§2 Arrest, Initial Appearance, and Arraignment


Defendants charged with federal crimes or offenses against the United States are arrested by warrant by the U.S. Marshals Service with the cooperation of local law enforcement. After arrest, the defendant is taken to the nearest federal courthouse, booked and detained in a holding cell until their initial appearance before a federal magistrate or district judge usually the same day.

Counsel will be appointed or waived with the right of self-representation if the defendant chooses to proceed pro se. The defendant will be arraigned or transferred if the offense charged was in another district. The defendant will be either presented with an indictment, complaint or information of the charges. The Speedy Trial right must be preserved and the matter of detention or release with or without conditions of bail decided by the magistrate or district judge.

A. Arraignment or Transfer to Another District

The initial appearance is handled pursuant to Fed.R.Crim.P. 5 and the defendant in a criminal case charged with a felony must be indicted by a grand jury pursuant to Fed.R.Crim.P. 6. Indictments are handled pursuant to Fed.R.Crim.P. 7 along with an information while a criminal complaint will be handled pursuant to Fed.R.Crim.P. 3.

At the initial appearance which may also be the arraignment, the indictment, information or complaint is read to the defendant, counsel will be appointed or waived, a plea of “not guilty” entered by the defendant and a schedule of dates for the trial, pre-trial status conference, discovery and motions hearing deadlines set. Discovery is automatic and does not require a separate motion.

If the offense is charged in the district of arrest, the magistrate will proceed with an arraignment unless the defendant demands a district judge. If the offense is charged outside the district of arrest, the defendant will be transferred to another district generally within 30 days.

Whether arraignment or transfer the magistrate will decide on the matter of detention or release unless for good cause a detention hearing is requested by either party to argue the issue and the conditions of release or bail.

B. Appointment of Counsel or Pro se

Counsel will be appointed for the initial appearance, arraignment and detention hearing unless explicitly waived or the defendant chooses to proceed pro se. This decision is an important consideration for all criminal defendants. The defendant can also hire counsel of choice.

Evaluating whether or not to be represented by counsel, in which you have little or no authority to direct your case, or exercise your right to self-representation proceeding pro se with standby or hybrid counsel is the most important decision to make. Self-representation is only a partial waiver of the Sixth Amendment right to counsel.

C. Indictment, Complaint or Information

The charging document may contain flaws warranting dismissal and must be thoroughly examined and timely raised. Each count and the pertinent law must be researched in the law library. The purpose of the charging instrument is to confer the Sixth Amendment right “to be informed of the nature and cause” of a criminal accusation. Therefore an indictment by a grand jury must provide notice of the charges adequate for the preparation of a defense. Jones v. United States, 526 U.S. 227, 143 L.Ed.2d 311, 119 S.Ct. 1215 (1999). The indictment must provide enough detail to permit evaluation of a claim of double jeopardy. United States v. Miller, 471 U.S. 130, 134-35, 85 L.Ed.2d 99, 105 S.Ct. S8ll (1985); See, Russell v. United States, 369 U.S. 749, 763-65, 8 L.Ed.2d 240, 82 S.Ct. 1038 (1962).

The indictment secures the Fifth Amendment guarantee “that the accused is to be tried only on such charges as a grand jury has returned.” The purpose of this requirement is “to limit [a defendant’s] jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.”

To allow the prosecutor or the court to guess what was in the minds of the grand jurors at the time they returned the indictment would deprive the defendant of this “basic protection”. “For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.” Russell, at 770-71.

A motion to dismiss or a bill of particulars must be filed timely within twenty days after the status hearing. Failure to file a timely motion constitutes waiver of the defect unless the indictment failed to give fair notice causing “substantial prejudice” to the defendant or an “apparent miscarriage of justice”.

If a motion to dismiss is granted “with prejudice” failure of the government to appeal within thirty days terminates the prosecution. Dismissal “without prejudice”, however, permits the government to resubmit the matter to a grand jury.

“As a constitutional matter, an indictment must contain all elements of the offenses charged and sufficiently apprise the defendant of the charges so that he or she can prepare to meet them.” Russell, at 763. Failure to set out the essential elements of the offense or to confer jurisdiction on the trial court may be raised at any time.

The indictment may track the language of the statute, but it must descend to particulars. The statutory language must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense. If a motion to dismiss is denied, omitted information should be sought in a motion for a bill of particulars. If the indictment states an offense, but lacks particularity, failure to object precludes reversal on appeal unless the defendant can demonstrate “substantial prejudice”.

