Federal Court Procedures

Types of Grand Jury Subpoenas (Rule 17)

A subpoena Ad Testificandum commands the appearance of a witness to testify. A subpoena Duces Tecum, commands the person to produce specific books, papers, data, objects or documents designated in the subpoena and to testify about them.

Summons

A summons is issued by a judge, served on a defendant, and requires that the defendant appear before the court at a stated time and place. A summons is obtained in the same manner as an arrest warrant by presenting a complaint, information, or indictment to the judge. If the defendant does not appear after being served a summons, an arrest warrant may be issued. U.S. Marshals and other federal officers serve summonses.

Transfer for Trial (Rule 21, F.R.Cr.P.)

("change of venue"). The defense may file a motion requesting a transfer of the prosecution to another district for trial or other disposition if the court finds (a) that the prejudice against the defendant is so great in the district of venue (where the crime occurred) that the defendant cannot obtain a fair and impartial trial, or (b) that the prosecution, or one or more counts, against the defendant should be transferred to another district for the convenience of the parties and the witnesses and in the interest of justice.

Tickets

A citation or violation notice is similar to a traffic ticket and is issued by an officer.

The Initial Appearance

A defendant's first appearance before a federal judge will be at a proceeding called an initial appearance. While a district court judge could conduct the initial appearance, a magistrate judge usually conducts them even in felony cases.

Purpose of the Grand Jury

A grand jury is an independent body that operates under the supervision of a district court judge and under the direction of an AUSA. A grand jury performs two essential functions. First, grand juries return indictments. The Fifth Amendment to the U.S. Constitution provides that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...." Second, a grand jury may investigate crimes within its district. Grand juries have broad powers to investigate crime and may, through the use of grand jury subpoenas, obtain testimony, documents, and other evidence that officers cannot.

Quashing or Modifying a Subpoena

A person who has been subpoenaed to provide information and who is subject to a privilege (such as the 5th Amendment or the spousal privilege) or who otherwise objects to the subpoena may go to court to "quash" (cancel) the subpoena. The court may either grant or deny such a motion to quash, or may modify the subpoena to limit what the person must provide.

Initial Appearance: The Officer's Responsibility

After an arrest but before the initial appearance, the officer must take certain steps to secure and prepare the defendant for processing by the courts. Such steps include: a search incident to arrest; booking procedures (fingerprinting, photographing, preparing various forms); transporting the defendant to a federally approved detention facility; a possible inventory of impounded property; and notifying the Pretrial Services Office of the arrest and the location of the defendant.

Arrest Warrant

An arrest warrant is issued by a judge and commands that a defendant be arrested and brought before the court. The arrest warrant identifies who is to be arrested and the offense. An arrest warrant is obtained when a judge is given a criminal complaint, an information, or an indictment with a request that an arrest warrant be issued.

Indictment

An indictment is a list of criminal charges brought against a particular defendant by a grand jury. The grand jury consists of 23 members of the community selected by a District Court judge to sit for a period of 18 months. The grand jury may return an indictment only where 12 of its members have found that there is probable cause to believe that a crime was committed and that the defendant committed it.

Information

An information is a list of criminal charges brought against a particular defendant by the United States Attorney. Where the charge is a felony, prosecution of a defendant based on an information may only ensue where the defendant has waived his constitutional right to be charged by way of a grand jury indictment (

The Preliminary Hearing Procedure

At a preliminary hearing, the magistrate judge will hear evidence to determine whether there is probable cause to believe that an offense has been committed and that the defendant committed it. The AUSA will call witnesses and may offer other evidence. The officer may testify at preliminary hearings. The defense may cross-examine government witnesses, call its own witnesses, and offer evidence. Because the preliminary hearing is not a trial, there is no jury and hearsay is admissible.

Judge's Options

At the initial appearance, the judge may: • Release the defendant on his own recognizance, • Release the defendant on condition or conditions that may include bail, • Conduct a detention hearing if the attorneys for both sides are prepared to proceed, or • Temporarily detain the defendant until the detention hearing can be held.

Charging Documents

Before trial, the government, the defendant, and the court must know exactly the offenses with which the defendant is charged. The charging document informs the parties of the exact charges. The charges at trial may be different than the ones in the complaint or information that was used at the initial appearance or to obtain an arrest warrant or summons. The charges may also be different than the ones for which the defendant was originally indicted, because the defendant may have been indicted for additional offenses, or the AUSA may have obtained a superseding indictment. Misdemeanors may be charged by a criminal complaint. When a misdemeanor is to be tried in district court, the AUSA will ordinarily prepare an information even if there is already a criminal complaint.

