By Jay V. Surgent, Esq.
The grand jury has voted. The indictment is a document: the counts, the dates, the statutes, and often a forfeiture allegation at the end. In a white collar case it usually tells the government’s story at length. The United States Attorney’s Office typically issues a press release the day the court unseals it.
Arrest or Summons
Under Rule 9, the court issues either a warrant for your arrest or a summons to appear. A lawyer who knows the indictment is coming can usually arrange for you to surrender at the courthouse on a set morning. Without that, the agents may come to your house at six, in front of your family and your neighbors.
Your first appearance is before a magistrate judge, in Newark, Trenton, or Camden, the same day you surrender or the agents bring you in. The judge tells you the charges and your rights and takes up the question of release.
Release
The Bail Reform Act requires the judge to release you on your own recognizance or an unsecured bond. The exception is where that release would not reasonably assure your return to court and the safety of the community. In that case the judge sets conditions: a secured bond, travel limits, surrender of your passport, and supervision by Pretrial Services.
Detention is the last resort. The judge may order it only after finding that no condition or combination of conditions will do. In white collar cases release is the usual outcome, and the argument is over the conditions.
Pretrial Services interviews you before the appearance. Your lawyer should be there, and you should answer the questions about your residence, your family, and your finances truthfully, because the report goes to the judge.
Arraignment and the Schedule
At the arraignment under Rule 10, the court reads or summarizes the charges and you enter a plea of not guilty. The judge assigned to the case then sets a schedule for discovery, motions, and trial.
The Speedy Trial Act requires trial to begin within seventy days of the indictment or your first appearance, whichever comes last, and not sooner than thirty days. Nearly every white collar case runs past seventy days. The court may exclude time when it finds that the ends of justice served by a continuance outweigh the interest in a speedy trial. The complexity of the case is one of the grounds. A year from indictment to trial is ordinary.
Discovery
Under Rule 16 the government must turn over your own statements, your criminal record, and the documents and objects it intends to use or that matter to your defense. The Constitution requires it to disclose evidence that helps you. Statements of its witnesses arrive later, under 18 U.S.C. § 3500, after each witness testifies, though prosecutors in this district usually produce them earlier.
In a white collar case the discovery is the investigation: the subpoenaed records, the emails, the bank statements, the interview reports. It can run to millions of pages. Your lawyer will need a database, a review team, and months.
Motions
Rule 12 governs the motions that come before trial. Your lawyer may move to dismiss a count, to suppress evidence the agents seized, to sever your case from a co-defendant’s, or to compel discovery the government has withheld. Some of those motions decide the case. Most of them shape the trial or the plea negotiation.
The Plea or the Trial
Most federal cases end in a guilty plea. In fiscal year 2018, according to the Pew Research Center, ninety percent of federal defendants pleaded guilty and two percent went to trial. The decision is yours, and it should wait until your lawyer has read the discovery.
A plea agreement in this district usually stipulates the guideline calculation and includes a waiver of the right to appeal a sentence within the agreed range. The Justice Manual tells prosecutors to seek a plea to the most serious offense the conduct supports, so the charge rarely shrinks much. Under Rule 11 the judge questions you personally before accepting a plea, to confirm that it is voluntary and that the facts support it.
What to do This Week
Make no statement to anyone about the case, including the press, your employer, and your friends. Have no contact with co-defendants or witnesses about the facts. Keep every record. Follow every condition of release to the letter, because a violation puts you in custody before trial.
Tell your employer through your lawyer, if the employer does not already know. Many people under indictment keep working; the terms of release and the nature of the charges decide that, and the conversation goes better when counsel has it.
Jay V. Surgent, Esq., is the Co-Managing Partner of Weiner Law Group LLP and the Chairman of its Criminal Litigation Department. He has conducted numerous criminal, civil, and administrative hearings and trials to verdict, and he represents individuals under federal investigation or indictment. This article is general information, not legal advice, and does not create an attorney-client relationship. His cell number is 973-580-8042.