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Federal Criminal Process – A Short Summary



A. Federal Cases

Federal criminal cases are prosecuted in federal court that has a federal connection.  An example would be a fraud of a federally-insured bank, or a crime that occurred on federal property or that included transportation between states.

The United States Attorney’s Office is the federal prosecutor, and these are field offices of the U.S. Department of Justice. U.S. Attorney’s Offices conduct grand jury investigations, and grand juries “return,” or issue, federal indictments, which are formal charges.

B. Crimes

Most federal cases are in the categories of large white-collar crimes (frauds) or large drug-trafficking cases.  Other types of federal crimes include tax evasion, extortion, bribery, public corruption, counterfeit currency cases, and immigration law violations.


A. Targets and Subjects

A person who is under investigation by a federal agency and the United States Attorney’s Office is considered to be either a “target” of the investigation, or a “subject” of the investigation. 

B. Agencies

There are many federal agencies that conduct criminal investigations with and at the direction of the U.S. Attorney.  These include the Federal Bureau of Investigation (FBI), Drug Enforcement Administration (DEA), the U.S. Postal Inspection Service (U.S. Postal Inspectors), Homeland Security, and Internal Revenue Service – Criminal Investigation Division.


A. Grand Jury and Indictments

Grand juries in federal investigations are considered a weapon of the prosecutor.  The federal prosecutor may make various presentations of evidence to a federal grand jury before he submits a proposed Indictment.

Grand juries vote on an Indictment, that is, to make the allegations in a proposed Indictment official.  The standard, or burden of proof, to return an Indictment is probable cause to believe that a crime was committed, which is a low burden of proof.  Grand juries do not concern themselves as to whether the person is guilty or not guilty.

B. Complaint

The Complaint functions as a “temporary Indictment” because it serves as a legal method to justify the arrest and to hold the person in federal custody until an Indictment is returned by a federal grand jury.  Complaints have to be authorized by a federal judge.


A. Arrest

When a person is arrested after the return of a federal Indictment, he/she is taken before a United States Magistrate Judge for an initial appearance.  An initial appearance is designed to apprise the defendant of the charges against him/her.

B. Detention

A defendant is entitled to a detention hearing if the government (U.S. Attorney’s Office) moves the court at the initial appearance to detain the defendant without bond. A defendant can be detained without bond if the defendant is deemed to be either 1) a “flight risk” or 2) a danger to the community.  

C. Personal Recognizance

A defendant may be released on his or her own recognizance, that is, his/her promise to appear as directed by the court.  These “PR bonds” are often given to defendants who have no criminal history and no violence.


A. Charge Bargaining and Sentencing Agreements

There are two (2) types of plea negotiations in the federal criminal system.  Charge bargaining is pre-Indictment bargaining of the charge to which a defendant will plead guilty.

Sentencing agreements can contain a provision to not oppose the defendant’s arguments for a certain sentence, or to recommend a certain sentence.

B. U.S. Sentencing Guidelines

The Sentencing Guidelines functions like a point system, adding points for higher amounts of drugs, or dollar amounts in fraud cases.  It further adds points for enhancements such as organizer/leader, abuse of a position of trust or special skills, or use of a firearm. Also, a criminal history can increase the range of incarceration.  The higher the total points, then the higher the imprisonment recommendation.

C. Relevant Conduct

Relevant conduct is evidence of similar conduct to that in the federal Indictment that is not charged, which is used to increase the Sentencing Guidelines calculations.

D. Sentencing Adjustments

1. Downward Departure and Sentence Reduction

A defendant can reduce his sentence upon a plea of guilty if the court grants a downward departure motion, or after sentencing, by a sentence reduction motion.  A downward departure motion is usually granted after a defendant cooperates substantially with the government.  A sentence reduction motion operates the same way, except that it can be filed after sentencing.


If a defendant is found not guilty, then he is released and his bond is exonerated.  If a defendant is found guilty, then he may be held in custody until his sentencing, or he may be released pending sentencing if no factors have changed regarding his status as a danger to the community or flight risk.

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