Discovery Review

Brady = Exculpatory Evidence Giglio = Impeachment of Trial Witnesses Jenks Act and Rule 26.2 = Prior Statements of Witnesses (Includes adopted statements) Jenks Act = At Trial Rule 26.2 = At hearing before or after trial Rule 16 = Most of Defendant's Statements (known to the government) Defendant's Criminal History Scientific Tests Trial Exhibits Defendant's Property

Charging Document - Offense

Capital - District - Indictment only Non-capital felony - District - Indictment, unless waived, then by information Misdemeanor - District - Information Class A Misdemeanor - Magistrate - Complaint Petty Offense - Magistrate - Citation or Violation Notice

Defense Access to Government Evidence`

Commonly referenced as "discovery material," this information must be disclosed to the defense under one or more of the following sources of authority: (1) the Brady doctrine; (2) the Giglio case; (3) the Jencks Act/Rule 26.2; and (4) Federal Rule of Criminal Procedure 16. Additionally, most District Courts have local discovery rules that may require additional categories of information to be disclosed by the government and/or defense and that impose upon the parties certain time requirements for discovery.

Diplomatic Immunity

Diplomats are representatives of foreign countries who work in the United States on behalf of the government of that foreign country. In order to enjoy status as a diplomat, a foreign government representative must be officially recognized by the U.S. Government. Diplomatic immunity is based on international law and treaties that the United States has made with other nations. A person with diplomatic immunity is not subject to the jurisdiction of U.S. courts either for official, or, to a large extent, personal activities and therefore may not be arrested or prosecuted for any offense no matter how serious.

Preserving eCommunications

Each person who is the creator, sender, forwarder, or the primary addressee of an e-Communication needs to preserve it. If none of the above apply, then each person who is a secondary recipient (in the "cc" or "bcc" line) needs to preserve it. Preserve all potentially discoverable eCommunications, including attachments and threads of related eCommunications. "All Potentially Discoverable eCommunications" includes all substantive eCommunications created or received during the investigation and prosecution. It includes all eCommunications sent to or received from non-law enforcement potential witnesses, regardless of content. It also includes eCommunications that contain both potentially privileged and unprivileged substantive information. If not sure, err on the side of preservation. Purely logistical eCommunications need not be preserved.

Exceptions to the Privilege - Congress

Even if attending congressional sessions or on the way to and from them, a member of Congress may be arrested for a felony or breach of the peace. Generally, a breach of the peace is an offense that involves violence. Because "breach of the peace" is a fluid term and subject to constant interpretation, officers should investigate and document the breach of the peace and then submit findings to superiors.

U.S. Magistrate Courts

Every district has one or more magistrate judges who are appointed by the District Court judges. Officers may expect to make frequent appearances before a magistrate judge to obtain necessary court documents (such as an arrest or search warrant) or to testify at pre-trial hearings. Magistrate judges may try Class A misdemeanors if the defendant consents. If the defendant does not consent to have a magistrate judge hear a Class A misdemeanor case, the case must be heard in district court. Magistrate judges may also try any petty offense (Class B and C misdemeanors and infractions) whether or not the defendant consents.

Conditional Release

Every release is conditioned upon the defendant's not committing a crime during the period of release. There are many other options the judge may choose such as: maintaining employment; travel restrictions; restrictions on place of residence and associating with other persons to include victims and witnesses; curfews; drug and alcohol use restrictions; medical evaluation and treatment requirements; bail; limited custody when the defendant is not at work; and "tethering" by electronically monitoring the defendant's location.

Sanctions for Non-Compliance

Failure to comply with discovery and disclosure requirements can have drastic consequences. While the AUSA is responsible for fulfilling discovery requirements, agent/officer must ensure the AUSA has all the information so that the AUSA can comply. Failing to comply with discovery requirements can result in government evidence being excluded, a trial continuance for the defense to evaluate newly discovered information, mistrial, and even a reversal of conviction if the non-compliance is discovered after trial

Criminal Courts

Federal criminal courts perform one of two functions: either they conduct the trial in a criminal case, or they hear any appeal by the government or defendant in a case that has already been tried. In a trial, evidence is presented, witnesses testify, and a verdict is reached. That evidence and the transcripts of the testimony by the witnesses constitute the official record of the case.

Non-Federal Judges and Initial Appearances

Federal law permits certain state and local judicial officers to perform some federal court functions to include swearing officers to criminal complaints, issuing search or arrest warrants, and conducting initial appearances. Federal law enforcement officers should avoid using state or local judges to issue federal warrants or conduct federal proceedings except in exigent circumstances and only after first coordinating with your AUSA. 18 U.S.C. § 3041.

