If you have received a federal indictment, you are facing a serious set of circumstances. Unless you are able to have your indictment dismissed, you will go to trial on federal charges, and you will be at risk for facing substantial penalties—including a lengthy prison term in many cases.

However, while getting federally indicted presents severe risks, the one thing you cannot afford to do is panic. At this point, your guilt is still far from proven, and there are a variety of strategies that federal defendants can assert both before and during trial. With that said, you need to be very careful, and you need to start making informed decisions immediately based on the advice of experienced federal defense counsel.

What is the Federal Criminal Justice Process Following an Indictment?

In order to understand the current status of your federal case and what you can expect in the months to come, it is first important to understand what has happened in your case already. There are several steps prior to getting federally indicted; and, while an indictment is not a finding of guilt, an indictment does signify that federal prosecutors have a case worth pursuing. As a result, at this stage it is very difficult (though not impossible) to get prosecutors to drop a case voluntarily, and it is far more likely that the outcome of the case will be determined either through a plea agreement or in federal court.

All federal cases begin with an investigation. Something must trigger the investigation, and the trigger itself can be very important. For example, if you are being targeted as the result of a whistleblower complaint, this is a very different matter from an investigation triggered by information obtained through a confidential informant.

Depending on the circumstances involved, targets may or may not learn that they are under investigation. In any case, if federal agents are able to gather enough evidence to establish probable cause, they may seek an arrest warrant, or they may refer the case to the U.S. Department of Justice (DOJ) for prosecution. At this stage, the DOJ will issue a grand jury subpoena; and, if the members of the grand jury determine that prosecution is warranted, they will return an indictment.

As you can see, by the time you are indicted, the federal government has already invested significant resources into your case. At this stage, the DOJ has also gathered significant evidence against you, and this means that you will be facing an uphill battle for the remainder of your defense.

“An indictment is a critical juncture in the federal criminal justice process. At this stage, a federal grand jury has determined that the DOJ has ‘probable cause’ to pursue charges; and, in most cases, it becomes much more difficult to have charges dropped without court intervention.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

So, what’s next? Now that you have been indicted, the next major step in the federal criminal justice process is your arraignment. This is a formal legal proceeding that takes place before a Magistrate Judge. The Magistrate Judge will read the charges against you and inform you of your legal rights, and you will be asked to enter a plea.

If you enter a plea of “not guilty” (which you should), then the Magistrate Judge will set a date for a motions hearing, and he or she will also set your trial date. Under federal law, your trial must be scheduled within 70 days of your initial appearance, unless you waive this right (which your defense attorney may or may not recommend depending on the circumstances of your case). As your federal defense attorney prepares all appropriate motions, responses to the prosecution’s motions, and your trial defense, he or she may engage in plea agreement negotiations with the U.S. Attorney’s Office as well.

What are the Potential Outcomes of a Federal Criminal Case Following an Indictment?

Once you are federally indicted, your case has five primary potential outcomes. These are: (i) pre-trial dismissal, (ii) plea agreement, (iii) “guilty” verdict, (iv) “not guilty” verdict, and (v) mistrial.

