Attorneys are appointed to represent defendants who are charged with criminal complaints, indictments or probation violations.1 Or defendants may retain their own counsel. In either event, the representation of these defendants will be virtually the same for either court-appointed counsel or retained counsel. Criminal defense attorneys are asked to come into a case to represent a defendant at various stages. Either the defendant walks into the attorney’s office and requests representation, or is arrested and the attorney receives a call from the Assistant United States Attorney (AUSA), the Marshal’s lock-up or Pretrial Services asking them to represent the individual. When the defendant is arrested by one of the federal law enforcement agencies in the Northern District of Illinois, he is brought to the lock-up for processing at the federal building, also known as the Dirksen Federal Building, in downtown Chicago. Once that defendant is processed by the Marshals and the agency that arrested him, the Pretrial Services Office is contacted; and, in most cases, the Federal Defender’s Office is contacted. When a defendant can afford it, he may retain private counsel to represent him.
After notification, the defense attorney should try and contact the prosecuting AUSA to determine what the charges will be in the complaint that is about to be filed with the magistrate judge. Once the attorney has that information, then he or she should attempt to go and discuss the allegations with the defendant at the Marshal’s lock-up in the Dirksen Building. There are going to be times when the defense attorney doesn’t get that information right away and has to go to the Marshal’s lock-up and find out from the defendant why he has been arrested. The attorney needs to get background information from the defendant for purposes of the initial appearance/bond hearing. If the defense attorney is going to be court-appointed, he needs to get a Financial Affidavit Form and have the defendant answer questions about his finances.2 If the attorney is to be retained, no such form needs to be submitted to the magistrate judge. There are a series of questions regarding the defendant’s income, assets, liabilities, and number of dependents. The magistrate judge will determine whether or not the defendant qualifies for court-appointed counsel.3
As I mentioned earlier, the attorney should be in contact with the AUSA and try to coordinate the time at which the initial appearance is going to take place before the duty magistrate judge. Once that’s determined, then the lock-up is notified by the magistrate judge’s chambers as to when the defendant[s] should be brought before the court for the initial appearance.4 Just prior to the initial appearance, the AUSA should present the defense attorney with a copy of the complaint that has been sworn to before the magistrate judge by the agent in the case.5 When the case is called, the defense attorney submits his appearance form, his appointment form (if he’s going to be court-appointed), and the defendant’s financial affidavit to the magistrate judge, who will review it and determine whether or not the defendant is entitled to court-appointed counsel.6 If the court decides that the defendant has too many assets and does not qualify for court-appointed counsel, the court will give the defendant a brief amount of time in which to hire counsel to represent him and continue the matter a few days for that purpose. In the meantime, the court will appoint the defense attorney who is present there for the sole purpose of the initial hearing. At the initial hearing, the defendant is allowed to hear, on the record, what the charges are against him and what statutes he has allegedly violated. The court will ask the AUSA to state what the charges are and the maximum penalty that the defendant faces if convicted. Then the court will ask what the prosecutor’s position is as to whether the defendant should be allowed a bond or be detained for a bond hearing at a future date.7 If the prosecutor believes that the defendant is a risk of flight, a danger to the community or both, he can ask the court for a maximum of three days in which to gather information for purposes of a bond hearing. The defendant also has the right to ask for a continuance, not to exceed five days, to get family, friends, or someone who could come to court and post bond for him/her at the bond hearing.8 Also, at that initial hearing, the defendant is told by the court that he has a right to a preliminary hearing.9
There are times when the prosecutor and the defense attorney can agree on conditions of the bond, and the individual defendant will be released right after the hearing, assuming the court is convinced that he is not a flight risk or a risk of danger to the community. At this stage, a great service to the court and the parties is provided by the Pretrial Services Office.10 Prior to coming to court, a Pretrial Services Officer will have had an opportunity to meet with the defendant to get background information (not information regarding the allegations), and will be able to verify this information through the office’s own sources and provide a written or oral report to the court regarding his recommendation as to the bond.11 A lot of this depends on what the charge is, how serious it is, and whether or not the defendant is cooperating or going to be cooperating with the prosecutor. If the defendant is not going to cooperate, or if it is a serious drug charge or bank robbery charge or something that would involve the welfare of society, Pretrial Services will probably recommend that the individual be temporarily detained and that there be a bond hearing later. The parties can put on evidence by way of live witnesses or a proffer to try to convince the court to either keep the defendant in custody pre-trial or allow the defendant to be released on bond with certain conditions.12 If the defendant is going to be released on bond, then he will have to sign two documents. One is the order setting the conditions for release, and one is the actual bond itself.13 If the defendant is going to be detained at the initial hearing, then he is advised that he has the right to have his/her bond hearing and have the hearing within three days or whenever the parties agree. At that hearing, the prosecutor will put on evidence as to why the defendant should be kept in custody, and the defendant will put on evidence as to why he should be allowed out on bond.
