Federal Criminal Tactics & Tools
U.S. Attorneys’ offices have become more aggressive. Prosecutors are more frequently refusing to produce witness statements before a detention hearing or loading the proffer letter with exceptions. Combat many of these changes by employing tips, arguments, and forms in Federal Criminal Practice.
Pretrial release strategies, alternatives to prosecution, discovery angles, plea bargaining and agreement suggestions, sentence negotiation tactics, recent case-based examples, dozens of pretrial motions with memoranda, and hundreds of practice tips. Federal Criminal Practice is loaded with valuable advice like this:
Pretrial Release or Detention
“Be creative in recommending conditions of release for your client. When both flight and danger to the community are concerns of the court or prosecutor, consider having your client….” §4:15
“If the defendant is ordered released in the criminal case but remains detained because of an ICE or other detainer or because the other agency takes the defendant into custody, the defendant will not automatically receive credit for time served. File a motion to modify the conditions of release and to impose a nominal financial bond. In that circumstance, the defendant will be held because of his failure to post the bond and will continue to receive credit towards any ultimate sentence of imprisonment.” §4:32
Alternatives to Prosecution
“Over the years, federal prosecutors have carved out more and more exceptions in the form proffer letter, and these exceptions result in the client actually receiving very limited protection. For example, the government can use the statements not only to impeach your client’s testimony at trial, but also to refute any defense evidence that is offered during your case-in-chief. In light of these provisions, you should not proceed with a proffer session if a pretrial resolution of the case is unlikely.” §7:46.2
Indictment and Information
“When a count of an indictment fails to allege an essential element, move to dismiss rather moving for a bill of particulars. The government may not use a bill of particulars to cure an indictment lacking an essential element. File the motion to dismiss prior to trial.” §9:35.2
“The government will often argue that any multiplicity can be cured at the time of sentencing, through merger, i.e., the defendant can be sentenced concurrently on the multiplicitous counts to avoid any incremental punishment. However, the error does not become harmless to the defendant simply because the sentences are ordered to run concurrent to one another. The presence of multiple convictions may….” §9:69
Federal Criminal Practice includes (1) tips for success learned in the trenches, (2) arguments supported with over 1,500 recent cases, (3) traps to avoid, and (4) 51 custom-drafted forms proven in practice.
Dozens of motions, including:
- Modification of conditions of release to permit travel. Form 4A
- 3 motions to dismiss count. Form 9A, B, D
- Compel election between multiplicitous counts. Form 9C
- Relief from misjoinder. Form 9E
- Sever defendants. Form 9F
- Dismiss for violation of the Speedy Trial Act. Form 9G
- Early disclosure of Jencks and Brady/Giglio material. Form 10E
- Specific performance of plea agreement, with defendant’s reply. Forms 13E&F
- Attorney participation in voir dire. Form 14A
- Introduction of evidence during the government’s case-in-chief. Form 14C
The strategies, arguments, cases, and forms inside Federal Criminal Practice are truly welcomed additions to your library.
REVISION 9 HIGHLIGHTS
The new edition of Federal Criminal Practice includes new and updated text and case law throughout the book, most notably in Chapter 15, Sentencing, which has been thoroughly revised to bring you current with recent developments in this still-evolving area of criminal law. The new text spans a broad range of topics, including pretrial detention or release, alternatives to prosecution, pretrial discovery, pleas and trial. The highlights include new and updated coverage of:
- Consequences of defendant’s breach of an agreement to cooperate with the government’s investigation / prosecution.
- Whether a magistrate judge may accept felony guilty pleas with the parties’ consent.
- Procedures for taking the guilty plea of an organizational defendant.
- Factors considered in determining whether the defendant’s plea is knowing and voluntary.
- Standard of appellate review when the trial court injects itself into plea negotiations.
- Immigration status as a factor in determining whether a defendant should be released under pretrial supervision.
- Government’s obligations under
- When to raise a statute of limitations defense.
- Challenges to the sufficiency of the government’s evidence when a jury instruction erroneously adds one or more element to the charged crime.
- Effect on a defendant’s substantial rights of a federal criminal sentence derived from an incorrect sentencing range.
- Applicability of the Fair Sentencing Act to individuals sentenced before the law’s effective date.
- Timing of a sentencing hearing “without unnecessary delay.”
- The scope of “relevant conduct” under the Guidelines in relation to the three-step analysis that courts must apply to hold a defendant accountable for acts of co-conspirators.
- Sentencing court’s responsibility to adequately explain its sentence, resolve all non-frivolous issues raised by a party and provide reasons justifying a sentence outside the applicable guideline range, so as to allow for meaningful appellate review.