What Happens After an Indictment?
In many ways, a federal criminal indictment represents the end of one process and the start of another. The government’s investigation is over, and now the focus shifts to preparing for—and winning—in court.
But, even after an indictment, it is still possible to favorably resolve the defendant’s case prior to verdict. In fact, in many cases defendants can favorably resolve their cases while avoiding trial entirely. The key to minimizing a defendant’s risk post-indictment is having a clear and comprehensive understanding of all of the options and opportunities that are available—and leveraging these options and opportunities to the fullest extent possible.
5 Potential Outcomes After a Federal Indictment
To understand what happens after an indictment, it can be helpful to work backward from the potential outcomes. Generally speaking, federal defendants should target one specific outcome (or at least one specific outcome at a time) as part of a focused and cohesive defense strategy. With a specific outcome in mind, federal defendants can maximize efficiency and avoid distractions, and they can exert a significant amount of control over the post-indictment process.
In broad terms, the five potential outcomes after a federal indictment are:
1. Pre-Trial Dismissal
After an indictment, the best possible outcome is pre-trial dismissal. This avoids the inherent risks of going to trial, and it mitigates defendants’ litigation costs as well. Practically speaking, the likelihood of a pre-trial dismissal may be relatively low, but federal judges will overturn indictments and dismiss charges when warranted.
2. Plea Agreement
A plea agreement also involves the uncertainty of trial, but accepting a plea comes with consequences. The severity of these consequences depends on several factors, including (but not limited to) the evidence available to the U.S. Department of Justice (DOJ) and defense counsel’s negotiation skills. When the probability of trial leading to an unfavorable verdict is relatively high, negotiating a plea agreement may be the most desirable of the options that are available.
3. “Not Guilty” Verdict
When federal criminal cases go to trial, the outcome is generally determined by the jury’s verdict (except in the case of a mistrial, as discussed below). If the jury determines that prosecutors have failed to prove their case beyond a reasonable doubt, then their only option is to return a verdict of “not guilty.” In appropriate cases, the judge may issue a directed verdict in the defendant’s favor as well.
4. “Guilty” Verdict
If the jury determines that prosecutors have proven their case beyond a reasonable doubt, they will render a “guilty” verdict. After the jury returns a “guilty” verdict, the defendant’s case will proceed to sentencing.
If the jury is unable to reach a unanimous decision, the judge may be forced to declare a mistrial. In the event of a mistrial, the DOJ can either decide to drop the defendant’s charges or re-prosecute the defendant’s case. Entering into a plea agreement following a mistrial is a possibility as well.
5 Stages of Pre-Trial Practice After a Federal Indictment
While trial is the next major judicial proceeding following a federal indictment, there are several intermediate stages of pre-trial practice. Federal criminal defendants can (and should) use these stages strategically—whether to target a favorable pre-trial result or to set the stage for a favorable verdict.
Discovery is the process of requesting and obtaining information during the pre-trial stage. Both parties have the opportunity to take discovery, and both parties have an equal obligation to comply with discovery requests in accordance with the Federal Rules of Criminal Procedure.
Crucially, the obligation to comply with discovery requests is not time-limited. As the DOJ explains:
“A prosecutor has a continuing obligation to provide the defendant documents and other information which may reflect upon the case. A failure of the prosecutor to do so can expose the prosecutor to fines/sanctions by the court. Further, the prosecutor is required to provide the defense with evidence that may hurt his case, called exculpatory evidence. This evidence could show the defendant’s innocence. If the prosecution does not provide it to the defense, it may require a new trial.”
The federal discovery rules are exceedingly complex, and complying with defendants’ obligations (along with ensuring that prosecutors comply with their obligations) can be quite difficult. Defendants must also be careful to preserve their attorney-client privilege and the privilege against self-incrimination. Failure to do so can be irreversible. Miscues during the discovery process can play a central role in subsequent proceedings, and events during discovery will spur plea deal negotiations in many cases.
2. Plea Deal Negotiations
Plea deal negotiations can take place at any time during the pre-trial phase (or even during trial). Either party can propose a plea deal, and negotiating a plea can be more or less desirable for both parties under varying circumstances. When engaging in plea deal negotiations, federal defendants must work with their counsel to ensure that any statements made during their negotiations are deemed inadmissible under Rule 408 of the Federal Rules of Evidence.
