Initiation of a Federal Criminal Case: Complaint, Indictment, or Information?

The Government may initiate a federal criminal case by way of complaint, indictment, or information.

A complaint is a request by a federal law enforcement agent to a federal magistrate or district judge for an arrest warrant, based on an assertion by the agent in an attached affidavit that there’s probable cause—a very low standard—to believe that the person for whom the agent seeks the arrest warrant has committed a federal crime.  If the judge finds probable cause to believe that the person has committed a federal crime, the judge will issue an arrest warrant for that person.

Upon arrest, the person, who’s now a defendant, will appear “without unnecessary delay” before a federal magistrate judge for an initial appearance, which is a statement of the charges and limited advice of rights, and a detention hearing.  However, the Government must present the case to a federal grand jury within thirty days from the defendant’s arrest, with limited exceptions, to avoid the judge’s dismissing the case without prejudice (which means that the Government could refile the charges at any later date within the time required by the statue of limitations on the prosecution for that particular crime.

If the defendant intends to plead guilty to the offense contained in the complaint, or to another offense on which the Government and the defendant mutually agree for the defendant to plead guilty, the Government may file an information, which is a document that’s alternative to an indictment that states the charge or charges.  Of course, the defendant must execute a waiver of the right to require the Government to present the case to a grand jury.  If the defendant decides not to plead guilty, the Government must then obtain the indictment before the matter can proceed to trial.

Although there are certain circumstances in which a defendant would benefit by pleading guilty to an information, those circumstances are rare, and there should be a complete understanding by the defendant and his or her attorney about the evidence that the Government has, and equally important, that it doesn’t have, to confirm that the plea of guilty is in the defendant’s best interest.  Otherwise, the only sound course of action is to force the Government to indict the case and produce the evidence on which it will rely to seek a conviction.  A strong and vigorous defense is almost always the most effective strategy and unequivocally causes the best results, from a more favorable plea agreement to a dismissal of charges or an acquittal at trial.

Federal Criminal Investigations: Does One Exist and Are You a Witness, Subject, or a Target?

Federal criminal cases are complex matters, legally and logistically, and lengthy investigations by federal law enforcement and regulatory agencies typically precede them.  Although the investigators make every effort to keep those investigations secret, they’re rarely successful because of their need to interview witnesses and obtain documentary and other types of information from third parties, none of whom have any legal obligation to keep the agents’ inquiries secret (with the exception of financial institutions).

If a person has any relationship to a federal criminal investigation, he or she will be either a witness, a subject, or a target.  A “witness” is someone from whom the prosecutor intends to elicit testimony against a defendant during a court proceeding, such as a grand jury session, a hearing, or a trial.  A “subject” is someone whose actions are within the scope of the investigation.  A “target” is someone against whom the prosecutor already has substantial evidence linking him or her to a crime.  Of course, as an investigation develops, a witness can become a subject or a target; a subject can become a target or a witness, and a target may become a witness or cause his or her involvement in the investigation to terminate completely.

The most common way that a person learns of his or her involvement in a criminal investigation is through other persons or entities whom the investigators or prosecutors have contacted during the court of the investigation.  A prosecutor may subpoena a subject or target’s emails from an internet service provider, which then sends its customer (the subject or target) a letter providing that customer an opportunity to contest the subpoena.  A federal investigator may interview a subject’s customer about his or her business practices or a target’s neighbor about his or her lifestyle, and those potential witnesses then tell the subject or target about the inquiry.  In certain investigations in which the prosecutor isn’t concerned about the target’s willingness or ability to obstruct the investigation or flee from an eventual prosecution, the prosecutor will send a “target letter” to the target advising him or her that the Government is conducting a criminal investigation into the target’s conduct; that the Government intends to present the matter to a federal grand jury; and that the target may have his or her attorney contact the prosecutor before the grand jury meets in an effort to resolve the matter prior to a formal prosecution.

The most effective way for a witness to stay a witness, a subject to become a witness, or the target to become a witness or to be terminated from the investigation and eventual prosecution, is by his or her engaging the Government through an attorney before the prosecutor makes any formal charging decision, which in many instances because of the Department of Justice’s internal procedural policies, cannot be reversed by negotiation alone.  An effective defense strategy during a pre-indictment investigation is the best way to win a case before the case even becomes a formal prosecution.