HOW TO MAKE DIRECT CHALLENGES TO A GRAND JURY INDICTMENT IN THE MIDDLE DISTRICT OF FLORIDA

After a federal grand jury hears witnesses and views evidence it deliberates to determine whether to issue a federal indictment. A federal indictment is the actual accusation of specific federal criminal conduct that must include the inclusive dates of the alleged crime, alleged participants known or unknown listed as co-defendants and other particular allegations such as the locations of the misconduct. 

Juggling Federal Indictment Challenges
 Renoir

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.

FOUR WAYS ESTABLISHING PROSECUTORIAL FEDERAL GRAND JURY ABUSE IN FLORIDA'S MIDDLE DISTRICT

Our exciting tour of the Grand Jury systems of Florida federal and state courts began with a look at What to do if a Grand Jury is investigating you, your conduct, your business or your friends and continues today with a look at what constitutes Federal Prosecutorial Abuse of the Grand Jury. Earlier when we looked at Eight Methods to Stop A Grand Jury Investigation  it became clear that establishing that the prosecutor abused the Grand Jury process is an excellent way to quash a grand jury investigation or a grand jury subpoena.

The benefits of establishing prosecutorial abuse of a grand jury in the Middle District of Florida is clear in that if the abuse is shown to be prejudicial the grand jury indictment may be subject to a motion to dismiss or a subpoena may be quashed. The following four actions of a prosecutor constitutes abuse:

1. Using the grand jury to target someone out of malice or an intent to harass that person. For example, Federal courts have found that showing a fundamental unfairness of the process by gathering evidence for a civil suit or instigating the calling of witnesses for the only purpose of forcing them to assert the 5th, or granting a pocket immunity are inappropriate.

2. Issuing a subpoena to a witness for a grand jury hearing for the sole purpose of collecting additional evidence in a different pending federal case. This use of the grand jury as an investigative tool probably happens much more frequently than judges or federal defense lawyers are aware because it's difficult to prove that information gleaned from one case is being used to help nail another case down. But when a prosecutor is caught in a case that's falling apart using the grand jury as a discovery tool is tempting.

3. Using unlawfully gleaned evidence such as when government agents from the DEA or the FBI gather evidence before securing valid search warrant.

4. Using evidence or testimony which the government knows is false violates American standards of due process. There is no place in our justice system for false evidence or perjured testimony.

Once one or more of these prosecutorial abuses of the grand jury system are proven then there exists legal leverage to have the federal grand jury indictment dismissed.

EIGHT METHODS TO STOP A FEDERAL GRAND JURY SUBPOENA IN THE MIDDLE DISTRICT OF FLORIDA

Stopping a federal grand jury subpoena may be made based on a showing of either a technical or a substantive error made by the federal prosecutor. This is done by enumerating the failure in a Motion to Quash the Grand Jury Subpoena made by the federal defense lawyer.

The Motion to Quash may be include one or more of the following seven defects:

1. A showing that the grand jury term has expired. This would mean that the grand jury was not actually legally authorized to conduct the hearing at the time the hearing took place.

2. A showing that the grand jury has an inappropriate mixture of citizens. For example, if it can be proven that the creation of the grand jury resulted from a systematic exclusion of minority citizens.

3.  A showing that the grand jury was created within a framework of bias or taint from inappropriate reaction to news media accounts of the incident in question. 

4.  A showing that the grand jury relied on information it should not have had access to during its deliberations. For example, establishing that a grand juror used google searches during the course of deliberations to learn information that went beyond the scope of the prosecutor's grand jury presentation.

5. A showing that the grand jury used inappropriate or illegally obtained information during the course of its deliberations. Typically this would involve the federal prosecutor submitting unlawfully obtained documents, email, encrypted files based on a password or business records which the DEA or FBI gained access to without first procuring a proper search warrant that was based on trustworthy facts.

6. A showing that the grand jury was subjected to the actions of a renegade prosecutor who used the grand jury as a fishing expedition thru myriad unjustified subpoenas and request for documents, emails or business records.

7. A showing that the grand jury heard evidence from a source which was later found to be excludable. For example, the grand jury hears evidence from a witness who lacked competency to testify to the given facts.

8. A showing that the grand jury lacked jurisdiction or venue. It makes sense that the grand jury, just like the case itself must be connected to the community in which it seeks to indict one or more of the members of that community. For example, in a federal drug case you'd expect some connection of the allegations to the place where the grand jury is meeting (though one might hope not in the very room where they meet).

As you can see proving one or more of these examples is easier said than done. However, if you or a family member has been indicted by a federal grand jury in the Middle District of Florida it's important to find a criminal defense attorney with federal experience to examine all of the possible defects that may have occurred well before the case is set for trial.