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The Federal Criminal Process...  I.         INTRODUCTION   It goes without saying that EVERY FEDERAL CASE and EVERY FEDERAL DEFENDANT is DIFFERENT.  The purpose of the following summary is to introduce you to some basic information about the FEDERAL CRIMINAL JUSTICE SYSTEM in Northern Virginia and throughout the United States.  This is not presented as legal advice and you should always consult an experienced attorney before you make any decisions regarding your criminal case.    Juan Milanes and Ashley Morgan can help criminal defendants in matters involving conspiracy, drug crimes, gun crimes, possession, wire fraud, mail fraud, white collar concerns, federal crimes, fraud, obstruction, fugitives, credit card fraud, computer fraud, dangerous articles and espionage and many other federal criminal crimes.  Contact the Law Offices of Juan Milanes PLLC for assistance.   II.       INITIAL APPEARANCE AND BOND HEARING   The first thing to happen in a typical criminal case for most defendants is the Initial Appearance before a U.S. Magistrate.  Ordinarily, defendants who are brought before a Magistrate on an arrest warrant or Summons are provided with a copy of the charging document that informs the defendant of the charges.  In the federal system, there are three primary documents used to charge defendants: Criminal Complaint; Criminal Information; and Indictment.   A)    INITIAL APPEARANCE - At the Initial Appearance, the U.S. Magistrate (not a District Judge) will inform you of the following:   1)     The complaint against the defendant and any affidavit filed with it; 2)     The Defendant’s right to retain counsel or request that counsel be appointed if he/she cannot retain an attorney; 3)     The circumstances, if any, upon which the Defendant may secure pretrial release; 4)     Any right to a preliminary hearing (a hearing to determine if there is sufficient probable cause for the case to proceed against the defendant); 5)     Defendant’s right to remain silent and that any statement made may be used against Defendant.   There is no bond set automatically in federal court. Your family cannot simply pay a bondsman to get you out.  It is the Magistrate Judge who will decide if there are any conditions that would allow for your release.  Unlike some states that require the judge to determine some amount for pre-trial release, the federal system has no such requirement.   B)    PRETRIAL REPORT - To assist the Magistrate Judge, a Pretrial Services Officer will interview you and give the Magistrate Judge a written report about your background and criminal history. The officer will ask you to take a drug test to determine if you are under the influence of any controlled substances.  The Officer will not ask you about the facts of your case and is not interested in charging you with additional crimes.  Nonetheless, if you lie to the officer, disrespect the officer, refuse the drug exam or otherwise obstruct the officer in doing his/her job, it will hurt you later. If you are not certain about whether to answer a question, ask to speak to an attorney for advice.   C)     RELEASE, BAIL OR DETENTION – It is the duty of the U.S. Magistrate Judge to determine whether you are a 1) risk of flight and/or 2) danger to the community.  Depending on the type of crime that is alleged against you, there may be a statutory presumption that deems you to be one or both (this is typically the case in most federal drug and violent felonies).  In such cases, the burden will be on the defendant to convince the Magistrate that you are not a risk of flight or danger to the community.  You are most likely to be released if you have little or no criminal history, if you have solid employment, if you have family ties in your community, if you are a United States Citizen, and if you are not charged with a drug trafficking offense or crime of violence. Even if you are not a good risk for release, the Magistrate Judge must still hold a hearing and find reasons to keep you in custody. The only time this hearing is unnecessary is when you are being held in custody for other reasons — such as a sentence in another case, a parole warrant, or a probation revocation warrant.   III.       CUSTODY   The only benefit to being locked up is that the time you spend awaiting trial is credited to your sentence if you plead or are found guilty of an offense. Otherwise, it is not the place you want to go to hang out with friends or to meet new people.  Jail has many rules and regulations. Some of those rules are made by the jailers. Some of those rules are made by other inmates.  Violate the rules and you will likely be disciplined.  Some discipline is more harsh than others.  Regardless of who administers the discipline, you are probably not going to enjoy it.   A)    Clothing Despite what you may have heard, your lawyer cannot simply bring you clothing. Trial clothing can be brought to your lawyer’s office shortly before your next court appearance. You will be allowed to change in the holding cell at the federal courthouse.   