The following timeline is a very broad overview of the progress of a federal felony case. Many variables can change the speed or course of the case, including settlement negotiations and changes in lawClick on the title below to jump to a description of that stage of the federal proceeding:
∙Initial Appearance
At the defendant's initial appearance, a defendant appears before a federal magistrate. The prosecutor appearing for the government is called an "Assistant United States Attorney," or "AUSA." There are no District Attorney's or "DAs" in federal court. The public defender is often called the Assistant Federal Public Defender, or an "AFPD." A U.S. Pretrial Services Officer will interview you before your initial appearance. The pretrial services officer works for the court, and wants to get information about you so he or she can make a recommendation about whether you should be held in jail or released until your trial. You will almost certainly meet with a pretrial services officer before you see a lawyer. It is up to you whether to speak to the officer. If you do, you should not discuss the charges against you or any other illegal activity. The AUSA, the AFPD, and the judge will all see the pretrial services report.
When a defendant first appears before a magistrate, he or she is informed of certain constitutional rights, such as the right to remain silent. The defendant is then asked if her or she can afford counsel. If a defendant cannot afford to hire counsel, he or she is instructed to fill out a financial affidavit. This affidavit is then submitted to the magistrate, and, if the defendant qualifies, a public defender or CJA panel attorney is appointed. The affidavit is submitted under the penalty of perjury, and must be complete. The magistrate will inform the defendant of the charges and the statutory maximum sentence. The “statutory maximum” is the most jail time that a defendant can receive - it is rarely the actual sentence that is given. The magistrate then turns to the issue of release, or bail.
∙Bail
As a federal prisoner, you will not have bail automatically set. If the government wants the defendant detained, the prosecutor will move for detention at the initial appearance. Bail in federal court is controlled by the Bail Reform Act (see 18 U.S.C. § 3142 and the sections following).
There are some cases where the government gets an automatic three (court) days to prepare for a bail hearing. These are called “presumption” cases, for offenses such as drug dealing, child sex offenses including child porn, and bank robbery. See 18 USC § 3142 (f)(1), (2). The government may also try to prove that the defendant is a flight risk, or a danger to the community – in those cases, the government also gets three days to prepare for the bail hearing. The defense can also ask for up to five days to prepare for the bail hearing. Bail bondsmen are usually not involved in federal court. On the rare instance that the court orders you to deposit money with the district clerk's office, it will be returned only upon sucessful completion of bond.
If the defendant is released at the bail hearing, it is often with conditions and under the supervision of a pretrial services officer. Typical conditions include reporting to pretrial services, drug testing, and travel restrictions. If you violate the conditions of your release, you can go back to jail.
∙Preliminary Hearing and Arraignment
Within 10 days of the initial appearance for in-custody defendants, and within 20 days of initial appearance for out-of-custody defendants, a defendant is entitled to a preliminary hearing. See Fed. R. Crim. Pro. 5.1. At a preliminary hearing, the government is required to show that there is probable cause to believe a crime has been committed. No preliminary exam will be held if the grand jury has returned an indictment. An indictment is a formal charging document that contains the federal charges faced by the defendant. It is reviewed by a grand jury, and if there is sufficient evidence to force the defendant to face the charges, the grand jury signs off on the indictment (or “returns the indictment”). If an indictment is returned by the grand jury, the;defendant will have an arraignment. There can be more than one indictment brought in a case – later indictments are called “superseding indictments.”
At an arraignment, you will plead “not guilty” and request a jury trial. You will have the chance to change your plea later if you and your attorney decide that is best for you. A guilty plea gives up many important rights, and you should not do that until your attorney has been able to review all the evidence and potential penalties with you. A “not guilty” plea gives your legal team the chance to investigate your case and preserves all your rights. Defendants can also file a “Wavier of Arraignment” and not hold a formal hearing.
∙The District Court
After indictment, your case will be assigned to a district court judge. A district court judge, or “Article III” judge, is appointed by the President, confirmed by the Senate, and serves for life. The defense will know which district court judge is assigned to the case when it receives the indictment – the last letters of the case number are the judge’s initials. The district court judge normally presides over the rest of the case, for all hearings, the trial, and sentencing. The Court may hold one or more "docket calls" at which the parties will discuss the status of your case.
∙Discovery & Investigation
There are two main ways that you and your attorney get the information you need to defend your case: discovery and investigation. Discovery is the process of getting information from the AUSA. You will also hear the word “discovery” used to describe evidence against you that the AUSA may provide to your attorney. The AUSA has to give your attorney copies of any documents that they plan to use against you at trial or that are important to the preparation of your defense. Your attorney is also allowed to look at any physical evidence that the AUSA plans to use against you. Your attorney, or possibly an investigator, will review the discovery with you. The discovery provides an idea about the strength of the case and assists in the decision of what motions to bring, what investigation to do, and whether or not to try for a plea bargain. If investigation is needed, an investigator from our office may do much of the work, such as interviewing witnesses.
