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Challenging an Indictment in a Federal Criminal Case: Do’s and Don’ts

Kish Law LLC

In my federal criminal defense practice here in Atlanta, I regularly file Pretrial Motions that challenge, in one way or another, the criminal indictment that alleges that my client did something illegal.  There are several such cases I am currently working on, and the process of thinking about, and then creating, challenges to the indictments made me reflect on some things that attorneys should do, along with a few items they should avoid.

Federal crimes are all created by “statute”, meaning laws passed by Congress.  There is no “common law” of federal crimes, which means that virtually all indictments are based on language in a particular statute.  So, the obvious beginning point is to compare the statute’s  language with the words found in the indictment.  Seems clear, right, but I am reminded of several cases over the years where none of the lawyers (on either side) noticed that there was a disconnect between the statutory language and the words in the indictment.

Second, the lawyer needs to figure out what are called the “elements” of the crime.  These are the specific things that the prosecutor will need to prove beyond a reasonable doubt in order to obtain a conviction.   Many statutes contain multiple individual crimes inside this one law, so the attentive attorney needs to drill down to the specific words from the statute that match up with the specific crime alleged in the indictment.  This is often harder than one might imagine, for Congress often writes laws in less-than-specific ways so as to allow for broader application.   One kind of easy way to find the “elements” of a specific crime in a statute is to look for the standard jury instructions that most federal appellate courts  publish.  Some crimes are often used, so the courts have helpfully created jury instructions that set out the basic elements of these “common” federal crimes.  For example, the jury instructions used in the United States Court of Appeals for the Eleventh Ciruct, a few blocks from my office, are here.

Next, the sagacious lawyer will think through whether this particular statute and crime matches up with constitutional principles.  For example, it is well-known that the First Amendment bans many restrictions on free speech.  Does the particular law in question unduly burden the Defendant’s First Amendment rights, or any other constitutional protection.  Federal statutes are often challenged, those challenges rarely succeed, but reading earlier attacks can sometimes highlight some of the law’s weaknesses.

There are also some things the lawyer should NOT do when challenging a federal indictment that alleges a crime.  The caselaw is clear, the attorney cannot challenge the facts prior to a trial.  Believe me, I’ve tried, and failed.  You cannot argue that your client is innocent at the phase of the case where the attorney is filing Pretrial Motions.  The lawyer is not permitted to call witnesses or submit evidence to support a Pretrial Motion that challenges an indictment, for the most part.  Instead, at the Pretrial Motion phase of the case, courts presume that the facts alleged are accurate and true, so the only question is whether those facts properly set out a crime, or whether the crime itself violates some aspect of the United States Constitution.

So, with all of these principles in mind, it’s time for Yours Truly to get back to working on the present cases to see if these indictments can be challenged.

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