criminal justice act best practices manual · • a defendant is not required to submit to an...

Criminal Justice Act Best Practices Manual October 2015

Compiled by Best Practices Committee:

Ann E. Ariano, District Representative

Jennifer Philpott Wilson, Esquire, Harrisburg CJA Panel Attorney

Carl J. Poveromo, Esquire, Scranton CJA Panel Attorney

Edward J. Rymsza, Esquire, Williamsport CJA Panel Attorney

MIDDLE DISTRICT OF PENNSYLVANIA BEST PRACTICES MANUAL

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Mission Statement

Best Practices Committee

The Best Practices Committee (the “Committee) is dedicated to providing federal criminal defense practitioners within the Middle District of Pennsylvania guidance regarding the most frequently encountered practical issues and topics that may arise in the daily course of managing a criminal case in an effort designed to improve the effectiveness of criminal lawyers and to strive to provide the highest quality representation to our clients.

Preface

To achieve these objectives CJA Panel Attorneys from every vicinage of the Middle District first came together in July 2013 to discuss the practical aspects of handling a federal criminal case and the challenges faced by CJA counsel in the representation of our indigent clients. This manual covers the representation of individuals facing federal charges through all stages of the case. The manual is intended as an overview of the law and rules that may apply to a federal case in our District. It is our hope that this Best Practices Manual will facilitate advocacy by providing summaries of the law, tips for practice, references and sample motions.

The Committee appreciates and wishes to thank the CJA Panel Selection and Management Committee for their encouragement and support of this project. We would also like to express our appreciation to Gary Hollinger, Tammy Taylor, Joanne Matty, Hang Lai, and Susan Jeffreys for their assistance and contributions to this publication. Special thanks go to Leanne C. Schmidenberg and Bryanna Chisholm for their assistance with manuscript preparation.

The Best Practices Committee:

Ann Ariano, Esquire Harrisburg Division

Carl J. Poveromo, Esquire Scranton Division

Edward J. Rymsza, Esquire Williamsport Division

James Wade, Esquire Federal Defender for the Middle District of PA

Jennifer Philpot Wilson, Esquire Harrisburg Division

TABLE OF CONTENTS

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Table of Contents 1.1 Grand Jury Representation ......................................................................................... 1

2.1 Initial Appearance / Arraignment ............................................................................... 4

2.2 Pretrial Release ........................................................................................................... 7

2.3 Detention Hearings ..................................................................................................... 9

2.4 Violations of Conditions of Release ........................................................................... 12

2.5 Modification of Conditions of Release ....................................................................... 13

2.6 Criminal Defense Investigations ................................................................................ 14

2.7 Best Practices for Retaining an Investigator ............................................................... 14

2.8 Availability of Investigative Services for CJA Counsel ............................................... 15

2.9 Obtaining Documents, Records and Transcripts ........................................................ 17

2.10 Publically-Accessible Data Bases ............................................................................. 19

3.1 Preparing Client for Change of Plea Hearing ............................................................. 20

3.2 United States Probation Interview ............................................................................. 21

3.3 Plea Negotiations ..................................................................................................... 22

3.4 Plea Agreements ....................................................................................................... 24

3.5 Key Aspects of Plea Agreements ............................................................................... 26

4.1 Discovery in Federal Criminal Cases ......................................................................... 29

4.2 Discovery of Exculpatory Evidence ........................................................................... 34

4.3 Other Discovery Motions .......................................................................................... 37

4.4 Best Practices for Obtaining Discovery ...................................................................... 38

5.1 Motions Practice....................................................................................................... 39

6.1 Representing Non-English Speaking Defendants ....................................................... 44

6.2 Representing Non-Citizen Defendants ....................................................................... 45

7.1 Some Important Differences Between Federal and Pennsylvania Criminal Trials........ 49

8.1 Federal Sentencing ................................................................................................... 50

8.2 Authority and General Application Principles – Chapter 1 U.S.S.G. .......................... 55

8.3 Offense Conduct – Chapter 2 U.S.S.G ....................................................................... 56

8.4 Adjustments – Chapter 3 U.S.S.G. ............................................................................ 57

8.5 Calculating Criminal History – Chapter 4 U.S.S.G .................................................... 58

8.6 Determining the Sentence – Chapter 5 U.S.S.G ......................................................... 63

TABLE OF CONTENTS

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8.7 Sentencing Memorandum ......................................................................................... 65

Memorandum in Aid of Sentencing ........................................................................... 68

9.1 Criminal Appeals ...................................................................................................... 75

10.1 Federal Post-Conviction Remedies .......................................................................... 79

10.2 Revocation Proceedings .......................................................................................... 81

Appendix

Pretrial Detention Facilities ............................................................................................ 85

Pennsylvania Department of Corrections – State Prisons ................................................. 99

Bureau of Prisons – Federal Institutions ......................................................................... 102

Motion for Bill of Particulars ......................................................................................... 109

Motion to Determine Competency ................................................................................. 114

Motion to Continue Trial............................................................................................... 120

Request for Pretrial Disclosure of Rule 404(b) Material the ............................................. 124

Specific Discovery Request for Impeachment of Evidence (Giglio) ................................. 126

Motion to Dismiss Indictment ....................................................................................... 130

Motion to Seal a Docuement ......................................................................................... 136

Ex-Parte Motion for Appointment of Expert Witness ..................................................... 140

Suppression Motions ..................................................................................................... 145

Pretrial Motion to Suppress Evidence ....................................................................... 145

Pretrial Motion to Suppress Statements ..................................................................... 151

Severence Motions ........................................................................................................ 156

Motion for Severance of Defendants Pursuant to Federal Rule of Criminal Procedure 8 and 14...................................................................................................................... 156

Motion for Severence of Charges .............................................................................. 162

Motion for Leave for Interim Voucher ........................................................................... 168

Motion for Interim of Payment ...................................................................................... 170

Motion to Travel Outside of the District ......................................................................... 173

Motion for Appointment of Investigator at Government’s Expense ................................. 175

Motion for Appointment of Mitigiation Specialist .......................................................... 179

CHAPTER 1 – GRAND JURY

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1.1 Grand Jury Representation

Grand Jury

The Fifth Amendment requires all federal felony charges to be by an indictment from a

grand jury. The right to an indictment may be waived. In the Middle District of

Pennsylvania, many prosecutions proceed by way of a felony information with a formal

waiver proceeding and consent of both parties.

The authority, power, and specific workings of grand juries can be found in Rule 6 of the

Federal Rules of Criminal Procedure and Statutes in Title 18 of the United States Code. See

references to “Relevant Sources of Law” at the end of this section.

Federal grand juries must consist of at least 16 but not more than 23 persons. An indictment

requires the concurrence of at least 12 jurors. The grand jury has the power to issue

subpoenas for people, documents and other physical evidence.

Normally there is no Sixth Amendment right to counsel in grand jury proceedings. The

District Court has appointed counsel in some circumstances. Usually, there are some

unusual factors such as age, infirmity or the possibility of a contempt finding.

Grand jury witnesses fall into 3 categories:

1. Target

2. Subject

3. Witness

When representing a grand jury witness you should obtain a copy of the subpoena. The

subpoena will have the name of the Assistant United States Attorney in charge of the

investigation. Defense counsel should meet with the client to discuss the appearance and

potential testimony. Defense counsel should discuss the client’s constitutional rights,

statutory rights, and any privileges that may apply.

While a client may be advised about their right against self‐incrimination, counsel should be

careful not to convey a message that the witness has an option of not appearing and ignoring

the grand jury subpoena. Such advice may be viewed as criminal conduct and subject an

attorney to an obstruction of justice charge or contempt.


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The client should appear as required and assert any rights or privileges. Ultimately, a court

will decide if they apply. You may advise the client on the consequences of refusing to testify

after all rights or privileges have been overcome or held not to apply. In practice, you may sit

outside or near the grand jury room and be available for the consultation with your client.

Ultimately you may need to be prepared to handle a contempt allegation under the

Recalcitrant Witness Statute, which usually involves an immunity order. Thus, familiarity

with the immunity and recalcitrant witness statutes is imperative. See “Relevant Sources of

Law,” at the end of this section.

Target Letter

Target letters are widely used in this district. The letter is addressed to a target of the grand

jury – your client. They invite the target to provide grand jury testimony. The letter advises

that the grand jury is investigating specific violations of federal law.

In practice, this letter may be viewed as an invitation to begin negotiations with the United

States Attorney’s Office. If ignored, the target will likely be indicted. Our judicial officers

have used their discretion and appointed counsel on the basis of the target letter.

Relevant Sources of Law

United States Constitution – Fifth Amendment

“No person shall be held to answer…, unless on a presentment or indictment of a

grand jury.”

Statutes

• 18 U.S.C. §3321‐3322 Grand Jury

• 18 U.S.C. §3331‐3334 Special Grand Jury

• 18 U.S.C. §6001‐6003 Immunity of Witnesses

• 28 U.S.C. §1826 Recalcitrant Witnesses


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Rules

• Federal Rules of Criminal Procedure

▪ Rule 6 The Grand Jury

• Federal Rules of Evidence

▪ Rule 101 Scope; Definitions

▪ Rules 501‐502 Privilege in General

▪ Rule 1101 Applicability of the Rules

• Other Helpful Materials

▪ Defending a Federal Criminal Case: Vol. I, Chapter 2 (2010)

▪ United States Attorney’s Manual, §9‐11.000

▪ http://www.justice.gov/usam/usam‐9‐11000‐grandy‐jury

CHAPTER 2 – PRETRIAL MATTERS

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2.1 Initial Appearance / Arraignment

Introduction

The Initial Appearance and Arraignment serve two distinct functions. However, in the

Middle District of Pennsylvania, these proceedings are typically combined into one hearing.

Initial Appearance – Rule 5 - Federal Rules of Criminal Procedure

In general, Rule 5 sets forth the procedures after a defendant’s arrest.

The Rule requires that “[a] person making an arrest within the United States must

take the defendant without unnecessary delay to a magistrate judge.” If a federal

magistrate judge is not “reasonably available” the initial appearance may be held

“[b]efore a state or local judicial officer.” Rule 5(c).

The Rule also provides among other things specific details regarding

exceptions to the general rule, arrests initiated in other districts and the use

of video conferencing.

Typically, four issues are addressed at the Initial Appearance:

• Defendant is provided notice and explanation of the charges and a copy of

the charges is provided;

• Defendant is advised of rights, including the right to remain silent and right

to counsel;

• Counsel is appointed if defendant meets financial eligibility (Sixth

Amendment right to counsel attaches; See Rothgery v. Gillespie County, 554

U.S. 191 (2008));

▪ Proof of “indigence” is not required; the standard for appointment is

found in 18 U.S.C. § 3006A

• Bail Determination

▪ The government must request the defendant’s detention at the initial

appearance. See 18 U.S.C. § 3142(f)

▪ A continuance of the detention hearing may be requested in order to

provide the court with additional information or witness testimony.


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The Pretrial Service Report • The Pretrial Services Division of the United States Probation Office is responsible for

gathering information about a newly arrested defendant and prepares a report

recommendation to the court about the defendant’s release.

• Notwithstanding Title IX (B) of the Middle District of Pennsylvania’s

Criminal Justice Act Plan, which provides that counsel for the defendant “should” be

provided the first opportunity to speak with the newly arrested defendant, in reality

that seldom occurs. A pretrial service officer will typically interview the defendant

prior to the initial appearance and before counsel has had an opportunity to speak

with the defendant.

• A defendant is not required to submit to an interview. Thus, if bail is unlikely for

instance because of a state detainer, there may be no reason to be interviewed.

• The officer will prepare a report which includes the defendant’s criminal history,

biographical information and work history and provides it to the parties and the

court. The report may be kept by the parties with permission of the court. Counsel

should routinely ask to keep the report. An alternative to keeping the entire report is

a request to have a copy of the criminal history section of the report.

• The report is valuable since it presents the first source of information about the client

and most importantly, their criminal history.

• The Government’s use of statements made to the pretrial services officer is restricted

by 18 U.S.C. § 3153(c) (1)-(3). However, be aware that the pretrial services officer

will typically provide probation with any information it receives and these earlier

statements may be included in probation’s presentence report. “Materially false

information” to the pretrial services officer may later result in obstruction points in

the presentence report. See U.S.S.G. § 3C1.1 cmt. n.4(H); See also, United States v. Greig,

717 F.3d 212 (1st Cir. 2013) (approving increase for failing to disclose assets to

pretrial service officer); United States v. Saintil, 910 F.2d 1231 (4th Cir. 1990)

(providing false name in interview with pretrial service officer).


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Processing Before or after the initial appearance, depending on the circumstances of the arrest, the

United States Marshal’s Service will process the client. Processing typically consists of

fingerprinting, photographing and obtaining personal data from the defendant. If counsel

can speak to the client prior to processing it is imperative that counsel advise the client not to

discuss any information concerning his or her case.

Interpreters – Rule 28 – Federal Rules of Criminal Procedure Interpreters will be provided at the initial appearance if required. The Clerk of Court is

typically responsible for ensuring that an interpreter is present at all court appearances for

any client who is in need of such services. In a multidefendant case, the same interpreter

will usually provide services to all of the defendants. It is very important to ensure that the

interpreter understands that all conversations with the defendant are confidential.

Arrangements may be made with the court’s interpreter before or after initial appearance to

meet with the client.

Preparation/Practical tips for Initial Appearance • Get as much information as early as possible from any source (e.g. arresting officer,

AUSA, clerk) prior to initial appearance;

• Try and meet with client early if possible;

• At the initial meeting with your client, inform client about the limited role of the

initial appearance and what is about to occur, what is likely to occur thereafter,

different stages of the process, the attorney’s role and a reality check of federal court

practice;

• Provide client with the charges explaining maximum penalties and any applicable

mandatory minimum sentencing exposure;

• Interview the client and obtain as much detail as possible concerning the events from

the time of arrest to the initial meeting with counsel;

• Obtain salient bail information;

• Strive to develop a level of trust and rapport.


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Arraignment – Rule 10 – Federal Rules of Criminal Procedure • Arraignment is the first opportunity where the court obtains personal jurisdiction

over a defendant and the defendant enters a plea to the charge. In most instances, a

not guilty plea is entered at the initial appearance/ arraignment in the Middle

District.

• Rule 10 specifically provides that the arraignment be conducted in open court, must

consist of reading the indictment or information, requesting the defendant to plead

guilty or not guilty, and providing defendant a copy of the indictment or

information.

• The right to counsel attaches at arraignment. See Hamilton v. Alabama, 368 U.S. 52

(1961); Kirby v. Illinois, 406 U.S. 682 (1972).

• Arraignment triggers the timing requirements to file pretrial motions “at the

arraignment or as soon afterward as practicable.” See Fed. R. Crim. P. 12.

2.2 Pretrial Release

Types of Release

Release on Personal Recognizance or Unsecured Bond

Release on defendant’s promise to appear when ordered under Title 18 U.S.C.

§3142(b), mandates pretrial release on “personal recognizance” or an unsecured

appearance bond unless the court determines that “such release will not reasonably

assure” the defendant’s appearance or “will endanger the safety of any other person

or the community.”

Release on Conditions

• 18 U.S.C. §3142(c) mandates release subject to certain specified conditions.

• Conditions must be the least restrictive conditions necessary to reasonably

assure the defendant’s appearance and the community’s safety.

• House arrest is a permissible condition of release.

• Curfew restrictions, limitations on the operation of a vehicle and travel and

communications restrictions are also authorized.

• Your client may have to turn in their passport if they have one.


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• The Court may order supervision of the defendant by the Pretrial Services

Division of the United States Probation Office:

▪ Supervision may include drug testing, home visits, and electronic

monitoring.

▪ Psychiatric treatment can be compelled as a condition of release to ensure

appearance.

▪ Personal Surety Bond may be secured by property that is encumbered as

long as there is sufficient equity remaining to assure the appearance of

the defendant. (The Court may conduct an inquiry into the source of any

funds used to secure a defendant’s release.

Third Party Custodian

• The Court may require a third party custodian.

• Unable to assist the Court in monitoring conditions of release to reasonably

assure the defendant’s appearance in court and the safety of the community.

• Often used in conjunction with pre-trial services supervision.

• Court may also release a defendant directly to third party custodian.

• The defendant and third party custodian usually have a close personal

relationship (parents, siblings, other relatives, close friends, employers)

• A third party custodian is not held liable if the person to be supervised

absconds or commits crimes while under the custodian’s supervision.

• Custodian does have duty to report to the Court any violations of the

conditions of pretrial release.

• Third Party Custodians who willfully fail to comply with the release order

may be subject to the provision of 18 U.S.C. §401 (Contempt of Court).

• The Court may direct the Pretrial Services Division to provide a report to the

Court on the suitability of a potential third party custodian.

• In most cases the Court will request that the Pretrial Services Division

conduct a criminal records check in advance of a bail hearing so that the

proposed third party custodian can be properly investigated.


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• Counsel should contact the Pretrial Services Division and provide the

following information for any proposed third party custodian:

▪ Name, Maiden Name

▪ Date of Birth

▪ Social Security Number

▪ Address and Employment Information

• The Pretrial Services Division may choose to personally interview the

candidate regarding their willingness to act as a 3rd party custodian.

• In most cases the Court will want the defendant to reside with the third party

custodian.

• The proposed third party custodian will be required to provide sworn

testimony and answer the Court’s questions, if any, at a hearing.

Temporarily Detain the Defendant to Permit Revocation of Conditional Release,

deportation or Exclusion

2.3 Detention Hearings • Held following Initial Appearance/Arraignment upon Motion of the Government or the

Court’s own Motion.

• Defense counsel may request a continuance of the hearing in order to prepare.

• Pretrial Services will prepare a bail report outlining the defendant’s criminal history, any

pending detainers, and an analysis of flight risk and background information.

• If time permits, a Probation Officer will interview the defendant prior to preparing the

report. Upon receipt of a court appointment counsels may contact the Pretrial Services

Division and request to be present at the interview.

• This Pretrial Services Report may be for court room use only, and is usually returned to the

probation officer following the hearing.


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• When reviewing a Pretrial Services report, defense counsel should pay close attention to the

criminal history section of the report. If that section would be helpful to the representation,

then counsel should request the judicial officer to order it disclosed. If the judicial officer

declines, the defense attorney should request permission to retain the report in the courtroom

after the proceedings are over for the limited purpose of writing down the criminal history

information.

• The government may move for a detention hearing under §3142(f) when the case involves:

▪ Crime of violence;

▪ Any terroristic offense (18 U.S.C. § 2332b(g)(5)(B)) with a penalty of 10 years or more;

▪ An offense for which the maximum term of imprisonment is life or death;

▪ A drug offense carrying a maximum term of imprisonment of 10 years or more;

▪ Any felony committed after the person has been convicted of 2 or more of the above

offenses (state or federal);

▪ Any felony which is not a crime of violence that involves a minor victim;

▪ A serious risk of flight;

▪ A serious risk that the person will obstruct or attempt to obstruct justice; or threaten,

injure, or intimidate or attempt to do so to a prospective witness or juror.

• The purpose of a detention hearing is for the Court to determine whether any condition or

combination of conditions will reasonably assure the appearance of the person as required

and the safety of any other person and the community.

• The Court is obligated to consider certain factors when determining whether there are

conditions of release that will reasonably assure the appearance of the defendant and the

safety of any other person and the community. The factors are enumerated in 18 U.S.C. §

3142(g).

• The defendant has a right to be represented by counsel at a detention hearing.

• The defendant has the right to testify, present witnesses, cross examine witnesses and/or to

present information by proffer or otherwise.


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• Two rebuttable presumptions apply in detention hearings:

▪ In a case where the defendant has been charged with a crime described in §3142 (f)

(1), a rebuttable presumption arises that no condition or combination of conditions

will reasonably assure the safety of any other person and the community if the

defendant has been convicted of an (f) (1) offense, the offense was committed while

the defendant was on release pending trial and not more than 5 years have elapsed

since the date of the conviction or release from imprisonment, whichever is later.

▪ No conditions or combination of conditions will reasonably assure the appearance

and safety of the community if the judicial officer finds that there is probable cause to

believe that the defendant committed a drug offense punishable by 10 years or more;

some gun offenses (924(c)), certain terroristic offenses, offenses involving a minor

(such as child pornography statutes).

• Presumptions have been interpreted to require the defendant to produce “some credible

evidence” showing reasonable assurance of appearance and/or no danger to the community.

• Burden of proof remains with the government to prove risk of flight and danger to the

community.

• An order of detention shall:

▪ Include findings of fact and a written statement of reasons for the detention;

▪ Direct that the person be committed to the custody of the Attorney General for

confinement in a correctional facility (Defendants in the Middle District are

generally housed in contracted county prisons, defendants with state parole detainers

may be housed in state correctional facilities);

▪ Direct that the person be afforded reasonable opportunity for private consultation

with counsel, and;

▪ Direct that an Order of a Court for the United States or a request of any attorney for

the Government, the warden of the facility in which the person is confined shall

deliver the person to the U.S. Marshal for all court proceedings.

• A Detention Order may be reviewed by the Court of original jurisdiction upon motion for

revocation or amendment of the Order.

• The Motion should be determined promptly.


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• A District Court acting on a motion to revoke or amend a Magistrate’s pretrial detention

order acts de novo and must determine on its own whether or not detention is proper.

• Appellate courts conduct an independent review with some deference to the decisions of the

district court.

• Orders relating to the release or detention are appeable pending trial. See 18 U.S.C. §3142,

§3145(c) and Rule 9 of the Federal Rules of Appellate Procedure.

2.4 Violations of Conditions of Release • If your client has a positive drug test, is charged with a new crime, leaves the district without

permission, violates a curfew or other house arrest condition, or in some other manner runs

afoul of the release conditions imposed by the court, you will be notified either by the pretrial

services officer or by the prosecutor.

• In some instances, there may only be a report of the violation to the court, but no request to

revoke or modify the conditions of release.

• If the prosecutor elects to seek revocation or modification of the conditions of release, you

will be served with the motion and a scheduling order for a hearing, and your client will be

served with a summons.

• You should advise your client that at the hearing, the possible sanctions include:

▪ Revocation of release altogether;

▪ Modification of release conditions;

▪ Detention; and

▪ Prosecution for contempt.

