For many people, a federal indictment is an intimidating and inscrutable document. Here, we provide some information designed to help you better understand federal indictments.

• What is a federal indictment?
• What are the parts to a federal indictment?
• How do prosecutors obtain federal indictments?
• Can the indictment be amended to charge different or new crimes?
• What information must a federal indictment contain?
• What is a speaking indictment? Why do I need to be aware of it?
• What is the difference between a federal indictment, a criminal complaint, and a criminal information?
• How can a federal indictment be used in court?
• Can a federal indictment be challenged?

What is a federal indictment?

An indictment is a formal accusation against one or more defendants, charging them with one or more crimes. In the federal criminal system, the indictment is the principal method by which a prosecutor initiates criminal proceedings. For certain types of crimes, and under certain  conditions, the prosecutor may, instead of an indictment, rely on a “criminal information” or a “criminal complaint” to formally begin the case.  Later in this article, we will briefly explain the differences between each of these legal documents (also called pleadings).

What are the parts to a federal indictment? 

Although the appearance of an indictment may vary from one jurisdiction to the next, there are some commonalities to their structure and content. We wish to remind you that if you have been charged with a crime, you should consult an attorney to understand the charges in your individual case, instead of relying solely on information you find here, or anywhere else on the internet. With that said, here we will use an example of an indictment filed in the United States District Court for the Eastern District of Virginia, Alexandria Division, to illustrate the parts of a federal indictment.

• At the top of the document is the name of the district court where the case is pending. In our example, the court is the Alexandria division of the United States District Court for the Eastern District of Virginia.
• Below the court name, we have what is called the “caption” of the case. The caption identifies the parties to the action, the case number, and the “counts,” or charges, that are contained in the indictment.
• In our example, we see that this is a case by the United States of America against Keith Johnson and Angela Johnson, who are the two defendants. Sometimes, a criminal case may be brought when the name(s) of some of the defendant(s) are still unknown, such as in large criminal conspiracies where not every member of the conspiracy has been identified at the time of indictment. In such instances, the prosecution may use placeholder names such as “John Doe” or “Jane Doe” for some of the defendants.  In addition, a defendant can also be a legal entity, such as a corporation. Thus, an indictment can charge a company such as “ACME Corp.” If a defendant has nicknames or aliases, the indictment will frequently include those nicknames or aliases next to the defendant’s legal name. For example, an indictment might identify a defendant as “John Smith a/k/a ‘Johnny’ a/k/a ‘Jon’.” There is no legal requirement for the prosecution to use a defendant’s known aliases. Prosecutors, however, like to include this information to create an appearance of criminality, particularly where the aliases sound sinister or “thuggish.”
• To the right of the parties’ names, there is usually a case number. In our example the case number is 1:13cr305, which tells us that this indictment was filed in 2013 (1:13), was a criminal case (cr), and was the 305th criminal case (305) filed that year in the Alexandria federal court.
• Below the case number we see that this indictment contains 9 counts, sometimes also called “charges.” Each count corresponds to an alleged violation of a particular law. The count is an important unit in federal criminal cases: if there is a trial, the jury will have to vote “guilty” or “not guilty” on each count; if there is a conviction, the judge imposes a sentence for each count of conviction, and the nature and number of the counts influence the total sentence imposed. In our example, there is one count of conspiracy to commit wire fraud, and eight more counts of wire fraud.
• After the caption, there is a narrative. The narrative is usually organized in numbered paragraphs, and is designed to describe more specifically the crimes that the defendants are alleged to have committed. Sometimes, as in our example, there may be an introductory narrative that gives background information, such as biographical details for the defendants and other individuals involved in the case.

Not all indictments will look like the example shown. Sometimes, an indictment may be very short and contain only a paragraph for each count.  The paragraphs may simply repeat the language used by the statutes that the defendants are charged with violating.  In such cases, a defense attorney may need to file a motion for what is called a “bill of particulars” to obtain more information.  Again, if you have been charged with a crime and is trying to understand the indictment, you should, in addition to reading this website, consult an attorney.

