The Federal Criminal Justice System
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| 619 Broadway, Lubbock, Texas 79401 Phone: (806) 744-4000 Fax: (806) 744-7740 |
A Federal Case Timeline
The following timeline is a very broad overview of the
progress of a federal felony case. Many variables can
change speed or course of the case, including settlement
negotiations and changes in law. This timeline, however,
will hold true in the majority of federal felony cases.
Initial appearance:
Felony defendants are usually brought to federal court in
the custody of federal agents. Usually, the charges
against the defendant are in a criminal complaint. The
criminal complaint is accompanied by an affidavit that
summarizes the evidence against the defendant.
At the defendant's first appearance, a defendant appears
before a federal magistrate. This magistrate will preside
over the first two or three appearances, but the case will
ultimately be referred to a federal district court judge
(more on district judges below).
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.
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 counsel is
appointed. The affidavit is submitted under the penalty of
perjury, and must be complete.
After counsel is appointed, the magistrate informs 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:
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, 18 USC § 3141 et seq.
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.
Defendants seeking bail are then referred to Pretrial
Services. Pretrial Services are neutral court employees,
who interview the defendant and prepare a short life
background and criminal history for the court. The public
defender will accompany the defendant to the pretrial
services interview.
Before the bail hearing, the public defender will work with
the defendant to identify resources to post for bail. This
can include cash, cars, motorhomes, and real property
such as houses and real estate. Bail bondsmen are
usually not involved in federal court.
If the defendant is released at the bail hearing, it is often
with conditions. Typical conditions include reporting to
Pretrial Services, drug testing, and a search and seizure
condition.
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 or arraignment. See Fed. R. Crim.
Pro. 5.1. There are federal grand juries sitting at all times
in the Northern District of California, so a defendant will
be arraigned on an indictment at the arraignment hearing,
instead of having a preliminary hearing.
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.”) There can be many indictments brought in
one case – later indictments are called “superceding
indictments.”
Initial Appearance Before the District Court:
After arraignment, the magistrate adds the matter to the
calendar for the district court. 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 three
letters of the case number are the judge’s initials. The
district court judge will preside over the rest of the case,
for all hearings, the trial, and sentencing.
Pretrial Motions:
There is an enormous variety of pretrial motions in a
federal case. These can include constitutional
challenges, motions for a bill of particulars, surplusage,
and severance motions. See generally Fed. R. Crim. Pro.
12.
The most typical pretrial motions are discovery and
suppression motions. In these types of motions, the
defense moves to suppress evidence, or to prevent the
government from using it at trial. These motions can
include suppression of evidence, like a gun seized in a
search, or statements, like a defendant’s confession.
On a separate date, the court will hold an evidentiary
hearing to resolve any disputed facts.
Plea:
In the majority of federal cases, the defendant pleads
guilty and does not go to trial. A defendant can plead
guilty “open,” or without a plea agreement, or can strike a
deal with the prosecutor and have a written contract (a
plea agreement) with the terms of the plea.
A defendant has a right to be informed of every plea offer
made by the government. The defense attorney will also
describe the terms of the plea agreement, will discuss a
defendant’s sentencing exposure at trial, 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:
A small proportion of federal cases go to trial. At the trial,
the defendant has the right to testify – or to not testify,
and if he or she 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 him or herself innocent;
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:
A defendant can be convicted by either pleading guilty to
a charge, or by being found guilty after a trial. If a
defendant is convicted, sentencing will take place
seventy-five days later if the defendant is in custody, or
ninety days later if the defendant is out of custody. See
Fed. R. Crim. Pro. 32. A defendant convicted of some
offenses will likely be remanded into custody after trial.
After a conviction, the defendant and his or her attorney
complete forms relating to the defendant’s life history
and provide those to the Probation Office. Probation, like
Pretrial Services, are officers of the court and should be
neutral – they should 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 forms submitted by the
defense, and from material provided by the government,
and will prepare a draft presentence report.
