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Federal Crimes - FAQ Continued

 

Q. How soon after my initial appearance will I be arraigned?
 
A. If you are in custody, you are entitled to a preliminary hearing or arraignment within 10 days of your initial appearance. If your initial appearance resulted in your release from custody, you are entitled to a preliminary hearing or arraignment within 20 days. See Fed. R. Crim. Pro. 5.1.The Central District of California has federal grand juries available at all times, so you will likely have an arraignment hearing instead of having a preliminary hearing.
 
Q. What is an indictment?
 
A. An indictment is a formal charging document that contains all of the crimes the federal government has charged you with. An indictment is reviewed by a grand jury in a grand jury proceeding. If there is sufficient evidence to force you to face those charges, the grand jury will "sign off" or "return" the indictment. There can be many indictments brought in one case. The later indictments are called "superseding indictments."
 
Q. How long will my federal case take?
 
A. Under the Speedy Trial Act, a case is supposed to proceed to trial within 70 days of arraignment on an indictment or information. Some felony cases resolve very quickly, within a month or two from the first appearance. Most felony cases, however, take much longer. Complicated conspiracy and fraud cases, for example, can often take much longer. Delays can come from the need to review discovery, interview witnesses, bring and argue motions, negotiate plea agreements, and prepare for trial. The average felony case in the Central District takes one year from the arraignment to sentencing. Your attorney will discuss the timing of your case with you and explain why any delays or continuances might be necessary in your case.
 
Q. How is my pretrial bond release determined by the court?
 
A. Prior to your first hearing, a member of the court's Pretrial Services Office will speak to you and as many of your family members as possible. The officer will file a report with the judge, prosecutor, and defense counsel with recommendations of whether the judge should release you and under what conditions. However, this officer's recommendation is not binding on the judge.

The law presumes that you should not be held in prison while awaiting your trial. Unless the judge determines that you might endanger the safety of another person in the community or that you might not appear for trial if you are released on bond, you will be released on your own personal recognizance or with an unsecured personal bond. An unsecured personal bond does not require money or assets as security.

There are exceptions to the presumption that a defendant should be released while awaiting trial. For example, usually the judge will not release you if there is probable cause that you used a firearm to commit a felony or that you committed a federal drug offense carrying a penalty of 10 or more years. The law specifies certain other crimes which are exceptions to the presumption to release you.If you were convicted of or you are presently accused of those crimes, the judge must find that some condition or combination of conditions of release will ensure your appearance at trial and safeguard the community. Examples of these conditions are requiring a secured bond, restricting your travel, and monitoring you electronically. The judge must choose the least restrictive conditions for what is reasonable in your case to protect the safety of the community and ensure that you will appear in court.
 
Q. Can an order detention by a magistrate judge by reviewed?
 
A. The magistrate judge's decision to release or detain you in prison while you await trial can be reviewed by a federal district court judge on the motion of either party. This is a like an appeal though it is not called an "appeal." The detention orders of a district judge may be appealed to a federal court of appeals.
 
Q. What kind of conditions can the judge put on my pretrial release?
 
A. A judge releasing you on bond might put certain restrictions on your release. You may be required to secure your bond with money or an asset. You may have to forfeit your passport. Some judges restrict your location with electronic monitoring or require you to remain in your home. A judge must choose the least restrictive conditions limited by what is reasonable in your case to protect the safety of the community and ensure that you will appear in court.
 
Q. Can an order of detention by a magistrate judge be reviewed?
 
A. The magistrate judge's decision to release or detain you in prison while you await trial can be reviewed by a federal district court judge on the motion of either party. This is a like an appeal though it is not called an "appeal." The detention orders of a district judge may be appealed to a federal court of appeals.
 
Q. What is bail or bond?
 
A. There are two definitions of "bail or bond." If you are released prior to your trial under specified conditions designed to ensure your appearance in court, you are out on "bail or bond." But assets or money you post are also considered your "bail or bond," a promise that you will release the asset if you fail to appear in court.
 
Q. How does bail or bond work in federal court?
 
A. There is no fixed bail schedule in federal court. A magistrate judge releases you on conditions sufficient to ensure your continued appearance in court. Conditions and the amount of bail can vary dramatically depending on the seriousness of the charges against you, your criminal history, and your financial circumstances.

