|Juggling Federal Indictment Challenges |
In earlier posts we examined legal challenges to a grand jury indictment or grand jury subpoena that included four ways establishing prosecutorial federal grand jury abuse in the Middle District of Florida and eight methods to stop a federal grand jury subpoena in the Middle District of Florida and what to do if a federal grand jury is looking into your conduct or the conduct of your business in the Middle District of Florida.
Since federal defense counsel is never permitted to offer a defense at a grand jury hearing all of the evidence submitted to the grand jury comes directly from a United States prosecutor as well as government agents from the FBI, DEA or other federal law enforcement branch. Because the information received by the grand jury is so one sided grand juries are known for being malleable instruments of the federal prosecutors who control and direct American grand jury indictment deliberations.
Once prosecutors have gotten their indictment the following challenges may be made to attack the charging document:
1. Showing that the federal indictment fails to allege an essential element of the offense. A deficient indictment fails to adequately allow a defendant to defend himself.
2. Showing that there is duplicity or multiplicity which occurs when more than one charge is brought in a single alleged count within the indictment.
3. Showing that the indictment fails to allege a sentencing element. Facts that increase the penalty at sentencing must be alleged. For example, having a firearm during a significant drug trafficking case increases the penalty by five additional years. The allegation must be in the indictment if prosecutors later expect to persuade the sentencing judge to increase the sentence that would have been given.
4. Showing that there was error during the grand jury instructions can be raised as an issue but the bar to prove this has been set very high by recent federal case law.
5. Showing substantial variance in the grand jury allegations as found in the indictment and the actual evidence introduced at trial.
All of these fundamental grand jury challenges should be examined in detail in every complex federal criminal case to determine if there are fundamental leverage points of weakness in the federal indictment.