B)    Personal Possessions – You will have little access to personal possessions while you are awaiting trial.  Most items need to be purchased through the commissary. You will want to have your family contact the local jailer to determine how they can add funds to your inmate account. Although you may keep legal documents in your possession, you should be cautious regarding what documents you keep and what documents you let your attorney keep for you.  You will not be with your documents 24 hours per day and you will want to safeguard your notes, attorney instructions and other private writings so that they do not end up being used against you (either in a court of law or in a court of jail peers).   C)    Family Visits - If you wish to see your friends and relatives, it is imperative that they pay attention to and follow the jail’s rules when making appointments to visit you. You must put the names of these persons on your visitation list. Although the rules vary depending on where you are detained. Most jails require visitors to make appointments at least 24-hours in advance; others require 2 weeks advanced notice.   D)    Attorney Visits - Believe it or not, the U.S. Constitution does not guarantee you the right to see your attorney at any time of day or night.  Attorneys are also subject to following the rules set by the jail and are restricted to seeing clients during specific times.  Attorneys are not allowed to visit during lock-down periods and must show proper credentials in order to obtain access to their clients.  Although many defendants would like to see their lawyer as often as possible, they need to keep these limitations in mind. Also, you should keep in mind that your attorney’s caseload may make it impossible for him/her to visit anytime the client calls. This does not mean your lawyer does not care about you or will not properly prepare your case for trial.   E)    Attorney Phone calls – In some detention centers, defense attorneys have the ability to call in to speak with their clients.  If you are fortunate enough to be in a jail that allows incoming calls, remember that you should be mindful of your words in the presence of others.  Although you are speaking with your attorney, these phones are often placed in public areas where other inmates can listen in on your conversation.  You should strive to keep these phone calls short and to the point. IV.       ARRAIGNMENT               The Arraignment is a hearing where the Magistrate or District Judge does three things: 1) ensures that you have received a copy of the indictment or information against you; 2) ensures that the indictment or information has been read and/or explained to you by your attorney (if not, the judge can read the indictment or information to you); and 3) ask the defendant to plead to the indictment or information. It is customary for your attorney to answer the judge’s questions and ask the court to enter a plea of “Not Guilty.”   A)    Indictment/Information - Before the arraignment you will have either agreed to be charged by the United States Attorney via a Criminal Information or you will have been indicted by a grand jury.  The United States Attorney’s Office may only charge you with a Criminal Information if you voluntarily waive your right to be indicted by a grand jury. Neither you, nor your attorney, has a right to be present at the grand jury session. A grand jury decides if there is enough evidence to have a trial in your case. If there is not, then the case is dismissed. If there is probable cause to believe that you committed a felony, the grand jury will issue an indictment. An indictment is the document that states what the charges against you are.   B)    Hearing - The arraignment may take place before a Magistrate Judge or a District Judge. The Judge will ask you how do you plead to the charges? Your lawyer will answer “Not Guilty.” A Defendant does not plead ”Guilty" at an arraignment. A Guilty Plea is taken at a “Change of Plea” Hearing, where the Magistrate or District Judge will go over a lengthy “plea colloquy” to ensure that you are pleading guilty knowingly and voluntarily.  Keep in mind that pleading “Not Guilty” at an arraignment will never be used against you.   V.      SPEEDY TRIAL            The Speedy Trial Act ensures all defendants that they will not be held by the government indefinitely while awaiting trial.   The Speedy Trial Act is important because it ensures that there will not be unnecessary delays in trying a criminal defendant. Although the Act ensures that defendants who are in pretrial custody get out of the jail as soon as possible, there is a significant down side.   Defense Disadvantages -  Although it sounds good in theory, the truth is that defendants are rarely helped by going to trial as soon as possible.  First, consider that in most federal cases the prosecution has had months or even years to investigate and present the case to the grand jury for indictment.  By the time the defendant is arrested the government is fully prepared to try the case.  Your lawyer, on the other hand, has just received the charging document with a brief description of what you have allegedly done on the first day of the case.  