The Indictment in Federal Cases

Indictment Required for Charges of "Infamous" Crimes 

A crime punishable by death or imprisonment for a term exceeding one year would be an "infamous" crime. A crime may be "infamous"-- or, a felony--either because of the type of crime or because of its potential punishment.

An indictment serves 3 purposes:

1. It fulfills the Sixth Amendment "apprisal" requirement by notifying the accused of the charges against him or her in order to prepare a defense.

2. It fulfills the Fifth Amendment's double jeopardy requirement by protecting the accused from being re-prosecuted for the same offense.

3. It fulfills the Fifth Amendment's guarantee that prosecutions for "infamous" crimes may only be commenced by grand jury indictment.

A warrant may issue on an indictment because the indictment itself conclusively establishes the necessary element of probable cause.  

Sufficiency of Indictment to Charged Offense

The Fifth Amendment of the U.S. Constitution requires that federal felony cases begin by presentment and the return of an indictment by a federal grand jury. The Sixth Amendment provides that in all criminal prosecutions the accused shall be informed of the nature and reason of the accusation.

Dismissal of Indictment for Insufficiency

The indictment is sufficient if it (1) contains elements of offense charged and fairly informs defendant of charge against which he must defend, and (2) allows defendant to plead acquittal or conviction in bar of future prosecutions for same offense.

The Government may allege in a single count that the method by which the defendant committed the offense is unknown, or that the defendant committed it by one or more ways.

The ability of the Government to allege the crime was committed by more than one means in a single count is intended to eliminate the need to allege multiple counts.

Reasons for Dismissal of The Indictment

1. Selective Prosecution
 
The accused who claims unfair selective prosecution bears a heavy burden of proof. The U.S. Supreme Court has given federal prosecutors wide latitude in deciding whether to prosecute, and what charges to file or bring before the grand jury.

To show selective prosecution, an accused must show:

(1) that others in a similar situation have not been prosecuted; and
 
(2) that the Government's decision to prosecute was based on an unjustifiable standard, such as race, religion or another arbitrary reason, or that the prosecution was intended to prevent the exercise of a fundamental right.

2.  Unnecessary Delay
 
All speedy trial claims require a look at the guarantee on a case-by-case basis. If the federal court rules that a defendant was denied the right to a speedy trial, dismissal of the indictment is the only remedy.

The Due Process Clause of the Fifth Amendment bans excessive delay before the indictment. The primary protection against prejudicial preaccusation delay is the statute of limitations. However, even if the Government brings the indictment within the statutory period, it may violate the Due Process Clause of the Fifth Amendment if the Government intentionally delayed returning the indictment to gain a strategic advantage, and the defendant was prejudiced.

Delays after indictment but before trial may violate the Sixth Amendment guarantee of the right to a speedy trial. While it is not necessary to await indictment or other formal charge before invoking the speedy trial provision, the Sixth Amendment safeguard does not extend prior to arrest, because the Amendment says it protects "the accused."

In Barker v. Wingo, the United States Supreme Court spelled out four factors to consider in deciding whether speedy trial rights have been violated: (1) the length of the delay; (2) the reason for the delay; (3) the accused's assertion of his or her right; and (4) prejudice to the defendant. If the court finds that the delay was unconstitutional, the indictment must be dismissed.

Following the Supreme Court's decision in Barker v. Wingo, Congress passed the Speedy Trial Act, 18 U.S.C. § 3161 et seq., to protect Sixth Amendment speedy trial rights.

The Speedy Trial Act requires indictment filed within 30 days from the date of arrest, and trials to begin within 70 days of defendant's first appearance before a magistrate or judicial officer. The Act allows the district court to exclude time from being counted against these time limits for a number of specified reasons, which are set forth in § 3161(h).

3. Prosecutorial Misconduct
 
Prosecutorial misconduct leading to a motion to dismiss may take many forms and is an "extreme sanction." The district court may grant a motion to dismiss only if the misconduct was flagrant and caused substantial prejudice to the accused.

To determine if the misconduct was flagrant, look at these four factors:

1. The likelihood that the prosecutor's comments tended to mislead the jury or prejudice the defendant;
 
2. Whether the comments were isolated or extensive;
 
3. Whether the comments were deliberately or accidentally made; and
 
4. The overall strength of the evidence against the accused.

Our over 80 years of combined criminal defense experience shows our unwavering dedication to protecting the rights of individuals guaranteed by the Constitution.

Contact a Los Angeles Federal Crimes Attorney  at our firm today if you are facing a federal criminal investigation or federal criminal charges.