Entering into a plea deal provides a certain and final outcome. As such, it necessarily entails both benefits and drawbacks. The outcome at trial is never guaranteed; and, when evaluating possible plea deals, federal defendants must decide whether this uncertainty works to their advantage or disadvantage.
3. Pre-Trial Motions
Federal defendants (and prosecutors) can use pre-trial motions to achieve various goals. From the defense perspective, filing pre-trial motions affords the opportunity to challenge discovery requests, enforce the prosecution’s obligation to produce records and witness information, seek to exclude evidence from trial, and limit the charges at issue. Defendants and their counsel can (and generally should) use pre-trial motions practice strategically, both to advance their plea negotiation strategies and to increase their chances of success at trial.
4. Challenging the Indictment
One particular pre-trial strategy involves challenging the indictment itself. While federal judges are generally hesitant to supplant grand jurors’ judgment, they will do so in appropriate cases (and when defendants raise issues with their indictments effectively). Some examples of grounds for challenging a federal indictment include:
- Insufficiency of the indictment (i.e., failure to plead all required elements)
- Procedural deficiencies (i.e., filing in the wrong venue)
- Inadequate notice of the charges at issue
- Prosecutorial misconduct
- Expiration of the applicable statute of limitations
5. Seeking Dismissal on Other Grounds
In addition to challenging their indictments, federal criminal defendants can also seek pre-trial dismissal on other grounds. Following an indictment, federal defendants should work closely with their counsel to evaluate all potential grounds for dismissal, and they should rely on their defense counsel to effectively raise all relevant arguments at the appropriate stage of the pre-trial or trial process.
5 Stages of a Federal Criminal Trial
If a defendant’s case is not resolved during the pre-trial stage, the case will proceed to trial. A federal criminal trial is itself a multi-stage process, with each stage presenting its own unique set of risks and opportunities. Broadly speaking, the five main stages of a federal criminal trial are:
1. The Prosecution’s Case in Chief
Since the prosecution has the burden of proof, the prosecution always goes first. The DOJ’s trial attorneys will present their opening statements and evidence, working methodically through the elements of each alleged offense in an effort to meet their burden of proving the defendant’s guilt beyond a reasonable doubt.
2. The Defendant’s Case
Following the prosecution’s case in chief, the defense has the opportunity to file a motion for a directed verdict, or “judgment of acquittal.” Under Rule 29 of the Federal Rules of Criminal Procedure:
“After the government closes its evidence or after the close of all the evidence, the court on the defendant’s motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.”
If a defendant’s “Rule 29 motion” is unsuccessful, then the defendant will present its case in chief. Similar to the prosecution’s case, this involves presenting arguments and evidence to the jury, with the substantial majority of evidence being introduced through witness testimony.
3. Jury Instructions and Verdict
At the close of trial, the defense and prosecution will submit their requested jury instructions to the court, and then the jury will deliberate before rendering a verdict. The jury must render a verdict of “guilty” or “not guilty” with respect to each individual offense.
4. Post-Trial Motions and Pre-Sentencing
After trial, the prosecution and defense both have the opportunity to file various post-trial motions. These include motions for a judgment of acquittal, motions for a new trial, and motions to vacate or set aside the jury’s verdict. If a “guilty” verdict stands, then the parties will present their respective arguments regarding sentencing.
The final stage is sentencing. When determining an appropriate sentence, the judge will consider the parties’ respective arguments, the Federal Sentencing Guidelines, and various other factors. Once the judge imposes a sentence, this brings the trial process to a close.
But, even sentencing is not necessarily the end of the process after an indictment. The defendant and the DOJ can both challenge the outcome of trial or the defendant’s sentence on various grounds. Depending on the circumstances at hand, the defendant may have grounds to file a petition for post-conviction relief as well.
Speak with a Senior Federal Defense Attorney at Oberheiden P.C.
The federal defense attorneys at Oberheiden P.C. represent companies and individuals in federal criminal matters nationwide. For a complimentary consultation, please call 888-680-1745 or contact us confidentially online today.
Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.