How do prosecutors obtain federal indictments?

By law, a federal indictment can only be brought (or in technical terms “returned”) by a grand jury, which is a body of 16 to 23 citizens chosen from the community. The grand jury hears evidence and testimony from witnesses presented by the prosecution. It has the power to ask questions, and subpoena witnesses and documents on its own. Once the grand jury hears the evidence, it votes to indict or to not indict, based on whether there is “probable cause” to believe the defendant is guilty.

A minimum of 16 grand jurors must be present to vote (a quorum), and at least 12 must vote in favor of an indictment before charges can be brought. If the grand jury votes to indict, it will return a “true bill,” signed by the foreperson of the grand jury. This is why in all federal indictments, there is a stamped or typed statement at the end of each document with the words: “a true bill.”

You may have heard the expression that prosecutors can “indict a ham sandwich.” This reflects the facts that: (1) grand jury proceedings are secret and closed to the public. The defense has no opportunity to present evidence at a grand jury proceeding, challenge the prosecution’s evidence, or present its side of the story. (2) The “probable cause” standard is one of the lowest standards in criminal law, defined as requiring only sufficient evidence to lead a reasonable person to believe that a crime has been committed and that the defendant is guilty. This stands in stark contrast to “beyond a reasonable doubt,” which is necessary to convict a defendant at trial.

Can the indictment be amended (changed) to charge different or new crimes?

Technically speaking, an indictment cannot be “amended” once it has been returned by the grand jury, because that would violate the defendant’s Fifth Amendment right to be indicted by a grand jury.  However, it is also true that prosecutors do frequently alter the crimes charged, or even add new charges, during the course of a criminal proceeding.

Prosecutors accomplish this by filing what is called a “superseding” indictment. A superseding indictment is just like any other indictment, and it must be obtained the same way as the original indictment—through a grand jury. The superseding indictment can include different charges, new charges, or add new defendants. Once the grand jury returns a superseding indictment, the superseding indictment replaces (supersedes) the original indictment.

What information must a federal indictment contain?

The Sixth Amendment guarantees the accused a right to be “informed of the nature and cause of the accusation.” Therefore, the indictment must have enough information to inform the defendant of both the “nature” and the “cause” of the crime charged.

The Federal Rules of Criminal Procedure are another source of law governing indictments. According to the Rules, the indictment must be a “plain, concise, and definite written statement of the essential facts constituting the offense charged.” Furthermore, the indictment must allege facts that, if true, constitute a federal crime. For example, if an indictment alleged that John stole merchandise from a department store, and if stealing from a department store is only a state, but not federal, crime, then the indictment in this case would be invalid because it did not allege a federal crime.

Finally, case law developed from court decisions also shape what must be in an indictment.  The most significant law in this category come from a series of cases beginning with the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). Under Apprendi and its progeny, any factor other than a prior conviction, which has the effect of increasing a statutory maximum sentence or setting a mandatory minimum sentence, must be pleaded in the indictment.

What is a speaking indictment? Why do I need to be aware of it?

A “speaking” indictment is a colloquial term used by criminal law practitioners to refer to a lengthy and detailed indictment that includes more facts and allegations than is required by law. Prosecutors have discretion in selecting how much information to include in an indictment. Sometimes, defense attorneys can make a motion to strike surplusage where the “speaking” indictment contains unnecessarily prejudicial allegations.

Speaking indictments can have both negative and positive implications for the defense.  On the one hand, they can provide defense lawyers with a roadmap of the way the prosecution views the case and is thus beneficial from that perspective.  On the other hand, judges sometime allow the jury to have copies of the indictment, and a speaking indictment may prejudice the jury because it is a written copy of the prosecutor’s version of the case.  A skilled federal defense lawyer who has experience with speaking indictments will develop a strategy that is most advantageous to the client when faced with such an indictment.

What is the difference between a federal indictment, a criminal complaint, and a criminal information?

