Oftentimes, individuals being charged with a tax crime will be arrested and brought into custody by a federal agent. This can be an intimidating and confusing procedure, and it is important to have an attorney present at this stage. However, if you are arrested at this point, this does not necessarily mean you will have to sit in jail until the resolution of the case.
If the defendant is arrested, there are certain protections and rules in place. The Federal Rules of Criminal Procedure require that a federal agent arresting a defendant must bring them before a Magistrate Judge (which is a judge who assists District Court Judges with many various duties including initial appearances) without “unnecessary delay.” Fed. R. Crim P. 5(a)(1)(A). While the definition of unnecessary delay has been interpreted differently by different courts, if the delay happens because law enforcement wants to question the defendant, it will likely be found to be unnecessary. United States v. Harden, 758 F.3d 886 (7th Cir. 2014). Generally, the arrested individual will be brought for an initial appearance with a magistrate judge within 24 hours.
There are a number of important events that occur at this initial appearance including a determination of counsel, determination of bond, upcoming court dates, and any restrictions on the defendants release. However, all of these factors are subject to change throughout the process.
At the initial appearance, the magistrate judge will advise the defendant of certain rights under the Constitution, and ask the defendant if they will be represented by private counsel. If the defendant can’t afford counsel, they will fill out a form, called a financial affidavit, which contains questions such as the defendant’s income, occupation, and marital status. See United States Courts, CJA forms at https://www.uscourts.gov/forms/cja-forms. If the defendant meets the necessary criterion, they will be appointed a lawyer. See generally Guide to Judiciary Policy, Vol. 7A, Ch. 2.
After a lawyer is appointed, the Magistrate Judge will read the charges and explain the maximum sentence that the defendant can receive under the law. The defendant may choose to not have the charges read. At this point the Magistrate Judge will go over the defendant’s potential to be released prior to trial, and set an amount of money the defendant must post for bail. Oftentimes, certain restrictions, called conditions of release will be placed on the defendant.
Can I be Released Prior to Trial?
While there is no absolute right to bail under the Constitution (there is, however, a right to a reasonable bail if it is granted), a defendant who has been taken into custody may be released on bail while awaiting trial. 18 USC § 314. Decisions regarding bail can be made and changed at any time throughout the process. If decisions on bail are changed after the initial appearance, it will generally happen at a bond hearing in front of the district judge assigned to the case. The Government can request that the defendant be held without bond. 18 USC § 314(f). If this is the case, the prosecutor will ask for pre-trial detention during the initial appearance.See id. In moving for pre-trial detention, the Government will attempt to prove that the Defendant is a flight risk- that he may attempt to run from the law- or that he is a danger to himself or the community. See id. Examples of things that may be considered in determining the defendants bail, or lack thereof, is the defendant’s criminal history, nature of the crime, financial status, connections with the community, and probationary status. See generally 18 USC § 314.
The Magistrate Judge will also decide whether or not there will be any conditions applied to the Defendants release. 18 USC § 314. The conditions can include no contact with the victim or co-defendant, no weapons or firearms, reporting to United States Probation, travel restrictions, no drugs or alcohol, and drug testing. 18 USC § 314(c). The defendant may also be released on their own recognizance (“ROR”) which means that they may leave without posting bail or adhering to any conditions as long as they return for scheduled court dates. 18 USC § 314(b). If the defendant at any time fails to adhere to the conditions or fails to appear in court, their bond may -and likely will- be revoked. See CJS Standard 10-5.5.
What is an Arraignment?
Arraignment is oftentimes confused with an initial appearance. In some districts, the defendant may be formally arraigned at the same time as initial appearance, but they are usually distinct. Arraignment is the formal reading of the charges against the defendant. Fed. R. Crim P. 10
A defendant in custody has the right to be arraigned within fourteen days of their initial appearance. A defendant who is not being held in custody will have an arraignment in twenty-one days. See Fed. R. Crim. Pro. 5.1(c). If the defendant is in custody, they will be transported to the court by law enforcement. If the defendant is not in custody they may receive a document called a summons along with a copy of the formal indictment which gives a date on which the defendant must appear to be arraigned.
At the time of arraignment, the judge will read the indictment or information to the defendant, set the next court date, and note which district court judge will be presiding over the case. Fed. R. Crim P. 10. The defendant will also plead guilty or not guilty to the charges. See id. The prosecutor may present an offer for a guilty plea to the defendant at the arraignment. It should be noted that in felony cases, the Magistrate Judge is not authorized to accept the defendant’s guilty plea. See United States v. Harden, No. 13-1323 (7th Cir. 2014). If the defendant charged with a felony wishes to plead guilty, the Magistrate Judge can conduct a plea colloquy at arraignment (we will discuss this in How Is a Plea Accepted infra.). See id.
If a defendant has counsel at this stage in the process, a defendant may waive their own appearance at the arraignment as long as their lawyer is present to stand in. Fed. R. Crim P. 10.