Arraignment and Initial Appearance in Federal Court

By Ronald W. Chapman II, ESQ

What is an Arraignment?

When a federal defendant has been charged with a federal crime by a federal prosecutor she will proceed to arraignment. Arraignment is a vital stage of any federal criminal case and it must be treated seriously. Mistakes at this early stage are difficult to overcome and will have drastic consequences for the remainder of the defense. Counsel must ensure that the client is prepared, understands the charges, and can make an effective presentation to ensure pre-trial release.

Arraignment in federal court is a process to ensure that the defendant understands the criminal charges that have been filed through an indictment or information. Its governed by a federal rule of criminal procedure and a few federal statutes: Rule 10 of the Federal Rules of Criminal Procedure and 18 U.S.C. 3143.

An arraignment is the first step in the federal criminal defense process and happens after the defendant has been placed in custody or after her counsel has been informed of federal criminal charges. The defendant will be taken to “duty court” before a federal magistrate judge for a short hearing to ensure that they understand the charges and to determine whether the defendant will be released pending trial. Let’s first talk about the process of ensuring the defendant understands the charges at arraignment.

Rule 10 of the Federal Rules of Criminal procedure states that an arraignment must be conducted in open court and consist of (1) ensuring that the defendant has a copy of the indictment or information, (2) reading the indictment or information, and (3) asking the defendant to plead to the indictment. Lets go over each of these steps in detail.

What happens at a federal arraignment?

The arraignment will be conducted in front of the magistrate judge, prosecutor, defense counsel and a federal pre-trial services officer. The judge will first ask the defendant to identify themselves and then describe the purpose of the arraignment proceeding. Typically the judge will also either read the indictment or summarize the charges if the defendant has waived a formal reading of the indictment (which counsel typically does). The magistrate judge will then ask the defense lawyer if she has had an opportunity to discuss the indictment or information (charges) with their client, which a good defense lawyer will always do. The magistrate judge will then ask if the defendant wishes to enter a plea. There are three types of pleas in federal criminal cases:

Not Guilty: This means that the defendant does not wish to plead guilty and requests that the court set a trial date to determine guilt or innocence.

Guilty: This means that the defendant does not wish to contest the charges and wishes to proceed to the sentencing phase. However, a defendant never pleads guilty at an initial arraignment unless an agreement. If the defendant wishes to plead guilty she would do so by having counsel negotiate a plea agreement with the prosecutor and then plead guilty at a “change of plea hearing” at a later date.

Standing Mute: Because the defendant has the right to remain silent, a defendant can stand “mute” at arraignment and not answer formally to the charges. If the defendant does so, the court will enter a plea of not guilty. Standing mute is an old school practice used by many experienced criminal attorneys but doesn’t have any benefit in today’s federal criminal system. The theory used to be that if the defendant stood “mute” and didn’t plead not guilty they would avoid making a statement to the court that they later rescind if their plea is changed to “guilty”.

Release or Detention Pending Trial

Pre-Trial Services Interview

After a plea has been entered the judge will turn to the issue of release or detention pending trial.

This determination requires the input of three parties: the prosecutor, pre-trial services, and the defense attorney. Prior to arraignment the defendant must meet with pre-trial services and will be asked questions by the pre-trial services officer during a pre-trial services interview.

This should be done in the presence of criminal defense counsel. The role of pre-trial services is to collect facts to help the judge determine if the defendant should be released or detained pending trial and if the defendant is release the conditions that should bind the defendant. These conditions are typically called “bond conditions”. Pre-trial services will create a report and submit it to the judge. The pre-trial services officer will begin the release or detention portion of the arraignment by informing providing the judge information about the defendant, her background, and factors governing her risk of flight or danger to the community.

Pre-Trial Release Factors

These factors include, but are not limited to:

• Recent foreign travel

• Significant foreign contacts

• Significant liquid assets

• Significant assets outside the jurisdiction of the court

• Citizenship

• Criminal history

• Attempts to flee or failure to appear for arraignment

• Age and family status

• Education level

• Ties to the community

• Employment status

• Substance abuse issues

After the pre-trial services officer provides their summary of these factors pre-trial services will then offer their opinion regarding pre-trial detention or release. Pre-trial services will state whether they think they have the ability to place sufficient restrictions on the defendant to ensure that the defendant does not flee or pose a danger to society pending trial. There are three options that pre-trial services will consider under 18 U.S.C. 3142.