As the case progresses, your lawyer will need to investigate the government’s case, your possible defenses and will only have access to the evidence to which you are entitled.  This means that you will not have access to all of the information in the prosecution’s files.  It also means that you will not likely even know the names of all the government’s witnesses until days or even hours before they testify at trial.  A speedy trial only makes a difficult job of investigating your case even more difficult by placing a time limit on your attorney’s ability to develop defense evidence in  your favor.   Dismissal – If you believe your case will be dismissed on Speedy Trial Act (STA) grounds, then start playing the lottery.  The truth is that very few cases end up being dismissed by the federal government due to the STA.  There are many exceptions to the STA and a federal judge only needs to cite a reasonable excuse to find that the STA is waived in the interest of justice. The usual reason why a prosecutor requests a continuance is that there are co-defendants that have not yet been arrested. The speedy trial deadlines do not even begin to run until all charged defendants have appeared in court. Also, whenever any of the defendants have filed motions, the time until those motions are decided is not counted toward the speedy trial deadline. Cases are usually tried within the speedy trial deadlines, but it turns out that those deadlines usually exceed the 70 days contemplated by the STA due to all of time that is excluded from the STA clock.   VI.       TO COOPERATE OR NOT TO COOPERATE?               Some defendants give prosecutors information against other persons for the possibility of a reduced sentence. There is no guarantee that a defendant will get a lower sentence for “giving people up.” Cooperation can be dangerous and it usually requires a defendant to set up others or testify in court.  Generally, it is the unilateral decision of the prosecutor whether to seek a reduction in your sentence for cooperation.  In fact, the Court cannot reduce your sentence for cooperation without first receiving a motion from the United States pursuant to Rule 35(b) of the Rules of Federal Criminal Procedure or under Section 5K of the U.S. Sentencing Guidelines.  Your attorney may respond to the government’s motion, however, your attorney cannot do anything to force the United States to file one of these motions.   VII.      OTHER CHARGES                Often, federal defendants are first arrested by state officers on state charges. Sometimes, even when federal charges are filed, the state charges are not dismissed. It is possible to be convicted of both state and federal charges for the same offense. This is not double jeopardy. It is also possible to get “stacked time” (a consecutive sentence), by pleading guilty to an unrelated state or federal case before getting a conviction in your federal case. Be careful not to do anything about your other cases without telling your attorney.   At the Law Offices of Juan E. Milanes, PLLC, we understand that you are going through a difficult time and are mindful of both your emotional and legal needs. Our goal is to help you overcome your financial and/or legal difficulties as quickly as possible. Our attorneys in Northern Virginia always treat you and your family with the respect and compassion that you deserve!   Trust the Law Offices of Juan E. Milanes, PLLC when you need effective bankruptcy defense in Virginia and Washington, D.C. We provide convenient office hours to meet your busy schedule, including evening and weekend appointments for current clients. We can create a plan to help you enjoy a fresh financial start, save your home from foreclosure, or protect your legal rights in federal court.   Are you ready to take the first step towards relief? Contact our  lawyers in Reston / Herndon / Sterling to set up a free consultation today!  Contact Us         The Law Offices of Juan E. Milanes, PLLC is a compassionate bankruptcy attorney in Reston, VA that is dedicated to providing all clients with manageable debt relief solutions. Contact us today! We proudly serve Reston, Herndon and the Washington, D.C. area. We also serve Aldie, Alexandria, Annandale, Arcola, Arlington, Ashburn, Belle Haven, Brambleton, Bristow, Broadlands, Burke, Centreville, Chantilly, Clifton, Countryside, DC, District of Columbia, Dulles, Fair Lakes, Fairfax, Fairfax City, Falls Church, Fort Belvoir, Fort Hunt, Fort Myer, Gainesville, Great Falls, Hamilton, Haymarket, Herndon, Kings Park, Kingstowne, Lake Ridge, Landmark, Leesburg, Lincolnia, Lorton, Manassas, Manassas City, Manassas Park, Mantua, McLean, Merrifield, Middleburg, Mt. Vernon, Newington, Nokesville, North Springfield, Oakton, Occoquan, Potomac Falls, Purcellville, Reston, Rose Hill, South Riding, Southbridge, Sterling, Tysons, Tysons Corner, Vienna, Warrenton, Washington, DC, West Falls Church, and West Springfield. "This law firm is a Debt Relief Agency.  We help people file for bankruptcy relief under the Bankruptcy Code."
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