What Happens After A Federal Indictment?

After an indictment is issued the Defendant will be notified either by an early morning arrest by federal agents or notification of counsel. In crimes of violence or drugs, the defendant will generally be arrested and the government will seek detention and will initiate prosecution by arrest. In white collar fraud, financial, and medical cases, the Government generally won’t seek detention of the defendant pending trial and will not arrest the defendant. Generally, where the defendant has counsel and contact has already been made with the federal prosecutor - notification of indictment will be done with a simple call or email to counsel asking the federal defense attorney if she wishes to “walk her client in” for arraignment.

To learn more about arraignment read the chapter on federal arraignments.

What Information Must an Indictment Contain?

Indictments must contain sufficient information or they may be dismissed. But obtaining dismissal of an indictment is hard, dare say nearly impossible. Once an indictment has been issued a federal prosecutor generally must obtain approval of the United States Attorney or criminal chief before dismissing an indictment and prosecutors are not quick to admit mistakes to their bosses. Moreover, federal procedure rules do not contain a formal motion to dismiss an indictment on factual grounds such as a motion for summary judgment available to our civil counterparts. Generally, an indictment may only be dismissed if the four corners of the document fail to allege a criminal charge.

Federal Rule of Criminal Procedure Rule 7(c) states that an indictment must be a plain, concise, and definite written statement of the essential facts constituting the offense charged and must be signed by an attorney for the government. In Hamling v. United States the Supreme Court instructed that an indictment is sufficient if it contains the elements of the offense charged, fairly informs the defendant of the charges against which he must defend and enables him to enter a plea without feer of double jeopardy. Hamling v. United States, 418 U.S. 87, 117 (1974). This is a pretty low bar. In fraud cases, such as mail fraud, wire fraud, and healthcare fraud, this standard is slightly higher and requires the government to describe particularly the manner and means of the alleged fraud. United States v. Yefsky, 994 F.3d 885 (1st Cir. 1993). This is because fraud is generally based on misrepresentations and the defendant must know the specific misrepresentations alleged. United States v. Nance, 533 F.3d 699, 702 (D.C. Cir. 1974). There aren’t many examples of dismissal of fraud indictments but in United States v. Curtis, 506 F.2d 985, 990 (10th Cir. 1974) the 10th Circuit dismissed a mail fraud indictment that failed to allege the false pretenses used to commit the fraud.

Often, defense counsel who notices a defective indictment will seek a “bill of particulars” to permit the prosecutor to more specifically lay out the conduct in the indictment. But if the indictment is defective, a bill of particulars cannot save it and a motion to dismiss may be warranted.

How a Federal Grand Jury Hands Down an Indictment

For more on the grand jury process, read Federal Grand Juries.

What is the Difference Between an Information and Indictment?

In some cases, the Government proceeds by filing an “information”. This is a tactic used when a federal prosecutor needs to arrest a defendant immediately but does not have time to take the case to the grand jury. Grand juries are not always in session or may be working on other matters and if a defendant is a risk of fleeing the jurisdiction or political matters dictate an immediate charging decision a prosecutor will file an information. An information is another type of charging document that triggers the federal criminal process but instead of a hearing before a grand jury, a prosecutor drafts an information and then has a federal agent swear to the contents of the document before a federal magistrate judge. If the government proceeds by a criminal “information” as opposed to an indictment - the Defendant has a right to a “preliminary hearing” within fourteen days - but these are almost never held because after filing the information and arresting the defendant the Government will usually seek an indictment within this time period. Also, a federal defendant may waive a preliminary hearing but should only do so if the defendant is receiving something in return such as credit for cooperation, discovery regarding the charges, or is seeking an open door to discussions about resolving the case.

Can a Federal Indictment be Dismissed?

As discussed previously, dismissal of an indictment is rare. Federal courts do not dismiss indictments based on factual reasons, only the prosecutor can do that. However, there are some constitutional factors that may trigger dismissal of an indictment such as:

Vagueness: if the indictment is too vague and does not state a crime or the elements of an offense. Or if the indictment contains charges of fraud (mail fraud, wire fraud, healthcare fraud) and fails to state the nature of the fraud with particularity.

Statute of Limitations: If the indictment fails to allege an offense that was committed within the statute of limitations for the offense. See more on statute of limitations below.