NOTE: The penalties for failure to appear and for an offense committed while on release are set forth in 18 U.S.C. §§ 3146 and 3147.

• If the violation is other than a new charge, then you may be able to persuade the court that

some new and different condition or combination of conditions of release will assure the

court that your client is not a flight risk or danger to the community.


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• If the violation is a new criminal charge, then a (rebuttable) presumption arises that no

condition or combination of conditions will suffice to assure that your client is not a flight

risk or a danger to the community. This is a difficult presumption to overcome in the

context of a violation hearing, and you should prepare your client for the likelihood of

detention on the date of the hearing.

• Related to a favorable adjustment to pretrial release is the potential benefit of a future voluntary surrender after sentencing.

• You should advise your client that a violation of conditions of release jeopardizes the

adjustment for acceptance of responsibility under the sentencing guidelines (if the client is

otherwise eligible for the adjustment).

▪ In most cases where the court has determined that the defendant violated a condition

of release, the PSR will recommend no adjustment for acceptance of responsibility.

• Among other possible arguments that can be raised by way of objection to the PSR

recommendation, counsel should be aware of the Third Circuit case law holding that the fact

of new criminal charges incurred while a defendant is on release standing alone is not a

sufficient basis to deny the adjustment for acceptance of responsibility. See, e.g., United States

v. Carthens, 427 Fed. Appx. 216, 220-221 (3d Cir. 2011); United States v. Berry, 553 F.3d 273,

286 (3d Cir. 2009).

2.5 Modification of Conditions of Release

• Once imposed, conditions of release can be modified at any time until sentencing.

• Frequent issues that may warrant a temporary or permanent change in the conditions of

release include: change in employment or work hours; travel for vacation, funeral, wedding,

etc.; cooperation with investigation; good behavior between initial appearance and change of

plea.

• After conferring with the prosecutor and the pretrial services officer, defense counsel can file

a motion requesting a modification.

• Be aware that under 18 U.S.C. § 3143(a)(2), the Court is obligated to order a defendant

detained pending sentencing after a plea to a drug offense for which the maximum penalty is

10 years or more unless good reasons exist not to detain the defendant.


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2.6 Criminal Defense Investigations

Introduction

Although a defense attorney may not require the services of an investigator in every criminal

case, a qualified investigator is a vital member of the defense team. A defense attorney must

select the best possible defense for his or her client. Legal defenses are based on events

before, during and after the commission of the alleged crime. Because the facts surrounding

these events are not always obvious, using an investigator may lead to developing viable

defenses and other mitigating evidence.

An Investigator May Be Useful In:

• Reviewing and analyzing the investigation conducted by law enforcement officers

and agencies, including without limitation, examining all documents and materials

provided by the prosecution and, if applicable, examining the crime scene;

• Locating and re-interviewing witnesses to obtain their version of the facts, to find

changes in their prior statements and to develop new leads;

• Seeking new and unidentified witnesses who may have information regarding the

alleged crime, or the character of the defendant and/or the alleged victim;

• Conducting witness investigations, including examining criminal records, civil suits,

domestic relations cases and bankruptcies and interviewing friends, neighbors,

former spouses and former employers of the witness, to discover anything in the

witness’ background and/or physical or mental condition that can be used effectively

to bolster or attack the witness’ credibility;

• Serving subpoenas and arranging for the appearance of defense witnesses; and

• Preparing sentencing mitigation.

2.7 Best Practices for Retaining an Investigator

Below are Some Steps to Follow When Hiring a Private Investigator:

• Confirm the investigator is licensed in Pennsylvania in accordance with the Private

Detective Act of 1953;

• Communicate to the private investigator your needs and provide him or her with the

discovery and other relevant information from the outset;


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• Make sure the investigator has sufficient expertise regarding the subject matter of the

criminal action;

• Establish a budget and a time table for completion of the assignment; and

• Require the investigator to execute and deliver an engagement letter.

The Engagement Letter Should Contain the Following Terms:

• The scope of the work, the agreed-upon budget, any agreed-upon retainer fee or

hourly rate, and a termination clause;

• An indemnity clause in case the investigator engages in professional misconduct or

violates the law;

• An agreement that the investigator has been retained by counsel, not the client, to

assist counsel in the rendering of legal advice and services to the client, and that such

mode of engagement requires that all investigative product be treated as confidential

and subject to the attorney-client and work product privileges and that such

investigative product is the property of counsel;

• An agreement that the investigator will provide counsel with copies of all

investigative reports, memoranda and other documentation with appropriate

notation on such documents, identifying them as being subject to the attorney-client

and work product privileges; and

• If the relationship between counsel is subject to a joint defense agreement, that the

investigator’s engagement is subject to the terms of that joint defense agreement.

2.8 Availability of Investigative Services for CJA Counsel

• Subsection (e) of the CJA provides that presiding judicial officers may authorize appointed

counsel to obtain investigative, expert or other services necessary for adequate

representation. 18 U.S.C. § 3006A (e); U.S. v. Davis, 582 F.2d 947, 951 (5th Cir. 1978), cert.

denied, 441 U.S. 962 (1979). The cost of these services, including reimbursement of

reasonably incurred expenses, is funded by the CJA. 18 U.C.S. § 3006A (i).


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• Requests for authorization to obtain investigative or expert services may be made to the

presiding judicial officer by ex parte application. Ex parte applications for services other than

counsel must be heard in camera and must not be revealed without the consent of the client.

The applications shall be placed under seal until the final disposition of the case, subject to

future order of court. See Guidelines for Administering the CJA and Related Statutes,

“Guide” Vol. 7, § 310.30.

• If court authorization is granted prior to obtaining investigative or expert services,

compensation for such services may be paid upon approval by the presiding judicial officer

in amounts up to $2,400.00 per person or organization, exclusive of expenses. See 18 U.S.C.

§3006A (e) (3); Guide Vol. 7, § 310.20.10. Payments over $2,400.00 may be made when

certified by the presiding judicial officer and approved by the Chief Judge of the Circuit or

his/her delegate to provide fair compensation for services of an unusual character or

duration. See 18 U.S.C. § 3006A (e) (3); Guide Vol. 7, § 310.20.10.

• If court authorization is not granted before obtaining investigative or expert services, the

total compensation which may be paid for services in non-capital cases under the CJA,

exclusive of expenses, is $800.00. See 18 U.S.C. § 3006A (e) (2) (B); Guide Vol. 7 §

310.20.30.

• All claims for payment of investigation or expert services (except for transcripts) should be

made on a CJA Form 21 (“Authorization and Voucher for Expert and Other Services”).

The CJA Form 21 should be submitted for approval after completing the service, no later

than 45 days after final disposition of the case, unless good cause is shown.

• For additional information, See CJA Form 25 (“Notice to CJA Panel Attorney Regarding

Availability of Investigator, Expert and Other Service”) which may be found on the Federal

Courts Home Page.

• Be aware that the amounts listed in the above section are subject to change. Consult the

latest version of Volume 7 of the Guide or the District Court web site under the CJA tab for

the most current amounts.


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2.9 Obtaining Documents, Records and Transcripts

Authorization to Release Information

Attorneys commonly use authorization forms to obtain their client’s medical information,

financial information, employment information, educational information and other

confidential records.

Right-To-Know Requests

Various government agencies may have specific request forms that must be used by a

requestor of government records. However, the Pennsylvania Office of Open Records has a

standard right-to-know request form to obtain records from a state or local government

agency.

Freedom of Information Act (FOIA) Requests

The FOIA provides access to all records of federal agencies in the executive branch. To

obtain information under the FOIA, you must make a “FOIA request”. There is no specific

form that must be used to make a request. The request must be in writing and describe the

information. http://www.justice.gov/usao/resources/foiarequests/

Ex Parte Motion for Subpoena Duces Tecum

Upon a defendant’s ex parte application, the court must order that a subpoena be issued for a

named witness if the defendant shows an inability to pay witness fees and the necessity of

the witness’s presence for an adequate defense. If the court orders a subpoena be issued, the

process costs and witness fees will be paid as those paid for the witnesses the government

subpoenas. FED. R.CRIM.P. 17(b). A subpoena may order the witness to produce any

books, papers, documents, data or other objects the subpoena designates. FED. R.CRIM.P.

17(c) (1). However, after a complaint, indictment or information is filed, a subpoena

requiring the production of personal or confidential information about a victim may be

served on a third party only by court order. Unless there are exceptional circumstances, the

court must require notice is given to the victim so the victim can move to quash or modify

the subpoena or otherwise object. FED. R.CRIM.P. 17(a) (3).


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The Housekeeping Statute, 5 U.S.C. § 301

The Housekeeping Statute authorizes the head of each executive department to prescribe

regulations for the custody, use and preservation of its records, papers and property. Under

that authority, the U.S. Department of Justice has promulgated its own internal regulations

(known as the Touhy regulations) that set forth the procedures to be followed regarding the

production or disclosure of material and information in the files of the Department. 28

C.F.R. §16.21 et seq. Other federal departments have enacted regulations governing the

procedure by which their records will be provided to the public.

When a party seeking discovery from such department has not strictly complied with the

procedure mandated by the Code of Federal Regulations, a subpoena, order or other

demand of a court for material or information will not be honored and disclosure will be

denied.

Transcripts

Transcripts are considered a service necessary for adequate representation under subsection

(e) of the CJA. 18 U.S.C. § 3006A (e). Transcript payments can also be reimbursed as

expenses under subsection (d). See 18 U.S.C. § 3006(A) (d); Guide Vol. 7A § 230.63.20; but

cf. U.S. v. Pulido, 879 F.2d 1255 (5th Cir. 1989). Special procedures apply to requests for

transcripts. The CJA Form 24 is used to request authorization and payment for transcripts,

regardless of whether the court reporter or reporting service is paid directly, or counsel pays

for the court reporter and seeks reimbursement.

Compensation limitations for subsection (e) services do not apply to transcripts. See Guide

Vol. 7, § 320.30.10. The presiding judicial officer has final authority to approve any

reasonable and necessary transcript costs. Approval of the presiding judicial officer should

be sought before the court reporter begins the transcription service. An estimate of the cost

of the transcription is not required to obtain advance approval of the presiding judicial

officer.


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2.10 Publically-Accessible Data Bases The following are some public data bases that may be useful to criminal defense attorneys and

investigators in gathering information.

Public Access to Court Electronic Records (PACER) PACER is an electronic public access service that allows users to obtain case and docket

information from federal appellate, district and bankruptcy courts.

Pennsylvania’s Unified Judicial System ujsportal.pacourts.us

The Pennsylvania Judiciary Web Portal provides public access to various aspects of court

information, including appellate courts, common pleas courts and magisterial district court

docket sheets.

Zabasearch Zabasearch.com is a website that searches for and collates disparate information regarding

United States residents, including names, current and past addresses, phone numbers and

birth years. The website allows free searches, but requests for more information are directed

to Intelius.

Spokeo www.Spokeo.com is a social network aggregator website that aggregates data from many

online and offline resources. This aggregated data may include demographic data, social

profiles and estimated property and wealth values. Spokeo also offers a paid subscription

that bundles extra features in one package.

Jeff Flax’s Resources – Jeff Flax’s Web Page www.jflax.com/law.htm

This site contains a trove of investigative resources, including super sites, search engines,

people, phone and address finders and other useful investigative sites.

CHAPTER 3 – PLEA PRACTICE

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3.1 Preparing Client for Change of Plea Hearing

The Judge Will Advise, Explain and Inquire

• Advise the client of the rights being given up by entering a plea.

• The client will need to indicate that she/he understands and still wishes to enter a plea.

• Advise the client that he/she will be placed under oath.

• Explain the purpose of a guilty plea colloquy to your client, i.e. court must be satisfied

that your client is giving up their trial rights knowingly, intelligently and voluntarily.

• Inquire whether the client has any medical conditions/takes medications which affect

the client’s ability to understand the proceedings.

Sentencing Guidelines and Plea Agreement

• Go over the sentencing guidelines and make sure that your client understands the

probable range.

• Emphasize that you can only provide an estimate of the guideline range. The Judge

will ultimately decide the guideline range and final sentence.

• Make sure that your client understands the key elements of the plea agreement (e.g.

any appellate waivers, cooperation language).

• Explain that the Judge will colloquy the defendant to determine whether or not the

terms of the plea agreement were communicated to the client.

• Make sure that your client understands that the Judge and Probation are not parties

to the Plea Agreement.

• If possible obtain a copy of the statement of facts that the AUSA will put on the

record and review it with your client prior to the hearing.

• Advise the client to speak to you if they have a question/disagreement with the fact

pattern.

• Make sure that your client knows your name.

• Advise the client that if they become confused at any time during the plea hearing

they should stop and ask the Court to allow them to speak with you/or ask the Court

to clarify.

• Advise your client of the possibility of a change in their release status as a result of

the Plea Hearing.


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3.2 United States Probation Interview

• Advise your client that he/she will be interviewed by the Probation Officer preparing the

Pre-Sentence Report soon after the plea hearing. Your client should understand that he/she

will need to provide:

• The names, ages, current occupations, addresses of his/her parents, siblings, spouse and

children.

• Name and phone number of an individual (family member or close friend) that the

Probation Officer can contact to verify the information your client provides.

• Education background (high school, GED, College etc.).

• Military service information.

• Addresses for last 5 years.

• Information on any childhood physical or sexual abuse.

• Past work history.

• Past/current use of drugs and alcohol.

• Names and locations of any treatment facilities for mental health problems, drug and/or

alcohol abuse.

• Advise your client that they will have to sign releases for school, medical, military (if

applicable), treatment and tax records.

• Clients who are not incarcerated will need to complete a statement detailing their monthly

income and expenses.

Acceptance of Responsibility (various options)

• Adopt the fact statement provided by the AUSA at the plea hearing.

• Prepare a statement in writing and have client sign.

• Client may make a statement at the PSR Interview.

• Ask Probation Officer what they require for Acceptance/are they satisfied with what

your client has provided.


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3.3 Plea Negotiations

Proffer Agreement

What is a proffer? A proffer means a formal interview of the defendant under a written agreement. Usually, it is

held at the offices of the investigating agents or prosecutor and attended by the case agents,

defendant and the defense attorney, and infrequently by the prosecutor. At the proffer

session, the defendant provides information to the government to convince the U.S.

Attorney to consider a cooperation agreement, plea agreement or a non-prosecution

agreement.

What is a proffer agreement?

The proffer letter or proffer agreement, sometimes called a “Queen for a Day” agreement, is

a writing signed by the parties that sets forth the ground rules and governs the conditions

under which the parties meet for an interview. The terms of a proffer agreement are

enforced according to contract principles. The proffer agreement will not bind agents or

officers from state and local law enforcement agencies who attend the proffer session unless

they counter sign the document or enter into a separate proffer agreement with the

defendant.

What does a proffer agreement do?

Under Federal Rule of Evidence 410 and Federal Rule of Criminal Practice 11(f), statements

made in plea discussions are not admissible in evidence. However, a proffer agreement

requires a defendant to waive the protections afforded by these rules. See United States v.

Mezzanatto, 513 9S. 196 (1995).

Can the government use defendant’s statements?

Initially, proffer agreements forbade use of proffer statements as substantive evidence

against the defendant. Proffer statements could only be used for leads to other evidence

and for impeachment, i.e. if defendant “testifies… and offers testimony materially different

from the proffer”. Proffer agreements provided limited use immunity. Today, proffer

agreements allow use of proffer statements not only to pursue investigative leads - limited

use immunity - but also to cross-examine the defendant should he testify, for rebuttal, even

if the defendant does not testify, and in the government’s case-in-chief.


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The U.S. Attorney’s Office for the Middle District of Pennsylvania has inserted a provision

in its standard proffer letter that allows use of proffer statements at any stage of the criminal

prosecution. The current text reads:

In the event that your client is a witness or party at any trial, civil or criminal, any grand jury, or any other legal proceeding, and testifies and/or offers evidence contrary to the proffer or through counsel presents a position inconsistent with the proffer, the United States may use your client’s statements and the information derived directly or indirectly from the proffer, in any manner it deems appropriate and at any stage of the criminal prosecution, including its case-in-chief, and for impeachment, cross-examination, and rebuttal.

In United States v. Hardwick, 544 F.3d 565 (3d Cir. 2008), and United States v. Vella, 414 Fed.

App’x 400 (3d Cir. 2011), the Third Circuit upheld similar language. A proffer that does not

result in a plea agreement greatly increases the risks of trial. The expanded language

undermines the defendant’s ability to contest the government’s accusations and forecloses a

full range of defense theories. Criminal defense lawyers can no longer prevent the

introduction of proffer statements by keeping their clients off the witness stand. If the

defendant offers testimony or evidence contrary to the proffer or through counsel presents a

position inconsistent with the proffer, the government may use the proffer statements.

Defense attorneys must be careful not to contradict any statements made during the proffer.

Otherwise, the prosecution may introduce the entire proffer statement in response to the

slightest contradiction.

Why agree to a proffer?

Despite the expanded language, sometimes, it may be in the defendant’s interest to proffer in

the hope of obtaining a cooperation plea agreement. The enactment of the United States

Sentencing Guidelines increased the incentive for defendants to cooperate in federal criminal

prosecutions. Under Section 5K1.1 of the Sentencing Guidelines, the federal prosecutor still

controls whether there is a reward for cooperation. The United States Supreme Court’s

decision in United States v. Booker, 543 U.S. 220 (2005), has not eliminated the need for the

government to move for a downward departure under Section 5K1.1 since judges are unlikely

to grant a variance for cooperation when the government has declined to file a 5K motion.


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• Are there any alternatives to proffer agreements? Defense counsel might consider: (1)

requesting strict use of immunity under 18 U.S.C. §6002; (2) insisting the prosecutor

change the standard language and redact and edit the proffer agreement to suit your

client; or (3) advise the prosecutor your client will speak to the investigating agents

under Federal Rule of Civil Procedure 11(f) and Federal Rule of Evidence 410(4).

3.4 Plea Agreements

Rule 11 - Federal Rule of Criminal Procedure

Outlines the Rules for all Plea Bargaining in Federal Criminal Cases

There are three types of pleas:

• Not guilty;

• Guilty; or

• Nolo contendere. (Fed. R. Crim. P. 11(a)(1)-(3)). When entering a guilty or nolo

contendere plea, a defendant may enter a conditional plea with the agreement of the

government and the court (e.g. permitting a defendant to withdraw the plea if an

adverse pretrial determination is reversed on appeal). Fed. R. Crim. P. 11(a) (2).

▪ Nolo contendere (or “no contest”) pleas are rare in federal court, and are

expressly disfavored by the government. However, it is not necessary to

secure the government’s agreement to a nolo plea. The court must accept a

nolo plea, and will need to be satisfied that there is a strong factual basis for

the plea and that the plea is knowing, voluntary, and intelligent. Defense

counsel will need to be prepared to make that case at the change of plea

hearing. Be sure to advise your client that entering a nolo plea is very likely to

jeopardize the acceptance of responsibility reduction to the advisory

sentencing guideline range.

There are three types of plea bargains:

• charge bargain (agreement by the government to dismiss charges in return for a

defendant’s plea or not to pursue potential charges);

• Recommendation bargain (entering into a plea in return for a non-binding sentencing

recommendation from the prosecutor); and

• Stipulation bargain (the parties agree to a binding sentencing recommendation).


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Key Aspects of Plea Agreements

• The Assistant United States Attorney handling your case will prepare a

proposed written plea agreement and send it to you to review with your client.

• In some cases, the Assistant United States Attorney will send you a plea

agreement very early in a case – possibly with the discovery material. In other

cases, you will not receive a plea agreement until you extensively negotiate with

the Assistant United States Attorney handling the case.

• In all cases, you will need to carefully review all aspects of the plea agreement

with your client. The United States Supreme Court has clarified that defense

counsel must advise the client about every plea offer made and advise the client

carefully when evaluating the plea offers. See Missouri v. Frye, 132 S. Ct. 1399

(2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012).

• When your client is a non-citizen, you must be particularly careful to advise the

client about the potential deportation consequences of the plea agreement.

• Plea agreements in federal criminal cases are lengthy – usually about 25 pages.

• Best practice is to review all sections of the plea agreement with your client to

ensure that they understand each and every aspect of the agreement.

• If your client is non-English speaking, you need to request a translated plea

agreement from the government, and make sure to use an interpreter when

meeting with the client to review the plea agreement.

• Normal contract principles apply to a plea agreement. If your client wishes to

modify the plea offer before accepting, then you have the option of going back to

the prosecutor to request changes, or simply striking out, adding, or revising

language in the agreement. (Make sure that you, the client and the interpreter (if

present) initial each change.)


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3.5 Key Aspects of Plea Agreements

Key portions of the plea agreement will include the count(s) of the Indictment (or Information) to

which your client will plead guilty and the statutory maximum penalties, any mandatory minimum

sentence, and the government’s commitment to move to dismiss any remaining counts (if any).

• You should carefully review with your client the elements of the count(s) to which he or she

is going to plead, and also the facts relevant to each element.

• This is a good opportunity to prepare the client for the factual colloquy regarding his or her

guilt that will occur at the plea hearing. Remember to prepare the client for the question that

he or she will have to answer at the change of plea hearing:

“Why do you wish to enter a guilty plea?”

• This is also a key point to discuss with the client the distinction between the facts supporting

his/her guilty plea versus the facts that will be considered for sentencing purposes. (e.g.

Facts demonstrating a defendant’s involvement in a drug trafficking conspiracy vs. facts

demonstrating the quantity of drugs attributable to the defendant for sentencing purposes).

• Be sure to explain the statutory maximum penalties to the client and the potential

mandatory minimums, and distinguish these from the estimated sentencing guideline range.

You may or may not have already reviewed the guideline range with the client, but it is

crucial to explain the distinction between the maximum penalty and the estimate guideline

range. Be aware that the plea agreement specifies the maximums, and your client may be

confused between your estimate of the guideline range and the (usually much higher)

penalties stated in the plea agreement. Be sure to double check the stated mandatory

minimums and maximums in the plea agreement to ensure that they are correct.

• Although it seems obvious, you should emphasize to your client that the remaining counts

(if any) will not be dismissed until sentencing. You want to make sure that your client

understands that no counts are dismissed simply by virtue of entering into the plea

agreement, and the Government’s commitment to move to dismiss is conditional.

