San Antonio Federal Criminal Defense

After someone is arrested for a federal crime, they frequently ask–‘What happens next?’ This post explains the basics of federal prosecutions in San Antonio, Texas.  It also provides a roadmap of what to expect after you are charged with a federal crime.

The Initial Appearance, Preliminary Hearings, And Detention Hearings in San Antonio, Texas

After a person is arrested for a federal crime, he is brought to court for an initial appearance. The judge informs the defendant why he was arrested and advises him of his right to a preliminary and detention hearing.

The Federal Indictment And Arraignment

Prosecutors present their case to a Grand Jury to formally indict a defendant. If the grand jury believes there is probable cause that the defendant committed an offense, then they return a true bill of indictment. If the grand jury believes there is no probable cause that the defendant committed an offense, then they return a “no bill.” A “no bill” means the grand jury decides not to issue an indictment.

The indictment informs the defendant of the charges he is facing. United States v. Hoover, 467 F.3d 496, 499 (5th Cir. 2006). The indictment must allege every element of the crime charged in such a way “as to enable the accused to prepare his defense and to allow the accused to invoke the double jeopardy clause in any subsequent proceeding.” United States v. Bieganowski, 313 F.3d 264, 285 (5th Cir. 2002).

After a defendant is indicted, he is arraigned on the charges. Federal Rule of Criminal Procedure 10 outlines the procedure for an arraignment. At the arraignment, the judge will:

  • ensure the defendant received a copy of the indictment or information;
  • read the indictment or information to the defendant; and
  • ask the defendant to enter a plea to the indictment or information.

The defendant may attend the hearing in person, by video conference, or waive the hearing.
To waive the hearing, the defendant must sign a written waiver informing the court that he received a copy of the indictment, waives his appearance, and enters a plea of not guilty. It is very common for defendants to waive this hearing.


“The essential purpose of permitting a criminal defendant to engage in pretrial discovery of the prosecution’s case is to enhance the truth-finding process so as to minimize the danger that an innocent defendant will be convicted.”

See William J. Brennan, Jr., The Criminal Prosecution: Sporting event or Quest for truth?, 68 Wash. U. L. Q. 1,2 (1990).

Case law, statutes, and the federal rules of criminal procedure control the discovery process in federal criminal prosecutions.

The discovery process ensures that the defense receives the information necessary to prepare a defense. It also helps the defendant decide whether to plead out or go to trial. So let’s discuss how the defense obtains this information.

A. Rule 16 Federal Criminal Discovery

Federal Rule of Criminal Procedure 16 outlines what the government and defense must produce and disclose to each other before trial. Rule 16 ensures a defendant will receive the following:

  • Defendant’s oral statements;
  • Defendant’s written statements;
  • Defendant’s prior record;
  • Documents and objects, i.e., crime scene photos and other evidence;
  • Reports of Examinations and Tests, i.e., ballistics reports, physical or mental exams, etc; and
  • Summaries of expert witnesses the government intends to use at trial.

In short, Rule 16 is a robust rule that allows the defense the information necessary to prepare for trial.  

B. Giglio And Brady Material

Giglio and Brady material refers to Supreme Court cases that require the Government to produce certain types of evidence. Giglio material covers promises of leniency the Government made to a witness in exchange for that witness agreeing to testifying against a defendant at trial.  Giglio v. United States, 405 U.S. 150, 155 (1972). Brady material is “favorable evidence to an accused… that is material either to guilt or punishment.”  Brady v. Maryland, 373 U.S. 83, 87 (1963).

Criminal Trial vs Plea Bargain

The defendant always decides if he will plead guilty or go to trial.  That is, a defense lawyer may advise a client on the pros and cons of going to trial. But the defense attorney should never pressure or force the client to plead guilty.

Moreover, the difference between pleading guilty and losing at trial is dramatic. In some cases, the evidence against a defendant is weak, but the range of punishment if he loses means he can spend the rest of his life in prison. This experience puts overwhelming pressure on a client to plead out to avoid paying the trial tax if he loses at trial.

This is why it is important for the client and his attorney to review all the discovery in the case before making a decision. The client should also consider hiring a defense investigator to assist with the case. [Note–if the client is indigent and has court-appointed counsel, then his attorney should petition the court for funds to hire an investigator.].

If the client is found guilty by the jury or pleads out, then the case is forwarded to the United States Probation Department to prepare a presentence investigation report (PSR).

PreSentence Investigation Reports (PSRs)

The case is assigned to a probation officer who interviews the client and conducts a presentence investigation. The probation officer then prepares a PSI that includes the following information pursuant to Fed. R. Crim. P. 32(d):

  1. Identifies all applicable guidelines and policy statements of the Sentencing Commission;
  2. Calculates the client’s offense level and criminal history category;
  3. States the resulting sentencing range and kinds of sentences available;
  4. Identifies any factor relevant to the appropriate kind of sentence or the appropriate sentence within the applicable guideline range;
  5. Identifies any basis for departing from the applicable sentencing range;
  6. Describes the client’s history and characteristics, including his criminal history,financial condition, and other relevant information described in Fed. R. Crim. P. 32.

The client will get an opportunity to review the PSI with his attorney. The client also has the right to file written objections or corrections to the PSI.

Federal Sentencing Hearings in San Antonio, Texas

During the sentencing hearing in San Antonio, the court will ask the Defense and Government if they reviewed the PSI.  The court will also ask each side if there are any objections to the PSI. The defense attorney should raise any and all objections to the PSI.  Otherwise the objections are waived and the PSI is adopted by the Court as is. The court will then rule on any objections and proceed to sentencing.

At sentencing the Court will give each side an opportunity to speak.  At this point, the defense can make a request for the lowest or best sentence. Finally, the Court will also consider the 18 U.S.C. § 3553(a) factors before making a final decision on the punishment.

The 3553(a) factors are powerful sentencing tool for the defense.  It allows the defense to make the best case possible for the client.  An experienced defense attorney can use these factors to draft a sentencing memorandum and argue for the lowest sentence possible.

San Antonio Federal Criminal Defense Attorney

The goal in each case is for the client to meaningfully participate in his or her own defense. During every stage described above, the client can work with his or her attorney to chip away at the Government’s case and secure a favorable outcome.

Genaro R. Cortez
Phone: 210.733.7575

Law Office of Genaro R. Cortez, P.L.L.C.

730 West Hildebrand Avenue
Suite 2,
San Antonio, Texas 78212
Phone: 210-733-7575
Fax: 210-733-7578