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.
ABBREVIATED TABLE OF CONTENTS
CHAPTER 1 GENERAL PRINCIPLES
CHAPTER 2 BRINGING DEFENDANT BEFORE THE COURT
CHAPTER 3 INITIAL APPEARANCE AND CHOICE OF COUNSEL
CHAPTER 4 PRETRIAL RELEASE OR DETENTION
CHAPTER 5 REMOVAL PROCEEDINGS
CHAPTER 6 PRELIMINARY EXAMINATION
CHAPTER 7 ALTERNATIVES TO PROSECUTION
CHAPTER 8 GRAND JURY PROCEEDINGS
CHAPTER 9 INDICTMENT AND INFORMATION
CHAPTER 10 PRETRIAL DISCOVERY
CHAPTER 11 PRETRIAL MOTIONS AND NOTICE OF DEFENSES
CHAPTER 12 PLEAS
CHAPTER 13 GUILTY PLEA AGREEMENTS AND PLEA BARGAINING
CHAPTER 14 TRIAL
CHAPTER 15 SENTENCING
CHAPTER 16 TERMINATION, MODIFICATION AND REVOCATION OF PROBATION AND SUPERVISED RELEASE
ABOUT THE AUTHORS
Barry Boss is co-chair of the criminal defense and internal investigation practice at Cozen O’Connor where he is also managing partner of the Washington, D.C. office. He concentrates his practice in complex criminal matters, focusing on white-collar crime. Mr. Boss served as Assistant Federal Public Defender in Washington, D.C. between 1995 and 2000. He is the former co-chair of the U.S. Sentencing Commission’s Practitioners Advisory Group and served as an adjunct professor at the George Washington University Law School. He has been a featured speaker at seminars around the country. In 2006, he became a Fellow in the American Board of Criminal Lawyers.
Jeffrey H. Rutherford is the managing partner of the Los Angeles office of Crowell & Moring LLP, where he is a member of the firm’s White Collar & Regulatory Enforcement Group. An experienced trial lawyer who specializes in white-collar criminal defense, Mr. Rutherford also handles criminal appeals, grand jury investigations, parallel administrative and enforcement proceedings, and complex civil litigation. Mr. Rutherford served as a trial deputy in Federal Public Defender’s Office in the Central District of California between 1999 and 2004. He has also taught trial advocacy at Loyola Law School in Los Angeles and has been a featured speaker and faculty member at seminars on trial practice, complex criminal litigation, and law and technology.
Michael J. Proctor is a trial lawyer and partner at Caldwell Leslie & Proctor, PC, a 32-lawyer litigation firm located in Los Angeles, where he chairs the firm’s White Collar Crime and Corporate Compliance practice group. In addition to representing corporations and individuals in all aspects of criminal investigations and proceedings, Mr. Proctor also handles complex commercial litigation matters. Mr. Proctor previously served as a trial deputy in the Federal Public Defender’s Office in the Central District of California (1997-2002) and as an attorney with the San Francisco firm of Keker & Van Nest LLP (1990-1997). He also has served as a faculty member of the University of San Francisco’s Intensive Advocacy Program, where he taught trial skills.