The presumption of innocence implies that the defendant is ignorant of the facts on which the charges are based, therefore is entitled to seek particulars that assist in understanding the allegations. Vague terms may be clarified through a bill of particulars and the court has broad discretion in granting the motion timely filed within ten days after arraignment. Courts generally permit filing outside the ten day limit when the delay is due to the government’s failure to provide during discovery. Denial is an abuse of discretion if the defendant was surprised at trial or unprepared to meet the allegations, or if the defendant’s “substantial rights” were prejudiced. Wong Tai v. United States, 273 U.S. 77, 82, 71 L.Ed.2d 545, 47 S.Ct. 300 (1927).

The government cannot though rely on a bill of particulars to cure an indictment that does not set out the essential elements of the offense. Amending the indictment is not permissable. Russell, at 770. The substance of an indictment may not be amended without the grand jury returning a “superseding indictment”. Russell, at 770-71. Substantive amendment without a superseding indictment is reversible error, without a showing of prejudice and the absence of an objection does not waive the issue on appeal. Minor amendments to the form which do not prejudice the defendant are permissable.

A variance occurs when the facts proved at trial materially differ from the facts contained in the indictment but the essential elements of the offense are the same. Variance can violate the right to notice, implicate double jeopardy guarantees, or surprise the defense at trial. Prejudicial variance is reversible error. Variance is a constructive amendment and is inherently prejudicial especially where the trial jury is presented with a factually different offense that what was presented to the grand jury. See, Stirone v. United States, 361 U.S. 212, 4 L.Ed.2d 252, 80 S.Ct. 270 (1960).

Inclusion of two or more offenses in a single count is called “duplicity” and is prohibited by Fed.R.Crim.P. 8(a). Upon objection the government must elect one offense on which to proceed. Charging a single offense in more than one count is called “multiplicity.” Charging two separate offenses arising from a single act is not. Upon objection to multiplicitous charging, the court may require the government to elect a count on which to proceed and dismiss the others. United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 220, 97 L.Ed.2d 260, 73 S.Ct. 227 (1952).

The defendant may motion to strike “surplusage” which is any unnecessary allegation in the charging document. The government should agree that an “alias” should not be revealed to the jury unless it is relevant to identity. Counsel should carefully review for other prejudicial and unnecessary allegations.

It is not necessary for an indictment to allege in detail the factual proof that will be relied upon to support a charge.

Selective prosecution is grounds for dismissal if the accused was singled out for prosecution among others similarly situated and the decision to prosecute was improperly motivated. Improper motivation is a selection deliberately based on “an unjustifiable standard, such as race, religion or other arbitrary classification.” United States v. Armstrong, 517 U.S. 456, 464, 134 L.Ed.2d 687, 116 S.Ct. 1480 (1996).

Vindictiveness is any “situation in which the government acts against a defendant in response to the defendant’s prior exercise of constitutional or statutory rights.” Due process forbids even the appearance of vindictiveness, which should be presumed from filing of additional charges after the defendant asserts a right. The conduct of law enforcement officials may be so outrageous that due process principles would bar the government from invoking judicial process to obtain a conviction. Counsel should move for dismissal when “investigating officers were overly involved in the defendant’s allegedly criminal conduct, or the prosecution has engaged in unethical conduct or has manifested bad faith by suppressing exculpatory material.” See, United States v. Williams, 504 U.S. 36 118 L.Ed.2d 352, 112 S.Ct. 1735 (1992).

The traditional position had been that failure to allege all elements of an offense was a jurisdictional defect of the indictment. The Supreme Court has ruled contrary to prior precedents that the failure of an indictment to allege an essential element of a crime does not deprive a district court of subject matter jurisdiction and such failure is subject to harmless error review. Neder v. United States, 527 U.S. 1, 144 L.Ed.2d 35, 119 S.Ct. 1827 (1999); Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed.2d 435, 120 S.Ct. 2348 (2000).

“If properly challenged before trial,” an indictment’s failure to allege an element of the offense constitutes reversible error. United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999). The Ninth Circuit refused to extend where defendant failed to timely challenge the indictment. An essential elements defect raised for the first time on appeal is subject to the restraints of plain error review if the defect affected a substantial right.

D. Speedy Trial Rights

The Sixth Amendment provides for a Speedy Trial right for all defendants within 120 days of arrest and detention unless waived. During arraignment the defendant or counsel should not under any circumstances waive the Speedy Trial right and should preserve such on the record. This prevents undue delay in the trial proceedings or the plea negotiations.