Jurisdiction to Try Federal Criminal Cases

Felony - District court. Class A Misdemeanor - Magistrate court if the defendant consents. If no consent, in district court. Petty Offenses - (Class B and C Misdemeanors and Infractions) - Magistrate court.

Classificatino of Offenses

Felony - More than one year or death. (When the death penalty is possible, the offense is also known as a "capital offense." Class A Misdemeanor - One year or less, but more than 6 months. Class B Misdemeanor - 6 months or less, but more than 30 days Class C Misdemeanor - 30 days or less, but more than 5 days Infraction - 5 days or less Class B Misdemeanors, Class C Misdemeanors, and Infractions are collectively known as Petty Offenses.

Electronically Stored Information (ESI)

For investigations, creating, obtaining, seizing, and maintaining ESI is primarily a function of case organization and management. There are numerous software systems that perform well, and agencies typically pick one that fits their kind of cases best. For prosecutions, there are a number of case presentation software systems that perform well, and prosecution offices typically pick one that fits best.

Power and Flexibility of Grand Jury Subpoenas

Grand juries have the power to subpoena testimony and other evidence. What a grand jury may subpoena is often beyond an officer's reach. Consider the following situations about how officers often collect evidence and in parenthesis, the limitations faced. • The officer may seek consent to search. (But the person may refuse consent.) • A witness may agree to an interview. (But an officer cannot force a person to submit to an interview.) • An officer may request a search warrant. (But there may not be probable cause for the warrant.) • An officer may get a court order to obtain information. (But the request may take too long, or the judge may refuse to issue it. subpoenas may be used to obtain the following (this list is by no means complete): (1) corporate records that would reveal evidence of a crime; (2) a copy of an apartment lease or car rental contract; (3) fingerprints, handwriting or voice exemplars, or hair samples; (4) phone records to see what calls were made; (5) bank or credit card company records; (6) shipping records from interstate carriers.

Selection, Empanelment, and Structure of Grand Jury

Grand jurors are selected by a random drawing, usually by the Clerk of Court, from a "pool" consisting of registered voters. Grand jurors must be U.S. Citizens, at least 18 years of age, proficient in English, and have no felony convictions or pending prosecution. Federal grand juries consist of 23 such persons who generally serve for 18 months; however, the court may discharge the jury earlier or extend the jury's service six additional months. When the grand jury sits, there must be a minimum of 16 grand jurors present.

Transfer for Plea and Sentence (Rule 20, F.R.Cr.P.).

If a defendant is arrested in a district other than the one where the crime occurred and the prosecution is pending, the prosecution may be transferred to the district of arrest if the defendant states in writing a wish to plead guilty in the district of arrest and to waive trial in the district where the prosecution is pending, and the United States Attorneys and the judges in both districts agree. If the defendant thereafter changes his plea to not guilty, then the prosecution is transferred back to the district where the crime occurred and from which the prosecution was transferred.

bail jumping

If the defendant fails to appear in court after being released, the judge has many options, and the government can, and usually does, seek an indictment charging the defendant with a violation of the federal Failure to Appear statute

Requested Notification (Basic Rule) - Consular Notification

If the detained foreign national is a national of a country that is not on the mandatory notification list, the "Basic Rule" applies: the officer must inform the foreign national without delay of the option to have his/her government's consular representatives notified of the detention. If the detainee requests notification, a responsible detaining official must ensure that notification is given to the nearest consulate or embassy of the detainee's country without delay.

The Preliminary Hearing Timing and Results

If the judge finds there is probable cause to believe an offense has been committed and the defendant committed it, the defendant will be required to appear for further proceedings. If the judge decides there is no probable cause, the judge will dismiss the complaint. If the defendant is in custody, he will be released. A finding of no probable cause does not prevent a subsequent prosecution. The investigation may continue, and the AUSA may still seek an indictment or file an information. The preliminary hearing must be held not later than 14 days after the initial appearance if the defendant is detained in custody, or 21 days after the initial appearance if the defendant has been released from custody. In many situations, however, it may be appropriate to arrest before the indictment or information is obtained, as illustrated by the below examples: • The danger that a defendant may harm another, flee, or destroy evidence may require an immediate arrest. • Before an indictment can be obtained, the government may realize the defendant may be in possession of evidence at a particular time and wish to take advantage of a search incident to arrest.

Inspector General (IG) Subpoenas

In addition to grand jury subpoenas, IG subpoenas might also be available. Most IG subpoenas are authorized by the Inspector General's Act, 5 USC App. §6(a)(4). GJ: Secrecy rules apply (Rule 6(e)). IG: No GJ secrecy rules GJ: Criminal matters only. IG: Criminal or civil matters GJ: Ad testifcandum or duces tecum IG: Duces tecum only. GJ: Can obtain delay in notice in certain banking records. IG: Person will be notified when certain bank records subpoenaed. GJ: Can be relatively easy to obtain. IG: Sometimes requires executive level approval.