Acceptance of Responsibility - This section provides a conditional promise by the

Government to move for a reduction in the offense level at sentencing. It is important to

emphasize to the client that the plea agreement is only a conditional promise, and the client

must first “adequately demonstrate this acceptance of responsibility to the government.”


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It is not always sufficient for a client to enter a guilty plea in order to get this reduction at

sentencing. This is a good opportunity to discuss the importance of making a statement

regarding acceptance of responsibility, and also the various ways in which a client’s conduct

can result in the loss of this reduction.

Sentencing Recommendation - Some, but not all, plea agreements will include a

commitment by the Government to make a specific sentencing recommendation (e.g.

minimum advisory range sentence; probationary sentence). Be sure to caution your client

that this is nothing more than a recommendation by the Government at sentencing, and is

not binding on the court.

Specific Guideline Stipulation - Some, but not all, plea agreements will include a

commitment by the parties to a specific finding under the Sentencing Guidelines (e.g. a

quantity of drugs attributable to a defendant; applicability or non-applicability of sentencing

enhancements). Once again, be sure to caution your client that the court can reject this

stipulation, but the parties cannot argue for a different finding at sentencing.

Fines/Conditions/Special Assessment/Supervised Release/Restitution – There are several

sections spread throughout the plea agreement that address the potential penalties flowing

from the guilty plea in addition to the period of incarceration or probation. In most cases, you

will spend the most time discussing the potential prison sentence, but it is important that you

discuss all of the additional potential penalties. Be sure to double check the stated penalties in

the plea agreement to ensure that they are correct. The court will review these at the change

of plea hearing, and you want to be sure that your client understands the full extent of the

potential penalties.

Collateral Consequences - The plea agreement may or may not list certain collateral

consequences of the plea, including the loss of the right to possess and/or carry firearms, loss

of the right to vote, loss of access to government benefits (including housing and student

loans), immigration consequences, loss of professional licenses, loss of pensions, forfeiture of

property, sex offender consequences, and increase of prior record score. There may also be

state-based consequences of the federal conviction. Whether or not these collateral

consequences are included, be sure to review them with your client prior to signing the plea

agreement.


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Withdrawal of Plea - The plea agreement will state that a defendant may not withdraw their

plea if they are dissatisfied with the sentence imposed or if the court declines to follow any

recommendation made by the parties. It is important to discuss with your client the limited

circumstances that permit withdrawal of a guilty plea in federal criminal cases.

This is addressed in Federal Rule of Criminal Procedure 11(d).

Waivers - There are certain non-negotiable waivers that your client must confirm in order to

enter a plea (e.g. waiver of the right to trial). Even if these waivers are not included in the

plea agreement, the court will review them with the defendant at the change of plea hearing.

There are also negotiable waivers that the government may include in a plea agreement, and

that you must review very carefully with your client. The most common are the waivers of

appeal and collateral attack. In our district, the government commonly includes both of

these waivers in plea agreements. Appellate courts will hold an appellate waiver valid so

long as it was knowing and voluntary. Be extremely cautious with the appellate waiver. In

most cases, the defendant’s sentence will be far from certain when negotiating the plea, and

it is rarely advisable to waive the right to appeal from a sentence in advance to sentence

being imposed. Be even more cautious with the collateral attack waiver. In 2013, the

American Bar Association issued a resolution opposing collateral attack waivers in plea

agreements. In addition, numerous ethics opinions have concluded that it is a conflict of

interest for trial counsel to recommend that a client waive his right to collateral attack.

Cooperation - If your client has agreed to cooperate, the plea agreement will include terms

specifying the requirements of your client in the future including, but not limited to,

providing truthful information, undercover work, waiver of Fifth Amendment rights if called

to testify, and use (or not) of information against the defendant at sentencing. You should

review your client’s obligations carefully to ensure their willingness to fulfill their

obligations. The Government may also commit to make a motion for a downward

departure for substantial assistance. Be sure to advise your client that the Government’s

promise is always conditioned on the defendant completing his or her obligations.

CHAPTER 4 – DISCOVERY

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4.1 Discovery in Federal Criminal Cases Rule 16 - Federal Rule of Criminal Procedure

• Rule 16 is defense counsel’s main discovery tool. See United States v. Griggs, 111 F.

Supp. 2d 551 (M.D. Pa. 2000) (disclosure of rough notes of interrogation done by the

Pennsylvania State Police is necessary to effectuate the purpose of Rule 16(a)(1)(A)).

• To trigger the government’s disclosure obligations, defense counsel must request all

information enumerated in Rule 16. Discovery requests should be made in writing

and be specific.

• Absent a written request for specific items of information, defense counsel’s

argument that a discovery violation has occurred will be rejected by the courts. See

United States v. De La Rosa, 196 F.3d 712, 716 (7th Cir. 1999) (finding no discovery

violation when defendant failed to file a proper discovery request).

• Do not be lulled into inaction by a prosecutor’s assurances of open file discovery. At

the earliest stage of every case, an artfully drafted discovery request should be served

on the prosecution and supplemented later.

Scope of Discovery Under Rule 16(a)(1)

16(a) (1) provides that, upon request, the government must disclose to the defendant:

• Defendant’s Oral Statements, FED. R.CRIM.P. 16(a)(1)(A);

• Defendant’s Written and Recorded Statements, FED. R.CRIM.P. 16(a)(1)(B);

• Defendant’s Grand Jury Statements, FED. R.CRIM.P. 16(a)(1)(B)(iii);

• Statements of Organizational Defendants, FED. R.CRIM.P. 16(a)(1)(c)(i)-(ii);

• Defendant’s Prior Criminal Record, FED. R.CRIM.P. 16(a) (1) (D);

• Documents and Tangible Objects, FED. R.CRIM.P. 16(a) (1) (E);

• Reports of Examinations and Tests, FED. R.CRIM.P. 16(a) (1) (F); and • Expert Witnesses, FED. R.CRIM.P. 16(a) (1) (G).

Rule 16(a) (2) – Exceptions to Government Disclosure

Rule 16(a) (2) creates two express limitations to discovery under Rule 16(a)(1):

• Attorney Work product; and

• Jencks Act Materials (i.e. statements made by prospective government witnesses).


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The Jencks Act

The Jenck’s Act defines a statement as:

• A written statement made by a government witness and signed or otherwise adopted

or approved by him;

• A recording or transcription or a substantially verbatim recital of an oral statement

made by a government witness and recorded contemporaneously with making the

statement; and

• A statement made by a government witness to a grand jury, however taken or

recorded, or a transcription. 18 U.S.C. §3500(e) (1)-(3).

Under the Jencks Act, any recorded statement or report of a government witness must be

provided to a defendant, but only after the witness has testified on direct examination. 18

U.S.C. §3500(a). The Court cannot force the government to produce Jencks Act statements

before the witness testifies. United States v. Murphy, 569 F.2d 771 (3d Cir. 1978); United

States v. Mariani, 7 F. Supp. 2d 556 (M.D. Pa. 1998, Vanaskie, J.); United States v. Moyer, 726

F. Supp. 2d 498 (M.D. Pa. 2010, Caputo, J.). However, under the Jencks Act, “the court in

its discretion, upon application of said defendant, may recess proceedings in the trial for such

time as it may determine to be reasonably required for the examination of such statement by

said defendant and his preparation for its use at trial”. 18 U.S.C. §3500(c). To alleviate

delays and promote judicial efficiency, the courts encourage, and the government usually

agrees to disclosure of Jencks Act materials three days prior to the commencement of trial.

See United States v. Hammonds, 2012 U.S Dist. LEXIS 6357 (M.D. Pa. 2012, Conner, J.)

(court cannot compel early disclosure of Jencks material, but notes that disclosure three days

before trial should provide counsel with ample time to prepare; however, one or two

additional days of preparation may expedite trial); See also, United States. v. Barry, 2011 U.S.

Dist. LEXIS 102354 (M.D. Pa. 2011, Munley, J.) (motion to disclose Jencks material denied,

but court encourages government to provide Jencks material to defendant by 5 p.m. on the

Friday before the trial is scheduled to begin).

Reciprocal Discovery under Rule 16(b)

Rule 16(b) sets forth the defendant’s reciprocal discovery obligations. Under Rule 16(b), the

defendant’s reciprocal obligation is triggered only after the defense first requests government

disclosure and the government complies. See FED. R.CRIM.P. 16(b) (1) (A).


Page 31

Rule 16(b) only requires disclosure of information recorded in some tangible form, i.e.,

documents and objects, reports of examinations and tests and written summaries of expert

reports.

Rule 16(b)(2) – Exceptions to Reciprocal Discovery by Defendant

Rule 16(b) (2) provides that, except for scientific or medical reports, Rule 16(b) (1) does not

authorize discovery or inspection of:

• Reports, memoranda or other documents made by the defendant or his attorney

during the case’s investigation or defense; or

• A statement made to the defendant, or defendant’s attorney by either the defendant,

a witness for either party, or a prospective witness for either party.

Rule 16(c) – Continuing Duty to Disclose

Rule 16(c) provides that a party who discovers additional evidence or material before or

during trial must promptly disclose its existence to the other party or the court if:

• The evidence or material is subject to discovery or inspection under Rule 16; and

• The other party previously requested, or the court ordered, its production.

Defense counsel’s failure to make a discovery request may have lasting consequences. See

United States v. Jordan, 316 F.3d 1215, 1249 (11th Cir. 2003) (stating the government has no

obligation under Rule 16(c) to produce materials unless there is a defense request)

Rule 16(d) (2) – Sanctions

Rule 16(d) (2) gives the trial court substantial discretion to impose sanctions for failure to

comply with a discovery rule. If a party fails to comply with Rule 16, the court may:

• Order the violating party to permit the discovery or inspections; specify its time,

place and manner; and prescribe other just terms and conditions;

• Grant a continuance;

• Prohibit the violating party from introducing the undisclosed evidence; or

• Enter any order that is just under the circumstances.


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A continuance is the least intrusive remedy to a discovery violation, especially when the

violation was not deliberate. Preclusion of evidence is an appropriate sanction for the willful

failure to comply with discovery rules. The most drastic remedy for the prosecution’s failure

to comply with discovery is dismissal of the indictment.

Discovery Under Other Federal Rules of Criminal Procedure

Rule 6(e) – Grand Jury Transcripts

Identify a Title

Rule 6(e)(2) precludes disclosure of grand jury transcripts; however, Rule

6(e)(3)(E)(ii) provides the court may authorize disclosure of a grand jury matter at

the request of a defendant who demonstrates that a ground may exist to dismiss the

indictment due to misconduct before the grand jury.

Rule 7 – Bill of Particulars

Under Rule 7(f), the court may direct the government to file a bill of particulars. The

defendant may move for a bill of particulars before or within 14 days after

arraignment or at a later time, if the court permits.

A bill of particulars can be useful, and a motion is more likely to succeed in factually

complex or multi-defendant case, such as a narcotics conspiracy case or complex tax

and fraud cases.

Rule 15 – Depositions

Rule 15(a) provides that a party may move a prospective witness be deposed to

preserve testimony for trial. The court may grant the motion because of exceptional

circumstances and in the interest of justice. See, e.g. United States v. Mariani, 178

F.R.D. 447 (M.D. Pa. 1998) (the government filed a Rule 15 motion for an order

authorizing taking a deposition of a witness for later use because the witness’ age and

condition of health) and United States v. McDade, 1994 U.S. Dist. LEXIS 5334 (E.D.

Pa. 1994) (the court granted defendant’s motion to depose two witnesses of advanced

age).


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Rule 17 – Subpoenas

Some have said that subpoenas under Rule 17 are not pre-trial discovery devices.

Rather, subpoenas under Rule 17 compel witnesses to appear and provide a time and

place before trial for the inspection of subpoenaed materials. Rule 17 serves as an aid

for obtaining relevant evidentiary material that may be used at trial.

Rule 26.2 – Producing a Witness’ Statement

Rule 26.2(a) provides that after a witness, other than the defendant, has testified on

direct examination, the court, on motion of a party who did not call the witness,

must order an attorney for the government or the defendant and the defendant’s

attorney to produce, for the examination and use of the moving party, any statement

of the witness in their possession and that relates to the matter of the witness’

testimony.

The Jencks Act has been substantially incorporated into Rule 26.2 of the Federal

Rules of Criminal Procedure. Rule 26.2 extends the Jencks Act which requires the

production of witness statements. The Rule does not alter the Act’s schedule for

disclosure of statements, nor does it relieve a defendant seeking the production of

Jencks material of the requirement to make a request for production. However, Rule

26.2 is reciprocal and requires the defendant and defendant’s attorney to produce any

statements that relate to the subject matter of a defense witness’ testimony.

Disclosure by the Defendant

Rule 12.1 – Notice of an Alibi Defense

Rule 12.1 provides that an attorney for the government may request in writing the

defendant notify an attorney for the government of intended alibi defense. If the

government fails to comply with the demand requirement, the defendant need not

provide notice.

Rule 12.2 – Notice of an Insanity Defense

Rule 12.2(b) requires the defense to give notice of its intent to use an insanity defense

or of a defendant’s intent to introduce expert testimony relating to a defendant’s

mental state, regardless of whether the government so requests.


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Rule 12.3 – Notice of Public Authority Defense

Rule 12.3 requires a defendant to give notice of intent to rely on a defense of actual

or believed exercise of public authority for a law enforcement agency or federal

intelligence agency at the time of the alleged offense.

Rule 26.1 – Notice of a Foreign Law Defense

Rule 26.1 provides that a party intending to raise an issue of foreign law must

provide the court and all parties with reasonable written notice.

4.2 Discovery of Exculpatory Evidence In several landmark decisions, the Supreme Court clarified that a prosecutor’s failure to provide the

defense with any information that would exculpate criminal defendants, or that would impeach the

character or testimony of a government witness, violates the due process clause of the federal

constitution.

Brady v. Maryland, 373 U.S. 83, 87 (1963)

In Brady v. Maryland, 373 U.S. 83, 87 (1963), after the petitioner was convicted of murder

and sentenced to death, he learned the state had withheld a statement in which his

accomplice admitted to the actual homicide. The Supreme Court pointed out that the

prosecutor has an obligation to pursue the truth and further the interests of justice. The

Supreme Court held that a prosecutor’s suppression of evidence favorable to an accused

upon request violates due process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the prosecution.

Giglio v. United States, 405 U.S. 150 (1972)

In Giglio v. United States, 405 U.S. 150 (1972), the Supreme Court held that a prosecutor’s

failure to disclose a promise of leniency to a key witness for his testimony violated the

federal due process clause. “When the reliability of a given witness may well be

determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls

within [the] general rule [requiring a new trial].” Id. at 153-155.

United States v. Bagley, 473 U.S. 667 (1985)

In United States v. Bagley, 473 U.S. 667 (1985), the Supreme Court held that for Brady, there is

no difference between exculpatory evidence and impeachment evidence.


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Notwithstanding Bagley, the Department of Justice continues to maintain a distinction

between exculpatory information, which should be turned over reasonably promptly, and

impeachment information which should be disclosed at a reasonable time before trial.

Disclosure of Brady Material

• Courts hold that a prosecutor’s duty to disclose Brady evidence exists even absent a

defense request for exculpatory evidence. See Kyles v. Whitley, 514 U.S. 419, 432-34

(1995).

• Courts have held the prosecutor has no duty to disclose information that is a matter

of public record or evidence that defense counsel could have discovered though

exercising reasonable diligence.

• A discovery request should always include a request for exculpatory evidence,

including without limitation, all documents, statements, reports and tangible

evidence, favorable to the defendant on the issues of guilt or punishment or which

affects the credibility of the government’s case.

Materiality

• “Evidence is material if there is strong indication that it will play an important role in

uncovering admissible evidence, aiding witness preparation, corroborating

testimony, or assisting impeachment and rebuttal.” United States v. Felt, 491 F. Supp.

179, 186 (D.D.C. 1979).

• If there is a question regarding whether evidence in the government’s possession is

exculpatory, the defendant can request that the prosecutor turn over the file to the

court for an in camera Brady inspection.

Prosecution’s Possession

A prosecutor’s duty to disclose Brady material extends to material that can be found in the

prosecution files, and in the files of government agencies, if the agency is considered an “arm

of the prosecution” or part of the prosecution team.

General Categories of Brady Material

The following is a non-exhaustive list of items that may be discoverable as Brady material:

• Witness statements favorable to the defendant;

• The existence of witnesses favorable to the defendant;


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• Psychiatric reports showing the defendant’s legal insanity or diminished capacity;

• Negative exculpatory statements, such as statements by informed witnesses that fail

to mention the defendant, or any eye witnesses inability to identify the defendant;

• Test results that do not implicate the defendant; and

• Any information which would affect the credibility of a government witness,

including without limitation:

▪ Material lies;

▪ Prior inconsistent statements;

▪ Witness hostility or bias;

▪ Evidence that calls into question the witness’ capacity to observe or recall

(logistics or use of drugs and alcohol);

▪ Evidence inconsistent with a witnesses testimony;

▪ Money, rewards, promises, or other consideration, benefits or assistance,

provided to the witness for testimony;

▪ Prior bad acts of witness bearing upon credibility;

▪ Prior criminal history (including adult convictions and juvenile

adjudications) of witness;

▪ Presentence reports of witnesses or co-defendants;

▪ Reports of polygraph examinations of a government witness;

▪ Records of psychiatric treatment by witness;

▪ The witnesses parole or probation status;

▪ Participation in any witness protection or relocation program;

▪ Any type of informant status;

▪ The fact that witness was target of investigation, threatened with prosecution,

or otherwise threatened about failing to testify;

▪ The personnel files of government informants, or a summary of any FBI

informant file.


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4.3 Other Discovery Motions

Motion to Compel Disclosure of Confidential Informant

In Rosario v. United States, 353 U.S. 53, 77 S. Ct. 623 (1957), the Supreme Court recognized

“the public interest in protecting the identity of a confidential informant, but held that the

interest in the anonymity of informants must yield when disclosure is essential to a fair

determination of a cause”. The Rosario court stated “[w]hether a proper balance renders

nondisclosure erroneous must depend on the particular circumstances of each case, taking

into consideration the crime charged, the possible defenses, the possible significance of the

informer’s testimony, and other relevant factors.” Id. at 61-62, 77 S. Ct. at 628.

Motion for Order Directing Government to Provide Notice of Intent to Use Evidence of Prior Arrests, Convictions or Bad Acts

The legal bases for such motion include FED. R. EVID. 104 (preliminary questions on

admissibility of evidence); FED. R. CRIM. P. 12(b) (a party may raise by pretrial motion any

defense, objection or request) and FED. R. EVID. 404(b)(2) (on request by defendant, the

prosecutor must provide notice of the general nature of any such evidence that prosecutor

intends to offer ).

Motion for Order Directing the Government to Provide Notice of Intent to Use Co-Conspirator Statements

The government should give notice of its intent to use coconspirator statements and disclose

the substance of such statements so a James hearing can be held to determine their

admissibility under the coconspirator exception to the hearsay rule. See FED. R.

EVID. 801(d) (2)(E); United States v. James, 590 F.2d 575 (5th Cir. 1979).

Discovery Obligation of Federal Prosecutors

A prosecutor’s discovery obligations are firmly established in law and are derived from

several sources, including without limitation:

• The U.S. Constitution and the constitutional principles enunciated in Brady v.

Maryland and United States v. Giglio;

• Statutory mandates from Congress, including 18 U.S.C. §3500 (the Jencks Act);

• Federal Rules of Criminal Procedure 16 and 26.2;


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• The U.S. Department of Justice’s policies, including the United States Attorney

Manual (“USAM”) and three memoranda released in January 2010 regarding

criminal discovery practices, to wit: (i) Issuance of Guidance and Summary of

Actions Taken in Response to the Report of the DOJ Criminal Discovery and Case

Management Working Group; (ii) Requirement for Office Discovery Policies in

Criminal Matters, and (iii) Guidance for Prosecutors Regarding Criminal

Discovery (the “DOJ Discovery Guidance” or “Guidance”); and

• The Pennsylvania Rules of Professional Conduct applicable to federal prosecutors

under 18 U.S.C. §530B (the McDade Act), “Ethical standards for attorneys for the

government” and its implementation regulations, 28 C.F.R. §77, et seq.

4.4 Best Practices for Obtaining Discovery Below are some steps to follow when requesting pre-trial discovery:

• At the pre-trial phase of every case, draft and serve a written request for discovery

upon the prosecutor, which describes the items of information sought;

• Support your request for discovery with citations to legal authorities, including

without limitation, Federal Rule of Criminal Procedure 16 and 26.2, 18 U.S.C.

§3500 (the Jencks Act), Federal Rule of Evidence 404(b), Brady v. Maryland, United

States v. Giglio, USAM §9-5.001, DOJ Discovery Guidance, Rule 3.8 of the

Pennsylvania Rule of Professional Conduct, 28 U.S.C. §530B (the McDade Act) and

ABA Standards and Model Rules;

• Make a record describing each item of information disclosed by the prosecution and

the date of its disclosure;

• If the prosecution declines the discovery request, move to compel production;

• If the prosecution complies with the discovery request, comply with any requests for

reciprocal discovery and make a record of the information disclosed to the

prosecution;

• Prepare and serve any supplemental requests for discovery upon the prosecutor.

CHAPTER 5 – MOTIONS PRACTICE

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5.1 Motions Practice

Rule 12 - Federal Rule of Criminal Procedure

This section discusses pretrial motions. Rule 12 defines the parameters of pre-trial motion

practice and states in part: “A party may raise by pretrial motion any defense, objection, or

request that the court can determine without a trial of the general issue.” (Emphasis added).

Given this broad language, an enormous variety of pre-trial motions can be filed in a federal

criminal case. FED. R.CRIM.P. 12(b)(3). The following motions must be raised before trial

or are deemed waived:

• A motion alleging a defect in instituting the prosecution;

• A motion alleging a defect in the indictment or information-- but… while the case is

pending, the court may hear a claim that the indictment or information fails to

invoke the court’s jurisdiction or to state an offense;

• A motion to suppress evidence;

• A Rule 14 motion to sever charges or defendants; and

• A Rule 16 motion for discovery.

FED. R.CRIM.P. 12(b)(3) & (e).

• Other motions may be brought before trial, but can also be raised while the case is

pending, e.g. a motion in limine, or a motion to dismiss for failure to state an offense

or establish jurisdiction.

