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Can Federal Charges Be Dropped After an Indictment in New York?

Last updated on: May 16, 2023

By Lebedin Kofman LLP

Federal charges and indictments are an aspect of the criminal justice system that pertains to crimes punishable under federal law. To fully comprehend these concepts, it is crucial to understand the definitions of federal charges and indictment, the differences between New York State and federal jurisdictions, and how they function within the larger framework of the United States criminal system.

At Lebedin-Kofman LLP, we understand the gravity of facing a federal indictment and the criminal justice system. Our team of skilled New York federal criminal lawyers works diligently to provide aggressive and quality legal representation. When facing federal charges, you should not leave the matter of your defense up to chance. We handle cases in both the Eastern and Southern districts of New York. Contact us today at (646) 663-4430 to schedule a consultation with one of our experienced NY federal criminal attorneys.

What Are Considered Federal Charges?

Federal charges are criminal allegations that fall under the purview of the United States government due to the nature of the offense or the venue where it occurred. These charges involve alleged violations of federal statutes as outlined in the United States Code.

Crimes that might result in federal charges include, but are not limited to, the following:

  • Drug trafficking or conspiracy
  • Racketeering and organized crime
  • Fraud involving federal programs, such as Medicare or bank fraud
  • Crimes committed on federal properties, such as military bases, federal buildings, or national parks
  • Terrorism or national security offenses
  • White-collar crimes that involve wire fraud, mail fraud, or securities fraud
  • Internet crimes, such as hacking or child pornography distribution

It is worth noting that in some instances, a crime can violate both state and federal laws, and can result in the filing of charges at both levels. In these cases, the defendants may face penalties for their acts in either, or both, jurisdictions.

Definition of Indictment

An indictment is a formal written accusation submitted by a grand jury to charge an individual with a crime, specifically a felony offense. The process of indictment is initiated by federal prosecutors who present evidence to a grand jury, a group of 16 to 23 citizens who determine if there is probable cause to support the charges.

If the grand jury finds sufficient evidence, it returns a “true bill,” resulting in an indictment being filed against the accused. In contrast, if the grand jury does not find probable cause, it returns a “no bill.” Notably, an indictment is not a conviction; rather, it is a formal way of levying charges. Following the indictment, the defendant has the right to a trial to determine their guilt or innocence.

New York State vs. Federal Jurisdiction

The jurisdictional difference between the New York State and the federal criminal justice system stems from the specific government entity that possesses the power and authority to prosecute an alleged offense. While both jurisdictions share the responsibility of maintaining law and order, they maintain separate penal codes, distinct trial processes, and different punishments for convicted individuals.

New York State jurisdiction primarily addresses crimes committed within its borders and involves offenses that are violations of state law. State and local law enforcement agencies, such as the New York State Police or the New York Police Department, generally investigate these crimes, while district attorneys and prosecutors bring charges for alleged offenses. Cases under state jurisdiction are usually tried in state courts, such as the Supreme Court of New York.

On the other hand, crimes that involve the United States government, violate federal statutes, or cross state lines are handled at the federal level. Federal law enforcement agencies, such as the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), or the Department of Homeland Security (DHS), handle investigations related to these crimes. U.S. Attorneys are responsible for prosecuting these cases, which are held in federal district courts.

In some instances, both state and federal jurisdictions may have concurrent jurisdiction, meaning that either entity can prosecute the alleged crime. In these cases, the decision on which jurisdiction takes the case might depend on various factors, such as the complexity of the crime or the resources available for investigation and prosecution. An individual facing charges in both jurisdictions may end up being charged and tried separately in each, resulting in different sentences and potential penalties.

Timeline of Federal Criminal Cases in New York

The timeline of federal cases in New York can vary, depending on the circumstances of the case and the specific type of charges being brought. However, federal cases in New York typically follow the following timeline.


The process of federal criminal cases in New York begins with an investigation. This step involves federal law enforcement agencies such as the Federal Bureau of Investigation (FBI), Drug Enforcement Administration (DEA), or other federal agencies conducting an inquiry into alleged criminal activity. Investigations typically start when law enforcement receives a complaint, tip, or initiates its own probe.

During the investigation, federal agents gather evidence against the suspects, which may include interviews, surveillance, search warrants, and arrests. If law enforcement agents believe that a federal crime has been committed, they will present their findings to the United States Attorney’s Office for the Southern or Eastern District of New York, based on the jurisdiction where the crime occurred.

The United States Attorney’s Office will then review the evidence and determine whether there is sufficient basis to proceed with a criminal case. If the prosecutor decides to move forward, they may negotiate a plea bargain with a suspect, bring charges, or decline the case, depending on the specific circumstances and evidence.

