End-Goal Of Federal Agents And Prosecutors

The End-Goals Of Agents And Prosecutors In A Federal Case

Federal Agents and Prosecutors (called Assistant United States Attorneys, or AUSA’s), have one and only one goal – they are working towards an indictment. Yes – they want to charge as many people as possible with as serious an offense as they can; it is that straightforward.

They are looking to arrest, charge and prosecute people they feel have committed crimes. And only very rarely does other collateral corollary issues interfere with that. For example, suppose someone got caught up by accident or is simply got caught up in a scheme, plan, or conspiracy – and justice or mercy suggests that the government should pass on this defendant. Unfortunately, this kind of outside factor rarely has an impact on the goal of arresting, charging, and prosecuting as many people as they believe they can.

A Federal Criminal Complaint Versus An Indictment

Most criminal cases start with a complaint. While over 95% of federal felonies are charged by way of an indictment, grand juries are expensive, they are bulky, and federal prosecutors do not have limitless access to grand juries. Therefore, it is just not suitable for a federal prosecutor to say in every case, “Hey, we’re going to arrest John Jones, let’s get him indicted today.” For that reason, cases are frequently started by way of a criminal complaint – complaints are seen as an easy, practical approach.

So criminal complaints are an essential tool for federal law enforcement. But, criminal complaints have a limited life, so they must be dismissed within a few weeks unless they are supported or confirmed through a preliminary exam.

At the end of that limited time period, one of a few things must happen:

• A preliminary examination must be held;
• The government must secure an indictment; or
• The US attorney’s office must dismiss a complaint.

If the government dismisses a complaint, it is usually only temporarily relief/removal of the federal charges from over the head of a defendant. Most often, the government continues their investigation after the complaint is dismissed, and simply indicts the defendant further down the line.

Many criminal cases begin with a criminal complaint and not an indictment. A federal criminal complaint is supported by a signed affidavit signed by a federal law enforcement official. The federal criminal complaint is taken to a federal magistrate judge for his/her signature.

Usually, a federal magistrate judge will handle the complaint, where it will be “sworn to” by an agent under oath. The complaint essentially charges someone with a federal crime, and allows law enforcement to arrest, detain, and hold them in custody for that crime. Federal criminal complaints are usually less substantive or detailed than an indictment. In addition, while an indictment must be presented to a grand jury, a complaint does not.

Attached to every complaint is an Affidavit. An affidavit is a document signed by and sworn to by a federal law enforcement agent. An affidavit typically contains a detailed summary of the investigation against that defendant. The affidavit attached to a complaint says, “You are charged with XXXXX crime (for example, 18 USC 841 Distribution of Drugs).” It informs the defendant what crime is alleged to have committed, and it provides the defendant and the court with basic information, such as a date, and relevant statute.

Because the federal rules of discovery can be so limited and non-transparent, and because it can be so difficult to get valuable and meaningful discovery/information about the investigation against the client in an organized form, that affidavit becomes vital in most cases. In many ways, an affidavit is the most critical single document in the initial stages of representing a client charged with a federal criminal offense, because it serves as a detailed summary of the investigation/evidence against the defendant at the very beginning of a criminal case.

A grand jury does not vote on a complaint. A complaint only requires a sworn oath by a federal law enforcement officer to a judge or a magistrate judge. Because it is not presented to a grand jury and supported by a probable cause finding, it is “temporary” – meaning it only lasts for a limited period of time, and allows the federal government to detain and hold someone for a very limited time, usually a few weeks.

After that limited period of time is reached, the federal government must do one of two things. The first available option is the government can conduct a “Preliminary Exam,” where an assistant United States attorney has to appear in front of a judge or a magistrate judge and present evidence establishing probable cause that a crime was committed and that a particular defendant committed that crime, the crime that that defendant is charged with in the complaint. In the case of a preliminary exam, the defendant (and his/her attorney) is allowed to take part in the hearing. The defense attorney is permitted to confront the evidence or cross-examine the witnesses against the defendant at a preliminary exam, and present contradicting or conflicting evidence on the defendant’s behalf. At the end of that preliminary exam hearing, the judge or magistrate judge determines if there is probable cause. If that judge or magistrate determines that there is probable cause to believe that a crime was committed and that this defendant committed the crime, then the defendant the case will be continued, or sometimes called “bound over,” for further proceedings.

It Is A Federal Right To Be Indicted For A Felony

Whether or not a preliminary exam is held, and even if a magistrate judge rules in favor of the government and finds probable cause, the defendant retains the right to be indicted by a grand jury. So if a preliminary exam is held, and probable cause was established and the case is bound over, the government still has the burden of presenting the case to a grand jury and securing an indictment for any felony charge.

A defendant can waive his right to a grand jury indictment, and agree to be charged by an “Information,” but that is the exception, not the rule. Because the government eventually must indict a case that’s charged with a complaint anyway, instead of going through the preliminary examination hearing, the federal government will most often go ahead and indict the case within the timeframe allowed before a preliminary examination must take place, thereby negating the need for a preliminary exam hearing.

The federal government prefers to proceed by way of indictment by a grand jury in lieu of a preliminary exam for several reasons. A grand jury proceeding is an ex parte, one sided, court appearance done in secret, without the defendant an/or his/her attorney involved; in contrast, a preliminary examination is in open court, with the defendant, and his/her attorney participating in the hearing, with accompanying right to cross-examine, confront, and present evidence.

Grand Jury Proceedings

Only the prosecutor is included in a grand jury proceeding, along with a witness and the grand jury members. If a witness called before a grand jury is represented by an attorney, or is a potential investigation target, the witness’ attorney is still not allowed to appear with the client before the grand jury. Instead, the attorney of the witness or a target is only allowed to be present outside the grand jury room. In that case, the witness testifying before the jury is allowed to consult with their lawyer if they want while asking questions. When the witness before the grand jury wants to consult with his/her attorney, they must leave the grand jury room, consult with their lawyer, and then come back to the grand jury room alone to answer the questions.

The transcript of what happens in a grand jury is usually not released to the defendant until trial, or the very last minute on the eve of trial. In contrast, at a preliminary exam, the defendant and the defense lawyer hear everything that happens in court, and will get a transcript that they can use to help prepare the defense.

You Are Not Entitled To Discovery In A Federal Case Until You Are Indicted

Federal criminal complaints are a vital tool. Still, the indictment controls the formal charging of a federal criminal case. The indictment serves as the formal charging document for a defendant and the true beginning of the criminal case against them.

It’s very unusual to get discovery in a federal criminal case before you are indicted, and often the only information you’ll have about the investigation and what your client is alleged to have gone through is in that affidavit attached to a criminal complaint.

With the guidance of a skilled attorney for Criminal Law Cases, you can have the peace of mind that comes with knowing that your rights are defended, and your future is protected.

For more information on the End-Goal Of Federal Agents And Prosecutors, a free initial consultation is your next step. Then, get the information and legal answers you seek by calling (248) 509-0056 today.