The Law of Pre-Trial Release: 18 U.S.C. 3142

A federal magistrate or judge is required to release a defendant pending trial unless the judge determines that the defendant is a risk of flight or danger to the community, in which case the judge must impose the “least restrictive conditions or combination of convictions” that ensure the defendant’s appearance at later hearings and that they will not be a danger to the community.

Typical Bond Conditions

A judge will typically impose the following conditions on a defendant pending trial:

• That the defendant not commit a federal state or local crime

• Remain in the jurisdiction of the court or the United States

• Maintain employment

• Not contact witnesses or victims in the case

• Report on a regular basis to pre-trial services

• Refrain from possessing a firearm

• Refrain from the use of alcohol or dangerous drugs

• Surrender of passport

• Agree to forfeit a specific amount of money if the defendant fails to appear (bond)

• And any special condition required

Obtaining Release Pending Trial

An effective defense counsel will advocate heavily for their client’s release to ensure that the conditions are not burdensome pending trial. This is vitally important. Representing a client detained in federal custody is much more difficult and conviction rates skyrocket for defendants who remain behind bars pending their trial. The federal criminal process can last eighteen months or more and being detained for that entire period can be suffering. Aggressive advocacy at this stage is necessary and starts before we enter the courtroom. I typically contact the prosecutor to obtain their position before court to determine if they are seeking detention prior to trial, if they are I know that I will have to proceed to a detention hearing where I may call witnesses and introduce evidence to ensure my client’s release.

The Detention Hearing

The law gives the federal prosecutors a benefit here, if the prosecutor is seeking detention they will get three days to prepare their case. And they typically exercise this option. This means that the defendant will be detained pending the detention hearing for up to three days - the Defense attorney can ask for an additional two days but I rarely ask for this given that my client is usually detained in intolerable conditions.

At the detention hearing the defendant appears before the magistrate, prosecutor, and pre-trial services along with her counsel. The judge will permit the parties to present evidence and the parties can call witnesses. Many defense attorneys don’t call witnesses but this is a mistake. Prior to the hearing its important to gather up all of the facts that show the defendant is not likely to flee and present them in a logical fashion to the court. Some factors that are typically convincing to a federal magistrate include:

• Presence in the community after learning of charges

• Voluntarily surrendering to federal authorities

• Significant ties to the community such as children, a house, a spouse, and community engagement

• Prior good deeds such as volunteering or professional accolades

• Lack of criminal history

In addition to offering positive evidence that the defendant is not likely to flee and does not pose a risk of flight, counsel should be prepared to also rebut evidence offered by the prosecutor that the defendant poses a risk of flight. First the prosecutor will almost always attempt to make the offense sound more severe and some discussion of the alleged conduct will occur, counsel must be prepared to offer mitigating evidence to rebut the alleged seriousness of the offense. Also, prosecutors almost always attack a white-collar defendant’s financial means and will attempt to persuade the court that they have the means to flee. If the defendant has foreign contacts they will also be discussed by the prosecutor in the most aggravating way possible.

This is where witnesses are vital. Friends, family members, and colleagues of the defendant can testify to their peaceful demeanor, rebut allegations of significant foreign contacts or significant liquid financial assets and put the defendant in the most positive light possible.

Appealing a Detention Decision

If the federal magistrate determines that the defendant should be detained pending trial the decision can be appealed to the federal judge and a new hearing can be requested. A good federal defense lawyer should always appeal the detention decision to attempt to obtain release of the defendant pending trial.

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ABOUT THE AUTHOR

Ron Chapman has spent his career defending federal defendants in high-profile federal criminal cases. He is also the author of the Amazon best selling book Fight the Feds: Unraveling Federal Criminal Investigations. During his career he has learned that many federal defendants facing the power of the federal government lack resources and understanding of this complex field of law. The book and this companion website and guide were designed to close the informational gap between the federal government and federal criminal defendants by providing tactics and tips learned during my career fighting the federal government and its immense power. If you haven’t already, go to the beginning of this guide and review sections that are relevant to you and consider purchasing Fight the Feds to grow your knowledge of federal criminal law and investigations.