Arrest and Initial Appearance

After the investigation and a decision to bring charges, an arrest warrant or summons may be issued for the defendant by a federal magistrate judge. The arrest could be made by local, state, or federal law enforcement agents.

Once a defendant is arrested, they must be brought before a magistrate judge for an initial appearance without unnecessary delay, typically within 48 hours. During the initial appearance, the defendant will be informed of the charges against them, their right to an attorney, and any conditions for pretrial release or detention. If the defendant cannot afford an attorney, one will be appointed by the court.

The magistrate judge will determine whether the defendant should be released on bail or detained until trial. This decision is based on several factors, including the nature and seriousness of the charges, the defendant’s criminal history, potential danger to the community, and their risk of flight.

The Role of the Grand Jury

In federal criminal cases, the grand jury plays a crucial role in determining whether there is enough evidence to formally charge the defendant with a felony. The grand jury reviews evidence and hears witnesses presented by the prosecutors to see if there is probable cause to believe that a crime has been committed and that the defendant is responsible. In New York, grand juries are typically formed by 16 individuals. To get an indictment, 12 out of the 16 must concur on the decision.

The grand jury proceedings are secret, and the defendant and their attorney usually do not have the right to appear or present evidence. If the grand jury chooses to indict the defendant, they issue a written statement called an indictment, which contains the official charges against the defendant. If the grand jury does not indict the defendant, they may issue a “no true bill,” effectively ending the case.

Pretrial Proceedings

Once the defendant has been indicted, pretrial proceedings commence. This stage involves the exchange of information between the prosecution and defense, known as discovery. Discovery allows both sides to thoroughly examine the evidence and prepare their cases for trial.

Additionally, pretrial motions may be made before the trial, where attorneys can argue for the exclusion of certain evidence or the dismissal of charges. The judge will rule on these motions, shaping the scope and direction of the trial.

During this phase, plea negotiations may also take place. The prosecutor and defense attorney may discuss reaching a plea agreement, where the defendant pleads guilty to a lesser charge or agrees to cooperate with the government in exchange for a reduced sentence or other concessions.

If a plea agreement is not reached, the case will proceed to trial. Federal criminal trials in New York are held before a U.S. District Judge and a jury of 12 members. Both sides present their evidence, call witnesses, and make closing arguments. The jury will then deliberate and render a guilty or not guilty verdict.

If the defendant is found guilty, the judge will schedule a sentencing hearing. The severity of the sentence will depend on various factors, including the nature of the crime, the defendant’s criminal history, and the federal sentencing guidelines.

If the defendant is acquitted, they will be released, and the case will be officially closed. However, the government may choose to appeal the decision on legal grounds. If found guilty, the defendant can also appeal their conviction or sentence.

Why Federal Charges May Be Dropped After an Indictment

Just like on other criminal charges, being indicted on a federal crime does not mean a person would be automatically convicted. The defendant would be given an opportunity to argue their case in a trial. Aside from that, the prosecution is also required to prove their case beyond a reasonable doubt and would need to provide a strong argument for conviction, as well as relevant evidence. This also means that due process would still be observed and each side must adhere to the protocol and the laws strictly or risk being held in contempt or being tried for misconduct. 

If the prosecution is not able to build a strong case or performs actions that violate the legal protocol, the federal charges may be dropped even after the indictment. Here are several reasons why charges may be dropped after an indictment has been issued.

Insufficient Evidence or Evidence Suppression

One of the primary reasons for a federal charge to be dropped after an indictment is insufficient evidence. Insufficient evidence refers to a situation where the prosecution does not have enough evidence to meet their burden of proof. This means that they cannot show that the defendant is guilty beyond a reasonable doubt. 

Suppressed evidence refers to evidence that is not admissible in court due to a violation of the defendant’s constitutional rights. If the prosecution presents evidence that was obtained illegally, the court may suppress that evidence and prevent it from being used against the defendant. This can potentially lead to the dismissal of federal charges in the US.

The exclusionary rule is a legal principle that prohibits the use of evidence obtained in violation of the defendant’s constitutional rights. This rule applies to both state and federal criminal cases. The Fourth Amendment to the US Constitution protects against unreasonable searches and seizures, while the Fifth Amendment protects against self-incrimination. If the prosecution violates these rights in obtaining evidence, the evidence may be suppressed.

In some cases, the evidence may not meet the standard of proof, such as when there is a lack of witnesses or the evidence itself is weak and does not prove culpability beyond a reasonable doubt. Additionally, even if the evidence is strong but obtained through illegal means, it can still be suppressed. 

Either way, this means that the prosecution does not have enough evidence or cannot use specific evidence to prove that the defendant is guilty in court. This can be a significant blow to the prosecution’s case. In some cases, if the suppressed evidence is the only evidence that the prosecution has, the court may dismiss the charges as it would if the evidence is not found to be sufficient.