• The court may, at the arraignment or as soon afterward as practicable, set a deadline

for the parties to make pretrial motions and may also schedule a motion hearing.

FED. R.CRIM.P. 12(c). Motions requesting enlargements of time in which to file

pretrial motions may be filed in this district. Generally, extensions are granted for a

thirty day period. Under Local Criminal Rule 12.1, a motion for a continuance of

trial and any pretrial motion filed after arraignment, shall include: (1) a statement of

whether any delay occasioned by the making, hearing or granting of the motion will

constitute excludable time and, if so, a statement or estimation of the number of days

to be excluded or a statement describing how excludable time should be determined

by reference to a specified future event; and (2) a proposed order stating the reasons

for granting the motion and the proposed findings as to excludable time.


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Motions to Suppress Evidence

The most typical pretrial motion is a suppression motion. In these types of motions, the

defense moves to suppress evidence, or to prevent the government from using it. These

motions can include suppression of evidence, like a gun or drugs seized in a search, or

statements, like a defendant’s confession.

As to suppression motions, the burdens of proof are allocated between the defendant and the

government:

• If the defendant is challenging a search or seizure based on a warrant, the burden of

proof is on the defendant.

• If the defendant is challenging a warrantless search or seizure, the burden of proof is

on the government.

• The defendant has the burden of production, i.e., showing there was a search or

seizure implicated by the Fourth Amendment.

• The defendant must show a factual nexus regarding the fruits of an unlawful search

and seizure.

• The defendant must establish standing.

• Regarding suppression of statements, the government must show a knowing,

intelligent, voluntary waiver of Miranda rights and the voluntariness of the statement.

• The defendant must show he was in custody and subject to interrogation.

• The court must hold an evidentiary hearing on a motion to suppress evidence if the

defendant makes an offer of proof sufficiently specific to enable the court to conclude

that contested issues of fact pertaining to the validity of the search are in question.

A defendant objecting to the admission of a confession is entitled to a hearing in which both

the underlying factual issues and the voluntariness of his confession are determined.


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Pretrial Motions Checklist

1. Motion for Bill of Particulars

• Rule 7(f) of Federal Rules of Criminal Procedure

• Intended to Supplement the Indictment by providing more detail of

the facts upon which the charges are based.

• Aids defendant in preparing for Trial.

• Eliminates surprise at Trial.

• Protects against Double Jeopardy.

2. Motion for Competency Evaluation

• Due process prohibits subjecting a defendant who is mentally incompetent to

a trial.

• Defense/prosecution/court obligated to inquire into a defendant’s mental

competence if a good faith basis to question competency exists at any point

during the case.

• Mental Incompetency can result from a traditional mental disease or defect

or as a result of medical condition affecting mental state.

3. Motion for Continuance

• Trial

• Pre-Trial Motions

• Motions Hearing

• Presentence Report Objections

• Sentencing

4. Discovery Motions--FED. R. CRIM. P. 16

• Motion not required to trigger discovery.

• Motion to Compel Discovery-file when government does not comply with

discovery obligations

5. Disclosure Motions:

• Brady Motions

• Motion for early release of Jenck’s Material


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6. Dismissal Motions:

• Speedy Trial Violations

• Dismissal for Double Jeopardy

• Duplicity of Counts

• Failure to State a Claim

• Motion to Dismiss on Selective Prosecution

• Motion to Dismiss on Vindictive Prosecution

7. Ex Parte Motions:

• Motion for Travel and to Approve Travel Expenses

• Motion for Funds to Retain Experts

• Motion for Issuance of Subpoena

8. Extension of Time to File:

• Pretrial Motions

• Briefs in Support and Opposition

9. Suppression Motions:

• Suppress Evidence

• Prevent Government from Using Evidence

▪ 4th Amendment: Illegal Search and Arrest

▪ 5th Amendment: Statements

▪ Identification Evidence

10. Severance Motions:

• Fed R. Crim. P. Rule 14

• Severance of Defendants and/or Counts

11. Other/Miscellaneous Motions

• Motion to Disclose Sentencing Guidelines Information

• Motion for Recusal of Judge

• Motion for Change of Venue


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Notices

• Notice pursuant to FED. R. CRIM. P. 12(b) (4) (B)

• Notice for Disclosure of Hearsay Statements

• Notice for Disclosure of Expert Testimony

• Notice pursuant to FED. R. EVID. 609(b)

• Notice pursuant to FED. R. EVID. 404(b)

Practical Consideration

• Be resourceful/creative

• Know time periods; file extension requests for pre-trial motions/notices at all times,

to avoid waiver issues, even if you know your case is likely to end with a plea.

• Pretrial Motions toll speedy trial rights.

• Always check local rules for any special requirements.

Additional Resources on Pretrial Motions: • Defending a Federal Criminal Case, (Federal Defenders of San Diego)

• LaFave-3 Volume Set on Search and Seizure

• www.fd.org

CHAPTER 6 – NON-ENGLISH SPEAKING AND NON-CITIZEN CLIENTS

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6.1 Representing Non-English Speaking Defendants

When using an interpreter:

• Allow time for interpretation. Typically only one person should speak at one time,

let the interpreter finish interpreting.

• The interpreter must be able to hear to interpret. Speak loudly; do not turn your back

to the interpreter. Do not rustle papers loudly.

• Check the qualifications of an interpreter provided by the Court.

• Make an objection to the use of an unqualified interpreter or whenever you perceive

that the interpreter (certified or not) is not performing adequately.

Court Interpreters:

• Should interpret everything and conserve all elements of the communication

including: meaning, level of speech (formal, technical, slang, jargon), and tone.

• Should not add to, explain or elaborate on what is being said. Technical or legal

terms should be translated but not explained by the interpreter.

• Should not omit any information or change the level of speech.

• Are not advocates and are required to remain impartial.

• Should disclose any conflict of interest they may have in a case.

When an Attorney Speaks the Client’s Language and Communicates with him/her Outside of Court or Can “Get by” in English Outside of Court, Make Sure to:

• Use the interpreter to communicate an offer, prepare for a plea, or to prepare for

testimony so that your client becomes familiar with the process of interpretation and

the terms used in court by the interpreter.

• Ask the client if he/she prefers to use an interpreter. Attorneys often overestimate

their bilingual skills or their client’s comprehension of English.


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Guidelines to Keep in Mind When Representing a Non-English Speaking Defendant:

• Formality is important in many cultures. Being casual in the U.S. may make you

come across as friendly and accessible but this style may not be effective with people

from other cultures.

• Make sure to introduce yourself to your client and also introduce the interpreter.

Take time to explain the rules of confidentiality. Let your client know that the

interpreter is bound by attorney-client privilege.

• Inquire into your client’s level of education and factor this into your expectation of a

client’s ability to deal with sophisticated vocabulary, numbers, measures and other

unfamiliar concepts.

• Tell your client that you want to know if they do not understand what is being said.

Translation of Documents:

• Preapproval from the CJA coordinator in the Clerk of Court’s Office is required

before a document may be translated.

Resources: Representing Non-English Speakers: 10 Points Attorneys Should Know by Mary Lou Aranguren/April 1998

6.2 Representing Non-Citizen Defendants

Duties of Defense Counsel:

• Padilla v. Kentucky, 559 U.S. 356 (2010):

• March 31, 2010: Drug trafficking case.

• Defense counsel: Duty under Sixth Amendment to advise non-citizen clients of the

immigration consequences of their pleas

• Not limited to affirmative misadvise

• Not the constitutional duty of the court

• types of advice:

▪ Where deportation consequences are clear: Correct affirmative advice

▪ Where deportation consequences are unclear: Must advise on risk of

deportation

• In both “types” of cases, the duty to analyze immigration consequences of a plea

remains the same


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Key Factors to Consider in Non-Citizen Cases

• Current immigration status

▪ Lawful permanent residents (LPRs): individuals who have indefinite legal

status in the United States (“green card holders”)

▪ Persons lawfully present who are not LPRs: asylees, refugees, visitors,

foreign students, work visas, temporary protected status

▪ Undocumented individuals: people who entered with a valid temporary

status and overstayed or people who entered without inspection.

▪ Immigration history (date of entry, lawful or unlawful entry, prior

deportation) (Questions to ask):

Arrival in the United States?

Status when arrived (e.g. tourist visa)?

Basis for obtaining immigration status (via relatives, work, refugee

status)?

Immigration status of relatives, especially spouse or parents?

Any travel outside of United States for more than 6 months after

obtaining status?

Any prior deportations or encounters with immigration or an

immigration judge

Criminal history, including arrests

Some non-citizens may face removal based on prior criminal

convictions, even convictions that are decades old

Multiple convictions may trigger certain negative immigration

consequences

All criminal history is relevant (arrests, convictions, sentencing,

juvenile).


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Immigration Definition of Conviction

Immigration law defines “conviction” at 8 U.S.C. §

1101(a)(48) as a formal judgment of guilt entered by the court,

or if adjudication is withheld, where: A judge/jury finds the

non-citizen guilty; or

Non-citizen enters a guilty plea; or

Non-citizen enters a plea of “nolo contendere”; or

Non-citizen admits sufficient facts to warrant finding of guilt

AND

A judge orders some form of punishment, penalty, or restraint on

liberty.

Major Consequences of Criminal Convictions

Removal (deportation) from the United States

Ineligible for an immigration bond, resulting in “mandatory

custody” during removal proceedings

Ineligible for immigration waivers or relief.

Removal from the United States

A non-citizen may be removed from the United States when

charged with inadmissibility pursuant to 8 U.S.C. § 1182 or

removability pursuant to 8 U.S.C. § 1227

Criminal Grounds of Inadmissibility

Crimes Involving Moral Turpitude (CIMTs)

Controlled Substance Offenses

Multiple crimes

Prostitution

Criminal Grounds of Removal

Crimes Involving Moral Turpitude (CIMTs)

Aggravated Felonies

Controlled Substance Offenses

Firearms Offenses

Domestic Violence Offenses


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▪ 8 U.S.C. § 1227(a) (2) Criminal Grounds of Removal:

Single Crime Involving Moral Turpitude (CIMT), 8 U.S.C.

§1227(a)(2)(A)(i): Conviction for a crime of moral turpitude;

Committed within 5 years after the day of admission;

Punishable by a sentence of a year or longer.

Multiple CIMTs, 8 U.S.C. §1227(a)(2)(A)(ii)Conviction

of two or more CIMTs;

Not arising out a single scheme;

Can occur any time after admission

Aggravated Felonies. 8 U.S.C. § 1227(a)(2)(A)(iii),

defined by 8 U.S.C. § 1101(a)(43)

Conviction for a Controlled Substance Offense, except

for a single possession of marijuana less than 30 grams.

8 U.S.C. § 1227(a)(2)(B)(i)

Conviction for Firearms Offenses. 8 U.S.C. §

1227(a)(2)(C) Conviction for a Crime Involving

Domestic Violence, Stalking, Child

Abuse, Violation of Orders of Protection. 8 U.S.C. §1227 (a)(2)(E).

CHAPTER 7 – TRIAL

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7.1 Some Important Differences Between Federal and Pennsylvania Criminal

Trials

The Federal Court System The Pennsylvania State Court System

• The court may examine prospective jurors, or may permit the attorneys for the parties to do so. See Fed. R.Crim.P. 24(a)(1)

• Generally, voir dire is conducted by the attorneys. See Pa. R.Crim.P. 631

• The government has 6 peremptory challenges and the defendant or defendants jointly have 10 peremptory challenges when a crime is punishable by imprisonment of over one year. See Fed. R.Crim.P. 24(b)(2)

• In trials involving a non-capital felony with one defendant, the Commonwealth and defendant are each entitled to seven peremptory challenges. See Pa. R.Crim.P. 634

• Evidence of a criminal conviction for a crime that in the convicting jurisdiction was punishable by death or imprisonment for more than one year must be admitted in a criminal case in which the witness is a defendant if the probative value outweighs its prejudicial effect. See Fed. R.Evid. 609(a)(B)

• Impeachment by criminal conviction is limited to crimen falsi offenses. See Pa. R.Evid. 609

• Closing arguments proceed in the following order: (a) government argues; (b) the defense argues; and (c) the government rebuts. See Fed. R.Crim.P. 29.1

• The defendants must present their closing arguments first and allow the Commonwealth to close last. See Pa. R.Crim.P. 604

CHAPTER 8 - SENTENCING

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8.1 Federal Sentencing

Preface

The following sections provide an overview of the most common procedural and substantive

sentencing issues in our district. At the outset, we note that it is essential for a federal

criminal defense attorney to be knowledgeable in the area of federal sentencing. Given that

approximately 97% of federal criminal cases are resolved by guilty plea (nationwide), it is

certain that your federal criminal practice will involve sentencing issues. From the start of

representation through the conclusion of the case, the federal criminal defense attorney

needs to understand and educate the client about the sentencing issues present in each case.

• From the outset of representation, gather information relevant to your client’s

sentencing issues.

• Best practice is to educate your client regarding the potential sentencing

ramifications of the charges, and the sentencing ramifications of any contemplated

plea in light of his or her criminal history and any other pertinent factors.

• Look for opportunities to gain advantageous sentencing agreements or concessions

from the government through plea bargaining.

• Represent your client’s interests throughout the sentencing process.

• At every stage, a working knowledge of the United States Sentencing Guidelines and

the relevant sentencing statutes is critical.

• This is an area in which federal criminal practice is markedly different than state

criminal practice.

• Federal sentences are more severe than state sentences for comparable crimes in

nearly every category.

• The time and effort devoted to sentencing in the federal criminal justice system is

considerably greater than in the state court system.

• Federal sentencing presents complex statutory, guideline, and discretionary issues

that will frequently require careful factual and legal research and arguments.


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The Presentence Report

• Fed. R. Crim. Pro. 32(c) requires a pre-sentence investigation and report before the

court may impose sentence in nearly all cases.

• At the time of the guilty plea or following conviction, the court will establish a

schedule for completion of the pre-sentence interview, pre-sentence report, and

objections to the pre-sentence report.

• The defense attorney may request an extension of the court-established deadlines for

completing the pre-sentence interview and submitting objections to the pre-sentence

report.

• A probation officer will conduct the pre-sentence interview and prepare the pre-

sentence report. The probation officer is required, on request, to give defense

counsel notice to attend the interview. The probation officers in this district expect

to coordinate the interview with defense counsel.

• Best practice is to attend the pre-sentence interview with your client.

• The probation officer will question your client about his or her entire personal,

educational, employment, substance abuse, and health history. It is critical for you

to be present to learn your client’s background (to the extent you have not already),

to answer your client’s questions, and to assist your client in presenting all relevant

mitigating information to the probation officer. It may also be critical for you to

advise your client about damaging information that he or she should not provide,

since all statements made by your client may be used against him or her at

sentencing.

• The probation officer will also ask if your client wishes to make a statement

regarding his or her role in the offense. This is the most dangerous aspect of the pre-

sentence interview for your client. If your client is potentially eligible for a sentence

reduction for “acceptance of responsibility,” this statement has the potential to help

or hurt your client enormously.

• You should discuss this aspect of the pre-sentence interview with your client in

advance, and explain that the purpose of this statement is simply to determine

whether the client should receive the “acceptance of responsibility” adjustment.


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• The probation officer may present the option of allowing your client to simply agree

with the prosecutor’s description of his or her role in the offense provided at the time

of the plea hearing (and frequently in writing). If your client is comfortable with this

option, then this may be a prudent course of action because it avoids potentially

damaging remarks by your client intended to minimize his or her role in the offense.

• You can also elect to submit a statement regarding your client’s role in the offense in

writing. This method enables you to have greater control over your client’s

statement.

• Under no circumstances should you allow the probation officer to question your

client about his or her role in the offense without your approval.

• You may be going to argue that your client should receive an adjustment or

departure based on his limited role in the offense, but it is not advisable to allow your

client to make that argument when giving a statement to the probation officer. It will

likely be construed as a failure to accept responsibility.

• The probation officer will ask your client to sign certain releases at the time of the

interview so that background information can be obtained (school reports, medical

information, tax returns, etc.).

• Be advised that if your client is not incarcerated at the time of the interview, he or

she will be asked to provide a urine sample for drug testing at the time of the

interview.

• Several weeks after the pre-sentence interview, counsel will receive the pre-sentence

report through ECF.

• The pre-sentence report will address all relevant sections of the sentencing guidelines,

and calculate the offense level, criminal history category, and resulting sentencing

range and kinds of sentences available, among other items. See Fed. R. Crim. Pro.

32(d) for a complete explanation of the required contents of the pre-sentence report

and Publication 107. The Federal Public Defender’s Office should have a copy of

Publication 107 in their library.

• Counsel is required to confer with the defendant and submit any objections or

corrections to the pre-sentence report within 14 days of receipt of the report.

• Best practice is to meet with your client as soon as possible to review the entire

pre-sentence report together (with an interpreter if necessary).


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• Counsel must submit objections or corrections to the probation officer directly in

writing and provide a copy to the prosecutor as well.

• The written objections are not filed with the court, and may be in the form of a letter

or memo.

• All matters not objected to or corrected may be accepted by the court as an

admission.

• The probation officer will then prepare an addendum or revised pre-sentence report

addressing the objections/corrections submitted by counsel.

• The addendum and/or revised pre-sentence report are then submitted to the court,

and the court will then schedule a sentencing date if it has not already done so.

• Be aware that the pre-sentence report will not only be relied upon by the sentencing

court, but also by the Federal Bureau of Prisons, where it can affect institutional

placement, conditions of confinement, eligibility for prison programs, and release

conditions.

• Therefore, even if the factual findings in the pre-sentence report will not necessarily

impact the sentencing determination, they must be corrected before sentencing.

Mitigation for Sentencing

• Because the sentencing guidelines are merely advisory and the sentencing court has

considerable discretion, federal sentencing practice relies heavily on mitigation.

• The Supreme Court has held that defense counsel has a clear duty to investigate in

preparation for sentencing.

• Defense counsel should develop facts and arguments to present to the court to

explain why this defendant in this case should receive a particular length or kind of

sentence.

• Defense counsel should strive to present the defendant to the court as a person,

rather than just a set of numbers (offense level, criminal history category, and

sentencing range).

• The first step is to interview and get to know your client so that you can identify

potential mitigators (e.g. lack of educational or vocational opportunity, physical or

mental illness, post-offense rehabilitation).

• Considering preparing a checklist of social history topics to discuss with each client.


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• It may take several interviews to establish the kind of relationship that enables you to

learn personal background from your client.

• Once you identify potential mitigation leads, get your client to sign release forms so

that you can obtain records to corroborate your client’s statements, if possible.

• Reach out to family and friends identified by the client to obtain additional

mitigation evidence and information.

• Consider reaching out to agencies that had contact with your client (e.g. social

services, schools, child welfare), organizations that compile data or study

communities (e.g. U.S. Census Bureau, local school board, health department), and

organizations and agencies that compile data on or study human rights and

international relations if your client is from another country (e.g . United Nations,

Amnesty International, and Human Rights Watch).

• Always keep in mind the purposes of sentencing set out in 18 U.S.C. § 3553(a), and

consider the judge’s likely concerns with respect to your client.

• Consider making use of the studies and statistical data, in addition to other

information, compiled in the sentencing resources page on www.fd.org.

• If your client has mental or emotional health issues or especially complex social

history issue that are mitigators, you may want to hire a mitigation specialist or other

expert (e.g. a psychologist or psychiatrist).

• You will need to seek court approval for the funding of experts, and will then need to

follow all normal procedures and guidelines for working with an expert.

• The expert will need to prepare a report and be prepared to testify at the sentencing

hearing.

• Reach out to your client’s family, friends, and community to obtain character letters

or to testify at the sentencing hearing.

• Encourage your client to write a letter to the court or to prepare a statement to read

to the court at sentencing. The defendant’s own words may be compelling to the

court.

• You will need to evaluate the character letters and testimony and your client’s

statement to ensure that the most effective message is being delivered.

• All of your mitigation evidence will be presented to the court in the sentencing

memorandum and/or at the sentencing hearing.


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8.2 Authority and General Application Principles – Chapter 1 U.S.S.G.

• Chapter One provides a historical introduction to the Guidelines, its mission, authority,

constitutionality of the Guidelines, appeal issues affecting sentencing, and sets the rules for

determining the applicable guidelines. See U.S.S.G. § 1A-1A3.1

• General Application Principles. See U.S.S.G. § 1B1.1. This Section provides definitions of a

number of critical terms (e.g. “bodily injury,” “dangerous weapon,” “firearm”) and basic

Guideline application instructions. The applicable Guideline section is usually determined by

the offense of conviction and the defendant’s prior criminal history. The offense level is

supposed to reflect the seriousness of the offense, similar to Pennsylvania state court’s “offense

gravity score.” The combination of the offense level and criminal history category produce an

advisory Guideline range.

• “Relevant Conduct.” The relevant conduct rule is a critical distinction between state and

federal sentencing practice and is one of the most important and often overlooked concepts in

federal sentencing. The basic principle is that relevant conduct looks beyond the offense of

conviction. The principle behind relevant conduct was to create a system of “real offense”

sentencing whereby the sentencing court punishes the defendant based upon a determination

of actual conduct, not simply based upon the more limited offense of conviction. See

U.S.S.G. § 1B1.3.

▪ The Relevant Conduct Guideline mandates that a sentencing be based on (1) “all acts

and omissions committed, aided, abetted, counseled, commanded, induced, procured,

or willfully caused by the defendant.” U.S.S.G. §1B1.3(a)(1)(A); and (2) when others

are involved “in the case of jointly undertaken criminal activity (a criminal plan,

scheme, endeavor, or enterprise undertaken by the defendant in concert with others,

whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions

of others in furtherance of the jointly undertaken criminal activity that occurred during

the commission of the offense of conviction, in preparation for that offense, or in the

course of attempting to avoid detection or responsibility for that offense.” U.S.S.G. §

1B1.3(a)(1)(B).

▪ Relevant conduct can be far reaching. It includes acts by other people. A defendant

does not have to know the others involved or know details about their involvement.

Relevant conduct does not need to be (and usually is not) mentioned in the indictment.

It can include acquitted conduct and conduct dismissed pursuant to plea agreements.


