Law is not black or white, it's grey


Federal criminal trial process

The truth about the federal criminal trial process explained in plain English

Many people are unfamiliar with the federal criminal justice system.  This includes many criminal defense lawyers.  In Florida, most criminal lawyers only do state court work.  What you will find here is the truth about the federal criminal trial process.  Hopefully, some of your questions regarding federal criminal cases will be answered.

How are federal criminal cases different from state court criminal cases?

The Feds, unlike their state counterparts, take their time working up a criminal case. They take months, sometimes years building a federal case. Sometimes the federal government will wiretap your phone, send a snitch in to rat you out, conduct video surveillance of you and/or talk to everyone around you. Then, after they do all of that, they will try to get you to confess.

What happens during the initial investigation of a federal criminal case?

Every case is different.  However, during the initial investigation, you may be contacted by federal agents like the DEA. You may be the target of an investigation or receive a target letter.  Or, maybe, you are just a material witness.  They may show up to your house, where you work or talk to people who know you.  The feds usually have already made up their mind that they are going to arrest you and charge you with a crime. The question is whether you will confess, make a false statement, or invoke your right to remain silent and/or your right to a lawyer.

What should I do if approached by federal agents like the US Marshals, DEA or FBI?

You should say:

  • I will not make any statements.

  • I do not consent to any search.

  • I want to speak with my lawyer.


This should stop all questioning.  In some situations, it may be in your best interest to speak with the Feds.  However, you may not want to make any statements without your federal criminal lawyer present.  I say federal criminal lawyer because most criminal lawyers never set foot inside a federal courthouse.  If you do make statements without your federal criminal lawyer present, you may regret it.  Although you may have good intentions and want to explain your side of the story (you are innocent, wrong place at the wrong time), the federal government can and will use your own words to help send you to prison. They may even charge you with making a false statement to the feds if you lie. This is regardless of whether they have enough evidence to convict you on any other charge.

What happens after federal agents finish their investigation?

The assistant united states attorney typically gets the case handed to them after all the leg work has been completed - on a silver platter.  All thanks to the case agent.  The AUSA will decide whether to file criminal charges right away via a complaint or go forward with a grand jury for an indictment.

What is the first charging document in a federal criminal case?

The complaint, which is a written statement of the essential facts constituting the offense charged, is sometimes filed first. It must be under oath before a judge. Typically, the indictment will be filed shortly after.  In some cases, an Information is filed.  If an information is filed, usually, the defendant is a cooperating witness or a deal has already been struck with the assistant United States attorney (called an “AUSA”) to plead guilty.  Often certain charges are not filed as part of the negotiated plea.

Arrest warrant

Based on a Complaint, if the judge determines there is probable cause to believe an offense has been committed, he will sign the warrant for your arrest. Federal marshals or other police officers will execute the warrant.

What role does the grand jury have in an indictment, or charging document?

The grand jury hears evidence presented by an assistant United States attorney. Their job is to decide whether they will vote to indict a person or persons. A grand jury must have 16 to 23 members. They are people from the local district. The judge appoints one person as a foreperson and another as the deputy foreperson. The foreperson records the number of people voting to indict. The magic number is 12. At least 12 members of the grand jury must vote to indict. If there are 23 members and only 12 vote to indict, that’s just barely over 50%! A witness called before the grand jury has no right to have a lawyer there at the proceedings.

Assistant United States attorneys, the witness being questioned, an interpreter (if needed), and a court reporter are the only people allowed while the grand jury is in session. The grand jury deliberates in private (with the possible exception of an interpreter). The proceedings are recorded. The assistant United States attorneys usually keep the recording and any transcripts.  The magistrate judge usually seals the indictment. The government wants to keep the indictment a secret because they do not want defendants leaving the country. They want to arrest defendants as soon as possible, before they find out about the charges.

What is an indictment?

