight and danger to the community".  The conditions that could be imposed include curfew, electronic monitoring, drug testing, home detention, and others.  If the court is comfortable imposing these conditions, the client will be released and monitored by the U.S. Probation Office.

For other federal charges, it is presumed that there are no conditions of release which can be imposed to address risk of flight or danger to the community.  Some of these charges include drug trafficking offenses, crimes of violence, gun charges, or sex charges involving a minor.  In cases such as these, the government can ask that the client be detained.  Once the government asks for this, the court must schedule a detention hearing to receive evidence regarding the release of the client.  This hearing must be held within 3 working days from the date of the initial appearance or arraignment.  If the client is arrested on a Friday, the detention hearing can be postponed until the following Wednesday.  This is usually when the client asks, "How can they do that?".  Even though the client is presumed innocent, by statute, they will remain in jail for 5 days until the court holds the detention hearing.

At the detention hearing, the court is provided with a pretrial services report prepared by the U.S. Probaton Office.  This report will cover things such as where the client lives and works, the client's family, any alcohol or substance abuse issues, and criminal history, including whether this new alleged offense occurred while the client was on probation or bond on other cases and whether the client has ever failed to appear in court.

The court will consider this report along with any testimony or evidence offered by the government and the client.  At the conclusion of the hearing, the court will either allow the client to be released on conditions or order that the client remain in custody until the charges are resolved.

If the government is proceeding by complaint, the case must be presented to the grand jury within 30 days for indictment.  If proceeding by indictment, or once an indictment is secured and the client is arraigned, trial is scheduled for not less than 30 days and not more than 70 days from the arraignment, per Title 18 USC Section 3161.  This is usually the second time the client asks, "How can they do that?".  If a person is arraigned on an indictment on January 7, a February 12 trial date is given.  This allows the client and me exactly 36 days to get ready for trial.  If this is a fairly lengthy DEA drug investigation, it could involve 6 - 8 months of physical surveillance, Title III wiretaps, controlled buys of drugs, and thousands of pages of discovery.  The client is now being told to be ready to defend himself and get ready to have his case tried in just a little over a month.

These are just some of the peculiararities of a federal prosecution.  I will continue this analysis in a later blog.

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