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• Use of Certain Information

▪ Where a defendant chooses to cooperate with the government, the defendant and

government may enter into an agreement whereby information disclosed to the

government may not be used to determine the defendant’s Guidelines. See U.S.S.G.

§ 1B1.8.

• What Guidelines Apply?

▪ As a general rule, the court should use the Guidelines in effect on the date of the

sentencing. See U.S.S.G. § 1B1.11. However, the ex post facto clause may prevent

applying Guidelines in effect on the date of sentencing. See Miller v. Florida, 482 U.S.

423 (1987). In such a case, the Guidelines Manual in use on the date of the offense is

used to calculate the guidelines.

8.3 Offense Conduct – Chapter 2 U.S.S.G

• The offense conduct is divided into twenty separate sections based upon the nature of the

statutory offense. They begin with § 2A1.1 (Homicide) and end with § 2T4.1 (taxes). Section

2X1.1 provides Guidelines for conspiracies, attempts and solicitations, aiding and abetting,

accessory after the fact, and misprision of a felony.

▪ § 2D1.1: Drug Offenses - sentencing for drug offenses is usually driven by the quantity

of the controlled substance.

When no drugs are seized or the amount seized does not reflect the scale of the

offense, the court must approximate quantity.

In drug conspiracy cases, the agreed-upon quantity is often used to determine

the offense level.

▪ § 2F1.1: Fraud Offenses – sentencing in fraud offenses is typically driven by the amount

of loss associated with the offense.

▪ § 2K2.1: Firearm Offenses

• Selecting the Offense Guideline

▪ The U.S.S.G. appendix will provide a quick index of the applicable Guidelines to a

specific statutory offense. If the specific offense is not found in the index, then the

Guidelines provide that the most analogous offense Guideline should be utilized. See

U.S.S.G. § 1B1.2(a).


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• Determining the Base Offense Level

▪ Once the correct Guidelines are determined, you must select the proper base offense

level. The base offense level is the minimum offense level for a particular offense and

the starting point in determining the correct offense level. The particular Guideline

section may contain several base offense levels. You must determine the one that

applies to the specific facts of your case.

• Specific Offense Characteristics

▪ Once the base offense level is determined, the next step is to see if any specific offense

characteristics apply. A specific offense characteristic can add or subtract points to the

base offense level and in many instances can significantly change the base offense level

and ultimately the Guidelines.

▪ Cross-References

▪ Sometimes a specific Guideline contains a cross-reference. These simply advise the

sentencing court to apply different offense Guidelines under certain circumstances.

8.4 Adjustments – Chapter 3 U.S.S.G.

• Adjustments – these adjust the offense level up or down based upon the victims, the

defendant’s role in the offense, and obstruction of justice. See U.S.S.G. § 3A.

▪ Vulnerable victim - § 3A1.1

▪ Aggravating role - § 3B1.1

▪ Mitigating role - § 3B1.2

▪ Abuse of Position of Trust or Use of Special Skill - § 3B1.3

▪ Obstruction of Justice - § 3C1.1

• Grouping

▪ Grouping occurs when there is more than one count of conviction. The offense levels

must for each count must be combined or “grouped.” When counts are grouped, these

Guidelines produce a single offense level. See U.S.S.G. § 3D1.2.

• Acceptance of Responsibility

▪ Defendants who “accept responsibility” are entitled to a minimum of a two-level

reduction in the offense level. Depending on the base offense level, an extra point may

be awarded to permit a three-level reduction. See U.S.S.G. § 3E1.1.

Pleading guilty does not automatically entitle a defendant to an acceptance

reduction, but provides “significant evidence” of acceptance.


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A defendant is not automatically precluded from receiving an acceptance

adjustment by going to trial, but may qualify for it under a few narrow

circumstances. See U.S.S.G. § 3E1.1 (n. 2).

Commission of a new crime while on pre-trial release may be grounds to

preclude an acceptance adjustment.

A defendant does not have to admit to relevant conduct to qualify for this

adjustment. See U.S.S.G. § 3E1.1 (n.1(a)).

8.5 Calculating Criminal History – Chapter 4 U.S.S.G

Criminal History Category

A defendant’s past record of criminal conduct is relevant to sentencing in a federal case. The

Criminal History Category is the horizontal part of the Sentencing Table. There are six

Criminal History categories denominated by roman numerals.

Criminal History Points are Calculated as Follows:

• Three points for each prior sentence of imprisonment exceeding one year and one

month. (4A1.1(a))

• Two points for each prior sentence of imprisonment of at least 60 days and not

counted in (a). (4A1.1(b))

• One point for each prior sentence of imprisonment not counted in (a) or (b) up to a

total of 4. (4A1.1(c).)

Additional Points are Added When:

• The instant offense was committed while the defendant was under any criminal

justice sentence (includes probation, parole, supervised release, imprisonment, work

release or escape status). (add 2 points) 4A1.1(d)

• For each prior sentence resulting from a crime of violence that did not receive any

points under (a), (b) or (c) because such sentence was counted as a single sentence.

(add 1 point, up to a total of 3 for this subsection) 4A1.1(e)


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Prior Offenses not Counted or Counted only under Certain Conditions

• Certain Prior Offenses are not counted or counted only under certain conditions. See

4A1.1(a)(b) and (c): e.g.

▪ Sentences imposed more than 15 years prior to the defendant’s

commencement of the instant offense - not counted unless the defendant’s

incarceration extended into this fifteen year period.

▪ Juvenile Offenses - counted only if it resulted from an adult conviction.

▪ Sentences for a foreign conviction, expunged conviction or invalid

conviction.

▪ Tribal court convictions or expunged or invalid convictions.

▪ Military convictions – counted only if imposed by a general or special court

martial.

Definitions and Instructions 4A1.2:

• Prior Sentence: any sentence previously imposed upon adjudication of guilty, whether

by plea, trial, or nolo contendere, for conduct not part of instant offense.

• Sentence of Imprisonment: sentence of incarceration (refers to the maximum sentence

imposed).

• Suspended Sentence: sentence of imprisonment refers only to portion that was not

suspended.

• Multiple prior sentences: it is important to determine if multiple prior sentences are

counted separately or as a single sentence.

▪ Prior sentences always counted separately if the sentences were imposed for

offenses that were separated by an intervening arrest (defendant arrested for

first offense prior to committing the second offense).

▪ When no intervening arrest: prior sentences counted separately unless the

sentences resulted from offenses contained in same charging instrument or

the sentences were imposed on the same day.

• Convictions for which imposition of sentence was suspended or stayed: count as

prior sentence under 4A1.1(c) – One point.


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• Defendant convicted but not yet sentenced: Conviction counted as a prior offense

under 4A1.1(c) (one point) if a sentence resulting from that conviction would

otherwise be countable.

• Sentences for all felony offenses are counted. Sentences for misdemeanor and petty

offenses are counted except:

• The following offenses are only counted if the sentence was a term of probation of

more than one year or term of imprisonment of 30 days or prior offense is similar to

the instant offense – 4A1.2(c)

▪ Careless/Reckless Driving

▪ Contempt of Court

▪ Disorderly Conduct or disturbing the peace

▪ Driving without a license or with revoked/suspended license

▪ False information to a police officer

▪ Gambling

▪ Hindering or failure to obey a police officer

▪ Insufficient funds check

▪ Leaving the scene of an accident

▪ Non-support

▪ Prostitution

▪ Resisting Arrest

▪ Trespassing

• Sentences for the following offenses are never counted:

▪ Fish and game violations

▪ Hitchhiking

▪ Juvenile status offenses and truancy

▪ Local ordinance violations (unless the violation is also a violation of state law)

▪ Loitering

▪ Minor traffic offenses

▪ Public Intoxication

▪ Vagrancy


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• Offenses committed prior to age of 18: in cases where defendant was convicted as an

adult and received a sentence of imprisonment exceeding one year and one month –

add 3 points. In all other cases: add 2 points for sentences of at least 60 days if

defendant was released from confinement within 5 years of commencement of the

instant offense. Add 1 point for each adult or juvenile sentence imposed within 5

years of commencement of instant offense not counted in (A).

Departures Based on Criminal History:

Upward Departure

If reliable information suggests that a defendant’s criminal history under-represents

the seriousness of his/her criminal history or the likelihood that the defendant will

commit other crimes, an upward adjustment may be warranted.

Downward Departure

If reliable information indicates that the defendant’s criminal history category

substantially over-represents the seriousness of their criminal history a downward

departure may be warranted.

• A departure below the lower limit of the applicable guideline range for

Criminal History Category I is prohibited under the guidelines.

• Armed Career Criminal/ Repeat and Dangerous Sex Offender (against

Minors) – downward departures in criminal history categories are not

permitted.

• Career Offender – Downward Departure may not exceed one Criminal

History Category.

Career Offenders: 4B1.1

• A defendant is a career offender if:

▪ 1. The defendant was at least 18 years old at the time the defendant

committed the instant offense;

▪ 2. The instant offense is a felony that is either a crime of violence or a

controlled substance offense and

▪ 3. The defendant has at least 2 prior felony convictions of either a

crime of violence or a controlled substance offense.

• All Career Offenders receive a Criminal History Category of VI.


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• Determining the Offense Levels for Career Offenders are also calculated in

Chapter 4. If the offense level for a career offender from the table contained

in 4B1.1(b) is greater than the offense level otherwise applicable then the

offense level from the table applies.

• Special Rules with respect to convictions under 18 U.S.C. 924(c) or 929(a) –

see 4B1.1(c).

• Definitions:

▪ Crimes of Violence: Any offense under state or federal law, punishable

by imprisonment exceeding one year that has as an element the use,

attempted use or threatened use of physical force against another or

the burglary of a dwelling, arson or extortion, involves explosives or

conduct that presents a risk of injury to another.

▪ Controlled Substance Offense: offense under state or federal law,

punishable by more than one year in prison that prohibits the

manufacture, import, export, distribution or dispensing of a

controlled substance or possession of a controlled substance with

intent to manufacture, import, export, distribute or dispense.

▪ Pattern of criminal conduct: planned criminal acts occurring over a

period of time. May subject a defendant to an offense level of 13 (11

after acceptance).

Armed Career Criminal

A defendant who is subject to an enhanced sentence under the provisions of 18

U.S.C. Section 924(e).

• The offense levels for an armed career criminal are calculated in Chapter 4.

The offense level is the greatest of the offense level from U.S.S.G. Chapters 2

and 3 or the offense level from the table in 4B1.1 or 34 if the defendant used

or possessed a firearm or ammunition in connection with either a crime of

violence or controlled substance offense or 33 otherwise.

• The criminal history category for an ACC is the greatest of the criminal

history category from Chapter 4 or 4B1.1 (if applicable) or Category VI (if a

firearm is used or possessed in connection with a crime of violence or

controlled substance offense) or Category IV.


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• Due to the increased penalties for career offenders it is important to review

your client’s criminal history early on in your representation. Do not rely

solely on your client’s memory, obtain copies of his criminal history.

Normally this can be obtained through the discovery process. For defendants

with PA records the PA. Unified Judicial System can be helpful for obtaining

docket information on prior offenses.

• In some situations it may be helpful to obtain the Guilty Plea Colloquy Form

or transcript from a state court conviction.

8.6 Determining the Sentence – Chapter 5 U.S.S.G

• Sentencing Table (Chapter 5, Part A): Consult once you have determined the total offense

level and Criminal History Points. The intersection of the Offense Level and Criminal

History Category displays the Guideline Range in months of imprisonment.

• Terms of Probation: see 5B1.1

▪ The guideline range is in Zone A of the sentencing table or

▪ The range is in Zone B and the Court imposes a condition or combination of

conditions requiring intermittent confinement, community confinement or home

detention.

• Probation is not authorized when:

▪ The offense is a Class A or B Felony. See 18 U.S.C. §3559 for classifications.

▪ The offense specifically precludes probation as a sentence (18 U.S.C. Sec.

3561(a)(2).

▪ The defendant is sentenced at the same time to a sentence of imprisonment for the

same or a different offense. (18 U.S.C. Sec. 3561(a)(3).

• The term of probation shall be at least one year but no more than 5 years if the offense level

is 6 or greater and no more than 3 years in any other case. 5B1.2.

▪ Remember that under the now Advisory Guidelines a Judge may impose probation

even if the above conditions are not met. • Conditions of Probation: outlined in 5B1.3. In addition the Court may impose additional

conditions. • Limitation of Applicability of Statutory Minimum Sentences (Safety Valve) 5C1.2: For this

provision to apply the defendant must meet the following criteria:

▪ No more than 1 criminal history point


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▪ No violence or credible threat of violence or possess a firearm or other dangerous

weapon.

▪ Offense did not result in death or serious bodily injury to any person.

▪ Defendant not an organizer, leader, manager or supervisor of others in the offense.

▪ Not later than the sentencing hearing the defendant has truthfully provided to the

Government all information and evidence he/she has concerning the offense or

offenses. • Supervised Release: 5D1.1:

▪ Imposed by the Court to follow a term of imprisonment.

▪ Terms of Supervised Release (5D1.2): at least 2 years but not more than 5 years for

Class A or B felonies, at least 1 year but not more than 3 years for Class C or D

felonies. One year for Class E Felony or Class A misdemeanor.

▪ Condition of Supervised Release are outlined in 5D1.3 • Restitution, Fines, Assessments and Forfeitures

▪ Restitution (5E1.1): Ordered by the Court to compensate an identifiable victim. Order may direct single lump sum payment, partial payments at specified

intervals, return of property, replacement of property or services rendered to

the victim (if victim agrees) Nominal periodic payments may also be ordered.

▪ Fines (5E1.2) Always imposed unless defendant establishes that he is unable to pay and is

not likely to become able to pay. Fine Guideline Range Table: 5E1.2(c)(3) The Court considers various factors in determining the amount of the fine –

see 5E1.2(d)

▪ Special Assessments (5E1.3) Must be imposed on a defendant in the amount prescribed by statute. (see

commentary for amounts)

▪ Forfeiture (5E1.4) Must be imposed upon a convicted defendant as provided by statute.


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▪ Cost of Prosecution (5E1.5)

Imposed on a defendant as required by statute.

• Sentencing Options:

▪ Community Confinement (5F1.1) (halfway house etc.)

▪ Home Detention (5F1.2) (house arrest)

Program of confinement and supervision that restricts the defendant to his

place of residence continuously except for authorized absences.

▪ Occupational Restrictions (5F1.5)

▪ Denial of Federal Benefits to Drug Traffickers and Possessors (5F1.6)

Court may deny the eligibility for certain Federal benefits of any individual

convicted of distribution or possession of a controlled substance.

• Intermittent Confinement (5F1.8)

▪ Remaining in the custody of the Bureau of Prisons during nights, weekends or other

intervals of time totaling no more than the lesser of one year or the term of

imprisonment authorized for the offense, during the first year of a term of probation

or supervised release.

• Departures Under the Guidelines: (5 K)

▪ The most common guideline departure is for substantial assistance to authorities under

5k1. – In our District the Government typically files a 5k Motion just before Sentencing

recommending to the Court that a defendant’s guideline range be reduced by a certain

number of levels as a reward for the defendant’s assistance to authorities.

▪ The final reduction is always determined by the Court.

▪ The possibility of a 5k is often (but not always) spelled out in the plea agreement.

▪ Other possible departures are described in Guideline Sections 5K2.0-2.24.

8.7 Sentencing Memorandum

• Defense counsel should present all relevant mitigating arguments to the district court in a

persuasive sentencing memorandum, advocating for a sentence sufficient but not greater than

necessary to comply with the purposes of sentencing. A sentencing memorandum should

address all the sentencing factors in 18 U.S.C. §3553(a). • Tie the mitigating facts to one or more of the purposes of sentencing and the parsimony clause

in section 3553(a).


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• File the sentencing memorandum at least seven days before sentencing (unless otherwise

required by local rule or order of court). If the sentencing memorandum contains confidential

information, that should be shielded from public view, such as the client’s cooperation,

physical or emotional condition or history of drug and alcohol use, move for an order to seal

the document and to limit its disclosure to the parties and probation office.

• Waiting until sentencing to make your argument for leniency, as in state court, makes it less

likely the court will give weight to your position.

• The sentencing memorandum is an opportunity to explain:

▪ Where did the client come from? What is his/her background?

▪ Who are the people in the client’s life, and what he/she means to them?

▪ What led the client to commit this crime?

▪ What are the good acts by the client that the court has not heard?

▪ How has the client already been punished by this crime?

▪ How has the client worked to better him/herself since his/her arrest?

▪ Whether the client needs educational or vocational training?

▪ Whether the client needs medical care?

▪ Where does the client see him or herself after he or she is released?

▪ Whether the client is likely to reoffend?

Best Practices for drafting a Sentencing Memorandum

• There is no required form for a sentencing memorandum, but it should not read like

an “official” court document.

• Make a persuasive argument for leniency by presenting the client’s biographical

history, personal characteristics and all relevant mitigating factors to the court.

• Use the sentencing memorandum to tell the client’s story. Successful sentencing

advocacy involves the full exposition of all the factors in the client’s life that brought

him or her before the court. Develop a theme, not merely a tally of mitigating factors.

• Attach character letters from people willing to offer insight into a client’s true nature,

notwithstanding their awareness of the offense conduct.

• Recognize that character letters are an important part of effective sentencing advocacy,

and use such letters by quoting passages in the sentencing memorandum.


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• Use more than words to persuade; consider the power of images and pictures. When

appropriate, include photographs of the client with his or her family members

(including parents, spouses, partners and children) in the sentencing memorandum.

• Provide supporting documentation. If your client has a physical or mental

impairment, or drug or alcohol dependency issues, corroborate the issue with a

doctor’s report and/or medical records. Similarly, if your client has a college

transcript, military service record, professional or occupational licenses, or history of

charitable works, provide documents or testimonials.


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UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : DOCKET NO.

:

-vs- : (JUDGE)

:

: (ELECTRONICALLY FILED)

******************************************************************

MEMORANDUM IN AID OF SENTENCING

I. INTRODUCTION

Defendant by his undersigned counsel submits the following Memorandum in Aid of

Sentencing. Defendant is scheduled to be sentenced by the Court on________, due to his plea to an

Information charging him with Fraudulent Returns, Statements or Other Documents in violation of

26 U.S.C. §7207. The offense is a Class A misdemeanor with a maximum term of one year

imprisonment and/or a $10.000 fine.

According to the Presentence Report (“PSR”), Defendant has an offense level of 12 and a

criminal history category of I. The guideline range is 10 to 12 months in Zone C of the Sentencing

Table. The guideline offers no useful advice because it: (1) is not based on empirical evidence; (2)

takes no account of Defendant’s culpability and minor role, low risk of recidivism, family

circumstances, need for effective medical care, need to make restitution or collateral punishment; (3)

would cause unwarranted disparity; and (4) is greater than necessary to comply with the goals of

sentencing. This Memorandum submits mitigating factors in the spirit of 18 U.S.C. §3553(a), so the

Court might consider to a lesser sentence than indicated by the strict application of the United States

Sentencing Guidelines (the “Guidelines”).


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II. LEGAL DISCUSSION

After United States v. Booker, 543 U.S. 220 (2005), sentencing courts must: (1) properly calculate

the guideline range; (2) rule on any departure motions made under the guidelines; and (3) exercise

their discretion by choosing a sentence in light of all §3553(a) sentencing factors, “regardless [of]

whether [the chosen sentence] varies from the sentence calculated under the guidelines.” United States

v. Gunter, 462 F.3d 237, 247 (3rd Cir. 2006); See Rita v. United States, 127 S. Ct. 2456 (2007); United

States v. Cooper, 437 F.3d 324 (3rd Cir. 2006).

(Brief all issues regarding objections to Presentence Investigation Report and/or downward departure

motions before addressing the §3553(a) factors)

A. THE APPLICATION OF 18 U.S.C. §3553(A)

Under the Third Circuit’s three-step sentencing approach, after the Court determines the

guideline sentence, it must consider whether to impose a sentence below the Guidelines.

Under United States v. Booker, 543 U.S. 220, 259-60 (2005), the Court must consider each of the Section

3553(a) factors in fashioning a sentence.

These factors are:

(1) The nature and circumstances of the offense and the history and characteristics

of the defendant;

(2) the need for a sentenced imposed – (a) to reflect the seriousness of the offense,

to promote respect for the law and to provide just punishment for the offense;

(b) to afford adequate deterrence to criminal conduct; (c) to protect the public

from further crimes of the defendant; and (d) to provide the defendant with

needed educational or vocational training, medical care, or correctional

treatment in the most effective manner;

(3) The kind of sentences available;

(4) The Guidelines;

(5) Any [Guidelines] policy statement;

(6) The need to avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct; and

(7) The need to provide restitution to any victims of the offense.


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Section 3553(a) contains an overarching provision instructing sentencing courts to impose a

sentence sufficient, but not greater than necessary to accomplish the goals of sentencing. Sentencing

under Section 3553(a) requires the Court to start with the minimum sentence permissible and add only

so much additional punishment to comply with the purpose of §3553(a). Application of the §3553(a)

factors to Defendant’s case establishes that a variance from the Guidelines would achieve a sentence

sufficient but not greater than necessary.

1. Factor One: The Nature and Circumstances of the Offense and the

History and Characteristics of Defendant

18 U.S.C. §3553(a)(1) requires the Court to consider “the nature and circumstances of the

offense and the history and characteristics of the defendant” in sentencing. The offense is a Class A

misdemeanor punishable by imprisonment for one year and a fine of $10,000.00.

Before pleading guilty to the instant offense at age ___ Defendant was a hard-working, law-

abiding citizen and dedicated husband and father with no criminal history. His offense is

uncharacteristic when viewed in the context of his entire life.

Defendant was born and raised in _______, Pennsylvania. (Discuss client’s history and characteristics in

more detail).

2. Factor Two: The Purposes of Sentencing

The purposes of sentencing, as set forth in Section 3553(a)(2), namely, just punishment,

deterrence, protection of the public and rehabilitation can be achieved with a sentence that does not

call for a term of incarceration. Under the parsimony principle, the sentence should be the minimum

to accomplish these purposes.

i. Just Punishment and Deterrence

Notwithstanding the advisory guideline imprisonment range, a sentence of imprisonment

would be excessive because: (state reasons). It is submitted probation is a just sentence for this offense

and will deter others from committing similar crimes because Defendant will be subject to conditions

that restrict his liberty.