Advising of Right to Consular Notification

In all cases, the foreign national must be told of the right of consular notification and access. In most cases, the foreign national then has the option to decide whether to have consular representatives notified of the arrest or detention. Neither the gravity of the charges, nor the immigration status of the individual, is relevant to the consular notification decision; the only triggering factor is arrest or detention of a non-U.S. citizen.

Mandatory Notification (Special Rule) - Consular Notification

In some cases, however, the foreign national's consular officials must be notified of an arrest and/or detention regardless of the foreign national's wishes. Those countries requiring mandatory notification are identified in the State Department list of "Special Rule" (mandatory notification) countries. If a national of one of these countries is arrested or detained, notification to the individual's consular officials must be made without delay.

Forthwith Subpoenas

In some cases, officers may have reason to believe that a person served with a subpoena for documents or other evidence may destroy the evidence or falsely deny having the subpoenaed item(s). With the approval of a U.S. Attorney, the officer may obtain a "forthwith" subpoena when there is a risk of flight or destruction of evidence. A forthwith subpoena must be approved by a Judge and, if approved, requires the recipient's immediate compliance with the production demands within the subpoena. Even using a forthwith subpoena, however, there still may be some opportunity to destroy evidence. When a subpoena would allow a person to destroy or alter evidence, or falsely claim they do not have the item, the officer should consider obtaining a search warrant. A search warrant has several advantages over a subpoena: the government selects when the search warrant is executed; officers can find the item themselves, thereby denying the suspect an opportunity to destroy the evidence; evidence found in plain view during the search can be lawfully seized; and evidence obtained by a search warrant is not subject to grand jury secrecy rules.

The Brady Doctrine

In the Supreme Court case of Brady v. Maryland, the defendant was convicted and sentenced to death for first-degree murder committed in the course of a robbery. The government knew, but Brady did not, that Brady's accomplice had confessed to the actual murder. The United States Supreme Court later reversed Brady's conviction because this information was not disclosed to the defense and thus the "Brady Doctrine" was born. The Brady doctrine requires that the government tell the defense of any exculpatory (favorable) evidence known to the government.

Magistrate Judge - Appearance on a Summons

Instead of obtaining an arrest warrant with a criminal complaint, indictment or information, officers may obtain a summons. The summons will direct the defendant to appear in court for an initial appearance without being arrested.

Diplomats: Traffic Incidents

Law enforcement officers can stop and cite diplomats for moving traffic violations. This is not considered detention or arrest. The diplomat may not be compelled to sign a citation. In serious traffic incidents (DWI, DUI, and accidents involving personal injury) the officer may offer a field sobriety test, but the diplomat may not be required to take it. Vehicles may not be impounded or booted, but may be towed to prevent obstructing traffic. Intoxicated diplomat-drivers should be offered a ride, a taxi, or to have a friend transport them; however, the diplomat may refuse the offer.

Criminal Complaint

Law enforcement officers will prepare criminal complaints. A criminal complaint states a charge along with facts establishing probable cause that the crime was committed and that the defendant committed it. The complaint is signed by the officer, under oath, in front of the judge (usually a magistrate judge). Criminal complaints are used in two situations: to obtain an arrest warrant or summons, or to state the charge when making a warrantless arrest. When a suspect is charged in a criminal complaint with a felony or class A misdemeanor, the criminal complaint is a temporary charging document. The charges will ultimately be charged in an indictment or an information.

Privilege from Arrest - Congress

Members of congress are privileged from arrest while Congress is in session and while attending, or going to and from, sessions of Congress. (Art.1, Section 6 of the U.S. Constitution.) The privilege does not prohibit issuing traffic and other citations, investigating and preparing reports, serving a subpoena or summons, or prosecution for a crime.

Qrrest with a Warrant

Officers may obtain arrest warrants in several ways. 1. With a Criminal Complaint The officer prepares a criminal complaint, swears to it before a magistrate judge and requests an arrest warrant. 2. With an Indictment If the defendant has been indicted by a grand jury, the indictment will be filed with the clerk of the court in that district. 3. With an Information If the AUSA has filed an information, an officer may obtain an arrest warrant by presenting the information to a judge and requesting a warrant.