• Pre-Trial Dismissal – Pre-trial dismissals following federal grand jury indictments are rare. Federal judges tend not to second-guess the grand jury process at this stage; and, as a result, successful challenges to indictments are typically based on procedural issues rather than the substance of the charges at hand. For example, an indictment secured through prosecutorial misconduct may be ripe for pre-trial dismissal, as would an indictment secured for a charge that is barred by the applicable statute of limitations.
• Plea Agreement – Negotiating a plea agreement allows a federal defendant to have a say in the final outcome of his or her case. In circumstances in which a “not guilty” verdict appears unlikely, negotiating a plea agreement affords the opportunity to avoid the uncertainty and cost of trial. Of course, the U.S. Attorney’s Office must be interested in negotiating; and, when negotiating, it is imperative to strategically consider all possible scenarios. Leveraging potential defenses can help to facilitate a more-favorable deal, and there are various ways that defendants can make deals appear more palatable to prosecutors as well.
• “Guilty” Verdict – If your case goes to trial, there is always the risk that you will be found guilty. This is true regardless of the truth, and regardless of how well the evidence stacks in your favor. Many federal prosecutors are very good at what they do, and jurors can be easily persuaded—especially once an indictment has already been returned. With that said, there are viable defense strategies available, and a “guilty” verdict is not guaranteed when your trial begins.
• “Not Guilty” Verdict – If you are able to defend against your charges successfully, then the jury may return a verdict of “not guilty.” If you are found not guilty, then you will be free to go home in most cases.
• Mistrial – If your case goes to trial, there is also a possibility that the judge will be forced to declare a mistrial. This occurs when the members of the jury cannot reach a unanimous decision after their deliberations. If the judge declares a mistrial, the DOJ can choose to either pursue your case again or drop the charges against you. A plea agreement is a possibility at this stage as well.

Unless you accept a plea agreement, the outcome at the trial level is not necessarily the final outcome of your case. Defendants can file appeals on various grounds—as can the DOJ. At the federal level, appeals are filed with the U.S. Court of Appeals for the appropriate circuit; and, in limited circumstances, defendants and prosecutors can seek certiorari at the U.S. Supreme Court.

What are Some Examples of Potential Defenses to Federal Criminal Charges?

There are numerous potential defenses to federal criminal charges. While the potential defense strategies are far too many to list, it is possible to break these defenses down into a handful of broad categories:

1. Constitutional Defenses

As a defendant in the federal criminal justice system, you are entitled to the protections afforded by the U.S. Constitution. If police or prosecutors violate your constitutional rights at any stage, this could serve as a complete or partial defense to the charges against you.

In some circumstances, asserting a constitutional defense (i.e. violation of the Fourth Amendment protection against unreasonable searches and seizures) can result in the prosecution’s evidence being deemed inadmissible. If enough evidence is deemed inadmissible, this could prevent the prosecution from building its case against you.

In other circumstances, asserting a constitutional defense can warrant an outright dismissal. This could be the case, for example, if prosecutors violate your Sixth Amendment right to a speedy and fair trial.

2. Procedural Defenses

Procedural defenses include grounds for dismissal such as withholding incriminating evidence and surpassing the statute of limitations. If you are able to assert a procedural defense, you may be able to secure a dismissal regardless of the strength of the prosecution’s case against you.

3. Affirmative Defenses

Affirmative defenses involve acknowledging the commission of a criminal act while simultaneously establishing a justification that defies a finding of criminal intent. Affirmative defenses are not available in all cases, and asserting them can be tricky. But, under the right circumstances, asserting an affirmative defense can be an effective strategy for avoiding a criminal conviction in federal district court.

4. Innocence Defense

If you are innocent – and if you can prove it – then this could be the best defense when you get federally indicted. But, even if you have not committed a crime, proving your innocence might still be easier said than done.

5. Failure to Meet the Burden of Proof

In federal criminal cases, the DOJ has the burden of proving the defendant’s guilt beyond a reasonable doubt. If the prosecution cannot meet this burden in your case, then you are entitled to a “not guilty” verdict regardless of the underlying facts. As a result, in many cases, effectively defending against federal criminal charges in court involves not presenting evidence of innocence, but instead poking holes in the prosecution’s case.

What is the Likelihood of Avoiding a Conviction Following a Federal Indictment?

If you get federally indicted, what is the likelihood that you will be able to avoid a conviction?

Ultimately, the answer to this question depends on the unique facts of your particular case. While the conviction rate in federal criminal cases is high, the defenses and defense strategies discussed above will prove effective in many cases. In order to understand the risks you are facing, you will need to engage an experienced federal criminal defense attorney; and, in order to give yourself the best chance of avoiding a conviction, you should start working on your defense as soon as possible.