Exculpatory Evidence

Exculpatory evidence is evidence that tends to show that the defendant did not commit the crime with which they are charged. This evidence can be crucial in criminal cases, particularly in federal cases where the penalties can be severe. In the United States, exculpatory evidence is protected under the Brady rule, which requires prosecutors to disclose any exculpatory evidence to the defense.

If exculpatory evidence is discovered after a defendant has been charged with a federal crime, it may be possible to have the charges dismissed. This is because the prosecution has a duty to disclose all exculpatory evidence to the defense. If they fail to do so, it can be considered a violation of the defendant’s due process rights.

In order to have charges dismissed based on the failure to disclose exculpatory evidence, the defendant must show that the evidence was material to their defense. This means that the evidence must have been favorable to the defendant and could have affected the outcome of the case. If the defendant can show that the prosecution failed to disclose material exculpatory evidence, the court may dismiss the charges.

Prosecutorial Misconduct

Prosecutorial misconduct refers to unethical or illegal actions taken by a prosecutor during a criminal case. Examples of prosecutorial misconduct include withholding exculpatory evidence, presenting false evidence, and coercing witnesses. If a defendant’s attorney can demonstrate that the prosecutor engaged in misconduct, the judge may dismiss the charges. In some cases, the entire case can be thrown out if the misconduct is severe enough, even if the underlying charges are serious.

Procedural Errors in the Grand Jury Process

Errors in the grand jury process can also lead to the dismissal of federal charges. The grand jury is responsible for determining whether there is enough evidence to indict a person on federal criminal charges. However, certain procedural rules must be followed during the grand jury process. If these rules are violated, the indictment may be challenged in court. For instance, if certain evidence presented to the grand jury was obtained unlawfully, testimony was improperly obtained or grand jury secrecy was violated, the errors can provide grounds for dismissing the charges.

Violation of Constitutional Rights

If a defendant’s constitutional rights are violated during the investigation or prosecution of a case, the charges may be dropped. Examples of constitutional violations include unreasonable search and seizure, failure to provide a speedy trial, failure to provide a defendant with access to an attorney, and other violations of a defendant’s rights guaranteed by the Fourth, Fifth, and Sixth Amendments. If the violation is severe enough, it can lead to the dismissal of the federal charges.

Methods to Request Dropping Federal Charges in New York

Motion to Dismiss the Indictment

One of the most common methods to request the dismissal of federal charges is to file a motion to dismiss the indictment. This motion can be based on several reasons, like insufficient evidence, prosecutorial misconduct, or procedural errors in the grand jury process. The court will hear arguments from the defense and the prosecution and will then decide whether or not to dismiss the charges.

Pretrial Diversion Programs

Pretrial diversion programs are alternatives to prosecution that can lead to the dismissal of federal charges. These programs usually involve a period of probation, community service, or other requirements. If the defendant successfully completes the program, the charges will be dropped. This option is more likely to be available for first-time offenders or those with minor charges, and its availability may vary depending on the jurisdiction.

Plea Bargaining

Plea bargaining involves the negotiation between the defense and the prosecution to reduce charges, reduce sentencing, or dismiss charges altogether in exchange for a guilty plea from the defendant. The defendant would also be required to make an allocution or personally admit to conducting the crime in front of a judge. This method is often employed when the evidence is weak or if the prosecution wants to avoid the time and expense of a trial. However, plea bargaining is not guaranteed, and the decision to offer a reduced charge is ultimately up to the prosecutor.

Cooperation Agreements with the Government

In some cases, the defendant may be able to negotiate a cooperation agreement with the government to provide information, assist in ongoing investigations, or testify against co-defendants or other individuals involved in criminal activities. In exchange for this information, the prosecution may agree to drop or reduce the charges facing the defendant. This option may only be available to those with valuable information and a willingness to cooperate, and the decision to offer such an agreement is solely within the discretion of the prosecutor.

Role of the Defense Attorney in Challenging an Indictment

The role of a defense attorney is crucial in ensuring the rights and interests of an individual charged with a crime are protected throughout the criminal justice process. Challenging an indictment is a significant aspect of a defense attorney’s responsibilities.

Investigating the Case and Evidence

A defense attorney must thoroughly investigate the case and examine the evidence obtained by law enforcement and the prosecution. This task is essential in determining whether the charges lodged against the defendant are legally sufficient and supported by objective evidence. A comprehensive examination of evidence also helps to identify any exculpatory information that may exist or develop strategies for offering alternative explanations for the criminal conduct alleged in the indictment.

The defense attorney’s investigation may involve interviewing potential witnesses, gathering documents, reviewing police reports, analyzing the crime scene, obtaining expert opinions, and conducting independent tests on physical evidence. The attorney’s investigation may also explore whether law enforcement conduct infringed on the defendant’s constitutional rights. For example, instances like unlawful search and seizure, illegal arrests, or coerced confessions could compromise the validity of the indictment.