In order to show that there is a legitimate reason to charge the defendant with the complaint, the prosecutor has the burden of showing that there is probable cause that the defendant committed the crime[s] he has been charged with.14 At the preliminary hearing, assuming there is one, the hearsay rules do not apply. Witnesses will testify under oath and be subject to cross-examination by the defense attorney. After the government has put on their case, the defendant has a right to put on evidence to try and show that there is no probable cause. It’s very rare that the defendant ever puts any witnesses on; rather, the defense will try to show that there is no probable cause by means of cross-examination and argument that the defendant did not do what he is accused of doing.15
The defendant, with the assistance of counsel, will often decide to waive the preliminary hearing because they feel that there is no reason to have a preliminary hearing. If there is no preliminary hearing, the magistrate judge will make a finding of probable cause based on the affidavit attached to the complaint and have the matter held over to the United States District Court. If there is a hearing and the court finds that, there is no probable cause that defendant committed the crimes charged in the complaint, the magistrate judge would dismiss the complaint and charges against the defendant.16 However, if there is a finding of probable cause, then the court puts on the record the reasons for the finding of probable cause and holds the matter over to the district court, where it would proceed by way of indictment or criminal information.
After the complaint is filed, the AUSA has 30 days in which to take the matter before a grand jury to procure an indictment on the defendant for the charge[s] listed in the complaint or any additional charges.17
In consulting with the defendant, the defense counsel needs to know a number of things. He needs to know whether the defendant wants to contest this matter; and, if so, then it is the obligation of defense counsel to advise the defendant of the potential for success as well as the potential for conviction and the repercussions if it is his/her belief that the defendant will be found guilty. This needs to be done right away or as soon as possible after doing some investigation into the allegations. If the defendant decides that he wants to cooperate, it’s very important to contact the AUSA and set up what’s called a proffer meeting with the agents involved in the case as well as the AUSA. The defendant and his counsel must be well prepared for the proffer meeting. There are certain ground rules that are laid down for the meeting. The defense attorney needs to get what is called a proffer letter. In that proffer letter, the prosecutor states that he is interested in talking to your client, that he understands that your client has information and is interested in talking to them. Anything that he learns from the defendant during the proffer cannot be used against him in the charges against him or at the time of sentencing. The defendant agrees to tell the truth, and the prosecutor agrees to make his/her cooperation known to the court at the time of sentencing. At this proffer session, the prosecutor will lay out the conditions of the proffer letter, admonish the defendant that he must tell the truth, have the defendant sign the letter and also advise him that anything he says from that point forward, as long as it’s the truth, cannot be used against him either at the time of trial, guilty plea or sentencing unless he takes the stand and tells a different story at the trial or lies during the proffer. These proffer sessions can go on for hours, days, weeks, months or years, depending upon how much information the defendant has. They help mitigate the allegations against the defendant.
It’s also very important for the defense attorney to review the sentencing guidelines before having a lot of discussion with the defendant about whether or not he is going to plead guilty, cooperate or go to trial. Showing the defendant what the sentencing guidelines are for the particular charges that he will be facing gives the defendant an idea of what he will be looking at if he goes to trial and loses, if he pleads guilty without cooperating and if they plead guilty with cooperation. Defense counsel must learn the sentencing guidelines because they are extremely helpful in your negotiations and sometimes you’re able to negotiate with the AUSA and get the prosecutor to charge your defendant with a crime that carries less penalty than originally thought.
One of the most important areas that defense counsel needs to be aware is if the allegations are that the defendant committed a drug crime and that a certain quantity of drugs were involved and a mandatory minimum sentence may be imposed.19 If the defendant wants to cooperate and you can show that the defendant has no prior convictions, the prosecutor and the court will consider what’s called a "safety valve," which is a way to get out from under these mandatory minimums.20
Another possibility is that if the crime is an embezzlement type of crime or a white-collar type of crime that is non-violent, and it’s the first time this defendant has gotten into any trouble, there is what is called pretrial diversion. Pretrial diversion is an agreement with the Government which amounts to a contract. With it, the Government can defer prosecution for a period of a year to two years; and, if during that time the defendant does not violate any laws and shows that he can be a law abiding citizen, then there is the possibility of not being prosecuted. Defendant is put on the equivalent of a supervision for a period of up to two years; and, if he doesn’t get in trouble during that time, the Government will dismiss the charges against him, and he will not have a record of conviction. However, if he does not abide by the conditions of the agreement, then the Government is free to come back and charge him with the original offense.