The 6(e) list - Rule 6(e)

Officers need, and may use, grand jury matters to conduct criminal investigations. The AUSA who is assigned to the investigation may authorize officers to have access to grand jury materials for that purpose and on a case-by-case basis. If the officer needs access to grand jury matters, request approval from the AUSA. Officers from other agencies, or those in the chain of command who need grand jury information, must also obtain approval from the AUSA. The AUSA is required to maintain a list of persons the AUSA has authorized to see grand jury matters. Consider the following examples of when grand jury matters may or may not be disclosed: • Officer is on a task force with officer B. The officer is on the 6(e) list; officer B is not. Officer B may not have access to grand jury matters until officer B is placed on the 6(e) list by the AUSA.

Magistrate Judge - Warrantless Arrest

Officers typically make warrantless arrests when they have probable cause that the defendant committed a felony offense or when a misdemeanor was committed in their presence. Since the defendant has the right to know of the charges for which he has been arrested, the officer must prepare a criminal complaint after the defendant is arrested and before taking the defendant to the initial appearance.

Sealed Indictments

Ordinarily, an indictment is returned in open court making it public. The AUSA may request that the judge keep the indictment secret until the defendant is in custody. This is a valuable tool. In many cases, especially those involving multiple defendants, if indictments are made public or defendants are arrested at different times, other defendants may flee or destroy evidence.

Pretrial Services Interview and Recommendation

Prior to being taken to the initial appearance, the Pretrial Services Office within the district collects information from the defendant and other sources. It then recommends to the judge whether a defendant should be detained or released. The recommendation may include conditions of release. Judges often follow the recommendations of the Pretrial Services Office.

Appointment of Justices and Judges

Supreme Court justices and judges of the courts of appeals and district courts are nominated by the President, confirmed by the Senate, and serve for life unless impeached. Magistrate judges are appointed by, and serve under the supervision of, district court judges for a specific term (usually eight years). The district court judges may re-appoint a magistrate judge for one or more successive terms.

The Jencks Act and Rule 26.2

The Jencks Act requires the AUSA to give the defense any prior "statements" of a trial witness that are in the possession of the government, so the defense can conduct an effective cross-examination of the witness. 18 U.S.C. § 3500. The Jencks Act requires the AUSA to deliver prior statements only after a witness testifies and before cross-examination begins. To avoid unnecessary delays during the trial, however, the AUSA usually will give Jencks Act statements to the defense in advance of trial. -Rule 26.2 extends Jencks Act requirements beyond trials to other court proceedings such as suppression or detention hearings.

Exceptions to Rule 6(e)

The Non-Government Witnesses Exception A private citizen (non-government employee) who testifies before a grand jury may lawfully disclose that they testified and the subject matter of their own testimony. (b) District Court or AUSA Disclosure A district court judge can order disclosure of grand jury matters. Typically, with notice to a district court judge, the AUSA controls disclosure of grand jury matters. Requests to a district court judge are processed by the AUSA and do not involve officers. The remainder of this section will discuss only release of grand jury matters by the AUSA.

Disclosure under Giglio

The Supreme Court case of Giglio v. United States requires the government to disclose information that tends to impeach any government trial witness, including law enforcement officers. "Impeachment" is information that contradicts a witness or which may tend to make the witness seem less believable. Officers must tell the AUSA about potential Giglio information so AUSAs can decide what must be disclosed. Information that may show the following must be disclosed to the AUSA: • Affects the credibility or truthfulness of the witness to include having lied in an investigation, character evidence of untruthfulness, or any bias. • Payment of money for information or testimony. • Plea agreements or immunity.

Districts

The United States and its territories are divided into 94 judicial districts. Each state (as well as the District of Columbia, Puerto Rico, and 3 territories - the Virgin Islands, Guam, and the Northern Mariana Islands) has at least one judicial district. Some states have more than one. A district never crosses a state line. The exact boundaries are established in a series of statutes in the U.S. Code. Officers must know district boundaries because many functions can be performed only in a certain district. For example, officers must obtain an arrest warrant in the district where the crime was allegedly committed.

Electronic Communications

The creation, capture, storage, and disclosure of eCommunications during the course of an investigation and prosecution of a federal criminal case is another matter. It can be a huge, costly undertaking to find and assemble all of the case related eCommunications. But those deemed discoverable must be turned over to the defense in full compliance with the government's obligations. The guiding principle is this: Any potentially discoverable information and communication should be preserved and delivered to the prosecutor.

Detention Hearings and Decision

The decision to detain the defendant in custody is made at a detention hearing.

Bail Reform Act, 18 U.S.C. §§ 3141 - 42

The defendant can be released or detained pending the trial date. In most cases, there is a presumption that the defendant will be released on bond with conditions.