Many defendants unknowingly waive these rights and are in detention for years awaiting trial or a settlement offer from the government. This provides additional time for the prosecution to prepare for trial, negotiate with co-defendants and informants and even supersede the indictment with additional charges. Don’t provide this significant advantage to the prosecution by waiving your Speedy Trial rights. Either party can motion the court for a continuance for good cause.

Basic principles governing the law of speedy trial were determined by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182 (1972) The Court considered four factors in determining whether a Speedy Trial right was denied: (1) length of delay; (2) reasons for delay; (3) whether and how the defendant asserted the Speedy Trial right; and (4) prejudice to the defendant due to the delay.

The Speedy Trial right is “triggered by arrest, indictment, or other official accusation.” Doggett v. United States, 505 U.S. 647, 655, 120 L.Ed.2d 520, 112 S.Ct. 2686 (1992). Violation of the right to a speedy trial requires dismissal of the charges with prejudice. Struck v. United States, 412 U.S. 434, 439-40, 37 L.Ed.2d 56, 93 S.Ct. 2260 (1973). Denial of the right to a speedy trial must though show a strong showing of aggravating circumstances.

Delays can be attributable to the government or the defense. Delay caused by the defendant is excluded from the calculus. The weight assigned to the government’s negligent delay is assessed in relationship to the prejudice to the defendant’s ability to present a defense. The Speedy Trial right must be asserted early and often during the case with objections to delays.

Counsel must take care to protect the record by explicitly requesting a speedy trial. When objecting to a continuance by the government, counsel should move for an immediate or prompt trial. Counsel should request the court make complete findings of fact on each of the Barker factors. The Court of Appeals will not review de novo speedy trial claims where the trial makes proper findings that have support in the record.

The Sixth Amendment right to a public and speedy trial is also provided for by statute pursuant to 18 U.S.C. §3161 – 3174. The Speedy Trial Act is intended to eliminate delays caused by crowded dockets. Continuances should not be granted lightly or as a matter of course and the interests of justice exception of Speedy Trial Act should not be invoked without findings to support it. United States v. Nance, 666 F.2d 353 (9th Cir. 1982). On appellate review of a trial court ruling that the ends of justice exception to Speedy Trial Act is grounds for a continuance, the reviewing court will not disturb fact-findings unless they are clearly erroneous.

The trial judge is responsible for all assigned criminal cases and for protecting the speedy trial rights of all defendants. Excludable time necessary to insure continuity of counsel is measured by the days counsel requires for the continuance, plus any excess time consumed by an intervening, properly scheduled trial. Nance, at 354.

The Speedy Trial Act requires the dismissal of the indictment against any defendant who is not brought to trial within seventy days. The Act contains narrow, automatic exclusions from the strict time limits for necessary pretrial proceedings, treatment of a defendant, trials on other charges, interlocutory appeals, and unavailability of defendants or essential witnesses, among other reasons. Nance, at 355.

“Indictment charging defendant…was required to be dismissed due to Government’s failure to bring defendant to trial within 70-day period of Speedy Trial Act, but dismissal was without prejudice, rather than with prejudice; … there was no evidence that the Government delayed in order to prejudice the defendant.” United States v. Castle, 906 F.2d 134 (5th Cir. 1990).

Defendant’s indictment date triggered speedy trial clock where indictments occurred after their first appearance before judicial officer. In granting “ends of justice” continuance, district court must consider at least one factor specified by the Speedy Trial Act, including whether case is complex and whether failure to grant continuance would result in miscarriage of justice; district court may not grant “ends of justice” continuance because its docket is full. United States v. Ortega-Mena, 949 F.2d 156 (5th Cir. 1991).

If government fails to bring defendant to trial within 70-day period, court must dismiss indictment or information on motion of defendant. United States v. Crawford, 982 F.2d 199 (6th Cir. 1992).

District court’s dismissal of superseding indictment without prejudice on basis of Speedy Trial Act did not fall within collateral-order exception to final judgment rule. Collateral-order exception to final judgment rule permits interlocutory appeals from orders denying motions to dismiss on double jeopardy grounds and orders denying motions to reduce bail before trial. United States v. Bratcher, 833 F.2d 69 (6th Cir. 1987).

