What happens when I go to court?
The Initial Appearance or Arraignment
If you have been indicted or have entered into a pre-indictment deal with the government, your first appearance in court will be an arraignment. During that hearing, you will enter a plea of NOT guilty and your case will be randomly assigned to a District Court Judge and you will be given a trial date.
Bail will be determined at the initial appearance as well. Preferably, your lawyer and the U.S. Attorney will have come to an agreement about the amount of the bond prior to the hearing. However, even if that is the case, Pre-Trial Services will conduct an interview of you and any possible sureties and they will make an independent recommendation to the court about an appropriate amount of bond. If bail is granted, the paperwork for unsecured bonds is completed right there in court. If property is to be deeded, the court will usually allow a week or two to complete the deeding of property.
You will then be assigned a pre-trial services officer who will supervise you while you are out on bond. You will have to check in with them in person once a month and via telephone once a week. You will have to notify them of any change of employment or residence. You will have to seek permission to travel outside of the district. You will also have to surrender your passport if you have one.
Before you leave the court after your first appearance, you will go to the U.S. Marshall’s office in the courthouse and go through the booking process. This consists of filling out paperwork, fingerprinting and having a booking photo taken.
Posting Bail in Federal Court:
The federal court does not accept bail bonds in the same way that they do in State Court. There are two types of bail bonds in Federal Court, Signature Bonds and Property Bonds. Signature bonds are unsecured bonds very similar to a promissory note, usually signed by a responsible third party. Property Bonds or a Bond that is secured by property, requires the deeding of property to the court. There are also cash bonds but those are quite rare.
Signature bonds are simple and are completed in the courtroom at the time of the initial appearance assuming the surety is present.
Posting a Secured Property Bond is a complex procedure. It’s involves several steps. It requires a current appraisal, an updated lot book report from a title company and the filing of notarized documents with the county recorder’s office. Each step must be done correctly and in a certain order.
There are two different ways you will be brought into court in a Federal Case. You will either receive a summons requiring you to appear in court on a certain date or you will be arrested. The first is obviously preferable.
If you and your criminal defense attorney have worked out a pre-indictment resolution of your case, your attorney should have pre-arranged a bond amount with the U.S. Attorney’s office and will have made arrangements for you to appear in court on a given date. If the U.S. Attorney’s office agrees to a specific amount, you can have the appraisal and necessary documents ready to go so that the bond can be posted within a couple of days. Most judges will allow a certain amount of time to post the bond. You may remain free on bond while the process is being completed.
If you are arrested and brought into court in a federal case, bail will be determined at a detention hearing before a federal magistrate judge. The magistrate judge will consider two factors, whether you are a flight risk and whether or not you pose a danger to the community. The issue of flight is decided based on a number of factors including how long you have lived in the community in which you are charged, family ties to the community, employment, education, prior criminal history, whether or not you travel frequently, whether or not you possess a passport, whether or not you have any failures to appear or warrants or whether you have ever used any aliases.
The element of danger to the community depends primarily upon the charges and any prior criminal conduct. If someone is determined to be a danger, bond will not be granted.
The court will also want to know whether you have any financial resources. If you or a family member or friend are willing to post equity that may be available in real property, the court will consider that.
The court will often release a defendant forthwith with the signature of a responsible third person pending the completion of the process of posting the property bond.
The court will set certain conditions of bond. These conditions almost always include reporting to pretrial services which is similar to being on probation pending trial. You will have to remain within the district in which you are charged unless you have permission to travel from the court. You must stay away from any airport, train station, bus station or seaport; and you must surrender your passport to the court. Drug testing is required in any case where there is information or allegations of drug use. A violation of any of the terms or conditions of your bond can cause the court to revoke the bond and take you into custody.
Entering a Guilty Plea
If you have entered into a pre-indictment deal with the government, your next court date will the change of plea hearing. A change of plea hearing in federal court is much different than in state court. The plea agreement itself is generally a 16-24 page document that is prepared specifically for your case. It sets forth the facts of the case, the maximum and minimum sentence you may be facing, the sentencing factors including the applicable sentencing guidelines, a waiver of your constitutional rights, the elements of the offense and most of the time a waiver or your appellate rights among other things. There is also a provision of the agreement that says that the court is not a party to the agreement and that no one can make any promises to you about what your actual sentence will be. Even your lawyer.
Your attorney must go through the document with you in great detail before you sign the agreement. Once the agreement is signed, it is filed with the court. The court will have read the agreement before the change of plea hearing.
The hearing itself can take from 20 minutes to an hour depending on the judge. (I had one change of plea hearing that lasted an hour and a half!) The judge will go through every section of the plea agreement with you to make sure that you understand everything.
The Probation Interview and Pre-Sentence Report
The court will set the sentencing hearing, in most cases, 10 weeks after the change of plea hearing. During that 10 week period, the probation department prepares a Pre-Sentence Report. Probation conducts an interview which is referred to as the PSI. The interview takes place in the U.S. Probation office which is in the courthouse. You will be required to answer questions about your family, education, employment, health etc. This information, along with information about the offense, any criminal history you may have and the sentencing guidelines, all goes into the report. The probation office will then make a recommendation for what sentence the court should impose and provide that to the court.
As an experienced criminal defense attorney I always prepare my clients for the PSI by gathering every bit of information about my client. I want to know about your upbringing, if there was any violence or substance abuse in the home. I want to know about your family, education and employment, your health, your prior convictions if any, your goals for the future. I will also have you bring all of that information, including character letters to the pre-sentence interview.
Prior to sentencing your lawyer and the Assistant U.S. Attorney file what is called a Sentencing Position Paper. This Position sets out all of the arguments both sides are going to make at sentencing. The Position Paper is usually filed 2 weeks before sentencing.
At the time of sentencing, the Judge will have read the Pre-sentence report, your sentencing position paper along with any mitigating information you may provide including character letters, diplomas and medical reports. The judge will also have read the government’s sentencing position paper. The Judge will probably have a good idea of the sentence they are going to impose when they take the bench for your sentencing hearing but there is still a chance to change the judge’s mind.
Both sides argue their side and reply to arguments by the other side. The Judge might even ask questions about certain issues.
Then it is your turn. Each defendant has a right to “Allocution” which is the right to be speak to the Judge before he or she imposes the sentence. This is the time for someone to express remorse for their actions and convince the court that they will not re-offend.
The Judge then imposes the sentence.
When do I go to Prison, If I’m going to Prison?
Most Federal Judges will allow a defendant to turn themselves in to the prison where they are designated 6-10 weeks after sentencing. This gives the bureau of prisons time to determine where you will serve your sentence. It also impacts where the bureau of prisons will place you. Your pre-trial services officer will give you the designation information once it is received. (The bureau of prisons website sets out in detail, the procedure they use to make this determination.)