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ii. Protection of the Public and Need for Rehabilitation

Defendant is a first time offender and a husband and father who has worked his entire life. He

has been married for __ years and has no prior criminal history, and no history of violence or drug

and alcohol abuse. He has been released on personal recognizance and is living a responsible,

productive and law-abiding lifestyle. He is gainfully employed and supporting his wife and children.

Given his age, education, lack of criminal history, lack of history of drug and alcohol abuse, positive

work history and strong family ties, Defendant is not likely to re-offend, and there is little need to

protect the public from his further crimes.

3. Factor Three: The Kinds of Sentences Available

This Court has at its disposal every sentencing option in framing a just sentence for Defendant.

A term of incarceration of 10 to 12 months was calculated by the Guidelines for the Court to consider.

In Zone C of the Sentencing Table, the minimum term may be satisfied by: (1) a sentence of

imprisonment; or (2) a sentence of imprisonment that includes a term of supervised release with a

condition that substitutes community confinement or home detention provided that at least one-half

of the minimum term is satisfied by imprisonment. U.S.S.G. §5C1.1(d). Because the lower end of his

guideline range is not less than ten months, Defendant is ineligible for probation under U.S.S.G.

§5B1.1, Application Note 2; however, he remains eligible for probation under 18 U.S.C. §3561(c)(2).

Notwithstanding the Sentencing Options available under the Guidelines, the mitigating factors

presented in this report provide this Court with reasons for a downward variance or sentence outside

of the advisory Guideline system. The reasons to support a variance include: (1) Defendant’s

culpability, minor role in the offense and low risk of recidivism; (2) collateral punishment, including

___________and the harsh effect of incarceration on his young children; (3) his acceptance of

responsibility, post-offense rehabilitation and efforts to make full restitution; (4) his physical condition

and emotional health and desire for effective medical care; and (5) the guideline for offenses involving

taxation is not based on empirical evidence, creates unwarranted disparity and conflicts with the

“parsimony provision” of §3553(a), which directs judges to impose a sentence that is “sufficient, but

not greater than necessary” to accomplish the goals of sentencing. (Explain each mitigating factor and cite

authorities).


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4. Factors Four and Five: The Sentencing Guidelines and Guidelines

Policy Statements

The guideline used to calculate Defendant’s sentencing range was not based on empirical data

or research conducted by the Sentencing Commission, but is instead strictly based on Congressional

policy and mandates. The Sentencing Commission has acted outside its role in setting the base offense

levels in U.S.S.G. §2T1.1. As explained in Rita vs. United States, 551 U.S. 338 (2007), in carrying out

its mission to provide guidelines that meet the objectives stated in 18 U.S.C. §3553(a), “the

Commission took an ‘empirical approach’, beginning with an empirical examination of 10,000

presentence reports setting forth what judges had done in the past and then modifying and adjusting

past practice in the interests of greater rationality, avoiding inconsistency, complying with

congressional instructions,” etc. Id.

The court recognized, however, that not all guidelines were developed in this manner. See

Gall v. United States, 552 U.S. 38, 46 & n.2 (2007); Kimbrough v. United States, 552 U.S. 85, 96 (2007).

When a guideline “do[es] not exemplify the Commission’s exercise of its characteristic institutional

role”, because the Commission “did not take account of empirical data and national experience”, the

sentencing court may conclude that the guideline “yields a sentence ‘greater than necessary’ to achieve

§3553(a)’s purposes, even in a mine-run case. Id. at 109-10.

U.S.S.G §2T1.1 (the Guideline for Offenses Involving Taxation) is not based on empirical data

of past practice or national experience. Because the Commission failed to rely on empirical data or

national experience in promulgating or amending §2T1.1, and failed to fulfill its institutional role, this

Court may disagree, on reasoned policy grounds, with its recommendation. See Spears v. United States,

129 S.Ct. 840, 843 (2009); Kimbrough, 552 U.S. 101-02, 109-10; Rita, 551 U.S. 351, 357.


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The Guideline for offenses involving taxation reflects a change from pre-Guideline sentencing

procedures:

Under pre-guideline practice, roughly half of all tax evaders were sentenced to

probation without imprisonment, while the other half received sentences that

required them to serve an average prison term of twelve months. This

guideline is intended to reduce disparity in sentencing for tax offenses and to

somewhat increase average sentence length. As a result, the number of purely

probationary sentences will be reduced. The Commission believes that any

additional costs of imprisonment that may be incurred as a result of the

increase in the average term of imprisonment for tax offenses are

inconsequential in relation to the potential increase in revenue. According to

estimates current at the time this guideline was originally developed (1987),

income taxes are underpaid by approximately $90 billion annually. Guideline

sentences should result in small increases in the average length of

imprisonment for most tax cases that involve less than $100,000 in tax loss.

The increase is expected to be somewhat larger for cases involving more taxes.

U.S.S.G. §2T1.1 comment, (backg’d).

Even though the Guidelines increased average sentences for offenses involving taxation, the

Commission has steadily made further increases in such sentences through amendments. Under a

1993 amendment to the Guidelines for offenses involving taxation, §2T1.5 (Fraudulent Statements,

Returns and Other Documents) was deleted by consolidation with §2T1.1 and the offense levels in the

tax loss table were increased to provide increased deterrence for tax offenses. See Amendment 491,

Appendix C. On November 1, 2001, as part of its major revision of the theft, fraud and property

destruction guidelines, the Commission changed the tax table to increase the punishment for moderate

and high tax loss, but did not reduce penalties at the low end of the tax table. See Appendix C,

Amendment 617, effective November 1, 2001. Again, on November 1, 2003, the Commission

amended the tax table to add offense levels 34 and 36 at the top of the table. See Appendix C,

Amendment 653, effective November 1, 2003.


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Under former §2T1.5 (Fraudulent Statements, Returns and Other Documents), the base offense

level for violating 26 U.S.C. §7207 was level 6. Under the 1993 amendments, which deleted §2T5.1

by consolidation with §2T1.1, and revised the tax table in §2T4.1, the base offense level is level 13

because the tax loss is more than $40,000, but less than $70,000. Due to the 2001 amendments to the

tax table, the base offense level increased to level 14 because the tax loss is more than $30,000, but less

than $70,000. The increases in offense level from level 6 to level 13, and from level 13 to level 14,

were not the result of empirical studies, but policy directives from Congress who found it easier to

increase sanctions for offenses involving taxation rather than close tax loop holes for large

corporations. At a minimum, a downward variance to the pre-1993 base offense level of 6 would be

reasonable under the circumstances.

5. Factor Six: The Need to Avoid Unwarranted Disparities

In determining a sentence, the Court should consider “the need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of similar conduct”.

§3553(a)(6). The request for a variance based on facts and reasons presented would further this

purpose of sentencing. Defendant has no criminal history points. He is a non-violent person and his

sincere remorse and acceptance of responsibility place him in a low-risk to re-offend category, making

incarceration and the need to incapacitate him unnecessary.

6. Factor Seven: The Need to Provide Restitution

Under the plea agreement, Defendant agreed to make full restitution under a schedule to be

determined by the Court. The total amount due and owing to the Internal Revenue Service, including

taxes, penalties and interest, is $______. Defendant has already paid $________ towards this amount.

A sentence of probation will ensure his ability to make reasonable payments of restitution.

III. CONCLUSION

Defendant respectfully submits a term of probation is sufficient, but not greater than necessary,

to satisfy the purposes of sentencing.

Respectfully Submitted,

BY: __________________________

CHAPTER 9 – CRIMINAL APPEALS

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9.1 Criminal Appeals

Continuous Representation

A person for whom counsel is appointed shall be represented at every stage of the

proceedings through appeal. See 18 U.S.C. §3006A(c). The Criminal Justice Act Plan for

the Middle District of Pennsylvania provides, “once counsel is appointed under the CJA,

counsel shall continue the representation until the matter, including appeals or review by

Certiorari, is closed…” Art. VIII, Section D. Likewise, Chapter 3 of the CJA Plan for the

Court of Appeals for the Third Circuit states, “Counsel appointed under the Act by the trial

court shall be deemed to have seen designated under the Act to continue on appeal unless

relieved by order of the Court of Appeals.

Notice of Appeal

A federal criminal appeal is commenced by filing a Notice of Appeal with the Clerk of the

District Court. A sample form is contained in the Federal Rules of Appellate Procedure,

Addendum 1.

Time for Filing Notice of Appeal

Federal Rule of Appellate Procedure 4(b) requires that a notice of appeal be filed within

fourteen (14) days after the entry of judgment on the docket, or if the government appeals

first, within fourteen (14) days after the date on which the government filed its notice of

appeal. The government has thirty days after the judgment is entered, or any defendant

appeals, to file its notice of appeal. The filing deadlines are mandatory and jurisdictional.

See Browder v. Dir. Dept. of Corrections, 434 U.S. 257 (1978).

Post- Judgment Motions

If a defendant files certain timely post-judgment motions, the notice of appeal must be filed

within fourteen (14) days after entry of the order disposing of the last remaining motion or

the entry of the judgment of conviction, whichever period ends later. See Fed. R. App. P.

4(b)(3)(A). If a notice of appeal was already filed, it will become effective upon entry of the

order disposing of the last remaining motion or the entry of the judgment of conviction, and

an amended notice of appeal need not be filed. Fed. R. App. P. 4(b)(3)(B).


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Jurisdiction

The filing of a notice of appeal generally divests the district court of jurisdiction over the

case; See 9 Moore’s Federal Practice P 203.11 (2d ed. 1979-80). However, the district court

retains jurisdiction to correct a sentence under Fed. R. Crim. P. 35(a). The entry of the

correction order does not stay the time of filing a notice of appeal, nor does it affect the

validity of a notice filed before entry of the order disposing of the motion. See Fed. R. App.

4(b)(4).

Case Opening Documents

Upon receipt of the notice of appeal from the district court, the Clerk of the Court of Appeals

will send a case opening letter to all parties, directing counsel for the Appellant to file:

• Application for Admission (if applicable);

• Appearance Form;

• Criminal Appeal Information Statement; and

• Transcript Order Form

These forms are available on the Court’s website, www.ca3.uscourts.gov

Requirements for Briefs

The Court’s website also contains a chart that provides information about the requirements

for briefs and appendicies. See Fed. R. App. P. 25, 28 and 32 and 3rd. Cir. L.A.R. 25, 28, 32

and Misc. 113 for the full text of rules and requirements for briefs and Fed. R. App. P. 25, 30

and 32 and 3rd Cri. L.A.R. 25, 30, 32 and Misc. 113 for the full text of rules and

requirements for appendicies.

Briefing Schedule

The Clerk of Court of Appeals will transmit a briefing schedule to all parties upon receipt of

the certified list or record. Generally, Appellant’s brief is due forty (40) days from the date of

the certified list or record is filed and the Appellees brief is due twenty-one (21) days from

service of Appellant’s brief. A reply brief must be filed within fourteen (14) days of service of

Appellee’s brief. See Fed. R. App. 31(a)(1).

• Petitions for Rehearing or Rehearing En Banc


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▪ A petition must be filed within fourteen (14) days from the date judgment

was entered and meet the rigorous criteria of Fed. R. App. P. 35 and 3rd Cir.

L.A.R. 35.1.

• Mandate: Although largely a ministerial function, the mandate is the official document (consisting of a certified copy of the judgment and the opinion of the Court of Appeals) that the Court issues to conclude proceedings and return jurisdiction over the case to the district court. The mandate is issued within seven days after the time to petition for rehearing has expired. See FED. R. APP. 41(b). A petition for rehearing automatically stays the issuance of the mandate, but an application for a writ of certiorari does not. While you do not have to stay the mandate while seeking certiorari, there may be instances where your client could be harmed if the mandate is not stayed, i.e, he/she has been released pending appeal. In such instances, Rule 41(d) provides the mechanism for a stay, which involves a showing of a substantial question (a reasonable probability that the Supreme Court will grant review) and good cause for a stay, e.g., client will be harmed.

• Petition for Writ of Certiorari to U.S. Supreme Court

▪ A petition must be filed within ninety (90) days after entry of the judgment. See Supreme Ct. R. 13(1).

• Motion for Extension of Time

▪ The time for filing a notice of appeal may be extended by the district court based on excusable neglect or good cause, either before or after the time for filing expires, with or without motion or notice. The maximum extension of time is thirty (30) days from the expiration of time otherwise prescribed. Fed. R. App. P. 4(b)(4).

The Mailbox Rule

A notice of appeal filed by an incarcerated inmate is timely filed if deposited in the

institution’s internal mail system on or before the due date. If the institution has a system

designed for legal mail, it must be used. Proof of timely filing is shown by a declaration

under 18 U.S.C. §1746 or a notarized statement which sets forth the date of deposit and that

First Class postage has been prepaid. See Fed. R. App. P. 4(c).


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Mistaken Filing with Court of Appeals

If the notice of appeal is mistakenly filed with the Court of Appeals, the clerk of that court

must note on the notice of appeal the date on which it was received and forward to the

district court. Such notice of appeal is deemed filed on the date noted by the clerk of

appeals’ court. See Fed. R. App. P. 4(d).

Austin Procedures

Counsel who has been appointed under the CJA Act and is of the opinion that no issues are

present which warrant the filing of a petition for certiorari must file a motion stating that

opinion and requesting leave to withdraw with the Court of Appeals. See Austin v. United

States, 513 U.S. 5 (1994). The motion must be served on both Appellant and the United

States. See 3rd Cir. L.A.R. Misc. 109.2(b).

CJA Vouchers

Appointed counsel must submit a Criminal Justice Act Voucher within forty-five days from

the conclusion of the attorney’s representation. See 3rd Cir. L.A.R. Misc. 108.3.

CHAPTER 10 – POST CONVICTION

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10.1 Federal Post-Conviction Remedies

Overview

There exists a variety of post-conviction remedies in federal court. As a general rule, they

are available only after direct appeal rights have been exhausted. Many of them are subject

to strict pleading and timeliness requirements. These areas can be very complex and there

are numerous obstacles to relief. Skill, detail and creativity are needed to navigate through

any of these post-conviction claims.

Motion to Vacate, Set Aside or Correct Sentence – 28 U.S.C. §2255

• The primary federal post-conviction remedy for persons convicted in federal court.

• Filed in the federal district court of conviction.

• Claims for relief include attacking the conviction or sentence.

• Strict one-year time for filing. 28 U.S.C. § 2255(f)

• Limited exceptions:

▪ Unconstitutional or unlawful impediment (28 U.S.C. § 2255(f)(2))

▪ Newly recognized right by Supreme Court (28 U.S.C. § 2255(f)(3))

▪ Newly discovered evidence (28 U.S.C. § 2255(f)(4))

• Most popular claim = ineffective assistance of counsel in violation of the Sixth

Amendment.

▪ Strickland v. Washington, 466 U.S. 668 (1984) controls. Petitioner must show

(1) that his counsel’s acts or omissions made counsel’s overall performance

fall below an objective standard of reasonableness and (2) that there is a

reasonable probability that, but for counsel’s errors, the result of the

proceeding would have been different.

• Discovery not mandatory. Requires leave of court and is controlled by Rule 6(a)

(governing § 2255 cases)

• Evidentiary hearing (28 U.S.C. § 2255(b)). While evidentiary hearings appear to be

presumed in the statute, they are often elusive.

• Counsel appointment discretionary in non-capital cases. Rule 8(c) (governing § 2255

cases)

• Appeal § 2255


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▪ Time to file – considered civil in nature and governed by Rule 4(a)(1)(B) of

Federal Rules of Appellate Procedure.

▪ No automatic right to appeal. Need Certificate of Appealability (“COA”)

issued.

▪ Application for COA must be made first in district court; if denied, may

apply to the circuit court.

• Second or successive § 2255 Motions

▪ Very difficult

▪ Must obtain permission from the circuit court first

Writ of Habeas Corpus -28 U.S.C. §2241

• Limited. Filed in instances where § 2255 inadequate or ineffective to test the legality

of detention. Claims that do not attack the validity of the conviction or sentence,

such as claims involving sentence calculations

• Filed in district court having territorial jurisdiction over petitioner, i.e. location

where inmate is in custody.

• No strict one-year timing requirement.

• No COA required to appeal.

Writ of Habeas Corpus on Behalf of State Convictions – 28 U.S.C. §2254

• Only federal remedy for individuals convicted in state court and who are in state

custody.

• Filed in the district court in the state where the petitioner was convicted.

• Similar procedural and substantive standards to § 2255.

• Cite to effective assistance of counsel standards under both federal and state

constitutions.

Writ of Coram Nobis – 28 U.S.C. §1651

• Motion is filed in the convicting court.

• Is very rare and considered an “extraordinary remedy” used to correct errors where

otherwise no other statutory remedy is available or adequate. United States v. Morgan,

346 U.S. 502, 511-512 (1954).


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Rule 35(a) of Federal Rules of Criminal Procedure

• Motion to correct sentence resulting from a technical, arithmetical, or other clear

error.

• Filed in the court of conviction.

• Must be filed within 14 days after sentencing.

Rule 36 Motion to Correct Clerical Error

• Filed in the convicting court.

• Limited; remedy cannot be used to attack validity of conviction, sentence or custody.

• Only used to correct clerical errors in orders, judgments or other parts of the record.

Motion to Modify Sentence – 18 U.S.C. §3582(c)

• Filed in the convicting court.

• Filed in the district of conviction.

• Can be used in three circumstances:

▪ When Sentencing Commission amends the guidelines and lowers a

defendant’s sentencing range.

▪ As part of the “compassionate release” provision.

▪ When expressly permitted by a statute, including Rule 35.

10.2 Revocation Proceedings

Revocation of probation or supervised release is governed by Federal Rule of

Criminal Procedure 32.1.

Pursuant to Fed. R. Crim. Pro. 32.1:

• The defendant has a right to an initial appearance before a magistrate judge

when they are in custody for an alleged violation of probation or supervised

release “without unnecessary delay.” Fed. R. Crim. Pro. 32.1(a)(1).

• The defendant must be informed of the alleged violation, the right to counsel,

and if held in custody, the right to a preliminary hearing. Fed. R. Crim. Pro.

32.1(a)(3).


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• A defendant may be detained or released pending the revocation

proceedings. Fed. R. Crim. Pro. 32.1(a)(6). If detention is requested, then

the defense bears the burden of showing by clear and convincing evidence

that the defendant will not flee or pose a danger to the community. Fed. R.

Crim. Pro. 32.1(a)(6) and 18 U.S.C. § 3143.

• If the defendant is detained after the initial appearance, then a prompt

preliminary hearing is required to determine whether probable cause exists to

detain the defendant for a revocation hearing. Fed. R. Crim. Pro. 32.1(a)(3).

• The initial appearance and preliminary hearing may be combined.

• Note that the preliminary hearing may be deemed waived if not requested by

the defendant.

• The preliminary hearing is not required if the defendant is not detained

pending the revocation hearing, but it may be requested. Fed. R. Crim. Pro.

32.1(b)(1)(A).

• When a defendant is arrested in a district other than the sentencing district,

then different actions are required for the preliminary hearing. Fed. R. Crim.

Pro. 32.1(a)(4), (5).

• Although there is no constitutional right to counsel in revocation cases, the

Criminal Justice Act creates a right to appointed counsel in such cases. See

18 U.S.C. §§ 3006A(a)(1)(C), (a)(1)(E).

• Defendants have normal Due Process protections in a revocation proceeding

(e.g. written notice of violations, disclosure of evidence against him,

opportunity to be heard and present witnesses and evidence, cross examine

witnesses, a neutral hearing body, and a written statement by fact finder as to

evidence relied upon and reasons for revocation). See Gagnon v. Scarpelli,

411 U.S. 778 (1973); Fed. R. Crim. Pro. 32.1(b)(2).

• However, the Federal Rules of Evidence generally do not apply in revocation

proceedings. Fed. R. Evid. 1101(d)(3).

• Due process requires that an individual receive “fair warning” that an

activity is prohibited. The court will impute knowledge when the prohibited

act is an obviously criminal act, but when the proscribed act is not criminal,

then the defendant must receive actual notice. Thus, the defendant may

have a “fair warning “defense in a revocation proceeding.


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• The standard of proof is preponderance of the evidence in a revocation

proceeding. 18 U.S.C. § 3583(e)(3).

• A revocation proceeding is a twostep process: 1) the court must determine

whether a violation occurred; and then 2) determine whether the violation

warrants a revocation.

• The court must consider mitigation evidence, if presented, before

determining whether to revoke.

• Revocation is mandatory, however, when the defendant possessed a

controlled substance, a firearm in violation of law, refuses to comply with

drug testing, tests positive for illegal controlled substances more than three

times in one year, or for certain offenses when the defendant is a registered

sex offender. 18 U.S.C. §§ 3565(b), 3583(g), 3583 (k).

• Probation revocation sentencing is governed by 18 U.S.C. § 3553 and the

“parsimony clause” in addition to the post-Booker sentencing caselaw. In

addition, the sentencing court is required to consider Chapter Seven of the

Sentencing Guidelines.

• The defendant has a right to allocution and to present mitigation evidence

before the court imposes sentence in all revocation proceeding. Fed. R.

Crim. Pro. 32.1(b)(2)(E) and (c)(1).

• When sentencing for a probation violation, the court may impose any

sentence available at the time of the original sentencing up to the statutory

maximum or the Sentencing Guidelines applicable to such violation. Thus,

defense counsel must be aware of both the original sentencing range and the

Chapter Seven guideline range (and argue for the lower). A probation

violation sentence may include a term of custody and a term of supervised

release.

• Supervised release revocation sentencings do not incorporate all of the 18

U.S.C. § 3553 factors. The statutory maximum sentence for supervised

release violations are established in 18 U.S.C. §§ 3559 and 3583.

• When sentencing for a supervised release violation, the court may include a

term of custody and a term of supervised release.


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• A revocation sentence may be run either concurrently or consecutively with

any other custodial sentence that the defendant is serving. 18 U.S.C. §

3584(a).

APPENDIX – PRETRIAL DETENTION FACILITIES

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U.S. Marshals Contract Facilities/ County Prisons

The following information was compiled in 2014. Over time, the information will change and be

out of date. Double check these policies by calling the facility prior to your visit.

