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How are Federal Criminal Charging Decisions Made?

Charging decisions in the federal criminal justice system are determined by an Assistant United States Attorney (AUSA) in union with their unit supervisor. Once an investigation is complete, the AUSA will put his or her recommendations before the crime unit supervisor (sex crimes for example) who, if deemed appropriate, signs off on them. If the unit supervisor does not agree with the recommendations, the AUSA may be asked to defend their recommendation, or may be asked to obtain additional information before proceeding. In most cases, once the crime unit supervisor has signed-off on the investigation, the next step will be to petition for grand jury time so that they can present to the grand jury for an indictment.

When the crime arises out of a proactive crime unit, such as health care fraud, the criminal charging decision may begin with, for example, an FBI agent suggesting to an AUSA that they have begun an investigation and based on what has been uncovered, believe that a particular individual is worthy of further investigation. The FBI agent would then make a presentation to the AUSA to persuade them to initiate a criminal investigation. If the AUSA agrees, another presentation would be made to his or her unit supervisor. If everyone agrees, then a grand jury may be empaneled to assist in that investigation.

In either case, when the AUSA solicits their opportunity to present their case to the grand jury they will indicate the amount of grand jury time they believe will be necessary. At the conclusion of the grand jury proceeding, the AUSA will request that the jury return an indictment. An indictment is the charging document used to begin the formal criminal proceedings within the appropriate United States District Court.

Must a Grand Jury be Involved in the Charging Decision?

No. The grand jury indictment is only one of three ways the criminal proceedings can be initiated in the federal criminal justice system. These include (1) the grand jury indictment, (2) the information, or (3) the complaint. Regardless of which method is used to begin the criminal proceedings against a defendant, the same general process applies, with some important differences. Each charging method is described below.

How Long Are Grand Jury Proceedings?

When dealing with a reactive crime, the grand jury proceedings and presentations are relatively brief. This is because reactive crimes are typically far less complex than proactive crimes. Consequently, the grand jury proceeding for reactive crimes are usually completed in a single session. However, grand jury proceedings that take place for proactive crimes, like those involving health care fraud or public corruption, such presentation might take place over several days, weeks, months or in extreme cases, even years.

While a typical grand jury is empaneled for 6 months, this time can be extended to as much as 18 months or more. Special grand juries can be extended to 36 months in the case of organized crime.

The Grand Jury as an Investigative Tool

As indicated above, an FBI agent may approach an AUSA before the criminal investigation is complete. This is one of the reasons an "investigative" grand jury would be empaneled. As the grand jury proceedings continue, the grand jury may seek and have authorized a variety of subpoenas. The use of a subpoena is a way in which the grand jury would gather additional information they believe to be relevant.

In the case of complex financial crimes, this may include bank records. It might also include the subpoenaing of accountant's records, business records, and live witnesses. The witnesses could be the employees of the company, friends, or relatives of the accused. Over the course of weeks or months, the grand jury might solicit 10-12 witnesses or more and thousands or hundreds of thousands of documents which would then be reviewed by the agent or agents assigned to the case. At the conclusion of the grand jury investigation, the AUSA would present a proposed indictment to the grand jury.

May I Refuse to Testify Before a Grand Jury?

A person called as a witness to testify in the grand jury is obligated to answer those questions unless the witness can advise the court of some privilege or if they elect to assert the 5th Amendment as a privilege. Such privilege would protect them from the solicitation of information by the government. However, you may not refuse to testify before a grand jury because the information you provide would incriminate a third person. You can only refuse to testify if the information would incriminate you.

How Does the Grand Jury Reach Their Decision?

The AUSA would advise the jurors of the legal standards applicable including all the necessary elements to prove the offense charged in the indictment. The grand jury then votes on what they call a true bill. A grand jury in the federal criminal law system is comprised of 23 people. For the indictment to be authorized, only 12 votes out of the 23 are necessary. If the indictment is authorized, the AUSA will then ask a magistrate to issue a warrant for the arrest of the individual or individuals charged in the indictment.

Federal Criminal Cases Initiated by way of Information

An information is like an indictment in that both are formal charging documents describing the criminal charges against a person, entity, or business, and include the factual basis for those charges. The information differs from an indictment in that an information does not require a grand jury's vote. In the case of the information, the AUSA independently makes the charging decision.

The white-collar criminal defense lawyers at the Barone Defense Firm estimate that only 5% or less of federal criminal cases proceed by way of information while the vast majority are initiated through the process of the indictment.

Under What Circumstances Would the Information be Used Rather than the Indictment?

During an investigation, the government may come to a decision that they have sufficient evidence against an individual and that their investigation has come to a logical end. At this point they might offer that individual an opportunity to plead guilty to the allegations contained within the information, never seeking an indictment. In this case the individual must waive the indictment and agree to proceed by way of information. This might occur as part of an attempt to further their case against a separate third-party individual or for some other reason that is beneficial to both the government and the defendant.

As part of this plea agreement, the government might limit the nature and scope of the charges at the time the charges are filed. An information will only be filed if a plea agreement has been worked out with it prior to filing. If such agreement is not worked out and successfully placed on the record, then the government will be unable to proceed. This could happen when the court fails to accept the plea or where the accused seeks to withdraw his or her proposed plea or where no plea agreement can be reached. Offers to plea on an information are sometimes made when the individual has determined with the assistance of his or her lawyer, that they will cooperate with the government in return for a particular plea.

Complaint

The final way that criminal proceedings might be initiated in the federal criminal justice system is by way of complaint. The complaint is a short-term option in that the government may not proceed to trial on a complaint. The complaint does afford the government the opportunity to seek the arrest and in some cases the detention of the defendant. The complaint must at some point in time be replaced by an indictment or it will be dismissed by the magistrate or judge. It is generally used to secure the immediate arrest and detention of someone before the government can present the full case to the grand jury.

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