Federal Public Defender

            Northern District of California

  Barry J. Portman

  Federal Defender

A Federal Case Timeline

The following timeline is a very broad overview of the progress of a federal felony case. Many variables can change speed or course of the case, including settlement negotiations and changes in law. This timeline, however, will hold true in the majority of federal felony cases in the Northern District of California.

Click on the title below to jump to a description of that stage of a federal proceeding.

Initial Appearance
Bail
Arraignment
Initial District Court Appearance
Pretrial Motions
Plea
Trial
Sentencing
Appeals and Petitions for Writs of Certiorari
Supervised Release and Violations

Initial appearance:

Felony defendants are usually brought to federal court in the custody of federal agents. Usually, the charges against the defendant are in a criminal complaint. The criminal complaint is accompanied by an affidavit that summarizes the evidence against the defendant.

At the defendant's first appearance, a defendant appears before a federal magistrate. This magistrate will preside over the first two or three appearances, but the case will ultimately be referred to a federal district court judge (more on district judges below).

The prosecutor appearing for the government is called an "Assistant United States Attorney," or "AUSA."  There are no District Attorney's or "DAs" in federal court.  The public defender is often called the Assistant Federal Public Defender, or an "AFPD."

When a defendant first appears before a magistrate, he or she is informed of certain constitutional rights, such as the right to remain silent. The defendant is then asked if her or she can afford counsel.

If a defendant cannot afford to hire counsel, he or she is instructed to fill out a financial affidavit. This affidavit is then submitted to the magistrate, and, if the defendant qualifies, a public defender or CJA panel counsel is appointed. The affidavit is submitted under the penalty of perjury, and must be complete.

After counsel is appointed, the magistrate informs the defendant of the charges and the statutory maximum sentence. The “statutory maximum” is the most jail time that a defendant can receive -- it is rarely the actual sentence that is given.

The magistrate then turns to the issue of release, or bail.

Bail:

If the government wants the defendant detained, the prosecutor will move for detention at the initial appearance. Bail in federal court is controlled by the Bail Reform Act, 18 USC § 3141 et seq.

There are some cases where the government gets an automatic three (court) days to prepare for a bail hearing. These are called “presumption” cases, for offenses such as drug dealing, child sex offenses including child porn, and bank robbery. See 18 USC § 3142 (f)(1), (2). The government may also try to prove that the defendant is a flight risk, or a danger to the community – in those cases, the government also gets three days to prepare for the bail hearing. The defense can also ask for up to five days to prepare for the bail hearing.

Defendants seeking bail are then referred to Pretrial Services. Pretrial Services are neutral court employees, who interview the defendant and prepare a short life background and criminal history for the court. The public defender will accompany the defendant to the pretrial services interview.

Before the bail hearing, the public defender will work with the defendant to identify resources to post for bail. This can include cash, cars, motorhomes, and real property such as houses and real estate. Bail bondsmen are usually not involved in federal court.

If the defendant is released at the bail hearing, it is often with conditions. Typical conditions include reporting to Pretrial Services, drug testing, and a search and seizure condition.

Arraignment:

Within 10 days of the initial appearance for in-custody defendants, and within 20 days of initial appearance for out-of-custody defendants, a defendant is entitled to a preliminary hearing or arraignment. See Fed. R. Crim. Pro. 5.1. There are federal grand juries sitting at all times in the Northern District of California, so a defendant will be arraigned on an indictment at the arraignment hearing, instead of having a preliminary hearing.

An indictment is a formal charging document that contains the federal charges faced by the defendant. It is reviewed by a grand jury, and if there is sufficient evidence to force the defendant to face the charges the grand jury signs off on the indictment (or “returns the indictment.”) There can be many indictments brought in one case – later indictments are called “superceding indictments.”

Initial Appearance Before the District Court:

After arraignment, the magistrate adds the matter to the calendar for the district court. A district court judge, or “Article III” judge, is appointed by the President, confirmed by the Senate, and serves for life. The defense will know which district court judge is assigned to the case when it receives the indictment – the last three letters of the case number are the judge’s initials. The district court judge will preside over the rest of the case, for all hearings, the trial, and sentencing.

At the first appearance before the district court, the parties generally put the matter over for “status.” This gives the public defender an opportunity to review the evidence (“discovery”) in the case, to identify any potential motions, and to discuss any proposed pretrial dispositions (deals) with the prosecutor. At the next appearance, the parties usually set a briefing schedule for pretrial motions.

Pretrial Motions:

There is an enormous variety of pretrial motions in a federal case. These can include constitutional challenges, motions for a bill of particulars, surplusage, and severance motions. See generally Fed. R. Crim. Pro. 12.

The most typical pretrial motion is a suppression motion. In these types of motions, the defense moves to suppress evidence, or to prevent the government from using it at trial. These motions can include suppression of evidence, like a gun seized in a search, or statements, like a defendant’s confession.

The defendant’s motion is sometimes called the moving papers or the opening brief. The prosecutor usually has one to three weeks to respond to the motion. That response is called an “Opposition.” The defense then typically has one or two weeks to respond to the Opposition. That defense response is called a “Reply.” One to two weeks after the Reply is filed, the court usually hears argument on the motion. Sometimes, on a separate date, the court will hold an evidentiary hearing to resolve any disputed facts.