Bail bondsmen are rarely used in federal court. Your defense attorney can give you and your family a better feel for the conditions of release that might be required in your case. The more you can show you have family and community support, the more likely your release will be granted in your case.

In most cases, federal pretrial release can be satisfied with a mixture of assets, principally cash or equity in a home. Your defense attorney will meet with your family and friends to discuss different options for meeting your bond amount.

Equity in the house, the amount the house is worth minus the amount that is owed on the mortgage or mortgages, must be sufficient to cover your bond amount. Your defense attorney can assist with the paperwork to transfer a house for bail. At minimum, posting a house for bail usually requires a recent appraisal of the house, a copy of all title and mortgage documents, and a deed made out to the clerk of the district court. Family and friends can help speed up the process by giving your attorney all documents relating to the home, including the most recent mortgage statement, a recent property appraisal or property tax bill, and the grant deed.
 
Q. How do family members or friends post property for bail/bond?
 
A. In most cases, federal pretrial release can be satisfied with a mixture of assets: principally cash, homes, other real estate, and cars. The Deputy Federal Public Defender will be glad to meet with your family and friends to discuss different options for meeting the bond amount set in your case.

The Deputy Federal Public Defender or appointed panel attorney can help your family member or friend prepare the paperwork necessary to transfer a house to secure a bond. There are several documents required to post a house, including a recent appraisal (to establish market value of the property), a copy of the grant deed (to establish title holder); the latest mortgage statement (to establish the equity in the home), and a recorded short form deed of trust, which will be recorded in the county where the property is located. Additional documentation, may be required to complete posting of the property, including signing the appropriate affidavit of surety form. Typically, the process to transfer the house takes two or three days to two weeks to complete.
 
Q. How do I get my personal property returned after I am released from custody?
 
A. Any property you had at the time you were arrested will be returned to you when you are released from custody unless it is considered evidence. If your personal property is considered evidence in the case against you, the United States Attorney will let you and your defense attorney know why the property is being kept and whether it will be returned.
 
Q. Who will make my transportation arrangements after my release?
 
A. You will need to arrange for your own transportation home.
 
Q. What if my release is to Pretrial Services?
 
A. You may be released to the custody of Pretrial Services. Depending on the bond conditions ordered by the court, an officer of Pretrial Services will take you where you need to go.
 
Q. What kinds of restrictions can a judge impose for a defendant released on bond?
 
A. The magistrate judge may impose conditions on you including electronic monitoring, travel restrictions, home detention, drug testing, etc. When you are released on bond, you will most likely have to surrender your passport. You will also be required to periodically check in with your pretrial supervisor officer.
 
Q. What is discovery?
 
A. "Discovery" is evidence which supports the charges against you and an increased sentence. Examples of discovery are crime scene photographs, an informant's name and background, DNA samples, drug test results, and fingerprints. "Discovery" can be five pages long, consisting of a rap sheet and a police report. It can also be hundreds of thousands of pages of documents in a complex fraud case.

In a criminal case one of the defense attorney's first tasks is to ask for discovery from the government. Defendants have the right to see all discovery provided by the government. In very rare exceptions sensitive information relating to a protected witness will be kept from a defendant's view.
 
Q. Does a criminal defendant in custody get to review his/her case discovery?
 
A. Yes.
 
Q. What kind of pre-trial motions will my defense attorney file on my behalf?
 
A. There is an enormous variety of pretrial motions in a federal case. Some of the most common filed by the defense ask the court to relocate the trial to a different venue, or to prevent the government from introducing certain evidence at trial, or to compel the government to share evidence with the defense.

The defense's first motion is called the "moving papers" or "opening brief." A prosecutor usually has one to three weeks to respond to the motion with an "opposition." The defense then typically has one or two weeks to respond to the "opposition" with a "reply." One to two weeks later, the court usually hears argument on the motion. Sometimes, on a separate date, the court will hold a hearing to resolve any disputed facts.
 
Q. Do the majority of federal criminal cases end with a plea?
 
A. Over 90 percent of federal defendants plead guilty in exchange for the prosecution dropping some of the charges or recommending a more lenient sentence.
 
Q. What kind of plea agreements are available to me?
 
A. The plea agreement is a written contract between you and the prosecution. It does not bind the judge. It is prepared by the prosecutor and outlines facts describing what you admit you did as well as any charges the prosecutor dropped.