Filing Motions on Behalf of the Defendant

One critical aspect of challenging an indictment involves the defense attorney filing pretrial motions on behalf of the defendant. Pretrial motions are hearings and proceedings that transpire before the trial itself begins. These motions provide the defense with an opportunity to argue the legal sufficiency of the indictment and challenge the adequacy of the evidence supporting it. It also allows the defense attorney to protect the defendant’s rights by raising potential constitutional violations.

Some common pretrial motions include motions to dismiss the indictment, motions to suppress evidence, and motions to change the venue. A motion to dismiss the indictment contests the legal sufficiency and accuracy of the charges in the indictment, based on insufficient evidence or jurisdictional issues. A motion to suppress evidence seeks to exclude potentially incriminating evidence obtained in violation of the defendant’s rights or due to law enforcement misconduct. A motion to change the venue is a request to move the trial to a different location to ensure a fair and impartial trial for the defendant.

Negotiating with the Prosecutor’s Office

Another critical component of a defense attorney’s role in challenging an indictment is negotiating with the prosecutor’s office. These negotiations can substantially impact the outcome of the case, and a skilled defense attorney will use their advocacy skills to reach a favorable resolution for their client.

Negotiations can include plea bargaining or seeking a reduction in the severity of the charges lodged against the defendant. A plea bargain is an agreement between the prosecution and the defense, where the defendant agrees to plead guilty to a lesser charge or to reduced charges in return for concessions from the prosecutor. This process helps both parties avoid the uncertainties and costs associated with a trial while reaching a mutually agreeable outcome. Defense attorneys can also engage in discussions with the prosecution to obtain pretrial diversion programs or alternatives to incarceration for their clients.

A defense attorney plays a vital role in challenging an indictment to protect the rights and interests of the accused. This process includes investigating the case, filing pretrial motions, and negotiating with the prosecutor’s office. By executing these functions effectively, a defense attorney can ensure that their client receives a fair and just resolution to their case.

Impact of Dropped Charges on the Defendant

When a prosecutor decides to drop criminal charges against a defendant, it can have a significant impact on the individual concerned. While the decision may ultimately be beneficial, there are still potential consequences that may arise from having the indictment dismissed. Some consequences include:

Records of Arrest and Criminal Proceedings

When criminal charges are dropped, it can have an immediate positive effect on the defendant. It can mean a release from custody, removal of restrictive bail conditions, or termination of probation requirements. However, even when charges are dropped, records of the arrest and any subsequent criminal proceedings may still exist, potentially causing lingering issues for defendants.

Records of arrests and court proceedings can continue to appear in public records and online, potentially causing problems for individuals as they apply for jobs or housing, or pursue education or other opportunities. These records can include information about detention, arraignment, and dismissal of charges. In some cases, employers, landlords, or other parties may still view a person with dropped charges as a potential risk, even when the individual has not been convicted of a crime.

In addition, some background-checking services may erroneously report charges that are already dropped. This can compound the difficulties faced by defendants as they might have to take extra steps to clear their names and ensure that their records are accurate.

Potential for Civil Action Against Law Enforcement

In some instances, defendants whose charges have been dropped may have grounds to pursue civil action against law enforcement or other parties involved in the criminal justice process. This can occur if the defendant believes they have been subjected to wrongful arrest or prosecution, or if they believe that their rights have been violated at any stage in the process.

Potential claims in civil lawsuits could include false arrest, malicious prosecution, abuse of process, intentional infliction of emotional distress, or civil rights violations. These claims can be difficult to prove and pursuing a civil lawsuit can be time-consuming and costly, but it may be an option for those who feel they have been harmed by their experience with dropped charges.

While dropped charges can provide relief for defendants, they can still have ongoing consequences in terms of public records, background checks, and potential civil actions. Defendants should be aware of their options in addressing these issues, such as expungement or pursuing civil litigation.

Working With an Experienced New York Federal Criminal Attorney From Lebedin Kofman LLP

If you’re facing federal charges, it’s essential to have a strong legal defense on your side. At Lebedin Kofman LLP, our team of experienced federal defense attorneys is committed to protecting the rights and freedoms of our clients.

Whether you’re facing charges for white-collar crimes, drug offenses, or other federal crimes, we have the knowledge and experience needed to build a strong defense strategy for your case. We understand the complexities of federal law and are dedicated to fighting for the best possible outcome for our clients.

If you’re ready to take control of your situation and fight back against federal charges, contact us today to schedule a consultation. Let us help you navigate the federal criminal justice system and work toward a positive resolution for your case. Contact us today at (646) 663-4430 to schedule a consultation.

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