Waiver for Misdemeanor
If the matter is a misdemeanor and it is charged by what is called a criminal information, it can be dealt with by a magistrate judge as opposed to a District Court judge. In order to do this, the defendant and his attorney have to agree to waive the right to have the matter heard by a grand jury, the right to have the case tried before a District Court judge, and, in some cases, the right to have a jury trial. You can waive one or all of these things, and there is a form in each magistrate judge’s courtroom for you to do that.21 If you waive having the case indicted by a grand jury and if you waive having the matter heard before a District Court judge and it’s a misdemeanor, you can still have it tried by a jury before a magistrate judge or, in some cases, tried before a magistrate judge as a bench trial. Federal misdemeanors carry a sentence of no more than one year for each count. If the crime is a felony, you can still waive the indictment and have it charged a criminal information where the AUSA files the charges.22 That is usually done in cases where there is cooperation involved, and it saves the time and the expense of taking the matter before a grand jury. The District Court judge will discuss the waiver of indictment at the time of the guilty plea.
The vast majority of pleas in the federal district court or in the Northern District of Illinois are written pleas. There is a standard written plea agreement that the U.S. Attorney’s Office uses in every case; the only things different are the factual situation, the sentencing guidelines, maximum sentence and whether or not the individual waives the right to have the matter tried before a jury, the right to have the matter indicted by a grand jury, the right to appeal the sentence or the right to appeal the guilty plea.
Presentence Investigation Report
If there is a conviction or a guilty plea on either a misdemeanor or a felony, the case is referred to the United States Probation Office for what’s called a Presentence Investigation Report; and that usually takes anywhere from six weeks to two months, depending upon how complex the charges are. In any event, the defendant will be set for sentencing about 90 days after the conviction. At that time, the defense attorney needs to accompany his client to the probation office, where he is assigned a probation officer who is going to prepare the presentence investigation report. The report is very extensive and runs probably 15-25 pages long. The Presentence Investigation Report (PSI) sets out what the charge was, how the case was disposed of, whether it was by trial or a guilty plea. Also, background on the individual from the day he was born up to the present, listing education, employment, family, any prior criminal record, health (mental as well as physical), any prior or current drug use, assets and liabilities. For the court only, there is a recommendation as to what the sentence should be within the sentencing guidelines range.
Prior to sentencing, all the parties will have received a copy of the PSI and reviewed it. If there is any disagreement by the defendant or the prosecution, they will be given a chance to file a motion in opposition to the report. If any discrepancies cannot be resolved prior to sentencing, the court will resolve them at the time of the sentencing hearing. Both parties can present any witnesses that they want to if they have approval of the court, and the Probation Officer will be present. If there are any corrections to be made to the PSI, it’s very important to put them on the record at that time and have the court direct the Probation Officer to correct or modify the PSI to reflect the corrected version. At the sentencing, after the attorneys have made their arguments, the court will always grant the defendant the right of allocution. The defendant can choose whether to say something on his own behalf. Once this has been completed and the court has determined what the correct guidelines are, then the court will impose sentence.
After sentencing, if there is going to be incarceration, a date is given for the defendant to surrender or he is taken into custody. If there is no sentence of incarceration imposed, the defendant will meet with the Probation Officer to determine who is going to be supervising him. It will be someone other than the Officer who prepared the PSI.
If the defendant feels that the court committed a reversible error, did not give him a fair trial, did something incorrectly in accepting the guilty plea or did something incorrectly in sentencing the defendant, then the defendant has the right to appeal. The attorney who has represented the defendant up to that point has the obligation of filing the appeal.
This is a limited explanation of what a defense attorney needs to be aware of when practicing in the U.S. District Court.
1 18 U.S.C. § 3006A(a)(1)(A), (C), (D), (E), (F), (G), (H), (I).
2 Financial Affidavit Criminal Justice Act (CJA) Form No. 23.
3 18 U.S.C. § 3006A(b).
4 Fed. R. Crim. P. 5.
5 Fed. R. Crim. P. 3.
6 Appointment Of And Authority To Pay Court Appointed Counsel , CJA Form No. 20.
7 18 U.S.C. § 3142.
8 18 U.S.C. § 3142(f)(2)(B).
9 Fed. R. Crim. P. 5.1.
10 18 U.S.C. § 3154.
11 18 U.S.C. § 3154 (1).
12 18 U.S.C. § 3142(f) and (g).
13 Order Setting Conditions of Release Form AO199A; and Appearance Bond.
14 Fed. R. Crim. P. 5.1(a).
15 Fed. R. Crim. P. 5.1(b).
16 Fed. R. Crim. P. 5.1(b).
17 18 U.S.C. § 3161(b).
18 28 U.S.C. § 994; U.S. Sentencing Guidelines Manual (2002).
19 21 U.S.C. § 841(b)(1)(A).
20 18 U.S.C. § 3553(f); U.S. Sentencing Guidelines Manual § 5C1.2 (2002).
21 Consent to Proceed - Misdemeanor Form AO 86A.
22 Waiver of Indictment Form AO 455.
Judge Michael T. Mason is a United States Magistrate Judge for the Northern District of Illinois, Eastern Division. He was an assistant federal defender for the Northern District of Illinois, Eastern Division from 1977 to 2001. Judge Mason received his undergraduate degree from the University of Arizona in 1965 and his Juris Doctor from John Marshall Law School in 1977.