Justin Paperny sits down with Mike Berlon to discuss the final step in the criminal investigation process. At the conclusion of a criminal investigation, the government will move against the persons or organizations who are the subject of the investigation. This final process in a criminal investigation put the individuals on notice the government is bringing charges against them or their organization. This process of informing the defendant is called the charging instrument. Mike Berlon is a former defense attorney who lost his license to practice law after serving a sentence in federal prison for a white-collar crime. Mike, who is now a part of the White Collar Advice team gives a detailed description of the three types of charging instruments.
Two types of charging agreements are usually implemented with an arrest or arraignment of the individual named in the document. The third type of charging instrument is a criminal complaint. A criminal complaint does not include an arrest warrant or any type of apprehension or initial incarceration of the individual. The purpose of a criminal complaint is solely to put the defendant on notice of the exact charges the government will seek to bring against the person or their organization.
There are two types of charging instruments involving the apprehension of an individual into custody. The first type, an indictment, is a charging instrument whereby specific crimes are charged against the individual by a grand jury. A grand jury is a group of approximately twenty-six citizens empowered to determine if probable cause exists for the Federal government to bring criminal charges against an individual or organization. Grand jury proceedings are secret. No judge is present. The evidence against an individual is presented by the United States Attorney General of the federal district where the grand jury is convened.
The second charging instrument involving arrest is the criminal information. The criminal information is a charging instrument resulting from a federal prosecutor’s presentation to a Federal Judge of evidence of criminal activity by an individual or organization. The prosecutor must present sufficient evidence to convince the Judge enough probable cause of a crime exists to arrest or arraign the person being charged. The main difference between the information and the indictment is the absence of a grand jury proceeding in the information.
In the video, Mike differentiates the reasons why the government will seek information instead of obtaining a grand jury indictment. According to Mike, information is a preferred method when the government is in a hurry to make an arrest. The government will want to expedite the process when it fears the potential defendant will try to flee the jurisdiction of the United States. Additionally, the government seeks information when it needs an instant charge against an individual in order to obtain an arrest warrant. The urgency and exigency necessitating the arrest of the potential defendant do not provide the government the time to go through the entire grand jury process.
Once Mike had clearly defined the differences between the three types of charging instruments, Justin asks him to clarify if there is any distinction between a defendant’s criminal culpability resulting from either being charged pursuant to information or an indictment. Justin’s concern is to address a frequent question he has been asked by many people who seek out the counsel of White Collar Advice. Mike sets forth the answer to this question in simple terms. The only distinction for a defendant between being charged under an indictment or being charged under an information is in the procedural manner the prosecution brings the charges and the pending exigent reasons driving the government’s prosecution against the defendant. Comparable defendants in either case face similar criminal liability.
Mike and Justin conclude their discussion by comparing how the choice of charging instruments used by the government affects the manner of initial contact between the defendant and the government. Under an information Justin was never arrested. He was notified of the charges and he and his attorney began negotiations resulting in a plea agreement. Mike, on the other hand, was indicted by a grand jury.
When an indictment is handed down by a grand jury the indictment is under seal, secret. No one outside of the grand jury can view the indictment. The indictment is unavailable to the public. When the indictment is unsealed, the information in the indictment is automatically transmitted to the FBI and other applicable law enforcement agencies. The FBI will then coordinate with the jurisdictional law enforcement agencies to make an arrest of the persons named in the indictment. The sealed indictment allows the FBI to show-up unannounced to make the arrests.
The FBI’s modus operandi is to stage the arrest when the defendant is most vulnerable. The FBI plans their raids for the break of dawn when the defendants are still drowsy or asleep. A swarm of agents descend upon the victim’s residence and take them into custody.
I, myself was arrested in this very manner. I will never forget the early morning pounding at the door. The booming noise took me by complete surprise. Handguns and AR-15s pointed at the door. At the time of the raid, I was a practicing attorney. I requested they hand me the arrest warrant before I allowed them to drag me out of my home. I stood nervously on my well-kept lawn as I was patted down and searched. I shivered in the cold of the morning as curious neighbors furtively peeped through their blinds. In front of all, I was handcuffed and taken away. That day was the start of a long journey. I had a lot to learn about American justice and our penal system. True friends were hard to find. If it has just happened to you, my advice, remain calm and select your allies carefully. Honesty and truth will carry the day.
I believe Justin and Mike have done a great job of laying out the difference and distinctions between the three types of charging instruments. The video is easy to understand and done in a relaxed and informative manner.
