What You Don’t Know Can Hurt You:  Sealed Indictments and Sealed Arrest Warrants in Federal Criminal Cases

Here’s a terrifying reality that some of my clients and their loved ones have to face: it is entirely legal for the federal government to keep secret both arrest warrants and grand jury indictments (as well as their entire investigation process leading up to them). Result? The accused may have no clue they are in the spotlight of federal law enforcement until there is that knock at the door and they are taken into custody.

I often encounter loved ones of an accused who has been arrested by a U.S. Marshal, and all the family knows is that there was an arrest by the U.S. Marshals Service. Because the person was arrested on a sealed federal warrant, all the family can find out is that there was an arrest. No case number. No details. Working with them, I can usually get the case information, so we can work together in preparation for the detention hearing. It has to be fast: there is only around 72 hours between the arrest and this initial hearing.

For more details on the arrest itself and these vital first few days thereafter involving the U.S. Marshals Service, see the upcoming posts in this series.

It is important for everyone to know that secrets are made and kept all the time within federal law enforcement during criminal investigations and arrests. That’s not just a conspiracy theory from a YouTube video or the plot to a successful movie (think Tom Cruise in American Made).

But within federal law, there are hurdles to be jumped before things can be kept under the radar. One of the big protections placed here is the requirement of something being sealed in a proper manner.

Judges sign orders that allow things like arrest warrants or indictments to be “sealed.” Then they are kept secret. But this doesn’t last forever.

Two examples of famous criminal cases initially with sealed indictments include the New York criminal prosecution of John McAfee for cryptocurrency fraud (read it here) and criminal prosecution of Jeffrey Epstein for sex trafficking conspiracy charges (read it here).

What Does Sealed Mean?

When something is “sealed,” it is considered confidential and protected from public review. Judges make the decision on what is to be kept under seal within the court records.

Arrest warrants and indictments may be sealed by the signed order of the judge. Other things that may be sealed are things like medical records; financial documentation; trade secret data; etc.

The Underlying Process: Federal Charges Brought Against You

Federal agents from one or more agencies, and sometimes working in joint task forces with state and local law enforcement, can spend months or even years building their case. Once they reach a certain point, their files are turned over to the federal prosecutor, who is an attorney employed by the United States Department of Justice, usually as an Assistant Attorney in the Office of the United States Attorney General’s Office (dubbed an “AUSA”). The AUSA may continue to gather more facts (documents, data, witness statements, etc.) if they wish.

Both the agents and the prosecutor can investigate. Both have the power to have someone charged with federal crimes.

The Federal Arrest Warrant

In Texas, all sorts of federal agencies are at work investigating possible federal criminal offenses. Different agencies focus on different things: the Federal Bureau of Investigation (FBI) deals with terrorism and white collar crime, for instance, while the Drug Enforcement Agency (DEA) investigates federal drug trafficking (controlled substances laws), and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) enforces federal firearm laws, as well as explosives, arson, etc.

Federal agents can investigate a matter, determine that a federal crime has been committed, and identify the person or persons they believe violated criminal statutes. Federal special agents may be able to make an arrest in some situations without an arrest warrant.

However, they usually need to get an arrest warrant for a named individual. Warrants are the rule, not the exception.

The arrest warrant is signed by a federal magistrate or federal district court judge and gives confirmation from the bench that there is probable cause to arrest the person and take away their freedom. The federal agent must provide a sworn affidavit describing the probable cause to support the request for the arrest warrant.

For more, read, A Brief Description of the Federal Criminal Justice Process, published by the Federal Bureau of Investigation.

The Grand Jury Indictment

At some juncture, a federal prosecutor may decide to take a matter before the federal grand jury convened in their district. The AUSA “presents” the matter to the grand jurors. If they determine that there is probable cause based upon everything presented to them (including testimony given before them as well as other evidence), then an indictment is forthcoming.

The grand jury meets in secret. The identities of the grand jurors are kept secret. Their location and the times of their meetings are kept secret. Their votes are secret. And everything that is presented to them (all the evidence, the AUSA’s presentation, etc.) is secret.

A grand jury indictment is a formal legal notice to the accused named in the indictment that they are believed to have committed an illegal act as defined by federal law. Maybe lots of federal laws. The indictment will have details about each of the charges leveled against them. See, Federal Rules of Criminal Procedure 6, 7.

For more about the grand jury process, read Grand Jury Proceedings in Texas: Indictment and Defense.

Criminal Information and Criminal Complaint

Prosecutors can also bring federal criminal charges against someone through a “criminal information,” which also involves a formal accusation that a federal criminal law has been violated. No grand jury is involved here. It’s an avenue that saves governmental time and expense. Sometimes, criminal informations are forthcoming when the charges are for federal misdemeanors. The Fifth Amendment right to a grand jury does not extend to minor crimes, like misdemeanors. See, Section 9-11.000 of the Justice Manual of the U.S. Department of Justice.

And, there are times when an accused will waive that Fifth Amendment right to have a grand jury review the matter, opting for a criminal information instead. This may be a strategic call when the defense is negotiating with the AUSA for a plea bargain. See, Federal Rule of Criminal Procedure 7(b).

Criminal complaints are yet another way that someone can be arrested on federal criminal charges. AUSAs may choose to file a formal complaint in the public record incorporating a federal agent’s probable cause affidavit. A judge (or magistrate) must review the filing. If the court confirms there is probable cause, then an arrest warrant will be issued based upon that complaint. It may be under seal. See Federal Rule of Criminal Procedure 3.

This is the procedure used by prosecutors who are in a hurry and believe there is an urgency to get an arrest accomplished as fast as possible. If there is an arrest based upon a criminal complaint, the accused must be charged by an indictment or information within thirty days.

