While most offenses people hear about in the movies or the news involve state crimes such as murder, burglary, drug possession, and the like, the U.S. Government prosecutes many crimes federally. Common offenses prosecuted by the feds include drug possession, child pornography, wire fraud, Medicaid fraud, and selling firearms without a license.
To be sure, some federal crimes are enacted to combat one-time discrete events such as bank robberies or downloading child pornography. However, most federal prosecutions attack ongoing crimes such as continued drug distribution, or a longtime scheme to defraud investors by selling fraudulent securities.
Because federal crimes oftentimes involve multiple participants, investigators will seek to make multiple arrests simultaneously, otherwise known as “takedowns.” This presents a legal question for prosecutors as to which type of arrest authority to seek when trying to capture targets. This is where the complaint/indictment dichotomy comes in.
A criminal complaint authorizes the charge and arrest of persons who are thought to have broken the law. For example, if the DEA wants to do a coordinated takedown of 20 drug conspirators (say five are high level, five are mid-level, five are low-level distributors selling user amounts, and five are repeat customers of user quantity amounts), an agent may request an Assistant United States Attorney to seek a criminal complaint directly from a U.S. Magistrate authorizing that arrest.
The complaint is a document that lists the targets for arrest as well as a sworn affidavit from an agent that must demonstrate probable cause that the targets committed the offense. If the judge agrees, then he or she will sign the complaint, which will authorize the takedown.
Remember persons may be arrested without a warrant for a myriad of reasons. Most significantly, if an offense is committed within the view of a local or federal law enforcement officer, that person can be arrested on the spot. For example, if a person sells drugs to an undercover officer, or if a felon buys a gun at a gun show, that person can be arrested without the officer or agent first going to a magistrate. If after arrest a federal prosecutor wants the case to proceed in a federal court, then the prosecutor will likely draft a complaint within a day or two to hold the target until the case can be presented to a grand jury.
Understand also that an arrest is not an indictment. This means that at the time of arrest the Government will not have attained an indictment and the case may not go to trial. In fact, what will happen is that the targets will be allowed to have an attorney, even if an appointed one is necessary, and the opportunity to force the Government to hold a hearing demonstrating three showings: first, probable cause that the offense was committed; second, an identity hearing connecting the arrested target to the indictment (making sure the correct person was arrested); and finally, a detention hearing to determine whether the target stays locked up while the case proceeds or go home. Further, the complaint only lasts for 30 days. If the Government has not attained an indictment within 30 days then the target is released and the charges are null.
As opposed to a complaint, an indictment is a document authorizing the charge and trial of persons who have been shown by probable cause to have broken the law. An indictment is a requirement in every felony case under the U.S. Constitution. Unlike a complaint, indictments are issued by grand jurors. A federal grand jury is a group of citizens who pass on multiple cases to determine if enough evidence exists for a case to go to court and, if necessary, trial. Federal grand juries comprise of between 16 and 23 people and each case must receive at least 12 votes establishing that probable cause exists that the target(s) committed a specific federal offense. If a defendant has not been arrested via complaint then the indictment can act as an arrest warrant. Once in custody, the target will have the same arraignment and an initial appearance. Except if an indictment has been issued, the defendant will no longer be allowed to challenge probable cause. Only identity and detention issues will remain.
Just like the state system, defense attorneys and targets do not have a right to present any evidence, document, or testimony to a grand jury. Often, only a case agent will present facts and the grand jury will make its decision based on a one-sided presentation.
A federal indictment, on the other hand, is a determination by a federal grand jury that there is probable cause that the accused has committed a federal offense. Unlike a complaint, once an indictment comes down then a target may be held indefinitely for trial. Of course, there are speedy trial provisions that call for a trial setting within 45 to 60 days. Attorneys for both sides can request extension.
Once a case has been indicted, a significant opportunity for a lower charge is gone. Once a case has been indicted, prosecutors will generally move forward on the highest provable charge. While we have had cases dismissed even after indictment, it is vital to contact a defense attorney as soon as possible and ideally before the case is indicted.
It is important to recognize that once a person is in federal custody it is not uncommon for police officers and agents to approach them for an interview. Any statement during these interviews can be used against the target. Unfortunately, many arrested people mistake early good will and cooperation as a guarantee for leniency. That is not always the case. Any interview that takes place while a person is in custody triggers the right to have an attorney present or the right to remain silent. Whether to cooperate or not is a complex question that is tailored to each individual circumstance. If you or a loved on has been arrested for a federal crime, contact an experienced federal criminal defense attorney as soon as possible.
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