Nuts and Bolts of Federal
Criminal Defense
June 23, 2014
TOPICS
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INITIAL APPEARANCES AND PRETRIAL RELEASE
DISCOVERY
PROCEDURAL RULES AND MOTIONS
SENTENCING
Links to Court Rules, Statutes and Guidelines
• http://www.ca9.uscourts.gov/rules/ Rules of Appellate Procedure
and Ninth Circuit Rules
• http://www.wawd.uscourts.gov/sites/wawd/files/LocalCriminalRulesF
INAL1-31-14.pdf Local Criminal Rules Western District of Washington
• http://www.ussc.gov/guidelines-manual/guidelines-manual
Sentencing Guidelines Manual
GENERAL ON LINE RESOURCES
• www.fd.org Defender Services Office TRAINING DIVISION
• http://www.fd.org/ FPD WD Wash Web Site-CJA Info, Brief Bank
• User Name: cjauser Password: panelatty
• http://circuit9.blogspot.com/ Ninth Circuit Blog
• http://www.ca9.uscourts.gov/ Ninth Circuit Home Page – Jury
instructions, various practice guides and links to district courts
Pretrial Release and Detention Resources
• The Bail Reform Act: Getting and keeping them out!
http://www.fd.org/docs/select-topics/bail-pretrial-release/the-bailreform-act-getting-and-keeping-them-out.pdf?sfvrsn=10
• Pretrial Release and Detention- Introductory Outline
http://www.fd.org/docs/select-topics/bail-pretrial-release/pretrialrelease-and-detention.pdf?sfvrsn=6
• Guide to Judiciary Policy, Pretrial, Alternatives and Conditions of
Release (Monograph 110) http://wvn.fd.org/pdf/Part_B%20110.pdf
• Id., Supervision of Federal Defendants (Monograph 111)
http://wvn.fd.org/pdf/Part_C%20111.pdf
Discovery Resources
• http://www.fd.org/navigation/select-topics-in-criminaldefense/discovery
• http://www.fd.org/docs/select-topics/discovery/complex-frauddiscovery-review-strategies.pdf?sfvrsn=4
• CJA Brief Bank
• Defending a Federal Criminal Case, Federal Defenders of San Diego,
Vol. I, Ch. 3 (2010 Edition)
Sentencing Resources
• http://www.ussc.gov/amendment-process/selected-guidelineapplication-decisions-circuit
• http://www.fd.org/navigation/select-topics-in-criminaldefense/sentencing-resources/subsections/introduction-to-federalsentencing
Getting the Government to Hand it Over
FEDERAL DISCOVERY
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Fed. Rule Crim P. 16 and the Local Rule 16
18 USC 3500 (Jencks Act), Fed. Rule Crim. P. 6(e) and 26.2
Brady/Giglio/Kyle Exculpatory Information
Rule 17 Subpoenas
Other Sources
Federal Rule of Crim P. 16 Discovery and
Inspection
• Government’s and Defendant’s Obligations
• Defendant’s Statements, Defendant’s Criminal History
• Documents and Objects
• Reports of Examinations and Tests
• Expert Witnesses
• Excludes Witness Statements (Jencks Material)
• Does Not Mention Brady
• Only Invoked By a Party’s Request
Rule 16 is Invoked By Requesting Discovery
CrR 16 (Western District of Washington) –
Additional Provisions and Requirements
• Oral request on the record at arraignment invokes Rule 16 obligations
on the Government
• Requires a discovery conference within 14 Days when government
must “make available .. the items in their custody or control…”
• Rule contains more specificity as to which items the Defendant is
entitled to inspect and copy
• Requires Government to inform or advise the Defendant about the
existence of evidence which may be subject to suppression motion;
wire taps; Brady material; & whether it will provide a witness list.
First Try to Work it Out
Resolving Discovery Disputes and Local Rule
Requirements
• Court will not hear the motion unless: (a) you have had a discovery
conference; (b) you have discussed with the government a resolution
but have been unsuccessful; and (c) must file “Certification of
Compliance with this Rule”
• Filing a discovery motion without this “may result in summary denial
of the motion or other sanctions”
• Do NOT file boilerplate written motions for discovery – you may get
sanctioned if you have not met and conferred and filed the certificate.
Getting Stuff You Know The Government Has
Fed Crim P 16(a)(1)(E)(i)
• If in government control and requested by defense: “item[s] …
material to preparing the defense” must disclosed.
• Materiality is a low threshold. United States v. Hernandez-Meza, 720
F.3d 760, 768 (9th Cir. 2013).
• Rule 16(a)(1)(E)(i) is “broader than Brady…because [i]nformation that
is not exculpatory or impeaching may still be relevant to developing a
possible defense.” United States v. Muniz-Jaquez, 718 F.3d 1180,
1183-84 (9th Cir. 2013).
• Includes inculpatory evidence because defense must prepare for
potential pitfalls. United States v. Safavian, 233 F.R.D. 12, 15 (D.D.C.