The court will take your plea agreement into account in determining your sentence but may decide to impose a higher sentence. You cannot withdraw your guilty plea just because the judge has imposed a sentence higher than your plea agreement unless one of its terms allows withdrawal of your guilty plea.

Your defense attorney is ethically required to inform you of every plea offer made by the government. You can expect your attorney to describe the terms of the plea agreement and discuss your sentencing exposure if you proceed to trial given the good and bad evidence in your case. You should only plead guilty if the plea agreement is in your best interest and that decision is yours alone.
 
Q. Do most federal criminal cases go to trial?
 
A. The decision to go to trial is yours, but only a small percentage of federal defendants decide to go to trial.
 
Q. What happens if I take a plea?
 
A. If you decide to accept the plea agreement, your defense attorney will advise the prosecutor of your decision. You will sign a document prepared by the prosecutor outlining facts describing what you admit you did as well as any charges the prosecutor dropped.
 
Q. What happens at the change of plea hearing?
 
A. At this hearing the judge will conduct what is known as the "plea colloquy." The judge will inform you of the rights you gave up by pleading guilty and the crimes you are admitting that you committed. The judge will question you under oath about your involvement in the crime. If the judge determines from your answers that you are not guilty, the judge will not accept your plea. The case will then proceed to trial. Usually the judge accepts your plea and sets a date for sentencing generally twelve weeks after the plea hearing. The judge will ask the Probation Office to prepare a presentence report. (See the Sentencing Section for more information on the presentence report).
 
Q. Do I need to testify at my trial?
 
A. It is your right to testify or not testify. If you choose not to testify, it cannot be held against you by the jury. The judge will tell the jury about that rule. You have a right to "confront" or cross-examine government witnesses and can use the subpoena power of the court to secure evidence or witnesses for your trial.
 
Q. What is my burden of proof in a federal trial?
 
A. You have no burden. It is the prosecutor's burden to prove every element of the crime charged beyond a reasonable doubt. You will only be found guilty of a charge if a jury of 12 people unanimously find you guilty beyond a reasonable doubt of every element of the crime.
 
Q. What happens if I am accused of violating one or more of my pretrial release conditions?
 
A. If you are accused of violating your pretrial release conditions, the court will hold a hearing regarding the alleged violation and may either place you in custody, modify the conditions of your release, or take no action at all. The judge must find probable cause that you committed a new crime or clear and convincing evidence that you violated a condition of your release before revoking your release. Then either the court on its own motion or the prosecutor may move to forfeit your bond.
 
Q. What type of clothing is appropriate to wear in federal court?
 
A. The dress code in federal courts is business casual. Out of respect for the judge and proceedings, you should not wear shorts, halters, tank tops, any clothing exposing the midriff or underclothing, beachwear, sandals, or t- shirts with inappropriate graphics or wording.

If you do not own appropriate clothing or are unsure if your outfit is appropriate, discuss it with your defense attorney.
 
Q. Can my family members attend my hearing?
 
A. Yes. Family support of a criminal defendant is critical, and we strongly encourage family members to attend hearings of their loved ones.
 
Q. Can friends and family communicate with the defendant?
 
A. Visitors to the courtroom cannot speak or communicate in any way with a defendant in custody.
 
Q. Can young children attend my hearing?
 
A. Yes, but every effort should be made to keep young children quiet while court is in session. Some courtroom topics may be inappropriate for young children.
 
Q. Will I be searched when I enter the federal courthouse?
 
A. When you enter the courthouse, you will go through a metal detector. Your handbag, briefcase, backpack, and any containers may be x-rayed. Metal objects including knitting needles, scissors, nail clippers, pocket knives, and any kind of weapon, are not permitted and will be confiscated. Alcoholic beverages are not permitted. You may not use electronic recording devices inside the courthouse except in designated media areas. The use of cameras, camera phones and recording devices inside the courtroom is prohibited. Security officers may confiscate any items they think are hazardous. If you have forbidden items, you may be asked to leave the courthouse and return without them.
 
Q. Can I bring my cellular phone to the federal court?
 
A. Yes. Please remember to turn off your cellular phones and pagers before entering the courtroom. The use of cameras, camera phones and recording devices inside the courtroom is prohibited. These rules are strictly enforced by the court and the U.S. Marshals.
   
   
   
 
 





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