The Mechanics of Obtaining a Subpoena

The exact procedure varies in each district. Ordinarily, after the grand jury has been empanelled, subpoenas are issued and signed in blank by the clerk of court. The AUSA or a grand jury subpoena coordinator in the AUSA's office keeps the subpoenas. The AUSA decides if a subpoena will be issued. When officers need a subpoena, they should contact the AUSA's office and request one.

Access to Grand Jury Matters - Rule 6(e)

The existence of grand jury matters is of little value unless the officer can have access and use them. Grand jury matters, however, may not be released to just anyone and may be released only for limited purposes on a "need to know" basis. The AUSA can give the following groups access to grand jury matters for the purposes indicated: • Federal and state officers for the purpose of enforcing federal criminal law. Grand jury matters cannot be released for civil law purposes. • Another AUSA for purposes of enforcing federal criminal laws. • Another grand jury. If a grand jury in District A has matters useful to a grand jury investigation in District B, the AUSA may authorize disclosure of grand jury matters to the grand jury in District B. • Under the Jencks Act and Rule 26.2, the grand jury testimony of a person who later testifies at a trial or hearing will be provided to the defense. (The Jencks Act and Rule 26.2 are discussed thoroughly in a later section.) • Foreign intelligence and other persons and entities. There are other, limited situations when grand jury matters may be revealed that are beyond the scope of this course.

The Grand Jury Process

The grand jury usually meets in a special, private room. Grand jury proceedings are formal, but less formal than a trial. Unlike a trial jury, a grand jury does not sit to hear just a single case. Once a grand jury starts hearing evidence on a particular investigation, they do not have to finish that investigation before they begin another. A grand jury could hear evidence on case A in the morning, case B in the afternoon, and then continue on case A again the following day. A grand jury may not meet every day, and a grand jury may not always be in session in your area. Grand jury proceedings are secret and not open to the public. Grand jury secrecy ensures that untested and uncorroborated information is not leaked to the public. Secrecy also helps witnesses be more forthcoming and preserves

Initial Appearance Options

The officer may take the defendant to a district that meets the following criteria: 1. The district in which the defendant was arrested, or 2. An adjacent district (a district that touches the district of arrest) if: • The initial appearance can occur more promptly in the adjacent district, or • The offense was committed in the adjacent district and the initial appearance can be held on the same day as the arrest.

Post-Indictment Grand Jury Powers

The purpose of a grand jury is to investigate crime and return indictments. Once an indictment has been returned on a charge, the power of the grand jury to investigate that charge ends. This rule means that the grand jury may not be used solely to obtain additional evidence against a defendant who has already been indicted. After indictment, however, the grand jury may issue subpoenas if the investigation is to seek a superseding (modified) indictment, the indictment of additional defendants, or indictment of additional crimes by an already-indicted defendant.

Arraignment

The purposes of an arraignment are: (1) to ensure that the defendant has a copy of the indictment or information; (2) either to read the charging document to the defendant or to advise the defendant of the substance of the charges; and (3) for the defendant to enter a plea to those charges. An arraignment does not occur until formal charges are filed against the defendant in the form of an indictment or an information. The judge may permit a defendant to waive formal arraignment if the defendant requests waiver, pleads not guilty, and certifies receipt of a copy of the indictment or information.

Circuit Courts of Appeals

There are 13 federal circuit courts of appeals across the United States consisting of 11 federal appellate circuits, the District of Columbia Circuit Court of Appeals, and the U.S. Court of Appeals for the Federal Circuit. The 11 appellate circuits consist of several districts and hear appeals from the district courts located within their circuit. The Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases such as those involving patent laws, and its decisions in these cases are binding on all circuits. The courts of appeals have only appellate jurisdiction with three judge panels hearing most appeals.

eCommunications

They include e-mail, text messages, instant messages, and short message services such as tweets, pin-to-pin, social networking sites, bulletin boards, and blogs. They can be broken down into three categories - Substantive, Logistical, and Privileged.

Discovery under Rule 16

Upon a request by the defense at or following the defendant's arraignment, the government must disclose to the defense, and make the items available for inspection and copying, evidence in its possession, or of which it has knowledge, that falls within certain categories of information. The defense almost always makes a discovery request, so Rule 16 materials are almost always provided to the defense. Rule 16 discovery covers that which is in the possession and control of the government, that which the government should know, and in some instances, what the government could know. Evidence discoverable under Rule 16 includes most statements made by the defendant to include: • Any recorded or written statement made by the defendant that is relevant to the case to include any grand jury testimony. This includes not only recorded or written statements to law enforcement, but also to private citizens. For example, e-mails or letters between the defendant and friends, in the possession of the government, are discoverable. • Oral statements made to a person the defendant knew was a government agent at the time the statement was made. Oral statements a defendant makes to an undercover officer are not discoverable.Items that are not discoverable under Rule 16 include: • Reports of witness interviews or recorded (written or electronic) statements. (If a witness testifies at a hearing or trial, however, the Jencks Act requires that the government then disclose any prior recorded (written or electronic) statements by that witness to the extent that such recorded information is relevant to the substance of that witness' testimony.)