A criminal defendant’s purported “waiver” of his rights under the Speedy Trial Act does not relieve the district court and prosecutors of their statutory obligations to bring the defendant to trial within the Act’s 70-day deadline for commencing trial. According to recent U.S. Supreme Court ruling, a contrary rule would defeat the public interests that lawmakers intended to promote when they crafted the statute. Zedner v. United States, 547 U.S. 489, 164 L.Ed.2d 749, 126 S.Ct. 1976 (2006)

“The federal Speedy Trial Act, 18 U.S.C. §3161 et seq., does not allow a criminal defendant to prospectively waive the statutory deadline for commencing trial; when the district court fails to make the findings required to bring a continuance within a statutory exception to the trial deadline, harmless-error analysis of the violation of the statute is not appropriate; a defendant who executed a prospective speedy trial waiver prior to continuances of his trial that pushed the commencement beyond the statutory deadline was not precluded by the doctrine of judicial estoppel from later asserting that the district court violated the statute by failing to make the findings required to bring the continuances within the statute’s ‘ends of justice’ exception to the trial deadline.” Zedner, at ___.

The question of the propriety of such waivers was expressly recognized by the court in New York v. Hill, 528 U.S. 110, 145 L.Ed.2d 560, 120 S.Ct. 659 (2000), but it was left resolved until Zedner.

E. Detention or Release

The magistrate will decide on the matter of detention of release at arraignment unless a detention hearing is requested by either party. The detention hearing will be held within 3 days of arrest to determine whether or not conditions of bail will be granted based on the defendant’s: (1) danger to the community; (2) flight risk.

Rarely is bail granted in practice and conditions of bail are often so restrictive that incarceration may be preferred over release on bail. If bail is granted and the defendant is released pending trial at least the defendant has additional access to the courts and an opportunity to better prepare for trial. The disadvantage is that the defendant does not accumulate any time-served to be applied to the sentence if convicted.

The denial of bail from a magistrate can be appealed to the district judge. Denial of bail from the district judge is a final order and can be appealed in the Court of Appeals.

Pretrial release and detention is governed by the Bail Reform Act which has constitutional underpinnings in the Eighth Amendment’s prohibition of excessive bail and the Due process Clause of the Fifth Amendment. See, Stack v. Boyle, 342 U.S. 1, 4-5, 96 L.Ed. 3, 72 S.Ct. 1 (1951); United States v. Salerno, 481 U.S. 739, 740, 95 L.Ed.2d 697; 107 S.Ct. 2095 (1987).

In theory, unconditional release is presumed and the defendant shall be released on personal recognizance, or upon execution of an unsecured appearance bond. While safety concerns can support imposition of other conditions, they cannot be used to support a money bond, which may be imposed only to minimize the risk of flight.

The court should consider the nature and circumstances of the charge, weight of the evidence, family and community ties, employment, financial resources, character, mental condition, past conduct, length of residence in the community, prior convictions and record of appearance in court, prior flight to avoid prosecution, or failure to appear at court proceedings.

If more is required than personal recognizance or an unsecured appearance bond, the court must impose the least restrictive conditions to reasonably assure appearance or safety. “Even pretrial release may be accompanied by burdensome conditions that effect a significant restraint on liberty.” Gerstein v. Pugh, 420 U.S. 103, 43 L.Ed.2d 54, 95 S.Ct. 854 (1975).

F. Detention Hearing

Detention hearings are initiated by government motion orally while defendant is before the court or by ex parte written motion any time after presentment. If the defendant is before the court, the detention hearing must be held immediately. However, the government may have a 3-day continuance and the defense is entitled to a 5-day continuance. The defendant is entitled to advance notice of the allegations that will be made at the hearing. The government must provide the defense with copies of all Jencks Act statements of any witnesses called at the detention hearing for counsel’s use during cross-examination.

“The Government must…demonstrate probable cause to believe that the charged crime has been committed by the arrestee, but that is not enough. In a full-blown adversary hearing, the Government must convince a neutral decision maker by clear and convincing evidence that no conditions of release can reasonably assure the safety of the community or any person.” Salerno, at 750.

The government’s burden or proof is by clear and convincing evidence, not beyond all reasonable doubt. This standard applies to a finding that the person may flee.

Denial of bail from the district judge is a final order and can be appealed in the Court of Appeals. After disposition by the Court of Appeals and continued denial of bail, the order is appealable to an individual justice of the Supreme Court. See, 30 L.Ed.2d 952 for a treatise on this matter.

4 thoughts on “§2 Arrest, Initial Appearance, and Arraignment

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