The following website allows you to track your clients incarcerated in local county prisons:

https://www.vinelink.com/vinelink/initMap.do

County Holding Facilities

Adams County Adult Correctional Complex

45 Major Bell Lane Gettysburg, PA 17325 Phone: (717) 334-7671 Fax: (717) 338-3418 Warden: Brian Clark E-Mail: [email protected]

Professional Visiting Hours:

Anytime between 7am and 9pm. Attorneys will not be admitted during count times (11:30am and

5pm). If you are already in a visiting room you will be asked to wait in the Lobby until Count is

completed. (Approximately 15 minutes).

Attorney does not need to be on an inmate’s visitor list.

Restrictions:

Prior authorization from the Deputy Warden is required to bring in an interpreter/investigator or to

review electronic discovery with your client.

The inmate’s id # must appear on all correspondence and can be obtained by calling the prison.


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Carbon County Prison

331 Broad Street Nesquehoning, PA 18240 Phone: (570) 325-2211 Fax: (570) 325-5212 Warden: Joseph Gross E-mail: [email protected]


Attorney may visit any time except for lock-up which is from 2:45- 3:15, no appointment necessary.

Attorney does not need to be on inmate’s visitor list.

Restrictions:

No electronic devices allowed in the facility.

Prior authorization from the Warden is necessary to bring an interpreter and/or an investigator to

the visit.

There are no restrictions as far as dress code, appropriate attire will suffice. (No shorts/skorts/skirts

above the knee, tube tops or any other revealing tops)

Clinton County Correctional Facility

P.O. Box 419 58 Pine Mountain Road McElhattan, PA 17748 Phone: (570) 769-7680 Fax: (570) 769-7637 Warden: Jacqueline K. Motter Email: [email protected]


Mon-Fri 8:00 a.m. to 4:00 p.m. (weekend or after hour visits should be pre-scheduled via phone call,

fax or email to the Deputy Warden so staff can be notified).

Professional Visits includes members of the defense team; however, investigators, psychiatrists, etc.

should be pre- scheduled by the attorney. Photo ID is required for everyone.

Restrictions:

You are permitted to take in a lap top computer with pre-notice to the Deputy Warden.


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Cell phones are not permitted nor are any other electronic device. All bags/brief cases will be

searched.

You may provide the inmate with paper documents/discovery. If documents are given to an inmate

you should notify the correction officer at the conclusion of the visit that documents were given to

the inmate.

You may make telephone calls to the inmate. The Central Control Officer will ask the attorney for

their name and attorney ID number and then the attorney will be connected to the inmate.

Columbia County Prison

721 Iron Street Bloomsburg, PA 17815 Phone: (570) 784-4815 Fax: (570) 784-8837 Warden: William Campbell Asst. Warden: Thomas Bauman Email: [email protected]


Mon. – Fri. 8:00 a.m. until 4:00 p.m. Attorneys can visit at any time. Photo ID and attorney bar

card are required.

Professional visit includes all members of the defense team.

Restrictions:

You are permitted to take in a laptop computer; however, the officer processing the visitor should be

made aware of same.

No cell phones or any other electronic devices are permitted.

You may provide the inmate with paper documents/discovery.

You may make telephone calls to the inmate by appointment through the Watch Commander at

570-389-5719.


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Cumberland County Prison

1101 Claremont Road Carlisle, PA 17015 Phone: (717) 245-8787 Fax: (717) 245-8792 Warden: Earl F. Reitz, Jr. E-mail: [email protected]

Attorney Visiting Hours: Attorney visits are limited to the hours of 8:30 a.m. to 10:30 a.m., 12:30 to

4:00 p.m., and 6:00 p.m. to 10:00 p.m., every day of the week.

Attorneys are required to present personal identification and bar card. Attorneys will not be

permitted to take their wallets, keys or other personal items back into the conference rooms. There

are lockers in the waiting area for visitors’ belongings.

Attorney does not need to be on the inmate’s visitor list.

The regularly updated inmate list is available online at: http://ccweb.ccpa.net/inmatelisting/

The prison website is: http://www.ccpa.net/index.aspx?NID=95.

Restrictions:

Prior authorization is required to bring in an interpreter or investigator or to review electronic

discovery. Call the main number to make arrangements.

The inmate’s number does need to appear on correspondence. All correspondence must have a

return address or it will not be delivered to the inmate.

No specific dress code.


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Dauphin County Prison

501 Mall Road Harrisburg, PA 17111 Phone: (717) 780-6800 Fax: (717) 558-8825 Warden: Elizabeth Nichols for appointments E-Mail: [email protected]


Attorneys will be admitted for visits from 8am until 8:30pm. You will not be admitted during count

which is at 11am and 4pm daily. If arriving at those times you will be asked to wait until count is

completed (approximately 15 minutes). In progress visits will not be interrupted due to Count.


You must show your bar card and another form of identification to enter the prison.

Restrictions:

Prior authorization from Deputy Warden Nichols is required to bring in an interpreter/investigator

or to review electronic discovery with your client.

All visits are in attorney conference rooms. Do not hand anything to an inmate without prior

approval.

The inmate’s id # must appear on all correspondence and can be obtained by calling the prison.

List of inmates can be found at www.dauphincounty.org.

No restrictions in terms of dress code, appropriate attire will suffice. (No short shorts/skirts above

the knee, tube tops or any other revealing tops).


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Franklin County Jail

1804 Opportunity Avenue Chambersburg, PA 17201 Phone: (717) 264-9513 Fax: (717) 264-2664 Warden: Michelle Weller E-mail: [email protected]


Attorney Visiting Hours: 8:30am to 9:00pm


Restrictions:

Contact visits are generally not permitted. The Warden may permit a contact visit in some cases.

All requests to hand anything to an inmate must be preapproved. All requests to view electronic

discovery with an inmate must be preapproved. Interpreters and investigators must obtain prior

approval to accompany on attorney visits.

An inmate id # is not required on correspondence.


the knee, tube tops or any other revealing tops).

Lackawanna County Prison

1371 North Washington Avenue Scranton, PA 18509 Phone: (570) 963-6639 Fax: (570) 496-1745 Warden: Robert McMillan E-mail: [email protected]


Attorney may do a non-contact visit by just calling ahead of time to set up a time to go the same day.

Contact visits must be scheduled before the actual day of visitation. Attorney does not need to be on

inmate’s visitor list.

Electronic devices are allowed in visitation (laptop/iPad/tape recorder).


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Restrictions:

Interpreters and investigators must have prior approval in order to accompany attorney on visit.


above the knee, tube tops or any other revealing tops).

Lebanon County Correctional Facility

730 East Walnut Street Lebanon, PA 17042 Phone: (717) 274-5451 Fax: (717) 274-1338 Warden: Robert Karnes E-mail: [email protected]


Attorney non-contact visits are from 8:30 to 10:30 a.m. and from 2:30 to 6:00 p.m. throughout the

week.

If you wish to have a contact visit, then the times are more limited. It is advisable to call ahead to

find out the available times for a contact visit.

Attorneys are required to present personal identification and bar card. Attorneys will not be

permitted to take their wallets, keys or other personal items back into the conference rooms. There

are lockers in the waiting area for visitors’ belongings.


Restrictions:

There is no online inmate listing, but the guard on duty will tell you whether your client is housed at

the prison.

Prior authorization is not required to bring in an interpreter or investigator or to review electronic

discovery, but you must call ahead to notify the prison and also to confirm that there will be a

meeting space available.

The inmate’s number does not need to appear on correspondence. No specific dress code.


Page 92

Luzerne County Correctional Facility

99 Water Street Wilkes-Barre, PA 18711 Phone: (570) 829-7750 Fax: (570) 826-3074 Warden: Joseph Piazza


Attorney may visit at any time except for meal and count times. No need to call for an appointment.

Attorney does not need to be on inmate’s visitor list. No electronic devices allowed in the facility.


above the knee, tube tops or any other revealing tops, closed toe shoes are a must)

Restrictions:

Interpreters/Investigators do not need prior authorization to join the attorney on the visit but must

have proper identification.

Lycoming County Prison

277 West Third Street Williamsport, PA 17701 Phone: (570) 326-4623 Fax: (570)321-9859 Warden: Kevin A. DeParlos Deputy Warden of Security & Operations: Brad A. Shoemaker (primary contact) Deputy Warden of Treatment: Timothy J. Mahoney


9:00 a.m. - 11:15 a.m. 12:30 p.m. - 2:30 p.m.

3:15 p.m. - 4:15 p.m. 5:30 p.m. - 9:00 p.m.

Professional Visits do not include all members of the defense team. Background checks are required

before visits are permitted.

Restrictions:

You are not permitted to take in a laptop computer. The prison has a laptop they will provide for

use in reviewing discovery CDs.


Page 93

No cell phones are permitted or any other electronic devices. You may provide the inmate with

paper documents/discovery. You may not make telephone calls to the inmate.

Monroe County Prison

4250 Manor Drive Stroudsburg, PA 18360 Phone: (570) 992-3232 Fax: (570) 402-2921 Warden: Donna Asure E-mail: [email protected]


Attorney may visit any time except during lockup, which is 10:45- 11:30 a.m. and 2:45-3:30 p.m.

Attorney does not need to be on inmate’s visitor list.

Electronic devices are allowed in visitation (laptop/iPad/tape recorder).

Restrictions:


above the knee, tube tops or any other revealing tops, closed toe shoes are a must).

Prior authorization from the Warden is necessary to bring an interpreter and/or an investigator to

the visit.

Northumberland County Prison

39 North Second Street Sunbury, PA 17801 Phone: (570) 988-4232 Fax: (570) 988-4374 Warden: Brian Wheary


Any time after 7:00 a.m. until 9:30 p.m. Attorney card/ID must be shown.

Professional visits include all members of the defense team with proper ID.

Restrictions:

You are permitted to take in a laptop computer; however, you must show proof to the staff and

provide the reason you will be using the computer.


Page 94

No cell phones or any other electronic device are permitted. You may provide the inmate with paper

documents/discovery. You may not make telephone calls to the inmate.

Perry County Prison

300 South Carlisle Street New Bloomfield, PA 17068 Phone: (717) 582-2262 Fax: (717) 582-2377 Warden: David Yeingst E-mail: [email protected]


Anytime between 7:00 a.m. to 9:00 p.m. throughout the week.

Attorneys will not be admitted during pill call, which normally occurs at about 11:00 a.m., but only

takes a few minutes.

Attorneys are not required to present identification, but it may be requested.

Restrictions:

Attorneys will not be permitted to take their keys into the conference rooms, but the desk guard will

hold them for you.


There is no online inmate listing, but the “main control” option on the phone system will get you to

a guard who will tell you whether your client is housed at the prison.

Prior authorization is not required to bring in an interpreter or investigator or to review electronic

discovery, but it is beneficial to call ahead to notify the prison and confirm there will be a meeting

space available.

The inmate’s number does not need to appear on correspondence.

Attorneys may speak with clients by phone for a brief period of time, by calling “main control” and

asking to speak with the client. Be aware that the client will simply be standing in a hallway near the

main guard station during the phone call.

No specific dress code.


Page 95

Schuylkill County Prison

230 Sanderson Street Pottsville, PA 17901 Phone: (570) 628-1450 Fax: (570) 628-1015 Warden: Eugene Berdanier E-mail: [email protected]


Attorneys should be on the inmate's visiting list; however, this does not preclude other attorneys

from visiting if the inmate requests such visits.

The attorneys shall present proper identification identifying them as a bona fide attorney.

Restrictions:

Attorney visits will take place in the Visiting Room during regular visiting hours. (8:30- 3:00) This

procedure will be enforced. Any exception will be considered a Special Visit and must be authorized

by the Associate Warden (Programs) and/or the Camp Administrator/Executive Assistant, and will

be supervised by the Unit Team.

No items will be exchanged during a legal visit, including legal paperwork.

All legal material brought into the Visiting Room by the inmate must first be examined and hand

delivered to the Visiting Room by a member of the inmate's Unit Team.

Once the legal visit has been concluded, the Visiting Room Officer will contact a Unit Team

member to pick up the respective inmate's legal material.

It will be the responsibility of the Unit Team to insure that the legal material is returned to the

inmate.

The Visiting Room Officer will not approve legal material to be brought into the Visiting Room. If

an inmate's Unit Team staff member is not available, either the Operations Lieutenant or the

Institution Duty Officer must approve legal material to be brought into/or taken out of the Visiting

Room, but only after an inspection of the material is made.

Electronic devices must be pre-approved before entry into visiting area.


Page 96

Interpreters are required to have pre-approval to attend visit with attorney and to enter into the

facility.

Khaki color clothing (FCI Only), sunglasses (except prescription), hats (including baseball) except

religious, see-through blouses, sleeveless blouses, tank tops, miniskirts, spandex pants and shorts that

expose the knee or above are not considered appropriate apparel and will not be authorized.

Susquehanna County Prison

137 Ellsworth Drive Montrose, PA 18801 Phone: (570) 278-7166 Fax: (570) 278-7168 Warden: Nicholas Conigliaro E-mail: [email protected]


Attorney may visit any time except during lockup, which is 7-8 a.m. and 3-4 p.m.

Attorney does not need to be on inmate’s visiting list.

Restrictions:

Electronic devices are allowed in visitation (laptop/iPad/tape recorder), although cell phones are

allowed on premises, they will not be allowed in the visitation room.


above the knee, tube tops or any other revealing tops, closed toe shoes are a must).

Interpreters/Investigators do not need prior authorization to join the attorney on the visit but must

have proper identification.

Wayne County Correctional Facility

44 Mid Wayne Drive Honesdale, PA 18431 Phone: (570) 253-2621 Fax: (570) 253-3928 Warden: Joseph S. Pelzer


Attorney may visit at any time except for meal and lock-up times.


Page 97

Must call and make an appointment, they will accommodate your schedule as much as possible. Do

not need to be on inmate’s visiting list

Restrictions:

Cannot bring any electronic devices into the facility.

There are no restrictions as far as investigators or interpreters joining the attorney on the visit, but

you must let them know when you call to make an appointment for visitation that they will be

joining you.

There are no restrictions as far as dress code, appropriate office attire will suffice. (No

shorts/skorts/skirts above the knee, tube tops or any other revealing tops and closed toe shoes are a

must).

Wyoming County Correctional Facility

10 Stark Street Tunkhannock, PA 18657 Phone: (570) 836-1717 Fax: (570) 836-7767 Warden: Ken Repsher Email: [email protected]


Attorney may visit at any time except for meal and lock-up times. Must call and make an

appointment, they will accommodate your schedule as much as possible.

Restrictions:

Do not need to be on inmate’s visiting list.

Attorney can bring electronic devices into the facility.

There are no restrictions as far as investigators or interpreters joining the attorney on the visit, but

you must let them know when you call to make an appointment for visitation that they will be

joining you.

Attorney will also need to provide the birth date and SSN of the investigator/interpreter so the

prison can run a background check before being admitted into the facility.


Page 98


above the knee, tube tops or any other revealing tops).

York County Prison

3400 Concord Road York, PA 17402-9007 Phone: (717) 840-7580 Fax: (717) 840-7204 Warden: Mary Sabol E-Mail: [email protected]


Attorney Visiting Hours: 8:45am to 11:45am, 1:00pm to 4:30pm, 6:30 to 10:00pm

Attorney does not need to be on an inmate’s visitor list. Must show a valid State Bar Card for

admission.

Restrictions:

Prior authorization required to bring in an interpreter or investigator. All requests must be in writing

at least 48 business hours in advance. This request should be on business stationary/letterhead and

include:

Name of the individual(s) the attorney wants access for; Name of the inmate;

Identification Number of the inmate; County or Immigration Status; Reason for Visit;

Date of Visit; and, a sentence stating that this individual is not related to the inmate or a friend of the

family.

All requests can be mailed or faxed to the prison. Mail can be addressed to the Deputy Warden at

3400 Concord Road, York, PA 17402. Faxes can be addressed to the Deputy Warden at 717-840-

7204.

Do not hand anything directly to an inmate.

Attorneys are prohibited from having a contact visit with any relatives or persons with whom they

have or have had a personal relationship.

The inmate’s id# must appear on all correspondence. The id #s can be found at

www.yorkcountypa.gov or by calling the prison.


Page 99


the knee, tube tops or any other revealing tops.

Pennsylvania Department of Corrections – State Prisons

General Population Visiting Rules

All visits are governed by DOC Policy DC-ADM 812,” Inmate Visiting Privileges.” The policy can

be viewed on the department’s website at www.cor.state.pa.us

For information about visits with restricted housing unit inmates, religious visits, PA Prison Society

Visits or attorney visits, please contact the appropriate state prison or review the policy on the

DOC’s website.

Visitors enter department facilities and the visiting areas at their own risk. The Department of

Corrections will assume no liability for any injuries or damage or loss of property as a result of a

person entering a visiting area or any other area within a facility.

Call the facility to arrange a legal visit. In most cases you will have to be on the Inmate’s Visitor’s

List.

You can obtain the Inmates’ DOC # and location on the DOC website:

http://www.cor.state.pa.us/portal/server.pt/community/departmentofcorrections/4604

Many institutions will require that you identify the items you will be taking in to the visiting room,

i.e. number of documents, pens, legal pad, sentencing guidelines etc.

Not all institutions will allow you to bring in a laptop to review electronic discovery, make sure to

get permission in advance. Confirm your gate clearance prior to your arrival.


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Page 101


Page 102

**Check the dress code policy prior to your arrival. In many institutions you will be refused a visit if you

are wearing wired undergarments or open toe shoes.

Bureau of Prisons – Federal Institutions

General Dress Code Policy

No revealing shorts, sundresses, halter tops, bathing suits, see-through garments of any type, crop

tops, low-cut blouses or dresses, leotards, spandex, miniskirts, backless tops, hats or caps, sleeveless

garments, skirts two inches or more above the knee, dresses or skirts with a high-cut split in the back,

front, or side, any clothing that looks like inmate clothing (such as khaki or green military-type

clothing). Certain facilities may not allow wire undergarments because they set off the metal

detectors. Please check with the facility prior to your visit.

Federal Bureau of Prisons Facilities:

Contact Information for a particular institution can be found at http://www.bop.gov

When scheduling a legal visit, you should call the institution several days before your anticipated

visit and request a visit through the inmate’s Counselor. At the time of your call, you should have

available the inmate’s full name and Register Number. The inmate’s Register Number can be found

on the BOP website under “Inmates.” Visiting days vary by institution and can be located on the

BOP website. Confirm your clearance prior to your arrival.

CorrLinks:

CorrLinks is an official inmate emailing system through the Federal Bureau of Prisons. CorrLinks

permits inmates to communicate with attorneys and individuals on an inmate’s approved visiting

list. All messages are subject to screening by the prison. It may take one to two hours for an inmate

to receive an email. They may receive only text messages. Pictures and other attachments are not

permitted. There is a minimal cost for using CorrLinks. An inmate must make a specific request to

exchange electronic messages with attorneys or individuals on their approved visiting list. Upon

approval of the electronic messaging request, a message is generated through the system directing

the recipient to www.corrlinks.com. They may choose to accept or reject the request. The inmate

will be notified, and if accepted, messaging may begin.


Page 103

Legal Mail

All legal correspondence being sent into an institution must contain the inmate’s full name and

number. The attorney’s full name, “attorney at law,” and address must appear in the upper left

hand corner of envelopes and the envelope should be clearly marked “SPECIAL MAIL: Open Only

in the Presence of the Inmate (28 C.F.R. Sec. 540.19).”

Investigators/Interpreters

Prior to entering any Bureau of Prisons’ institution, all investigators and interpreters will be required

to submit an NCIC Check form (BP-A660.012) to the legal department of that institution.

LSCI Allenwood

Mailing address:

P.O. Box 1000 White Deer, PA 17887

Physical address:

Rt. 15 (2 miles north of Allenwood) White Deer, PA 17887 Phone: (570) 547-1990 Fax: (570) 547-0343


Attorneys are encouraged to visit during regular visiting hours, Friday through Sunday and federal

holidays between the hours of 8:00 and 3:00 p.m.; however, visits can be arranged at other times

based on the circumstances of each case and available staff. Visitors must be in before 2:15 p.m.

Attorney visits, including investigators, staff and interpreters must be approved in advance by

contacting the inmate’s Counselor. An attorney does not need to be on the inmate’s visitor list.

Restrictions:

No documents may be handed to the client during the conference.

Professional or business casual attire is required. No sleeveless clothes permitted. No open-toed

shoes. No khaki-colored clothes. No wrist watches are permitted in the visiting room.

All attorneys must present identification and a bar card. No personal items (keys, wallet, etc.) are

permitted in the visiting room. There are no lockers. The items must remain in the vehicle.


Page 104

FCI Allenwood

Mailing Address:

P. O. Box 2000 White Deer, PA 17887

Physical Address:

Route 15 (two miles north of Allenwood) White Deer, PA 17887 Phone: (570) 547-7950 Fax: (570) 547-7751






contacting the inmate’s Case Manager or Counselor. An attorney does not need to be on the


Restrictions:

No documents may be handed to the client during the conference


shoes. No khaki-colored clothes. No wrist watches are permitted in the visit room.




Page 105

USP Allenwood

Mailing Address:

P. O. Box 3000 White Deer, PA 17887

Physical Address:

Route 15 (two miles north of Allenwood) White Deer, PA 17887 Phone: (570) 547-0963 Fax: (570) 547-9201






contacting the inmate’s Case Manager or Counselor. An attorney does not need to be on the


Restrictions:



shoes. No khaki-colored clothes.


permitted in the visiting room. Lockers are available.


Page 106

USP Canaan

Mailing Address:

PO Box 300 Waymart, PA 18472

Physical Address:

3057 Easton Turnpike Waymart, PA 18472 Phone: (570) 488-8000 Fax: (570) 488-8130


Visits for an attorney, paralegal or private investigator representing an inmate client will be arranged

through the Unit Team. Requests are to be placed via telephone or mailed at least twenty-four (24)

hours prior to the proposed visit.

The following schedule will be utilized for inmates with social visits at USP Canaan:

Friday 8:00 a.m. to 3:00 p.m.

Saturday 8:00 a.m. to 3:00 p.m.

Sunday 8:00 a.m. to 3:00 p.m.

Holidays 8:00 a.m. to 3:00 p.m.

The following schedule will be utilized for inmates with social visits at FPC Canaan:

Saturday 8:00 a.m. to 3:00 p.m.