Double Jeopardy: If a defendant has been charged and either acquitted or convicted of the same offense, the defendant cannot be charged again for this crime by the same sovereign. The Blockberger test is used to determine if a defendant has been charged with the same offense and this test asks the court if the new offense has any additional elements that the prior offense did not. The state may charge a defendant with the same offense, however, because the state and federal government are considered different sovereigns for the purposes of the double jeopardy clause.

Unreasonable Delay: Rule 48 of the Federal Rules of Criminal Procedure states that an indictment may be dismissed if there is unreasonable delay in commencing prosecution or brining the defendant to trial. This law enumerates the “speedy trial act” which requires that a defendant be charged and brought to trial within a reasonable period of time.

What is the Federal Statute of Limitations for Federal Crimes

The general statute of limitations for federal felony offenses is in 18 U.S.C. 3282 and requires that a crime is charged within five years from the last act in furtherance of the offense. The statute of limitations exists to balance the rights of a defendant against criminal charges where the underlying facts may have eroded over time with the interest of the government in swiftly investigating the alleged criminal activity.

Other statutes provide longer statutes of limitations such as:

• Capital Offenses: Section 3281, which permits the government to file an indictment for an offense “punishable by death” (treason, murder, etc) at any time.

• Terrorism: Section 3286 permits an eight year statute of limitations for non-capital offenses under certain terrorism statutes such as “aircraft destruction, airport violence, assaults upon diplomats and internationally protected persons, willful injury to government property, maritime violence, terrorist acts abroad against United States Nationals, and other terrorism related offenses.

• Financial Crimes: Section 3293 of Title 18 provides for a 10 year statute of limitations for certain financial institution offenses which involve violations of financial statutes.

• Art Thievery: Art thieves beware, Section 3294 of the act permits a 20 year statute of limitations for theft of a “major art work”.

• Tax Evasion: Section 6531 of Title 26 provides for a three year statute for certain offenses such as tax evasion and a six-year statute of limitations for certain other offenses.

If an indictment is filed after the statute of limitations period has expired, a motion to dismiss may be in order. However, this is rare because certain federal laws permit the statute of limitations period a bit of leeway. For instance, a federal defendant involved in a conspiracy could be charged with the offense within 5 years of the last act in furtherance of the conspiracy by any of its members. The statute may also be tolled when the defendant becomes a fugitive as described in 18 U.S.C. 3290. It may also be tolled when a federal prosecutor requests evidence located in a foreign country. But there is no provision in federal law permitting the blanket tolling of the statute of limitations in times of national disaster or emergency. A bill was introduced in 2005 permitting tolling in times of national crisis but was soundly rejected by congress. Again, during the COVID-19 pandemic, some members of congress sought to include a tolling provision in the COVID-19 relief package - it was met with one senator stating “over my dead body” and was also soundly rejected.

How to Obtain a Copy of a Federal Indictment

Obtaining a copy of a federal indictment is fairly simple. Every document filed in federal court is filed electronically on Pacer.gov. Any member of the public can set up an account with Pacer.gov and enter the defendant’s name to pull up a federal indictment or any document filed in the case.

What Can you Do if You Are Indicted?

First, you must seek out an experienced Federal Criminal Defense Attorney. For some tips on avoiding common mistakes that federal defendants make when seeking a federal criminal defense attorney read this article. In most federal cases, the defendant is given the opportunity to personally surrender and get processed by the United States Marshalls. Processing involves getting your picture taken and fingerprints as well as an interview with United States Pre-Trial Services.

Your case will then be set for arraignment before a federal magistrate judge. To learn more about arraignment read this article. But briefly, the judge will explain the charges and then make a determination about bond.

For more about bond hearings and bond arguments read this article.

Here are some practical tips if you or someone you know has been indicted:

1. Obtain a federal criminal defense attorney that regularly handles the legal issue you have been charged with. Your family lawyer or a DUI lawyer will not suffice. They will be ill equipped for the complexity of a federal case.

2. Do not talk about the subject of the case with anyone but your lawyer. This is tough to do but important. Often the federal government conducts consensual calls with cooperating co-defendants who will record your conversations and use them in court.