Service of Subpoenas

While the Rules specifically provide for service by U.S. Marshals, officers may, and often will, serve subpoenas in their own cases. Unlike a summons that may be served upon a "person of suitable age and discretion" followed by mailing the summons, a subpoena must be personally served upon the person named in the subpoena. Substitute service is not permitted.

Juvenile

a person who is under the age of 18. There are special procedures that must be followed when arresting a juvenile: • Immediately advise the juvenile of his/her Miranda rights in words that the juvenile can understand even if there is no intention to question the juvenile; • Immediately notify the AUSA of the juvenile's arrest and the charge(s); • Immediately notify the parents or guardian of the juvenile's arrest, the charges, and the juvenile's legal rights under Miranda. (It is the officer's responsibility to make a good faith effort to notify the juvenile's parents or guardian. If the parent or guardian requests to speak with the juvenile, the government must allow it), and • Take the juvenile forthwith before a United States magistrate judge. ("Forthwith" requires more speed than "without unnecessary delay"), and • Do not make a media release. The government should not make public the name or the picture of any juvenile (or any reports, documents, fingerprints, and the like pertaining to them) without prior approval of the district court.

Federal District Courts

are the federal felony trial courts. While district courts may also try misdemeanors and infractions, usually they do not. Only a district court may try a felony. In addition to the actual trial of the case, district courts also conduct associated proceedings leading up to and following the trial.

Substantive Communications

contain factual information about the case, including: information about investigative activity; information from interviews or interactions with victims, witnesses, potential witnesses, informants, cooperators, and experts; discussions about the merits of evidence; and information regarding the credibility or bias of witnesses.

1963 Vienna Convention on Consular Relations (VCCR)

established the protocol for the treatment of foreign nationals arrested in the United States as well as for U.S. citizens arrested by foreign governments. The agreements contained in the VCCR have the status of treaties in international law. The U.S. Constitution provides that treaties once adopted have the force of law in the United States. Therefore the provisions of the VCCR are binding on federal, state and local government officials.

Privileged Communications

include those that contain: attorney-client privileged communications; attorney work product communications; deliberative process communications; and protected communications, which are those covered by Federal Rule of Criminal Procedure 16(a)(2). Generally, so long as any discoverable facts in them are disclosed in other materials, privileged and protected communications are not discoverable.

Logistical communications

include those that contain: travel information; dates, times, and locations of hearings or meetings; and those that transmit reports. Generally, purely logistical communications are not discoverable

Preliminary Hearings

is a proceeding during which the government is required to produce evidence from which the court may conclude whether or not the defendant's arrest was based upon probable cause. Rule 5.1(a) requires that the magistrate judge hold a preliminary hearing for all defendants charged in a criminal complaint with a felony or class A misdemeanor, that is, defendants other than those charged with a petty offense, with the following exceptions: • The defendant waives (gives up the right to) the hearing. • The defendant was already indicted, or charged by information, before the time the preliminary hearing is to be held. • The government dismisses the case on its own. A defendant who has been detained in custody must then be released.

Secrecy Requirement: (Rule 6(e)(2))

requires that grand jury proceedings, and "matters occurring before the grand jury," may not be publicly disclosed and, subject to very specific exceptions noted below, must remain secret. The purpose of this secrecy rule is to encourage witnesses to come forward and testify freely and honestly, to minimize the risk that prospective defendants will flee or thwart investigations, and to protect accused persons who are ultimately exonerated from unfavorable publicity. • The names of witnesses (including that the officer was a witness); • The testimony of a witness (including the officer's own testimony); • Documents and other items that were subpoenaed by the grand jury; and • Other grand jury matters including information provided by the AUSA, questions by grand jurors, and what occurred in front of the grand jury.

Bail Reform Act

requires the pretrial release of a defendant on either his personal recognizance or an unsecured appearance bond (neither of which requires a deposit of money or property as security), subject to conditions while on release, unless the judge determines release: (1) will not reasonably assure the appearance of the defendant (flight risk), or (2) will endanger the safety of any other person or the community.

18 U.S.C. § 3501(c)

statements taken during the first 6 hours will not be suppressed because of any delay. That 6 hour safe zone can be extended if the delay is reasonable given means of transportation and distance to the magistrate. Thus, a statement taken 9 hours after arrest may still be usable if extensive travel was required to get to the magistrate for the initial appearance.

