Federal Criminal Prosecutions:
A View from the Inside of the U.S. Attorney’s Office

By Don DeGabrielle and Mitch Neurock

Since taking office in March 2005, Attorney General Alberto Gonzales’s top priorities have included the continued protection of the American homeland and the reduction of violent crime. These priorities are reflected in the activities of the United States Attorney’s Office for the Southern District of Texas. Our district stretches from Houston and Galveston southwest to the border with Mexico, and includes cities like Corpus Christi, Laredo, and Brownsville. In addressing the Attorney General’s priorities, our office concentrates its efforts on protection of our border with Mexico, stemming the trafficking of illegal drugs, aliens, and child pornography, and enforcing federal firearms statutes.
The location of our district on the border with Mexico, combined with the unique relationships between our office and state and local law enforcement, results in the devotion of federal attention and prosecution in cases not commonly encountered elsewhere. Moreover, while there are some commonalities shared in all federal criminal actions, the federal prosecution experience in our border district is markedly different from that in other districts.
Certainly the most striking difference between our district and others is the sheer volume of cases we handle. Our seven staffed offices are among the busiest in the country. Our Laredo office alone, for example, handled over 2,500 federal felony cases last year (not to mention the thousands of misdemeanor cases also processed there). Were it standing alone, the Laredo Division would constitute the sixth-busiest district in the United States. Other branch offices, such as McAllen and Brownsville, boast comparable figures. The vast majority of these cases are related to the enforcement of our nation’s immigration laws and, with it, the protection of our nation’s homeland.
An arraignment session in United States Magistrate’s Court in Laredo is like none other. Because of the large numbers of defendants (mostly, but not always, in immigration cases), arraignments are typically conducted en masse. To view the courtroom on those mornings is to view a jarring sea of orange suits and a process that manages to hold itself together even under the strain of scores of defendants, attorneys, and files. Plea hearings, too, are frequently conducted in a group setting, not uncommonly involving up to a dozen defendants at a time.
To help manage the overwhelming workload presented by these many cases, our district employs a “fast-track” program to permit early pleas and dispositions of cases. Such early dispositions are often dealt with through sentence reductions, and eliminate the need for indictment or trial. Our district uses a similar program for drug and alien-smuggling cases, where defendants and their offenses meet specified criteria.
Many cases, nevertheless, proceed to trial.
Whether you’re litigating a federal case in Brownsville or in Houston, you should be aware of the unique aspects of federal criminal practice compared to that in the Texas state system. Federal cases typically begin with the filing of a criminal complaint, although others are initiated by indictment when cases have been under investigation prior to the defendant’s arrest. Criminal complaints are generally sworn under oath before a United States magistrate judge.
The defendant, once in custody, is brought without unnecessary delay before the magistrate judge for an initial appearance. In this initial hearing, the magistrate judge advises the defendant of the existence of the complaint, the right to retain counsel (or to request appointment of counsel if they are indigent), the circumstances under which the defendant may secure pretrial release, and any right to a preliminary hearing.
Following soon thereafter, normally within 10 days, is a preliminary hearing (in federal parlance, a “preliminary examination”). The purpose of such a hearing is to determine whether sufficient probable cause exists to believe that an offense was committed and that the defendant committed it. Thus, the defendant is entitled to a preliminary examination unless a grand jury has already decided the question by issuing an indictment. The defendant may present evidence and cross-examine prosecution witnesses, but cannot litigate the admissibility of evidence. If the magistrate judge finds no probable cause, they may order the complaint dismissed and that the defendant be discharged. Otherwise, however, the case proceeds.
A defendant may also be entitled to a detention hearing if the magistrate judge denied bond during the initial appearance. There are essentially two grounds upon which our office may seek detention: (1) no conditions of pretrial release will reasonably assure the defendant’s presence at trial; and/or (2) no conditions of pretrial release will reasonably assure the safety of other persons or the community. If our office seeks to have the defendant detained pending trial, the magistrate judge formally determines whether any condition or combination of conditions would reasonably assure both the defendant’s further appearance and the safety of any other person and the community. In doing so, the magistrate judge considers the nature and circumstances of the offense charged, the weight of the evidence against the defendant, the defendant’s history and characteristics (including things like criminal history, family and community ties, employment, physical and mental condition, etc.), and the nature and seriousness of the danger that would be posed by the defendant’s release pending trial. In some cases, including many serious drug crimes, the defendant must overcome a statutory rebuttable presumption that no condition or combination of conditions will reasonably assure his appearance or the safety of the community.
If the defendant’s case was not initiated by a grand jury indictment, our office must generally secure a grand jury indictment before the case can proceed. In the federal system, grand juries are comprised of 16 to 23 people, at least 12 of whom must concur in the issuance of an indictment. Grand juries meet in secret, and persons appearing before them may not disclose any matter occurring before the grand jury absent specific authorization under the Federal Rules of Criminal Procedure or special permission of the district court. As in the state system, the grand jury may issue subpoenas for witnesses and records in aid of its work.
After an indictment is returned, the defendant is brought before the court (typically before the magistrate judge) for arraignment. The court ensures that the defendant has a copy of the indictment, informs the defendant of the charges, and asks the defendant to plead. If the defendant pleads not guilty, the court sets a deadline for motions and discovery, as well as a date for jury selection.
Discovery in the Southern District of Texas is typically an open process, as our office generally applies an “open file” policy permitting the defense to review materials even beyond that required by Federal Rule of Criminal Procedure 16. This open discovery process frequently impels defendants to opt for a guilty plea rather than trial. In the event of a guilty plea, the district court undertakes a probing inquiry with the defendant to ensure that the defendant’s plea is voluntary and that there is a factual basis for the defendant’s plea. Our office occasionally enters into plea agreements with defendants, in which the prosecutor agrees to recommend sentence reductions in return for the defendant’s plea, waivers of appellate rights and other considerations. Such agreements promote the efficient use of prosecutorial and judicial resources, and frequently aid in the government’s investigation of other criminal activity by the defendant and others.
If a defendant is convicted at trial, the case proceeds to sentencing. In the federal system, juries do not impose or recommend sentences (except in capital cases). The federal sentencing process begins with the preparation of a presentence report by the United States Probation Office; the probation officer calculates a range of punishment prescribed by the Federal Sentencing Guidelines, and the parties then comment on those calculations. In the wake of the Supreme Court’s decision in United States v. Booker, 543 U.S. _____, 125 S.Ct. 738 (2005) the federal guidelines are no longer mandatory. District courts, however, must still consider the guidelines and are expected to sentence the defendant within the applicable guideline range unless there exists an acceptable and articulable reason not to do so.
To be sure, criminal practice in federal courts will continue to evolve, especially as Congress continues to evaluate possible changes to the criminal laws in the wake of Booker. But while the mechanics, and occasionally the district’s priorities, may evolve over time, the dedication and professionalism of our federal prosecutors will endure.

Don DeGabrielle is the First Assistant United States Attorney in the Southern District of Texas. He has been with the United States Attorney’s Office since 1986 and is a graduate of the Louisiana State University Law Center.

Mitch Neurock is the Executive Assistant United States Attorney for Professional Development in the Southern District of Texas. He has worked with the United States Attorney’s Office since
2000 and is a graduate of the Washington & Lee University School of Law.

The views expressed in this article are those of the authors and do not necessarily reflect the views of the Department of Justice.

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