The draft presentence report (or PSR) is provided to
defense counsel and the government before sentencing.
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.
Before sentencing, the final PSR is provided to the judge.
This final PSR describes the defendant’s background,
describes the offense, and calculates the federal
sentencing guidelines. It also includes a 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 custodial sentence, 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. Pro.
32(i)(4). The defendant’s counsel will have good advice
on what to say at this point in the sentencing hearing.
Appeals and Petitions for Writs of Certiorari:
If the defendant did not waive the right to appeal in a plea
agreement, the defense may appeal both the conviction
and the sentence imposed. 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 immediately after sentencing. See Fed. R. App.
Pro. 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 public
defender will continue to represent the defendant during
the petition for certiorari and Supreme Court argument, if
the writ is granted.
Supervised Release and Violations:
Almost every federal offense carries with it a term of
supervised release. Supervised release is like
“probation:” a defendant usually has a search condition,
must regularly report to the Probation Office, and
sometimes must submit to drug testing.
There are, unfortunately, many ways to violate supervise
release – not submitting monthly reports, having a dirty
drug test, or being arrested for new criminal conduct. The
best thing a defendant can do in those situations is to
immediately call his or her attorney. There is a possibility,
defense counsel can work with their client and with
Probation to avoid supervised release violations being
charged.
When a Probation Officer files supervised release
charges, they are contained in a charging document.
The defendant has much more limited rights in
revocation proceedings than when facing substantive
federal charges. For example, at a revocation hearing
there is no jury. The government need only prove the
charges by a preponderance, instead of beyond a
reasonable doubt. Also, hearsay is admissible, so a
Probation Officer can simply repeat the allegations of
other witnesses in the hearing.
In reality, there are very few full revocation proceedings.
Most frequently, a deal is worked out that requires an
admission of some of the charges, and an agreed-upon
sentence.
While the defendant has a right to a full sentencing memo
from Probation, in many cases the parties simply agree to
move directly to sentencing on the day the charges are
admitted. The judge does not have to follow the
recommendations of the party, but may defer to any
agreement that arrived upon by the parties and Probation.
The following timeline is a very broad overview of the
progress of a federal felony case. Many variables can
change speed or course of the case, including settlement
negotiations and changes in law. This timeline, however,
will hold true in the majority of federal felony cases.
Initial appearance:
Felony defendants are usually brought to federal court in
the custody of federal agents. Usually, the charges
against the defendant are in a criminal complaint. The
criminal complaint is accompanied by an affidavit that
summarizes the evidence against the defendant.
At the defendant's first appearance, a defendant appears
before a federal magistrate. This magistrate will preside
over the first two or three appearances, but the case will
ultimately be referred to a federal district court judge
(more on district judges below).
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.
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 counsel is
appointed. The affidavit is submitted under the penalty of
perjury, and must be complete.
After counsel is appointed, the magistrate informs 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:
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, 18 USC § 3141 et seq.
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.
Defendants seeking bail are then referred to Pretrial
Services. Pretrial Services are neutral court employees,
who interview the defendant and prepare a short life
background and criminal history for the court. The public
defender will accompany the defendant to the pretrial
services interview.
Before the bail hearing, the public defender will work with
the defendant to identify resources to post for bail. This
can include cash, cars, motorhomes, and real property
such as houses and real estate. Bail bondsmen are
usually not involved in federal court.
If the defendant is released at the bail hearing, it is often
with conditions. Typical conditions include reporting to
Pretrial Services, drug testing, and a search and seizure
condition.
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 or arraignment. See Fed. R. Crim.
Pro. 5.1. There are federal grand juries sitting at all times
in the Northern District of California, so a defendant will
be arraigned on an indictment at the arraignment hearing,
instead of having a preliminary hearing.
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.”) There can be many indictments brought in
one case – later indictments are called “superceding
indictments.”
Initial Appearance Before the District Court:
After arraignment, the magistrate adds the matter to the
calendar for the district court. 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 three
letters of the case number are the judge’s initials. The
district court judge will preside over the rest of the case,
for all hearings, the trial, and sentencing.
