When the FBI Comes Calling…®
THE GRAND JURY (Continued)
The Warrant
The magistrate will issue a warrant for each person named in an indictment. FRCrP 9(a). The warrant must contain the defendant's name, the offense charged, command that the defendant be arrested and brought without unnecessary delay before the magistrate judge, and be signed by that judge. Id. 9(b)(1) (incorporating by reference the provisions of FRCrP 4(1)(b)).
The next step is the arrest, and the often-unwitting defendant will be encountered at his home or workplace by 12-18 armed federal agents. He is arrested, brought to the county jail, and the next business day (which is often a Monday because the agents like to make arrests on Fridays) is when the defendant is brought before the court. This often occurs after there is a "perp walk" for the local media's benefit.
Detention Hearing
After the defendant is taken to the federal court house, he is brought before a U.S. Magistrate Judge to determine if the individual can be released. While there is a presumption in favor of pretrial release, the court focuses on whether the individual poses a flight risk or whether releasing the defendant endangers the safety of another person or the community. 18 U.S.C. § 3142(b). Some crimes, however, involve a rebuttable presumption that the individual poses a threat to the community. These crimes are: a crime of violence or a terrorism-related crime that carries a maximum term of imprisonment of 10 or more years, an offense for which the maximum penalty is life imprisonment or death, a drug crime carrying a punishment of 10 or more years in prison, or any felony if the individual has perviously been convicted of two or more of the previous offenses. Id. § 3142(f)(1).
There is a three-step process for determining whether an individual will be detained pending trial. First, the Magistrate Judge determines whether the person should be released on a personal recognizace or unsecured appearance bond. 18 U.S.C. § 3142(a)(1). If the person is released under those conditions, he must not commit a Federal, State, or local crime during the period of release. Id § 3142(b). The second prong occurs if the Magistrate Judge determines that the individual should not be released on his own recognizance or on an unsecured bond. In that case, the Magistrate Judge may decide to release an individual under a combination of conditions, including the posting of bond. Id. § 3142(c). These conditions may include travel restrictions, maintaining employment, submitting to drug testing and counseling, submitting to a curfew, residing in a halfway house, or home detention. Id. Finally, if the court feels that release is inappropriate, it must conduct a detention hearing. Id. § 3142(f).
A note about bond: the Federal system is not like State system. An individual cannot go to a bail-bondsman and have the cash provided for a percentage fee. If a cash amount is set by the Magistrate Judge, the individual may have to front a percentage of the bond himself, or sign a pledge to forfeit the bond if he fails to appear for trial. If he appears for trial, the bond money will be returned to him.
In the event pretrial detention is contemplated, it must be held immediately upon the individual's first appearance before the Magistrate Judge, unless a continuance is sought. 18 U.S.C. § 3142(f). Except for good cause, however, the continuance cannot extend beyond five days. Id. At the hearing, the individual has the right to be represented by counsel, and he has the opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise. Id. The rules of evidence that govern trials, however, do not apply to a detention hearing. Id. The Magistrate Judge can only order the detention of the individual if no condition or combination of conditions will reasonably assure the safety of any other personn and the community, and the decision must be made with the support of clear and convincing evidence. Id.
If the court orders the release of the individual, it must issue a written order that states all of the conditions of release, and that advises the individual of the penlaties for violating a condition of release. 18 U.S.C. § 3142(h). If the court determines that the individual must be detained, it must do so in a written statement that states the findings of facts and reasons for detention, that orders the individual to be housed separately from convicted inmates, that orders the defendant a reasonable opportunity to consult with counsel, and that orders the defendant to be returned to court for all related proceedings. Id. § 3142(i).
The Arraignment
A defendant may plead guilty, not guilty, (or with the court's consent) nolo contendere. FRCrP 11(a)(1). If the court accepts the plea of nolo contedere, it must do so after considering "the parties' views and the public interest in the effective administration of justice." Id. 11(a)(1)(3). If the defendant pleads not guilty, the court must determine whether the defendant is to be detained pending trial, or released on bond with conditions of release.
Absent a waiver of the defendant's right to a speedy trial, his federal criminal trial will begin within 70 days.