An incictment is a charging document.  Generally, a felony must be prosecuted by indictment. Felonies are punishable by death or imprisonment for more than one year. The indictment must state a written statement of the allegations and a citation to the statute you allegedly violated. The government will usually add a criminal forfeiture count to the charging document, which is required if they want to take away your money or personal property.  Sometimes the government will add counts or charges and file a superseding indictment. 

What happens after you are arrested in Federal court?  Do you see a judge right away?

Generally, you must be taken to a magistrate judge without unnecessary delay. This is for what is called an initial appearance.  Typically, you will see a magistrate judge within a day or two after your arrest. In a felony case, (most every case in Federal court), the Judge must tell you:

  • The complaint filed against you and any affidavit filed with it

  • Your right to a lawyer or an assistant public defender if you cannot afford a lawyer

  • The circumstances, if any, that you may be released pending trial

  • Your right to any preliminary hearing

  • Your right to not make a statement and any statement may be used against you

  • The judge must give you a reasonable opportunity to talk with a lawyer

What is an arraignment in Federal court?

Generally, you will be present in Federal court for your arraignment. Generally, you enter a plea of not guilty to the charges at arraignment.  You must have a copy of the charging document (usually an Indictment, but sometimes an information). You will go over the charging document and the maximum penalties with your lawyer at or before arraignment.  There may also be a minimum mandatory prison sentence depending on the charge.  Typical ones include drugs and guns.  The charges must be read to you, unless you waive that right.  Usually, your lawyer will enter a plea of not guilty, waive formal reading of the indictment, ask for the judge to enter a standing discovery order, and demand a jury trial. The judge will usually set the time for pretrial motions to be filed and a trial date. Things move quick in federal criminal court. Your trial date may be set just over a month from your arraignment.  There are exceptions.  For instance, if it is in the interests of justice, you and your lawyer may file a written waiver of your right to a speedy trial.

What happens after the arraignment?  What is discovery like in federal criminal court?

Your lawyer will get discovery in the case after the arraignment.  What is included in the discovery depends on the case.  For instance, there may be audio and/or video recordings in a typical drug conspiracy case.  In a fraud case, there may be a multitude of documents documenting the alleged fraud.  Generally, there are no depositions in federal criminal court, unlike Florida state court.  After reviewing the discovery with you, your lawyer will discuss strategy on how best to resolve your federal criminal case.  The reality is that most people in federal criminal court plead guilty to get lighter sentences.  The government offers reductions in sentences in exchange for a guilty plea.  Clients who want to fight their cases want to win either via a pretrial motion or at trial.  

What is a pretrial motion to suppress evidence?  How can I win a federal criminal case before trial through a pretrial motion?

Generally, a pretrial motion is a document lawyers file to get the government or judge to do something, raise an objection or raise a defense.  Motions are filed electronically in federal court. The motion should be addressed to the judge so he can decide it. A proposed order should be included for the judge to sign if he agrees to the motion. All pretrial motions should have specific facts and law that support it.

The most important pretrial motion to be filed for your criminal case may be a motion to suppress evidence. If federal agents violated your constitutional rights, the evidence they found should get thrown out of court. Motions to suppress are usually based on a violation of your personal rights under the 4th, 5th, and 6th amendments to the United States Constitution. 

The judge will usually have a hearing on the motion to suppress before trial. The government puts on the agents and your lawyer cross examines the agents. Most of the time in Federal Court, you will not get depositions (a chance to ask the witnesses questions before trial). One exception may be if someone is dying, to get their testimony recorded before they die. If the judge grants your motion to suppress evidence, your case could get thrown out.  Most federal agents are trained better than the average cop on road patrol.  As a result, they tend to have tighter cases than their state court counterparts.

What is an example of a motion to suppress evidence?

For instance, I filed a motion to suppress in a federal drug case involving two separate grow houses for marijuana (cultivation of marijuana) in South Florida. My client was theoretically facing up to 160 years in prison. Federal agents and police entered into a house just after midnight without a search warrant. The issue was whether consent was freely and voluntarily given by a Spanish speaking couple who did not understand English. The client was initially charged by indictment with: 

  • Conspiracy to maintain a place to manufacture or distribute marijuana, facing 20 years, $500,000 fine and 3 years supervised release.