For more, read: How Arrests Happen: From Investigation to Arraignment, Being Charged for a Federal Crime; and The Federal Criminal Justice System: After Arrest, From Arraignment to Sentencing.

Why are Arrest Warrants and Indictments Sealed by the Judge?

A judge will agree to seal an arrest warrant or an indictment if the AUSA can demonstrate to the bench that there is a legitimate need to do so. It is a key fixture of our federal judicial system that our criminal cases are of public record. To block something from being available for public review and discourse, the prosecutor needs to have a good reason.

That might include that without seal:

• suspects or targets or witnesses might flee the jurisdiction

• evidence might be destroyed or altered (tampering)

• witnesses might be put in danger

• undercover federal agents might be endangered or exposed

• individuals suspected of criminal involvement might become aware of an ongoing investigation.

It is common to see the judge approved sealed warrants or indictments when the criminal charges involve things like drug trafficking; human trafficking; organized crime or racketeering; white collar crimes; sex trafficking; etc.

Of importance, the accused must know that just because an arrest warrant or an indictment is placed under seal, it does not mean that it is inherently a weak case – or that making it secret makes it any less legal. If proper legal process is followed (and a good criminal defense lawyer will double check this immediately), then the arrest will withstand scrutiny.

How Long is the Secret Kept? When Seals Are Removed From Arrest Warrants or Indictments

Constitutional protections demand that these secrets have to be exposed eventually. Seals by court order do not live forever. Usually, the indictment or arrest warrant is unsealed and placed within the public record when the accused appears before a federal judge upon arrest. (This may not be true in matters involving things like national security matters). However, if the AUSA can justify its continued existence, then the seal may be extended for a significant period of time.

The seal is removed by another order from the judge, where the bench removes the secrecy protection and places the warrant or indictment into the record. Paramount here is the public’s right to know and the accused’s constitutional right to a “speedy and public trial” in the Sixth Amendment.

Criminal Defense Concerns with Sealed Arrest Warrants or Sealed Indictments

For defense lawyers representing people facing federal criminal charges springing from a sealed arrest warrant or a sealed indictment, there are special concerns.

First, the longer that the accused does not understand the charges being brought against them, then the longer they must wait to begin preparing their defense. Secrets mean that individuals may not know to enlist the aid of an experienced criminal defense advocate during the time they are being targeted and investigated by federal authorities, for instance. It’s a strategic advantage for the government.

Sealed warrants and indictments also mean a delay in getting defense access to critical components of the prosecution’s case, including documents, data, and witness testimony that support the charges brought against the accused.

The longer the secrets are kept, the more time the AUSA has to work on the matter, and the shorter the amount of time the defense has to get up to speed on what may be voluminous, huge files supporting the warrant or indictment. Some federal matters are built over a period of years, and the size of their files may be enormous.

See, Why You May Need a Federal Criminal Defense Lawyer in Texas.

An immediate red flag for any experienced federal criminal defense attorney is that there has been a seal placed on the indictment or the warrant. Why did the AUSA take the time and effort to go before a federal bench and seek to keep this secret?

Seals mean something special and complex and crafty is going on in the case. There are risks involved here that may be very different from other criminal cases on the docket.

The prosecution may point to things like a fear the accused might try to flee and avoid prosecution. That may be a legitimate concern.

However, cases involving sealed indictments or warrants are often much bigger than a flight risk defendant. They hint of big investigations; the involvement of significant resources (maybe joint task forces); a number of suspects; coordination of several investigative efforts; and serious felony crimes that may come with mandatory minimum sentences upon conviction. Sealed warrants or indictments usually mean a significant criminal case is involved.

Read: The Top Federal Felony Charges That Come With Mandatory Minimum Sentences: New USSC Report.

For defendants named in a sealed grand jury indictment or a sealed arrest warrant, neither they nor their loved ones may have any idea that they are facing possible federal criminal charges until an arrest is made.

Having experienced representation is particularly important here. It is a vulnerable position for the accused individual. The seal and its secrecy means that the defense must be aggressive and immediate.

Experienced federal criminal defense lawyers will understand their unique situation. Safeguarding constitutional rights as well as insuring there is due process protections and fair treatment of the accused cannot begin a moment too soon.

Review of the warrant and the indictment will be swift, for instance, alongside analysis of the basis for the seal itself:

• Was a seal really needed?

• Is the indictment with sufficient detail?

• Is there really proof of probable cause in the agent’s affidavit?

• Were there illegalities in the arrest process? (read about wrong house raids here)

• Have all elements of each charge been properly presented?

• Is there admissible evidence to prove up each of these elements?

• Have the charges been brought within the statutory time limitations?

Also read: Things To Know If You Get a Federal Grand Jury Subpoena In Texas; and Federal Grand Juries in Texas: Criminal Defense.

The federal criminal defense lawyer will also be working to find ways to maintain the accused’s freedom after arrest and through trial. Things like bail are available in federal court, albeit in a different way than in state procedures under Texas law.

For more, read:

• How To Get Out of Jail on a Federal Charge: Federal Arrest, Bail, and PreTrial Detention;

• Bail after Federal Arrest in Texas and The Bail Reform Act of 1984;

• New University of Chicago Study’s Shocking Revelations of Federal Bail Injustice: Systemic Errors and the “Culture of Detention”;

and review these recent case results: The Case of the Drug Trafficking, Money Laundering Indictment in Eastern District of Texas: Supervised Release; and The Case of the Non-Citizen Facing Felony PPP Fraud Indictment: Innocent of All Charges.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read, ”Federal Investigations: Target Letters, Proffers, and Plea Deals.”