3. Do not make any large transfers of assets. The Government will be watching your accounts and large movements of money may result in additional seizures and additional allegations.

4. Do not attempt to travel internationally. If you are indicted you will be on a no-fly list. If you need to travel discuss this with your lawyer first so that appropriate arrangements can be made.

5. Prepare your evidence. If your attorney is even half way decent he/she will ask you for a substantial amount of information about your case. Instead of aimlessly hoping for the case to go away - you can get to work. Search for emails, documents, messages, and any other evidence that might be important for your attorney. Write a list of witnesses and their contact information. Preserve all information for your attorney so that he/she can prepare your defense. My clients that get to work always do better in their case and with their mental health .

6. Do not destroy evidence. Even unintentionally. Preserve everything. The destruction of evidence could lead to additional charges and even evidence of your guilt may come in handy later if you end up seeking a deal with the prosecution.

7. Purchase a copy of “Unraveling Federal Criminal Investigations” to learn more about the Federal Criminal Process, indictments, bond, and many other topics. You will be more well informed and knowledgable about the process and the law.

8. For more tips please contact me if you receive a federal indictment.

Common Questions Regarding Federal Indictments

Q: If you get a federal indictment can you bond out?

A: Yes, but it depends. At arraignment the judge will determine if you are a flight risk or a danger to the community. The more violent the criminal allegations and the more risk of flight the higher chance you will not be able to bond out. A detailed article on this process is located here. If bond is permitted, it will be either secured or unsecured. The federal system does not use bail bondsmen. The clerk of the court will receive the bond if one is required to be paid. The best outcome is an “unsecured” bond. This means that you will not have to pay anything to the court but would owe money if you fled.

Q: Is there a federal indictments list available to see if I have been indicted? Where can I find Federal Indictments online?

A: Theres not a list but anyone can access www.pacer.gov to determine if a case has been filed. Your attorney can do this for you too.

Q: How long does a federal indictment take?

A: A defendant has a right to a speedy trial and can bring a case to trial within 70 days. However, in my years of experience I have not seen a case move so quickly. Typically federal cases take a year to 18 months to resolve. More complicated cases with more defendants can take much longer.

Q: Statute of Limitations: How long do the feds have to indict you?

A: The federal statute of limitations is five years or “otherwise provided by law. This means that the federal government must charge a defendant within five years of the last date of any action in furtherance of the federal offense. While some people believe the statute of limitations is a shield, its been gutted by several federal cases and statutes that allow prosecutors to charge around the statute of limitations. For instance, in conspiracy cases the beginning date of the five year statute of limitations is the last act in furtherance of the conspiracy. If the feds allege a long standing conspiracy virtually any act related to the conspiracy can be an act in furtherance of the conspiracy and act to extend the statute of limitations. If you have statute of limitations questions - please contact me.

How to avoid a Federal Indictment

Avoiding a federal indictment is possible but it takes the work of an experienced federal criminal defense attorney who knows how to thoroughly investigate a case and present a defense to a United States Attorney. This is not something you will be able to do alone. Many defendants think that they can convince the FBI or federal prosecutors that you are innocent by making a statement. This is a bad idea and will erode your case before it begins.

So here’s how to avoid a federal indictment. First, this is a topic I explain thoroughly in my book “Unraveling Federal Criminal Investigations” theres a much more detailed chapter on this topic.

Second, you will need a skilled attorney to perform a detailed investigation of the allegations and preserve all evidence that is helpful to your case. If you contact an attorney before you are notified that you are indicted- you will be much better off. Prosecutors are more likely to favorably resolve investigations before they turn into indictments. A solid attorney will then sit down with the prosecutors at whats called an “attorney proffer”. There he/she will make the case to the federal prosecutor that an indictment is not in the interests of the United States. An attorney can do this by showing prosecutors that they are targeting the wrong person, that the evidence is insufficient to sustain a conviction, that even if a crime was committed its not to the level of federal interest. There are many ways, more are described in the book linked above but the presentation needs to suit the facts of your case and the law.

Sometimes I choose to present to the United States Attorneys a detailed presentation about the facts and the law. This is particularly helpful where the case is complex and hinges on federal regulations or laws that are easy to mis-interpret. Its often successful resulting in a withering federal investigation and ultimately no criminal charges.