  • Maintaining a place to manufacture or distribute marijuana, facing 20 years, $500,000 fine and 3 years supervised release

  • Conspiracy to manufacture, distribute and dispense 100 or more marijuana plants, 5 year minimum mandatory prison sentence, 40 year maximum, $2,000,000 fine, 5 years supervised release

  • Possession with intent to manufacture, distribute, and dispense 100 or more marijuana plants, 5 year minimum mandatory prison sentence, 40 year maximum, $2,000,000 fine, 5 years supervised release

After the motion to suppress for the marijuana grow house was heard, I negotiated a plea deal for the Federal government to drop all counts (maximum of 160 years in prison). In exchange, my client pled guilty to a one count information charging misdemeanor possession of marijuana.  The client was only sentenced to probation.  She was successful on probation.  She was not sentenced to jail.

Should I plead guilty to a federal criminal charge?  Should I take it to trial?

You have a constitutional right to a jury trial in a criminal case. This is in the 6th amendment to the United States Constitution. Trial must be by jury unless you waive it in writing and the government and judge agree. Generally, 12 people will sit on the jury, with a couple of alternates. Most judges like alternates to be there just in case someone gets sick, has to take care of a loved one, etc. However, if everyone agrees in writing before the verdict (defense, government and the judge), the jury may consist of less than 12 people. After the jury starts to deliberate, the judge may permit a jury of 11 people to return a verdict even if we don’t all agree. The judge must have some good reason to excuse the juror. 

You have no constitutional right to a plea bargain.  However, in reality, the truth is in Federal criminal court, many times clients plead guilty.  The government offers clients reductions in their prison sentences for pleading guilty.  Sometimes, the government will want the clients to cooperate with them to get other alleged criminals. In exchange, the government offers even more reductions in their sentences. 

Clients should know of the potential risk of going to trial (going to prison for a long time) and the potential benefits (being found not guilty or winning a motion to suppress and getting the case dropped).  There are a number of factors at work here like how good the facts are, the witnesses, the law, the lawyers, the judge, etc.). Ultimately, it is the client's decision, one of the most important in their lives - whether to plead guilty or take it to trial.

What happens if I am found guilty in federal court?

Most people go to prison for a substantial period of time if convicted of criminal charges in federal court.  How much time depends on a number of factors.  What the federal crimes were, the surrounding facts, the victims input, what the federal sentencing guideline range for the offense was, any aggravating or mitigating factors, the defendant's prior record of criminal activity, the lawyers, and the judge.  Ultimately, the proper sentence is up to the judge.  The judge is supposed to fashion a sentence that is sufficient but not greater than necessary to achieve certain enumerated factors set forth by Congress.  The judge has to calculate and consider the guideline range for the offenses.  Even though the sentencing guidelines are just that – guidelines - to a large extent, federal judges still sentence defendants within the guideline range.  Every case is different.  There are exceptions.  Generally, judges cannot sentence a defendant to something less than a minimum mandatory prison sentence unless the defendant offers substantial assistance under 5k1.1(rats other people out and the government is happy with the results) or is safety valve eligible (no priors or one point – category one, minimal participant, not an organizer, manager or leader and no violence or threats of violence or guns used, and the defendant cooperates with the AUSA). 

I hope you find this information on federal criminal court useful.  I've tried to tell the truth about federal criminal court here.  If you would like to talk about your loved one's federal criminal case, please call me.



"Law is not black or white, it's Grey"

Board certified criminal trial lawyer Grey Tesh handles federal criminal charges and cases all across Florida and the United States.  A federal criminal trial lawyer based out of West Palm Beach, Florida, Grey has satellite offices in Miami Beach, Fort Lauderdale, Estero, Orlando and Jacksonville, Florida, but will travel anywhere in the United States for the right federal criminal defense client appearing pro hac vice.