2005)
Clifton Jencks
The Ugly
• No statement or report in the
possession of the United States
which was made by a
government witness … shall be
the subject of subpoena,
discovery or inspection until the
witness called by the United
States has testified on direct
examination in the trial of the
case.
Jencks Act – The Bad
• Reports of Witness Interviews are Not Necessarily Statements
• When statements qualify as both Brady and Jencks, Jencks timing may
prevail. US v. Alvarez, 358 F3d 1194 (9th Cir. 2004).
• A pretrial request or motion is NOT sufficient to require production or
to preserve the issue for appeal. United States v. Hanna, 55 F3d 1456
(9th Cir. 1995), and cases cited therein. Must make request AFTER
direct examination of witness.
Jencks -- The Good
• Fed R. Crim. P. 26.2(g) - Applies the rule to preliminary hearings,
sentencing hearings, revocation hearings, detention hearings and
2255 hearings.
• May apply to agents handwritten notes of witness interviews.
Goldberg v. United States, 425 US 94 (1976)
• If government claims the witness’ statement does not relate to the
witness’ testimony, the court should inspect the statement in camera.
18 USC 3500(c).
Jencks - Practice Tips
• Do not be lulled by early disclosure of some Jencks material – always
inquire on cross about additional statements, and orally move for all
Jencks after witness is done on direct examination.
• If government avoids calling its case agent it is likely hiding something
contained in that agent’s reports and notes.
• Ask the government to commit to a date for disclosure of all Jencks
material, and if it refuses to do so attempt to litigate as means of
alerting the trial court to likely trial delays attributable to the
government.
• Well before trial request that government instruct its agents to
preserve all of their notes of witness interviews.
Brady/Giglio/Kyles
• Alaska AUSAs, DOJ Public Integrity
Attorneys and FBI Hide
Brady/Giglio Information in the
Trial of Senator Ted Stevens in 2008
• Wrongfully convicted on eve reelection bid, by less than 4,000
votes.
• If this can happen to a sitting US
Senator, from the same party as
the President, it can happen to
your client.
Brady - The Basics
• Constitutional requirement that the government disclose all
exculpatory material to the defendant
• Applies to impeachment material. Giglio v. United States, 405 US 150
(1972)
• Evidence is material if there is a reasonable probability that the result
would have been different, which means “ a probability sufficient to
undermine confidence in the outcome.” United States v. Bagley, 473
US 667 (1985).
• Government must seek out information held by related law
enforcement agencies. Kyles v. Whitley, 514 US 419 (1995).
Practice Tips
• Get government to agree and trial court to find that the materiality
standard at the pretrial and trial stage is broader than the appellate
standard from Brady. See, US v. Phair, No. CR12-00016 RAJ, dkt #116
(Order directing government to apply the more generous pretrial
discovery standard set forth in United States v. Sudikoff, 36 F. Supp. 2d
1196 (C.D. Cal. 1999)). Pleading and order in CJA brief bank.
• Anticipate what the government, agents or cops may be hiding or
overlooking and make both specific and general requests.
• Ask for “information” and beware the AUSA who responds “we have
no records or documents” or “we gave them everything in the file.”
Additional Brady Practice Pointers
• Brief the Brady Standards, and case law in your trial brief to put
government on notice and educate the trial court
• Ask for any Giglio impeachment that was revealed during
government witness preparation. Prosecutors and agents may not
write down what the witnesses say during these sessions, but the
“information” revealed, ie inconsistent statements should be
disclosed. This was one of the Brady violations in the Stevens case.
• The problem is often the case agents and cops, not the AUSAs. Get
them testifying at pretrial proceedings and under oath as often as
possible.
Other Rules And Discovery Devices
• Fed. R. Crim. P. 6(e) – Discovery of Transcript of Grand Jury Witness
Testimony.
• Fed. R. Crim. P. 7 (f) – Bill of Particulars – Should request within 10
days of arraignment.
• Fed. R. Crim. 17 – Subpoenas.
• Federal Civil Rule 45 – Subpoena commanding a third party to permit
the inspection of premises.
Large and Complex Cases
• Best Practices for Electronic Discovery in Criminal Cases (Western
District of Washington, Adopted March 21, 2013)
http://www.wawd.uscourts.gov/sites/wawd/files/32113BESTPRACTIC
ESFORELECTRONIC.pdf
• Requirement that parties meet and confer
• Government must consider “reasonable requests” for production in a
particular electronic format
• Addresses costs of production, formatting, search capability of
production, indexes, multi-defendant cases and other issues unique
to these large document/information cases.
Litigating Discovery Issues
• Judges are receptive to these motions if you have laid the
groundwork, eg tried to work things out through the discovery
conference, get shut down and the government approach is adding
unnecessary time and expense to the defense function.
• District courts have imposed a lower Brady threshold standard. See.
United States v. Phair and Louie, supra.
• Imposed broad discovery obligations in multi- defendant cases to
include requiring the government to specify where the evidence
relevant to a particular defendant is located within voluminous
discovery material. United States v. Silva, No. CR 12-00047MJP, dkt #
452 ( a copy of the order is in CJA brief bank).