Federal prosecutors rarely proceed with felony charges by way of a criminal complaint (also referred to as an "information"). A complaint outlines a defendant’s conduct which was allegedly criminal. It contains the facts the government believes support those allegations. A complaint is sworn to by the lead investigator in the case, presented to a judge and requests an arrest warrant. Based upon a sworn affidavit the judge can issue the warrant.
Complaint or Indictment?
When a federal defendant is arrested based upon a criminal complaint the prosecution must have hearings in open court showing that there is sufficient evidence to proceed with the case. A defendant may require the government to get an indictment by a grand jury, or if arrested on a complaint may waive the indictment. The grand jury indictment requirement is part of the Fifth Amendment to the United States constitution.
More often a federal prosecution originates with a grand jury indictment. A federal grand jury consists of citizens with the power to conduct investigations and compel testimony. It operates at the direction of the US Attorney’s Office, though supervised ultimately by a federal judge. Unlike the public hearings held after an arrest on a complaint, grand juries meet in secret.
Once a majority of the grand jury agrees that probable cause exists that a crime has been committed, it issues an indictment. The indictment is the formal accusation of a crime. It contains detail similar to that of a complaint, and the case proceeds from that point. The grand jury can build a very complete case before issuing an indictment.
Federal Conviction Rate High Using Indictments
Federal prosecutions are different from state prosecutions in that the federal government does not have the same pressures to take every citizen complaint and turn it into a court case. As a result they try to have cases complete and ready to prosecute at the time a defendant is arrested. This makes the likelihood of a federal conviction very high when an indictment has been issued.
The prosecutors want to be as certain as possible of proving their case to a jury beyond a reasonable doubt. The likelihood of a successful prosecution is the point of a federal investigation. This is the reason for the typical use of a grand jury indictment rather than the criminal complaint.
Blagojevich Investigation More Than Four Years Old
The Blagojevich investigation dates back at least four years. Stuart Levine resigned from the Illinois Hospital Facilities Planning Board in 2004, and pleaded guilty to federal charges in 2006. Involved in the Levine prosecution were references to Public Official A, widely believed to be Governor Blagojevich. Levine’s prosecution and plea were the result of a grand jury investigation and indictment. This was part of an ongoing investigation involving insiders of the Blagojevich administration.
With the ongoing investigation, at least four years old, the question arises why Blagojevich was arrested on a complaint rather than an indictment? The apparent answer is that an arrest can be accomplished much more quickly with a complaint sworn to by a lead investigator rather than an indictment involving significant detail and sworn testimony before the grand jury.
Protecting the Integrity of the United States Senate
Timing for the prosecutors became important with the election of Barack Obama as President, leaving a vacancy for his Illinois Senate seat. An Illinois governor has unfettered authority to appoint someone to fill a vacant Senate seat. Prosecutors had credible information that this governor was allegedly trying to sell that seat for promises of campaign contributions, It became critical for prosecutors to act quickly before Blagojevich made the appointment in a corrupt fashion. It is important to note that an arrest does not disqualify Blagojevich from office, but the charges may lay the ground work for impeachment.
The prosecutors secured the governor’s arrest by way of a complaint to move quickly to protect the integrity of selecting Barack Obama’s successor. The people of Illinois owe a debt of gratitude to US Attorney Patrick Fitzgerald acting to protect them. Illinois citizens owe just as much to their former US Senator Peter Fitzgerald, who, over the objections of Illinois power brokers brought Patrick Fitzgerald to the US Attorney’s Office for the Northern District of Illinois.
David J. Shestokas - Mr. Shestokas is a former prosecutor & writes on the Constitution & legal issues for the Save America Foundation & Suite 101.
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