January 19, 2022

Volume XII, Number 19

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January 19, 2022

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January 18, 2022

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I've Been Federally Indicted – Now What?

What is a Federal Indictment?

Being federally indicted can be a worrisome time in your life.  Many are aware that an indictment is the initial step sought by the prosecutor in their effort to initiate a criminal prosecution.  Criminal investigations and prosecutions can lead to severe consequences such as jail time, criminal penalties, loss of liberty, and irreparable reputational harm.  Therefore, it is important to understand the basics of a federal indictment, what it means for you, and how to respond.

A federal indictment is an accusation of charges against one or more defendants.  In the United States, the prosecutor is the individual charged with the authority to initiate criminal investigations and proceedings against one or more persons.  The primary tool to accomplish this is the indictment.  The federal indictment must be returned by a duly convened grand jury.  At a grand jury proceeding (which is a secret and sealed process), the following may occur: (1) witnesses may testify; (2) individuals may be subpoenaed as witnesses; (3) documents may be subpoenaed; and (4) evidence is showed to the grand jury.  The grand jury then decides in secrecy whether there is ample evidence to indict the individual.  In other words, the grand jury will indict where there is probable cause that the defendant committed the crime.

What Does It Mean to be Federally Indicted?

When an individual is federally indicted, they are given an official charge that they committed the crime(s) alleged in the indictment.  The federal indictment serves as notice to the defendant of the charges and contains basic information.  However, it is important to note that an indictment does not mean guilt.  It does not mean you are or will be found guilty of the crimes identified in the indictment.

Instead, a federal indictment merely means that the grand jury believed there was probable cause to charge you with the crime.  To prove guilt, the state must prove beyond a reasonable doubt that you committed the crime.  Therefore, it is critical that you act to prepare your defense by retaining an experienced criminal defense attorney right away.

Examples of Federal Crimes and Violations That May Lead to Indictments

An individual can receive a federal indictment for a host of crimes, including the following:

  • False Statements to the Government 

  • Bank Fraud

  • Wire and Mail Fraud 

  • Aggravated Identity Theft 

  • Cyber-crimes 

  • Tax Evasion 

  • Counterfeiting 

  • Racketeer Influenced and Corrupt Organizations Act (“RICO”)

  • Attempt 

  • Conspiracy to defraud the United States 

  • Espionage

  • Child Pornography 

  • Making False, Fictitious, or Fraudulent Claims 

This list is non-exhaustive.  Its reach can extend as far as the prosecutor deems necessary and as long as the grand jury determines that the probable cause standard is met.

I have observed first-hand the broad range of crimes that can be alleged in a federal indictment.  These charges have significant ramifications for individuals, health care professionals, business executives, companies, and other entities including criminal penalties, jail time, and permanent reputational harm.  Arming yourself with an experienced criminal defense attorney will ensure that your case receives the best defense at all stages.  – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

Can I Challenge my Federal Indictment?

It is sometimes possible to challenge your federal indictment.  This will depend on many factors, and your attorney can help you decide whether this is a possibility.  Below are some common reasons for an attorney to challenge an indictment:

  • Alleging that the indictment fails to delineate a violation of the law or fails to plead all the required elements of one or more offenses;

  • Alleging procedural defects within the indictment such as claiming that the crime falls outside the relevant statute of limitations or improper venue;

  • Alleging that the indictment fails to give the defendant the required notice of the charges made against the defendant; 

  • Alleging serious defects in the grand jury proceeding such as the prosecutor’s inability to fully disclose to the grand jury the applicable law;

  • Prosecutorial misconduct in bringing the indictment or other misconduct;

It is important to note that challenging a federal indictment and being successful is rare.  However, securing an experienced criminal defense attorney can help you best manage all central and peripheral issues relating to the indictment.

How to Respond After Being Federally Indicted

After receiving a federal indictment, it is important to take prompt action.  There may be important deadlines or tactical responses that need to be taken as soon as possible for your defense.  Below are critical steps that you can take after being federally indicted:

Hire an experienced criminal defense attorney

This step is the most important for your defense.  An attorney would be responsible for managing your case from start to finish and will fight to secure the most favorable outcome for you.  Briefly, an attorney can explain the charges alleged against you, guide you on how your case is most likely to proceed through the federal process, and keep you up-to-date on new developments in your defense.   An attorney can help you decide which post-indictment option would be best for your case: (1) move to dismiss the indictment; (2) plead guilty; or (3) contest the indictment and request your constitutional right to a jury trial.  Each option is fact-intensive, and your attorney can help you decide which is the optimal path for you.  In addition, your attorney will advise you on your constitutional rights such as whether any evidence seized should be suppressed under the Fourth Amendment or whether you should claim your Fifth Amendment right against self-incrimination.

Only speak with your attorney.

This may sound obvious, but this step is vital to always keep in mind.  Law enforcement and federal agents may try to contact you and are legally allowed to use your words against you.  You are equally in your rights to tell them that you need to speak with your attorney first.

If applicable, start accumulating documents that could be helpful to your attorney when preparing your defense

Evidence will be crucial to your defense, whether such evidence includes a comprehensive audit trail, supporting documentation for certain professional decisions, bank records, call records, witness testimony, etc.  Having this information at hand for your attorney will save time so your attorney can begin preparing your individualized defense strategy.

Maintain an attitude of cooperation and negotiation

This may be easier said than done, especially if you are contesting the allegations in the indictment.  If the prosecutor or the court sees you acting defensive or aggressive, this may have a detrimental impact on your case.  Cooperation and negotiation are the keys to leniency and mitigation.  Your defense attorney can guide you in preparing yourself to maintain such composure.  

Make sure you are informed about the progress of your case

Your attorney should always maintain open communications with you.  This is important so you feel secure and comfortable with the services of your attorney.  Do not be afraid to ask questions to your attorney about the plan going further, your defense strategy, or any other issues.

Conclusion

A federal indictment is the first step by the prosecutor to initiate a criminal investigation against the defendant.  An indictment is a formal accusation of charges against the defendant and is a pivotal tool used by the government.  Federal indictments must be returned by a grand jury who decides in confidence whether or not to indict the defendant.  A criminal investigation or prosecution can lead to severe consequences such as penalties and jail time.  It is important for individuals who have been federally indicted to seek the advice of an experienced criminal defense attorney as soon as possible.  An attorney can help you navigate the criminal judicial process, prepare a personalized defense, and fight aggressively for your freedom.  

Oberheiden P.C. © 2022 National Law Review, Volume XI, Number 40
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About this Author

Dr. Nick Oberheiden Federal Criminal Defense Attorney Oberheiden PC
Federal Criminal Defense Attorney

Dr. Nick Oberheiden focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation. He has defended clients in PPP Loan Fraud cases and COVID-19 investigations. Nick also directs internal corporate investigations and he leads defense teams in whistleblower actions, corporate defense cases, as well as cases involving national security and elected officials.

Clients from more than 45 U.S. states have hired Nick to seek effective protection against government...

888-680-1745
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