A Primer on Federal Criminal Case Processing

New Jersey Criminal Lawyers Schwartz Posnock

A Federal Criminal Law Article

By NJ Criminal lawyer, David A. Schwartz

If I am charged with a federal criminal offense, will I be arrested? Can I self-surrender and be released? Will I be detained in federal custody?

These are questions that every new client asks us when they learn that they are going to be charged with a federal criminal offense.

The vast majority of individuals who are charged with so-called “white collar” crimes are not arrested off of the street. Instead, most of these individuals know that they are under criminal investigation before they are charged because they have already been contacted by federal law enforcement investigators, such as FBI agents, Internal Revenue Service investigators, Secret Service Agents and Postal Inspectors. Very often, if the decision to charge you has been made, a law enforcement agent will advise you to contact the Assistant US Attorney (AUSA) in charge of the investigation. We always make contact with the AUSA before you are brought to court, for the purpose of discussing the case and to negotiate the terms of your release.

Negotiated Self-Surrender Accompanied By Your Attorney is Preferred

In the early stages of a federal criminal case, we will determine the charges against you and arrange for a mutually convenient surrender date with the AUSA. When you have been charged with an offense, you will have to be processed in federal court. We accompany our clients during the their processing to make sure that it goes smoothly, and so at the end of your initial appearance in court, that you are released home and on the least restrictive conditions.

The criminal charging document (a criminal complaint) will be made available to us either before court or during the initial court proceedings. The criminal complaint will give you more information as to the particulars of what you are accused of.

On the day of your surrender, when you arrive for processing, you may have to go to two law enforcement agencies; the local FBI office and the US Marshals office. The processing at each location is nearly the same. You will be photographed and fingerprinted, and a DNA swab from your cheek will be taken. If the FBI is not involved in the criminal investigation, you will only have to be processed by the US Marshall. Processing in the Marshall’s office takes place in the federal courthouse. Processing usually takes 20-30 minutes. However, if there is a backup of individuals being processed, you may be detained in the Marshall’s office for a longer period.

After you are processed by the FBI and/or the Marshall, you will be released and will proceed to US Pretrial Services where you will be asked to give a urine sample for detection of narcotics. US Pretrial Services is also in the Courthouse. We will be with you at US Pretrial Services. The result so the urine test will be reported in the Pretrial Services report that is made available to your attorney, the AUSA, and the federal magistrate who will determine the conditions of your release. Typically, you will have already had your US Pretrial Services Interview, which we will have participated in on your behalf. In the case of a self-surrender, the US Pretrial Interview would have already taken place by conference call at our office. Please see our article on US Pretrial Services for more information on the significance of the US Pretrial Services Interview and the Pretrial Release Report.

If you are charged with a crime of violence, a weapons offense or drug offense, you may have already been arrested and may be held in custody of the US Marshall. You will be brought before a federal magistrate as soon as possible for the purpose of advising you of the charges against you, and to determine whether you are to be released and if so, under what conditions.
Pretrial Services Role

The Pretrial Services Office provides the presiding magistrate with information relating to you in order to help the court, (1) make informed release or detention decisions; (2) reduce unnecessary detention; (3) provide the court with alternatives to detention; and (4) for the terms of supervision of persons released.

Pretrial Services Officers are officers of the Court and work for the judge. They are not part of the Justice Department and therefore, they do not work for the U.S. Attorney’s Office.

Investigation/Bail Report

Before your initial court appearance you will be interviewed by a Pretrial Services Officer (PSO). The interview will focus on your family history, residential history, employment, finances, education, health and criminal history. You will not be questioned about the charge. You should not discuss the charges with the Pretrial Services officer.

After the interview, the information will be verified through other sources, such as family members, employers, criminal records, probation officers other data bases. All information obtained by the Pretrial Services officer is confidential and is used only for release purposes. The information will not be used to determine guilt or innocence.

A pretrial services release report is submitted to the Judge and copies are provided to the AUSA prosecuting the case and to your defense counsel. Included in the report is an assessment that notes any potential risks of nonappearance at future court hearings and the potential danger posed to the community.

The report also contains a recommendation to the Court regarding your release. The Pretrial Services officer will recommend the least restrictive release conditions which they believe would reasonably assure your return to court and to ensure the safety of the community. The duty magistrate will make his or her own assessment and will set bail and conditions of release which he or she deem appropriate.

Court Hearings

Your first appearance in court is called the Initial Appearance. If you are arrested off the street, the initial appearance will take place as soon as possible. If you are coming to court on a negotiated self-surrender or to enter a guilty plea to an criminal information or to an indictment, as your defense counsel, we will set up a time for an interview with Pretrial Services prior to the appearance in court.

At the initial appearance, the judge will:

(1) advise you of your rights;

(2) inform you of the charges and assure that you are provided with a copy of the charging document;

(3) appoint an attorney (based on need and qualification) if necessary;

(4) set the next court date; and

(5) make a release decision.

If a you are released at the initial appearance and charged with a misdemeanor, the judge will ask you if you elect a Magistrate or a District Judge to preside over your case. If Magistrate jurisdiction is the choice, a trial date will be set. If District Court jurisdiction is the choice, an arraignment date will be set by the assigned judge.

When Released on Bail

Some defendants may have additional conditions of release to reasonably assure their return to future court appearances and the safety of the community, e.g., drug testing, and travel restrictions. You probably will have to surrender your passport.

If you are placed on supervision you must report to the Pretrial Services Office immediately upon release from Court.

At the Pretrial Services Office you will be assigned to an officer who will supervise the case. At your first meeting, the officer will: a) explain all conditions of release; b) explain the consequences of noncompliance (e.g., jail, possible new charges, more restrictive release conditions); c) give instructions on when and how to report; and d) your picture will be taken; e) you may be subject to a drug/alcohol test (if ordered by the Court); f) you will have to sign the conditions of release and will be provided a copy of the same for your records.

Bail Supervision

When you are placed on pretrial services supervision, the Pretrial Services officer will monitor the your activities to ensure compliance with the conditions of release set by the Judge.
The officer may conduct home visits, announced and unannounced, to verify your place of residence. The officer will verify employment and refer you to treatment, if needed.

These monitoring activities will continue for the duration of the case or until you are removed from pretrial services supervision by the Court. Should you violate any of the conditions of release the Judge may impose more stringent conditions or revoke your release.

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