If A Grand Jury Would Indict A Ham Sandwich

Experienced federal criminal defense lawyer John Helms explains what indictments are and why they can make a difference in federal drug trafficking and distribution cases in Dallas, Fort Worth, Plano, and Sherman, Texas.

It is sometimes said that a federal grand jury would indict a ham sandwich.  This makes indictments sound almost trivial, but they can make a big difference in federal drug trafficking and distribution cases in the Northern District of Texas and the Eastern District of Texas, which includes Dallas, Fort Worth, Plano, and Sherman.  This is because the way a case is indicted can significantly affect the punishment a defendant may receive. This article will explain why.

An indictment is a formal written charge that accuses a person of committing a specific crime at a certain time and place.  It tells the defendant what the accusation is. It also defines exactly what the Government must prove at trial. If the Government proves at trial that the person committed a crime, but not the same crime that is charged in the indictment, then the defendant must be found not guilty.

An indictment is prepared by a federal prosecutor.  It is presented to a grand jury for a vote. A grand jury is a group of citizens who are chosen like regular jurors, but they meet in secret to vote on indictments.  

Before the grand jury votes on an indictment, the Government will present evidence to the grand jury.  Usually, this consists of a law enforcement agent testifying about the evidence the agent knows would show the defendant is guilty.  The agent is allowed to testify about what others have told the agent. This is called hearsay. In trials, hearsay is normally not allowed, but it is allowed in grand jury proceedings.  The accused does not participate in the presentation to the grand jury. This means that the accused and the lawyer for the accused cannot cross-examine the agent, present their own evidence, or even be present.  In addition, the Government is not required to present both sides’ positions. So, a grand jury proceeding is very one-sided.

Finally, in order to vote for an indictment, grand jurors must only be convinced that there is probable cause to believe that the defendant committed the crime charged.  Probable cause is a very low standard of proof. It is far less than the “beyond a reasonable doubt” standard required to prove someone guilty at a trial. It basically means that a reasonable person could believe that the person probably committed the crime.  This does not even mean that the person probably committed the crime—only that a reasonable person could believe that.

The one-sidedness, combined with the low standard of proof (probable cause), means that federal grand juries almost always vote to indict someone.  When I was a federal prosecutor, I do not recall a federal grand jury ever voting down a proposed indictment in my district. The ease of getting an indictment is why it is said that a grand jury would indict a ham sandwich.

Then why do we have indictments?  The answer is that the United States Constitution requires indictment by a grand jury in all federal criminal cases.  The grand jury process was historically believed to be a way for citizens to check potential abuse of the criminal process by the Government, but in modern federal criminal practice, grand juries almost never vote down a proposed indictment.    

If it is so easy to get an indictment, why are they important in federal drug trafficking and distribution cases in Dallas, Fort Worth, Plano, and Sherman, Texas?  The answer is that, in federal drug cases, the indictment can set an important upper or lower limit on the punishment that the defendant can receive.

Federal drug crimes, more than other types of federal crimes, often include a “mandatory minimum” sentence and a maximum sentence.  For example, conspiracy to deliver a certain amount of a certain drug may involve a mandatory minimum sentence of five years and a maximum of forty years.  This means that the defendant’s sentence cannot be less than five years or more than forty years. Higher drug quantities usually mean higher ranges.

Because federal prosecutors choose what crime to indict, they often have the flexibility, for the same crime, to draft an indictment with ranges of 0-20 years, 5-40 years, or 10 years to life.  This is because the prosecutor may be able to prove a higher quantity of drugs, but the prosecutor chooses to charge a crime that involves a lower quantity of drugs than what the prosecutor knows he or she can prove.  

Charging a crime with a lower range obviously benefits a defendant.  For example, I recently had a case in which the prosecutor charged a crime with a range of 0-20 years, but the defendant’s recommended sentence according to the Federal Sentencing Guidelines was over 30 years.  At sentencing, the judge actually said that he would have given the defendant even more than 30 years if he could, but because he could not give the defendant more than 20 years, that is what he did.

Why would a prosecutor charge a crime with a lower range of punishment than what the prosecutor can prove?  There are usually two reasons. First, the prosecutor may want to use an indictment with a lower range of punishment as an incentive for the defendant to plead guilty.  Prosecutors often threaten to “supersede” the existing indictment—meaning to ask the grand jury to vote on a new replacement indictment with a higher range of punishment–if the defendant does not plead guilty.  That is a perfectly permissible tactic, because the prosecutor presumably could have obtained the more serious indictment from the outset, but the prosecutor just chose not to do so.

The second reason to charge a less serious crime is to reward a defendant for cooperating with law enforcement from very early on, such as the time of the arrest.  

It is possible, in federal drug cases, for a prosecutor to replace an indictment with a less serious charge as part of plea bargaining.  Whether a prosecutor is willing to do this depends on the prosecutor’s view of the case. Usually, replacing an indictment with a less serious charge as part of plea bargaining involves replacing the indictment with an “information,” which is a charge that the prosecutor makes, but which is not presented to a grand jury for a vote.  This is possible if the defendant agrees to give up the right to have the charge presented to a grand jury. Since the charge would be a less serious charge, the defendant should be more than happy to do this. Using an information benefits the prosecutor, too, because the prosecutor does not have to take the time and effort to present the new charge to a grand jury.

Federal drug trafficking and distribution charges are extremely serious and can involve long prison sentences.  As a former federal prosecutor who has tried drug federal drug cases for both the Government and for the accused, I know that it is critical for anyone accused of a federal drug crime in Dallas, Fort Worth, Plano, or Sherman, Texas to consult with a skilled federal criminal defense lawyer like me who has a broad base of experience defending people accused of drug crimes.  The laws and procedures are complicated, and only someone with this type of experience can be counted on to protect your rights and interests.  

Criminal Defense Attorney John Helms

(T): 214-666-8010