Supreme Court of the United States

the final authority on the interpretation of federal law. Virtually all cases considered by the United States Supreme Court are appeals from the decisions of other courts (federal or state). There is no right to an appeal to the Supreme Court, and that Court only considers a small percentage of cases. A party who loses an appeal before the Circuit Court of Appeal must, in order to obtain review by the Supreme Court, file a motion called a Petition for a Writ of Certiorari ("to make certain"). There are nine justices on the Supreme Court. Four of the nine justices must agree to hear the the petitioner's case before a Writ of Certiorari is granted. Usually, all nine justices participate in each case, and the decision is by majority vote. One of the justices will be responsible for writing the majority opinion. Justices who concur in or dissent from the majority opinion may also write separate opinions. In the spring of each year, the Supreme Court proposes changes to the Federal Rules of Criminal Procedure. Those proposed changes to the Rules are automatically implemented unless Congress rejects or changes them.

Initial Appearance Purpose

to inform the defendant of the charges for which the arrest was made and the procedural rights in the upcoming trial. Pre-trial release (bail) may also be considered at this time. The judge informs the defendant of the charge usually by providing the defendant with a copy of the indictment, information, or criminal complaint, or by having the AUSA describe the charges pending against the defendant.

Rule 5a

upon arrest, a suspect must be taken to an initial appearance before a magistrate judge without unnecessary delay. Failure to do so can have an adverse effect on statements made during a post-arrest interview. First, of course, any statement taken has to be voluntary. Proper Miranda warnings must be given and a valid waiver obtained. Assuming this has been done, the courts may then look at whether there was a delay in getting to the magistrate.

Limitations of Grand Jury Subpoenas

• A grand jury may only investigate crimes in the district where they sit. • A subpoena may not be used to investigate civil (non-criminal) matters. • Fifth Amendment (self-incrimination) and other privileges apply. A subpoena may not compel a person to provide self-incriminating testimony. Persons who legitimately claim a privilege against self-incrimination may be compelled to testify if given a grant of immunity. Immunized testimony may not be used against the immunized witness though it could be used against another. In addition, a subpoena may not compel disclosure of information that is subject to other recognized privileges (attorney-client, psychotherapist-patient, husband-wife, and clergy-communicant). DOJ requires special permission before issuing subpoenas to the media and to non-target attorneys, doctors, and members of the clergy. The AUSA will have the details explaining how this can be accomplished. • A subpoena may not be used to compel a person to submit to an interview. For example, believing that a witness might not give an interview, an officer serves a subpoena on the witness implying that if the witness submits to an interview, the subpoena will be withdrawn. This is an improper use of grand jury powers. On the other hand, if the officer serves a subpoena on a person, and if the witness then indicates willingness to be interviewed, the officer may lawfully conduct the interview. The AUSA may thereafter release the witness from the necessity of appearing before the grand jury to testify. • Subpoenas may not be issued to investigate the offense(s) that have already been indicted. • While the grand jury may be used to investigate crimes such as harboring or escape, DOJ policy prohibits its prosecutors from using the grand jury's subpoena power solely to aid in locating and arresting fugitives.

Jencks Act Statment includes

• A written statement made and signed, or otherwise adopted, by the witness, such as an affidavit or a letter. If the officer shows a witness notes taken during an interview, for example, to have the witness confirm the accuracy of the notes, the notes may thereby become that witness's "adopted statement" for Jencks Act purposes. • A stenographic, mechanical, electrical, or other recorded statement. • A substantially verbatim transcript of an oral statement made at the time the witness was speaking. • The transcript of the witness's grand jury testimony. • The officer's own notes may qualify as a Jencks Act statement if the officer testifies or, as stated above, when a witness is shown the notes and vouches for their accuracy (an adopted statement).

Diplomats: After Verifying Diplomatic Status

• Do not arrest. • Investigate and prepare a report. • Do not use handcuffs unless the diplomat poses an immediate threat to safety. • Do not search or frisk the person, their vehicle, or personal belongings unless necessary for officer safety.

Brady Materials Examples

• Evidence that another may have committed the charged offense. • Information supporting an alibi. • Information supporting an affirmative defense (such as entrapment or self defense). • Exculpatory (favorable) material. - The defendant may not be guilty. - Information that could lessen the defendant's punishment.

prior "statements" of that witness must be given to the defense under the Jencks Act or Rule 26.2

• Example 1: A witness testifies at grand jury. Grand jury testimony is secret and will not be given to the defense. If the grand jury witness testifies at a hearing or trial, however, the grand jury testimony will be given to the defense under the Jencks Act or Rule 26.2.