This article covers questions you may have on the pre-indictment phase in Federal Court. It covers the period before a Grand Jury is empaneled to hear the prosecutor’s evidence against you based on their criminal investigation so far.
At this point, charges have not been filed, but prosecutors and agents will likely still investigate you.
How would I hear that I am under investigation?
White-collar offenders typically find out before indictment that they are under federal investigation. There are several ways that you might obtain such information:
- Federal prosecutors routinely send out what they call “target letters” to federal white-collar investigation targets. The target letter is a short, one-page letter advising that you are the target of a federal investigation and which charges prosecutors are investigating.
- Federal agents may approach you at your home or office, declare you a target, and ask to speak with you.
- You may be issued a grand jury subpoena wherein you must produce certain documents at a federal building.
- Your friends, neighbors, partners, co-workers, etc., may tell you that federal agents contacted them about your activities.
What do I do if federal investigators are investigating my activities?
Consult and retain a federal criminal defense attorney as soon as possible. You may be better served with a lawyer with a working relationship with prosecutors and agents in the jurisdiction where the investigation occurs.
Your lawyer can contact federal prosecutors to determine whether or not you are a target of an investigation. If you are indeed a target, many times, especially if your attorney has a good working relationship in the jurisdiction, prosecutors will share information with your attorney regarding the evidence they have assembled. Your attorney can begin advising you as to possible strategies.
My family lawyer advised me that I could not do much until I was officially indicted. Should I just wait to be indicted or arrested?
This is not good advice. Again, the target phase is many times the most critical phase of the process. It is easier to convince a prosecutor to decline to prosecute a case than to persuade them to dismiss an indictment once it is returned.
Further, before battle lines become firmly set, your white-collar crime attorney will have a better chance to explain away any misunderstandings and keep you from being indicted. Finally, if your case should be plea bargained, your lawyer can work out a more favorable plea bargain before the indictment.
I received a grand jury subpoena. Should I deliver the documents to the federal building, as I appear to be ordered to do?
Not necessarily. Your first step should be to hire a lawyer experienced in federal criminal matters and provide him with a copy of the subpoena. Your decision to deliver documents and which documents to deliver could affect the case outcome.
It would help if you decided when you retained counsel and your counsel has outlined a strategy. Once a plan is in place, your every move should be consistent with your overall strategy.
Therefore, don’t make a move that will affect the case’s outcome until you have representation and your plan has been established.
Federal agents contacted me and said they just wanted to talk to me. They told me that, at this point, I was not the target of an investigation. Should I go?
Please consult a lawyer experienced in white-collar crime and get his advice. Often, your attorney will recommend that he accompany you to your meetings with federal agents. Federal agents are accustomed to attorneys attending witnesses to meetings with agents. All it takes is one meeting to go from witness to target.
The agents will not assume you have something to hide because you have hired a white-collar criminal defense attorney to represent you. Usually, the presence of an experienced defense attorney on your side makes the process run more efficiently.
Agents typically welcome the presence of competent and professional counsel.
Can I find out if an indictment was returned against me?
Usually, not. However, if you retain counsel, the federal prosecutor may advise your lawyer to present your case to the grand jury. Although this is unusual, the defendant does have the right to have counsel present your case.
Depending on the facts, this might be a good idea or not. Only an experienced federal attorney can properly advise you whether this could work in your favor.
When the indictment is returned, will agents arrest me at home or my business?
In most white-collar cases, especially if you have already retained counsel, federal prosecutors will contact your lawyer and arrange for you to surrender voluntarily.
This means that shortly after the indictment is returned, you and your attorney are expected to appear before a federal magistrate. The magistrate will then decide whether you are released on bond pending the case’s outcome or whether you must remain in custody.
What does the magistrate judge consider when determining whether to release a white-collar offender on bond?
Federal magistrates consider (1) whether or not the defendant poses a risk of harm to the community and (2) whether the defendant poses a risk of flight (i.e., is it likely that the defendant will flee to avoid prosecution).
Many white-collar offenders have strong ties to their community. Many are homeowners with strong financial and family ties. Further, white-collar offenders tend to be nonviolent, and their sentences tend to be lower than violent or drug offenses in federal court.
Therefore, the typical white-collar defendant is a good candidate for a bond.
If you expect to be indicted soon, don’t assume you will be granted a bond because you are a white-collar offender. Some white-collar offenders have difficulties in the bond process.
Defendants who have problems include those who have residence overseas, have limited ties to the United States, or routinely travel abroad.
If your situation fits into one of these predefined categories, you must immediately discuss bond considerations with your attorney. Magistrates are instructed by federal law to release defendants if there is a condition or a combination of conditions that can assure the defendant’s appearance at trial.
Suppose your case is likely to present issues regarding whether or not you are a flight risk. In that case, magistrates usually appreciate a proposal submitted by your attorney outlining the conditions you will offer.
A defendant who frequently travels abroad will often surrender his passport as a condition of pretrial release. In any case, you must discuss these matters with your attorney before indictment if you can.
What is the typical bond amount that I will be required to post?
Many white-collar offenders are released on their recognizance. This means they are released based solely on their promise to appear in all future proceedings.
The law requires that judges not set high bonds as a means to keep individuals in custody. Judges must set bonds only high enough to ensure defendants appear as required.
Usually, the money for your bond must be posted directly with the U.S. District Clerk.
What happens to my bond money after I post it?
Your bond money is held in escrow by the U.S. District Clerk. It will be returned to you after the proceedings if you appear as required.
Consult With A Federal Criminal Defense Lawyer
Should you have specific questions or require additional information about your legal rights and obligations, consult with a verified Federal Criminal Defense Lawyer as soon as possible.