As mentioned earlier, an indictment is only one way for federal prosecutors to bring criminal charges. Other ways for prosecutors to bring criminal charges include using the “criminal information” and the “criminal complaint.”

A criminal information is similar to an indictment in that it serves as the document formally accusing the defendant of committing one or more crimes. The main difference between the two is that a criminal information does not require a grand jury proceeding. This allows federal prosecutors to conserve resources. In federal misdemeanor cases, there is no Fifth Amendment right to indictment by grand jury, and prosecutors therefore prefer to use criminal information instead of indictment. In federal felony cases, the defendant may choose to waive or “give up” his Fifth Amendment right to indictment by a grand jury, and be charged by criminal information instead.  This happens most frequently where the defendant and the prosecutor have reached an agreement as to a guilty plea to a particular offense before an indictment was returned, or where the final plea is to an offense different than that originally charged in an indictment.

A criminal complaint, by contrast, is frequently used when prosecutors need to make an arrest quickly. This may happen, for example, when federal agents learn that a crime is about to occur, or has just occurred, and must act immediately.  In this situation, prosecutors do not have the time to go through the grand jury process.  Instead, prosecutors file a written document called a criminal complaint, together with an affidavit signed by an agent familiar with the case.  A judge or magistrate judge will review the complaint and affidavit, and issue an arrest warrant if he or she finds probable cause. Once an arrest is made on a criminal complaint, federal law requires that the defendant must be charged by an indictment (or by a criminal information, if it’s a misdemeanor case or the defendant agrees to waive indictment) within 30 days.

How can a federal indictment be used in court?

An indictment legally is not evidence. This means that jurors are not permitted to rely on the indictment to conclude that a defendant is guilty. Nevertheless, it is common for lay persons to be swayed by the allegations in an indictment. Some federal judges have a practice of allowing the jury to read the indictment during deliberations, on the theory that this will help the jury understand the charges. The judge will still instruct the jury that the indictment is not evidence and may not be considered in arriving at a verdict. While most jurors are good at following instructions, there may be reasons in certain cases to object to the indictment being reviewed by the jury.  On the other hand, in some cases it will be advantageous to have the jury review the indictment.  An experienced defense attorney should evaluate this question carefully in order to provide you with the best strategy and advice based on the facts of your case.

Can a federal indictment be challenged?

Yes. The most obvious and most common challenge to an indictment is showing the allegations are not true at a trial. But what about challenging an indictment before trial?

There are a number of different challenges that can be made to an indictment before a case gets to trial.  Such challenges will be very fact-intensive based on the individual circumstances of each case.  Here are some examples that an indictment can be challenged for:

• failing to provide sufficient detail to a defendant as to the basis and nature of the charges against him;
• failing to set forth an actual violation of law;
• failing to plead all of the elements of a crime;
• alleging a crime outside the statute of limitations;
• bringing a criminal case in an improper venue;
• the prosecutor’s failure to accurately advise the grand jury on the applicable law during the grand jury phase of a case, or other prosecutorial misconduct.

While a successful challenge to an indictment is a rare occurrence, a skilled federal criminal defense attorney will often assert challenges to an indictment for other reasons as well. For example, the prosecutors may be ordered to provide more evidence, or to provide the evidence earlier than they otherwise would be required.

Conclusion

A federal criminal indictment is a serious matter, because it means that the criminal investigation has progressed to a point where the prosecutor now believes that he or she has enough evidence to convict. Moreover, for some clients, an indictment itself—even though it is only an accusation—can entail serious consequences such as the loss of employment, harm to reputation, and frozen assets. This is in addition to the anxiety and stress of being charged with a federal crime.

When we represent clients early on in the criminal process, such as during the investigation phase, our goal is almost always to avoid an indictment. However, where a client is indicted, it is important to respond intelligently and effectively in order to put the client in the best position of achieving a successful outcome.

If you have been indicted, you should speak to an attorney right away if you do not have one.  And if you do have an attorney, you should discuss the indictment thoroughly with him or her to understand the allegations and consider what challenges can be made.