Plea:

In the majority of federal cases, the defendant pleads guilty and does not go to trial. A defendant can plead guilty “open,” or without a plea agreement, or can strike a deal with the prosecutor and have a written contract (a plea agreement) with the terms of the plea.

A defendant has a right to be informed of every plea offer made by the government. The defense attorney will also describe the terms of the plea agreement, will discuss a defendant’s sentencing exposure at trial, and will review the good and bad evidence that awaits a defendant at trial. Ultimately, however, it is the defendant’s decision alone on whether to take a plea offer from the prosecutor.

Trial:

A small proportion of federal cases go to trial. When a federal case is set for trial, the court will set a pretrial conference a week or two before the trial date. At the pretrial conference, the parties will argue about how the trial should be conducted.

The typical federal trial involving appointed counsel lasts three days to a week. At the trial, the defendant has the right to testify – or to not testify, and if he or she does not testify, that cannot be held against the defendant by the jury. The defendant also has the right to "confront" (i.e., cross-examine) government witnesses, and can use the subpoena power of the court to secure evidence or witnesses for trial.

The defendant need not prove him or herself innocent; the government bears the burden of proving the defendant guilty beyond a reasonable doubt as to every element of a charge. Only if a jury of twelve citizens is unanimous as to every element of a charged offense will a defendant be found guilty of that charge.

Sentencing:

A defendant can be convicted by either pleading guilty to a charge, or by being found guilty after a trial. If a defendant is convicted, sentencing will take place seventy-five days later if the defendant is in custody, or ninety days later if the defendant is out of custody. See Fed. R. Crim. Pro. 32. A defendant convicted of some offenses will likely be remanded into custody after trial.

After a conviction, the defendant and his or her attorney complete forms relating to the defendant’s life history and provide those to the Probation Office. Probation, like Pretrial Services, are officers of the court and are neutral – they don’t answer to either the defense or the prosecution.

Several weeks after the conviction, the defendant will be interviewed by a Probation Officer, with defense counsel present. The Probation Officer will then take information from that interview, from the forms submitted by the defense, and from material provided by the government, and will prepare a draft presentence report.

The draft presentence report (or PSR) is provided to defense counsel and the government thirty-five days before sentencing. The parties must make factual or legal objections to the report within ten days of receipt. The court does not receive a copy of this draft report – the goal is to resolve as many factual or legal errors as possible before a PSR is provided to the judge.

Fourteen days before sentencing, the final PSR is provided to the judge. This final PSR describes the defendant’s background, describes the offense, and calculates the federal sentencing guidelines. It also includes a recommended sentence, and lists any unresolved objections.

Seven days before sentencing, the parties submit sentencing memoranda to the court, arguing for their proposed sentences. Three days later, the parties may submit replies to the sentencing memos.

At the sentencing hearing, the district court judge must resolve any remaining objections to the PSR, make factual findings, and must consider the factors of the key sentencing statute, 18 USC § 3553(a). Among the factors that the court must consider are the federal sentencing guidelines. In addition to a custodial sentence, the court will also decide how much restitution is owed, and whether a criminal fine is appropriate.

Before imposing the sentence, the court must permit the defendant to speak (or “allocute.”) See Fed. R. Crim. Pro. 32(i)(4). The defendant’s counsel will have good advice on what to say at this point in the sentencing hearing.

Appeals and Petitions for Writs of Certiorari:

If the defendant did not waive the right to appeal in a plea agreement, the defense may appeal both the conviction and the sentence imposed. The public defender will continue to represent the defendant, for free, during the appeal. There is a very short period during which the defense must state its intention to appeal (“notice” an appeal), so the subject should be discussed immediately after sentencing. See Fed. R. App. Pro. 4(b).

If the defendant does not win the appeal in the Ninth Circuit, he or she can file a petition for writ of certiorari with the Supreme Court of the United States. The public defender will continue to represent the defendant during the petition for certiorari and Supreme Court argument, if the writ is granted.

Supervised Release and Violations:

Almost every federal offense carries with it a term of supervised release. Supervised release is like “probation:” a defendant usually has a search condition, must regularly report to the Probation Office, and sometimes must submit to drug testing.

There are, unfortunately, many ways to violate supervise release – not submitting monthly reports, having a dirty drug test, or being arrested for new criminal conduct. The best thing a defendant can do in those situations is to immediately call his or her public defender. Often, defense counsel can work with their client and with Probation to avoid supervised release violations being charged.

When a Probation Officer files supervised release charges, they are contained in a charging document called a “Form 12.” If the defendant cannot afford an attorney, the public defender will be appointed for these revocation proceedings.

The defendant has much more limited rights in revocation proceedings than when facing substantive federal charges. For example, at a revocation hearing there is no jury. The government need only prove the charges by a preponderance, instead of beyond a reasonable doubt. Also, hearsay is admissible, so a Probation Officer can simply repeat the allegations of other witnesses in the hearing.

In reality, there are very few full revocation proceedings. Most frequently, a deal is worked out that requires an admission of some of the charges, and an agreed-upon sentence.

While the defendant has a right to a full sentencing memo from Probation, in many cases the parties simply agree to move directly to sentencing on the day the charges are admitted. The judge does not have to follow the recommendations of the party, but typically does defer to any agreement that arrived upon by the parties and Probation.