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I Got Busted By The Feds. Should I Waive My Indictment If I Want To Cooperate?

In nearly every Federal drug charge I’ve handled in Tampa, my client has been charged as part of a Federal drug conspiracy. Depending on my client’s role or position within the alleged conspiracy, he or she is often approached, through me, to cooperate with the United States Attorney’s investigation in an attempt to bolster their Federal prosecution of co-conspirators or to seek information on other conspirators higher up the in the criminal organization. Depending on the stage of the investigation and very likely my client’s role, the Feds may defer on seeking a Federal Indictment against my client. Considering the Indictment system of charging a crime is a mechanism meant to protect the suspect from unsubstantiated prosecution, there could be risk in waiving the right to a Grand Jury. That said, there could be benefit in waiving that right as well…

Federal Rule of Criminal Procedure 7 states that an offense other than criminal contempt must be prosecuted through a Grand Jury Indictment if the punishment for the offense is death or by jail for longer than one year. In other words, we the people have the right to have a Grand Jury hear charging evidence against us in all Federal felonies. Under Federal Rule of Criminal Procedure 7(b) a defendant may waive a Federal Indictment and be charged by an Information so long as that waiver is made in open court and the waiver of the indictment is made after the defendant has been advised of the nature of the charge against him or her and has been fully advised of their rights. This is generally accompanied by a written waiver of a Federal Indictment that is then filed with the applicable Court.

So, why do this? As with most Federal criminal cases something can generally be gained if something is given up. If my client is caught dead to rights and there is no possibility of winning a trial, it is possible that cooperating with the Government could significantly increase their chances at receiving a better sentence. Often waiving an indictment is pursuant to a negotiation wherein my client will cooperate by debriefing and agreeing to testify before a Grand Jury for the United States Attorney as they attempt to indict a third party. In return for my client’s agreement to waive indictment and cooperate there is the possibility of them receiving a 5K1.1 motion for substantial assistance to the government, an agreement to be charged with a lesser crime (an example would be a drug charge avoiding a minimum mandatory prison term), an agreement not to object to a sought after downward departure or variance, or in the best case scenario, a declination letter wherein the US Attorney declines to prosecute an individual.

At the end of the day, if the Federal criminal charges against you are insurmountable, it may be in your best interest to seek a cooperation agreement involving a waiver of indictment. You cannot defend yourself in Grand Jury proceedings and are not entitled to your attorney being present in the proceeding. The standard of proof in a grand jury proceeding is probable cause and only a majority of jurors must find that probable cause exists to believe that you’ve committed the alleged crime in order to return a true bill of indictment. If there is very little doubt that an indictment will be returned and that the evidence against you is overwhelming, cooperation may be your best bet and that can often start with waiving indictment.

If you have been charged with a criminal offense, contact Federal criminal attorney Jason Mayberry in our Tampa office at 813-444-7435 or in our Pinellas office at 727-771-3847.