Pretrial Motions:
There is an enormous variety of pretrial motions in a
federal case. These can include constitutional
challenges, motions for a bill of particulars, surplusage,
and severance motions. See generally Fed. R. Crim. Pro.
12.
The most typical pretrial motions are discovery and
suppression motions. In these types of motions, the
defense moves to suppress evidence, or to prevent the
government from using it at trial. These motions can
include suppression of evidence, like a gun seized in a
search, or statements, like a defendant’s confession.
On a separate date, the court will hold an evidentiary
hearing to resolve any disputed facts.
Plea:
In the majority of federal cases, the defendant pleads
guilty and does not go to trial. A defendant can plead
guilty “open,” or without a plea agreement, or can strike a
deal with the prosecutor and have a written contract (a
plea agreement) with the terms of the plea.
A defendant has a right to be informed of every plea offer
made by the government. The defense attorney will also
describe the terms of the plea agreement, will discuss a
defendant’s sentencing exposure at trial, 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:
A small proportion of federal cases go to trial. At the trial,
the defendant has the right to testify – or to not testify,
and if he or she 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 him or herself innocent;
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:
A defendant can be convicted by either pleading guilty to
a charge, or by being found guilty after a trial. If a
defendant is convicted, sentencing will take place
seventy-five days later if the defendant is in custody, or
ninety days later if the defendant is out of custody. See
Fed. R. Crim. Pro. 32. A defendant convicted of some
offenses will likely be remanded into custody after trial.
After a conviction, the defendant and his or her attorney
complete forms relating to the defendant’s life history
and provide those to the Probation Office. Probation, like
Pretrial Services, are officers of the court and should be
neutral – they should 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 forms submitted by the
defense, and from material provided by the government,
and will prepare a draft presentence report.
The draft presentence report (or PSR) is provided to
defense counsel and the government before sentencing.
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.
Before sentencing, the final PSR is provided to the judge.
This final PSR describes the defendant’s background,
describes the offense, and calculates the federal
sentencing guidelines. It also includes a 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 custodial sentence, 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. Pro.
32(i)(4). The defendant’s counsel will have good advice
on what to say at this point in the sentencing hearing.
Appeals and Petitions for Writs of Certiorari:
If the defendant did not waive the right to appeal in a plea
agreement, the defense may appeal both the conviction
and the sentence imposed. 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 immediately after sentencing. See Fed. R. App.
Pro. 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 public
defender will continue to represent the defendant during
the petition for certiorari and Supreme Court argument, if
the writ is granted.
Supervised Release and Violations:
Almost every federal offense carries with it a term of
supervised release. Supervised release is like
“probation:” a defendant usually has a search condition,
must regularly report to the Probation Office, and
sometimes must submit to drug testing.
There are, unfortunately, many ways to violate supervise
release – not submitting monthly reports, having a dirty
drug test, or being arrested for new criminal conduct. The
best thing a defendant can do in those situations is to
immediately call his or her attorney. There is a possibility,
defense counsel can work with their client and with
Probation to avoid supervised release violations being
charged.
When a Probation Officer files supervised release
charges, they are contained in a charging document.
The defendant has much more limited rights in
revocation proceedings than when facing substantive
federal charges. For example, at a revocation hearing
there is no jury. The government need only prove the
charges by a preponderance, instead of beyond a
reasonable doubt. Also, hearsay is admissible, so a
Probation Officer can simply repeat the allegations of
other witnesses in the hearing.
In reality, there are very few full revocation proceedings.
Most frequently, a deal is worked out that requires an
admission of some of the charges, and an agreed-upon
sentence.
While the defendant has a right to a full sentencing memo
from Probation, in many cases the parties simply agree to
move directly to sentencing on the day the charges are
admitted. The judge does not have to follow the
recommendations of the party, but may defer to any
agreement that arrived upon by the parties and Probation.
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