You, your lawyer, the investigator, and the federal defender staff are a team. What you say to them is completely confidential. Your attorney will explain to you what investigation is appropriate for your case. Anything you tell your attorney, investigator, or other federal defender employees is privileged and will not be disclosed to the prosecutor or anyone else, except with your permission. If you case goes to trial, however, your attorney will have to show the prosecutor the evidence you will use in your case.
∙Pretrial Motions
There is a variety of pretrial motions in a federal case. The most typical pretrial motion is a suppression motion, in which the defense moves to prevent the government from using evidence. These motions can include suppression of physical evidence, like a gun seized in a search, or statements, like a defendant’s confession. It is your attorney’s job to decide what motions to bring.
The prosecutor will usually respond in writing to a defendant’s motions, and your attorney may reply. The court will then decide whether to grant the motion. It may set the motion for a hearing or refer the motion to a magistrate for consideration.
∙Plea
>The defendant may choose to plead guilty and not go to trial. A defendant can strike a deal with the prosecutor and have a written contract (a plea agreement) with the terms of the plea, or a defendant can plead guilty without a plea agreement, which is sometimes called an “open” or "straight up" plea. In federal court, judges are not involved in plea negotiations.
A defendant has a right to be informed of every plea offer made by the government. The defense attorney will describe the terms of the plea agreement, will discuss a defendant’s sentencing exposure, and will review the good and bad evidence that awaits a defendant at trial. Ultimately, however, it is the defendant’s decision alone on whether to take a plea offer from the prosecutor.
∙Trial
If the defendant does not plead guilty, the case will go to trial. At the trial, the defendant has the right to testify. If the defendant does not testify, that cannot be held against the defendant by the jury. The defendant also has the right to "confront" (i.e., cross-examine) government witnesses, and can use the subpoena power of the court to secure evidence or witnesses for trial.
The defendant need not prove his or her innocence; the government bears the burden of proving the defendant guilty beyond a reasonable doubt as to every element of a charge. Only if a jury of twelve citizens is unanimous as to every element of a charged offense will a defendant be found guilty of that charge.
∙Sentencing
If defendant is convicted either by pleading guilty to a charge, or by being found guilty after a trial, the court will decide the sentence. After conviction, a defendant may be taken into custody to await the sentencing hearing. Before sentencing, the defendant and his or her attorney will provide information relating to the defendant’s life history to the probation office. Probation, like pretrial services, is a neutral court office – it does not answer to either the defense or the prosecution.
Several weeks after the conviction, the defendant will be interviewed by a probation officer, with defense counsel present. The probation officer will then take information from that interview, from the other information submitted by the defense, and from material provided by the government, and will prepare a draft presentence report.
The draft PSR is provided to defense counsel and the government before sentencing. It describes the defendant’s background, describes the offense, and calculates the federal sentencing guidelines. The parties must make factual or legal objections to the report within ten days of receipt. The court does not receive a copy of this draft report – the goal is to resolve as many factual or legal errors as possible before a PSR is provided to the judge. After receiving the parties' objections, the probation officer will revise the PSR and submit it to the court. The revised PSR includes a secret recommended sentence, and lists any unresolved objections.
At the sentencing hearing, the district court judge must resolve any remaining objections to the PSR, make factual findings, and must consider the factors of the key sentencing statute, 18 USC § 3553(a). Among the factors that the court must consider are the federal sentencing guidelines. In addition to a sentence of probation or imprisonment, the court will also decide how much restitution is owed, and whether a criminal fine is appropriate. Before imposing the sentence, the court must permit the defendant to speak (or “allocute”). See Fed. R. Crim. 32(i)(4). The defendant’s counsel will have good advice on what to say at this point in the sentencing hearing.
Family, friends, employers, and acquaintances of a defendant can write letters regarding their support of the defendant to the Judge for the Judge's consideration during sentencing. These letters should be addressed directly to the Judge, and provided to the attorney.
∙Appeals and Petitions for Writs of Certiorari
If the defendant did not waive the right to appeal in a plea agreement, he or she may appeal both the conviction and the sentence imposed. The federal defender's office will continue to represent the defendant, for free, during the appeal. We have a specialized appellate section in our headquarters office in San Antonio. There is a very short period during which the defense must state its intention to appeal (“notice” an appeal), so the subject should be discussed with your attorney immediately after sentencing. See Fed. R. App. P. 4(b).
If the defendant does not win the appeal in the Fifth Circuit, he or she can file a petition for writ of certiorari with the Supreme Court of the United States. The federal defender handling the appeal will normally continue to represent the defendant during the petition for certiorari and Supreme Court argument, if the writ is granted.