Sunday 8:00 a.m. to 3:00 p.m.

Holidays 8:00 a.m. to 3:00 p.m.

All visitors will be expected to wear clothing which is within the bounds of good taste.

Visitors will not be allowed to wear low-cut or see-through clothing, tube tops, tank tops, backless

clothing, khaki, or green-colored clothing, gray sweat pants or gray sweat shirts open toed sandals or

shoes. Dresses with slits above the bend of the knee are not authorized. Dresses and skirts will not be

allowed if the hemline is above the bend of the knee. Shorts are authorized clothing only for males

or females, under the age of sixteen (16), in the Visiting Room. Any other apparel of a suggestive or

revealing nature (e.g., skin tight clothing, shorts, miniskirts, short culottes or sleeveless clothing) is

not authorized. Female visitors will be required to wear a bra. Under wire undergarments are not

acceptable, as this will activate the metal detector.


Page 107

The Operations Lieutenant or IDO will be consulted prior to denying a visitor entry into the

institution because of his/her attire. No wrist watches are permitted in the visiting room.

Interpreters must have prior approval to attend visit with attorney and to enter into the facility.

USP Lewisburg

Mailing address:

P.O. Box 1000 Lewisburg, PA 17837

Physical address:

2400 Robert F. Miller Drive Lewisburg, PA 17837 Phone: (570) 523-1251 Fax: (570) 522-7745


Attorney visits are scheduled for Wednesdays between 8:00 a.m. and 3:00 p.m. Requests for legal

visits must be emailed to LEW/[email protected] at least one (1) week in advance. A memo of

approval will be sent to the requesting attorney by e-mail. An attorney does not need to be on the

inmate’s visitor list. All meetings with inmates are behind glass.

Restrictions:

An investigator requesting to enter the institution as a representative of an attorney must complete

an Application to Enter Institution as Representative (BP-A243.013) and submit the form in advance

to the legal department of the institution.

Documents may be shown to the client during the conference, but may not be handed to the inmate

without prior authorization of the institution staff.




Page 108

FCI Schuylkill

Mailing Address:

P. O. Box 759 Minersville, PA 17954

Physical Address:

Interstate 81 and 901 West Minersville, PA 17954 Phone: (570) 544-7100 Fax: (570) 544-7224


Attorneys are encouraged to visit during regular visiting hours, Thursday through Sunday and

federal holidays between the hours of 8:30 a.m. and 3:00 p.m.; however, visits can be arranged at

other times based on the circumstances of each case and available staff. Visits for inmates housed in

the Special Housing Unit (SHU) will only be scheduled for Thursday. Visitors must be in before

2:15 p.m. Attorney visits, including investigators, staff and interpreters must be approved in

advance by contacting the inmate’s Counselor. An attorney does not need to be on the inmate’s

visitor list.

Restrictions:






SAMPLE MOTIONS

Page 109

Motion for Bill of Particulars

IN THE UNITED STATES DISTRICT COURT


UNITED STATES OF AMERICA : Criminal No.

:

v. : (Judge)

:

DEFENDANT : (Electronically Filed)

MOTION FOR BILL OF PARTICULARS PURSUANT TO

FEDERAL CRIMINAL PROCEDURAL RULE 7(f)

AND NOW, comes the defendant, [Defendant], by his attorney [Attorney], Esquire, of the

Federal Public Defender’s Office, and respectfully requests that the Court direct the Government to

file a bill of particulars as to Count IV of the indictment, averring as follows:

1. On January 24, 2007, a superseding indictment was returned against the defendant,

[Defendant].

2. On February 13, 2007, Mr. [Defendant] was arraigned on the superseding indictment.

3. Count IV of the superseding indictment alleges that Mr. [Defendant] possessed a firearm in

furtherance of drug trafficking, in violation of Section 924(c) of Title 18 of the United States Code,

18 U.S.C. §924(c)(1).

4. The specific allegations set forth in Count IV, however, allege only that:

From on or about April 1, 2006, through on or about April 21, 2006, in York County, and within the Middle District of Pennsylvania, the defendant,

[DEFENDANT]

did knowingly carry, use and possess a firearm during, in relation to, and in furtherance of a drug trafficking crime for which he may be prosecuted in a court of the United States; namely, distribution of cocaine base, and possession of cocaine base with the intent to distribute, a violation of Title 21, United States Code, Section 841(a)(1).

SAMPLE MOTIONS

Page 110

All in violation of Title 18, United States Code, Section 924(c)(1).

5. The generalized and boilerplate statement of the offense contained in Count IV does not

provide adequate notice of the precise nature of the charge sufficient to permit Mr. [Defendant] to

prepare a defense.

6. Notably, in Counts III, VII, and VIII, the indictment the Government provides factual

context respecting other charges pursuant to Section 924(c)(1).

7. As the charge set out in Count IV does not sufficiently advise Mr. [Defendant] of the specific

act or acts that violate Section 924(c)(1), a more particularized allegation or statement is required.

WHEREFORE, for the foregoing reasons, the defendant, [Defendant], respectfully requests

that this Honorable Court direct the Government to particularize the conduct that is alleged to form

the basis for Count IV of the superseding indictment.

Date: Respectfully submitted,

/s/ ATTORNEY______ ATTORNEY, ESQUIRE Federal Public Defender Attorney ID #PAXXXXX 100 Chestnut Street, Suite 306 Harrisburg, PA 17101 Tel. No. (717) 782-2237 Fax No. (717) 782-3881 <[email protected]> Attorney for (defendant’s name).

SAMPLE MOTIONS

Page 111

CERTIFICATE OF SERVICE

I, [Attorney], Esquire, of the Federal Public Defender’s Office, do hereby certify that I served

a copy of the foregoing MOTION FOR BILL OF PARTICULARS PURSUANT TO FEDERAL

CRIMINAL PROCEDURAL RULE 7(f), via Electronic Case Filing, and/or by placing a copy in

the United States mail, first class in Harrisburg, Pennsylvania, and/or by hand delivery, addressed to

the following:

AUSA, ESQUIRE

United States Attorney’s Office 228 Walnut Street, Room 220 Harrisburg, PA 17108 (717) 221-4482 [email protected]> DEFENDANT Address Address Address



SAMPLE MOTIONS

Page 112




:

v. : (Judge)

:


CERTIFICATE OF NON-CONCURRENCE

I, [Attorney], Esquire, of the Federal Public Defender’s Office, do hereby certify that

Assistant United States Attorney [AUSA], Esquire, does not concur in the foregoing Motion for Bill

of Particulars Pursuant to Federal Criminal Procedural Rule 7(f).



SAMPLE MOTIONS

Page 113




:

v. : (Judge)

:


ORDER OF COURT

AND NOW this ______________ day of April, 2015, after consideration of the within

Motion for Bill of Particulars, IT IS HEREBY ORDERED that the motion is GRANTED. On or

before __________, 2015, the Government shall file a Bill of Particulars with respect to Count IV of

the superseding indictment.

BY THE COURT:

_____________________________

JUDGE Judge, United States District Court

SAMPLE MOTIONS

Page 114

Motion to Determine Competency


FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA : Criminal No. : v. : (Judge) : DEFENDANT : (Under Seal)

UNDER SEAL MOTION TO DETERMINE MENTAL COMPETENCY OF DEFENDANT PURSUANT 18 U.S.C. SECTION 4241

AND NOW, this ___ day of ____ 2015, comes Defendant, _______ by and through her

attorney, ________, Esquire, and files this Under Seal Motion to Determine Mental Competency of

Defendant pursuant to 18 U.S.C. Sections 4241 and in support thereof, the following is averred:

1. Defense counsel is court appointed to represent the defendant in the above captioned case.

2. On __________20_, Ms. ____ appeared before the Honorable Magistrate Judge Susan E.

Schwab for her initial appearance. She was released under Pretrial Services supervision.

3. Since her Initial Appearance Ms. _______ has been admitted to the Pennsylvania Psychiatric

Institute on two separate occasions for inpatient treatment. She is currently being treated for major

depressive disorder and severe anxiety disorder as an outpatient.

4. Undersigned counsel has met with Ms. ______ several times since her appointment. Based

on discussions with Ms. _____, defense counsel is concerned that Ms. ______ may be suffering from

a mental disease or defect that may render her incompetent to the extent that she is unable to

understand the nature of the proceedings against her or to assist in her own defense.

5. 18 U.S.C.A. Section 4241 provides a mechanism for this Court to order an evaluation prior

to a competency hearing. 18 U.S.C. Section 4241 provides, in pertinent part:

SAMPLE MOTIONS

Page 115

Section 4241 Determination of mental competency to stand trial

a. Motion to determine competency of defendant. – At any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own motion, if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense. b. Psychiatric or psychological examination and report. – Prior to the date of the hearing, the court may order that a psychiatric or psychological examination of the defendant be conducted, and that a psychiatric or psychological report be filed with the court, pursuant to the provision of section 4247(b) and (C).

6. Counsel is requesting that this Court order a local psychiatric or psychological examination

and report of Ms. _____ pursuant to 18 U.S.C. Section 4241.

7. Counsel for the government, AUSA _______ Esquire, does not oppose this request.

WHEREFORE, for all the foregoing reasons, the defendant, through counsel respectfully requests

that this Honorable Court order a local licensed or certified psychiatrist or psychologist examination

and report on Ms. _____, to hold a hearing to determine her mental competency to proceed and for

such other and further relief as the Court deems proper.


/s/ ATTORNEY______ ATTORNEY, ESQUIRE Federal Public Defender Attorney ID #PAXXXXX 100 Chestnut Street, Suite 306 Harrisburg, PA 17101 Tel. No. (717) 782-2237 Fax No. (717) 782-3881 <[email protected]>

Attorney for (defendant’s name

SAMPLE MOTIONS

Page 116

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : Criminal No. : v. : (Judge) : DEFENDANT : (Under Seal)

CERTIFICATE OF CONCURRENCE/NON-CONCURRENCE

I hereby certify that on _______ , 20_, I contacted or attempted to contact __________,

Esquire, the ASSISTANT UNITED STATES ATTORNEY assigned to this case and sought

concurrence in Defendant’s Motion to Determine Mental Competency in the above captioned case:

[x] Concurrence was granted.

[] Concurrence was not granted.

[] Concurrence or non-concurrence could not be obtained because opposing counsel was

unavailable. Additional attempts will be made to obtain concurrence of non-concurrence and a

further certificate filed with the court as soon as possible. Opposing counsel is requested to call the

undersigned upon receipt of this motion to advise of his/her position regarding concurrence or non-

concurrence of this motion.


/s/ ATTORNEY______ ATTORNEY, ESQUIRE Federal Public Defender Attorney ID #PAXXXXX 100 Chestnut Street, Suite 306 Harrisburg, PA 17101 Tel. No. (717) 782-2237 Fax No. (717) 782-3881 <[email protected]>

Attorney for (defendant’s name

SAMPLE MOTIONS

Page 117


I hereby certify that on this date I served a true copy of the attached document upon the

person(s) named below by personal delivery.

AUSA, ESQUIRE

United States Attorney’s Office 228 Walnut Street, Room 220 Harrisburg, PA 17108 (717) 221-4482 [email protected]> DEFENDANT Address Address Address



SAMPLE MOTIONS

Page 118



ORDER OF COURT

AND NOW, this ____ day of ________________, 2015, it is hereby ORDERED that the

Defendant’s Motion to Determine Mental Competency of Defendant is granted as there is

reasonable cause to believe that Ms. _____ may presently be suffering from a mental disease or

defect, rendering her mentally incompetent to the extent that she is unable to understand the nature

and consequences of the proceedings against her or to assist properly in her defense. Therefore good

cause having been shown, IT IS ORDERED:

1. Ms. _______ shall be examined by a local psychiatrist or psychologist for purposes of

determining whether at this time there is reasonable cause to believe that the defendant may

presently be suffering from a mental disease or defect rendering her mentally incompetent to the

extent that she is unable to understand the nature and consequences of the proceedings against her

or to assist properly in her defense and her criminal responsibility for the offense. This examination

shall be conducted as soon as practicable.

2. The examining psychiatrist or psychologist shall render as soon as practicable a written

report with respect to the matters set forth above. This report shall be filed with the Court, with a

copy to the attorney for the defendant and the attorney for the government. This report shall include:

a. The defendant’s history and present symptoms;

b. A description of the psychiatric, psychological and medical tests that were employed and

their results;

c. The examiner’s findings; and

SAMPLE MOTIONS

Page 119

d. The examiner’s opinion as to diagnosis, prognosis, and whether the defendant, ________,

suffers from a mental disease or defect to the extent that she is unable to understand the nature and

consequences of the proceedings against her or to assist properly in her defense and her criminal

responsibility for the offense.

BY THE COURT:

______________________________ CHRISTOPHER C. CONNER Chief United States District Judge

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Motion to Continue Trial


UNITED STATES OF AMERICA : Criminal No. : V. : (Judge) : DEFENDANT : (Electronically Filed)

DEFENDANT’S UNOPPOSED MOTION FOR CONTINUANCE OF TRIAL

AND NOW, this ____day of _____ 20__, comes Defendant, by and through his attorney,

___________________, Esquire, and requests that the trial in the above captioned case be

continued, respectfully representing as follows:


2. (State procedural history of case.)

3. Pursuant to this Court's most recent order the trial in this case is due to commence with jury

selection on _____, 20_.

4. (State reasons why continuance is needed.)

5. For all of the above stated reasons, Defendant _____ respectfully requests a continuance of

the trial date.

6. Defense counsel has obtained the concurrence in this motion of_______________, Assistant

United States Attorney and __________________, Esquire, attorney for codefendant.

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7. Inasmuch as all parties have concurred in this continuance, any period of time from the date

of the order granting the continuance up to and including the new date for the trial to begin would

be excluded under the Speedy Trial Act. The interests of justice served by granting the continuance

and allowing the parties additional time to prepare their defenses and/or pursue plea negotiations

outweighs the best interest of the defendants and the public in a speedy trial.

WHEREFORE, the Defendant requests that this Court grant a sixty day continuance of trial

in this matter.



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UNITED STATES OF AMERICA : Criminal No. :

v. : (Judge) : DEFENDANT : (Electronically Filed)


I hereby certify that on _____, 20___, I contacted or attempted to contact

___________________, Esquire, the Assistant United States Attorney assigned to this case and

sought concurrence in Defendant’s Motion for Continuance of Trial in the above captioned case:

[ ] Concurrence was granted.

[ ] Concurrence was not granted.

[ ] Concurrence or non-concurrence could not be obtained because opposing counsel was







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person(s) named below via electronic filing.



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Disclosure Motions



v. : (Judge) : DEFENDANT : (Electronically Filed)

DEFENDANT _______________’S REQUEST FOR PRETRIAL DISCLOSURE OF RULE 404(b) MATERIAL THE

GOVERNMENT INTENDS TO INTRODUCE AT TRIAL

AND NOW, comes the defendant, DEFENDA NT, by his attorney ATTORNEY of the

_______________________’s Office, and respectfully requests from the government pre-trial notice

of any other crimes, wrongs, or acts evidence the government intends to introduce at trial in

accordance with to Rule 404 (b) of the Federal Rules of Evidence.



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I, _________________of the Federal Public Defender’s Office, do hereby certify that I served

a copy of the foregoing Defendant ______________’s Request for Pre-Trial Notice of Any

Evidence the Government Intends to Introduce at Trial Pursuant to Rule 404(b) via Electronic

Case Filing, or by placing a copy in the United States mail, first class in Harrisburg, Pennsylvania,

addressed to the following:

_____________________, ESQUIRE United States Attorney's Office Ronald Reagan Federal Building 228 Walnut Street, Suite 220 Harrisburg, PA 17108 ______________________________ York County Prison 3400 Concord Road York, PA 17402



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Discovery Motions




: v. : (Judge) : DEFENDANT : (Electronically Filed)

DEFENDANT ____________________’S SPECIFIC DISCOVERY REQUEST FOR IMPEACHMENT EVIDENCE

PURSUANT TO GIGLIO v. UNITED STATES

AND NOW, come the defendant, ____________________, by his attorney___________ of

the Federal Public Defender’s Office, and files this specific request for impeachment evidence

pursuant to Giglio v. United States, 405 U.S. 150 (1972), averring as follows:

1. ___________________ requests that the government provide the following for all

witnesses intended to be called at trial. Please provide any evidence of:

(a) bias;

(b) narcotic treatment or habit;

(c) psychiatric treatment;

(d) monetary incentives for testimony or conviction;

(e) leniency or favorable treatment of the witness in exchange for testimony;

(f) arrests (felonies, misdemeanors and summary offenses) before, during or following

any cooperation including but not limited to _____________;

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2. This request is made pursuant to Giglio v. United States, 405 U.S. 150 (1972), where Mr.

Chief Justice Burger found:

[1-3] As long as Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 342, 79 L.Ed. 791 (1935), this Court made clear that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with Arudimentary demands of justice.@ This was reaffirmed in Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942). In Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed. 2d 1217 (1959), we said, A[t]he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.@ Id., at 269, 79 S.Ct. at 1177. Thereafter, Brady v. Maryland, 373 U.S. at 87, 83 S.Ct., at 1197, held that suppression of material evidence justifies a new trial “irrespective of the good faith or bad faith of the prosecution. “See American Bar Association, Project on Standards for Criminal Justice, Prosecution Function and the Defense Function ' 3.11 (a). When the “reliability of a given witness may well be determinative of guilt or innocence,”nondisclosure of evidence affecting credibility falls within this general rule. Napue, supra, at 269, 79 S.Ct., at 1177.

Giglio at 154.

3. The United States Court of Appeals for the District of Columbia explained the reasoning

behind this ruling.

Cross-examination of a witness is a matter of right. Its permissible purposes, among others, are that the witness may be identified with his community so that independent testimony may be sought and offered of his reputation for veracity in his own neighborhood; that the jury may interpret his testimony in the light reflected upon it by knowledge of his environment; and that facts may be brought out tending to discredit the witness by showing that his testimony in chief was untrue or biased.

Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test without which the jury cannot fairly appraise them.

United States v. Fowler, 465 F.2d 664 (D.C. Cir. 1972).

4. It is well settled that the government must provide this information upon request. “The

rationale for this is clear; ‘such evidence is ‘evidence favorable to the accused,’ so that, if disclosed

and used effectively, it may make the difference between conviction and acquittal.’”

Wilson v. Beard,589 F.3d 651, 659 (3d Cir. 2009) (quoting United States v. Bagley 473 U.S. at 676,

(1985)) (quoting Brady v. Maryland, 373 U.S. at 87 (1963)).

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5. ___________________ specifically requests any and all information within the purview of

Giglio v. United States, 405 U.S. 150 (1972), as set forth above, so that he may properly cross-examine

the witnesses and test their credibility.

6. ________________ requests this information so that he may properly determine the

reputation place the witnesses and test their credibility.



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I, ______________, of the Federal Public Defender’s Office, do hereby certify that on this

date I served a copy of the foregoing Specific Discovery Request for Impeachment Evidence

Pursuant to Giglio v. United States, via Electronic Case Filing, or by placing a copy in the United

States mail, first class in Harrisburg, Pennsylvania, addressed to the following:

_________________, ESQUIRE United States Attorney's Office Ronald Reagan Federal Building 228 Walnut Street, Suite 220 Harrisburg, PA 17108 ______________________________ York County Prison 3400 Concord Road York, PA 17402


/s/ ATTORNEY______ ATTORNEY, ESQUIRE Federal Public Defender Attorney ID #PAXXXXX 100 Chestnut Street, Suite 306 Harrisburg, PA 17101 Tel. No. (717) 782-2237 Fax No. (717) 782-3881 [email protected]> Attorney for (defendant’s name).

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Dismissal Motion





MOTION TO DISMISS INDICTMENT

AND NOW, comes the defendant, [Defendant], by his attorney [Attorney], Esquire, of the

Federal Public Defender’s Office, and files this Motion to Dismiss the Indictment, and in support

thereof avers as follows:

1. By indictment filed December 19, 2007, [Defendant] was charged with failing to register as a

sex offender under the Sex Offender Registration and Notification Act (SORNA) pursuant to 18

U.S.C. § 2250 (a) and 2 (Count I); failure to comply with updating the FBI database in violation of

42 U.S.C. § 14072(i)(1) and 18 U.S.C. § 2 (Count II); and making false statements when he provided

information regarding his prior record and place of residence in violation of 18 U.S.C. § 1001 and 2

(Count III); and tampering with a witness, victim or informant for statements to law enforcement

regarding the SORNA requirements, in violation of 18 U.S.C. § 1512(b)(3) and 2 (Count IV).

2. On May 13, 2008, Mr. [Defendant] appeared before the Honorable [Judge] and entered a

plea of not guilty to the indictment.

3. The Federal Public Defender was appointed and a detention hearing was held on May 19,

2008.

4. Trial in this matter is scheduled for July 7, 2008.

5. [Defendant] moves to dismiss the indictment for the following reasons:

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A. The Indictment violates the Commerce Clause because (1) Congress cannot force

citizens convicted of purely local offenses to register; (2) Congress lacks the power to

federalize a local offender’s failure to register in a state-run registry, and (3) the jurisdictional

element of 18 U.S.C. § 2250 (interstate travel) does not require that the travel be related to

the failure to register.

B. The retroactive implementation of SORNA violates the Administrative Procedures

Act because it was promulgated without notice and comment.

C. The indictment violates the Tenth Amendment of the United States Constitution

because it impermissibly encroaches on State power.

D. The indictment violates the Right to Travel.

E. SORNA does not apply to Mr. [Defendant] because neither Pennsylvania nor New

York has implemented the law and therefore the indictment violates the Due Process and the

Ex Post Facto Clauses.

F. [Defendant] had no duty to register because the Government did not follow the

requirements of the SMART Guidelines in notifying him of the Act’s provisions.

G. The Non-Delegation Doctrine was violated by 42 U.S.C. § 16913 (d) which

permitted the Attorney General to make the Act retroactive.

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WHEREFORE, for the foregoing reasons, [Defendant] respectfully requests that this

Honorable Court grant his Motion to Dismiss the Indictment against him.



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a copy of the foregoing MOTION TO DISMISS INDICTMENT via Electronic Case Filing,

and/or by placing a copy in the United States mail, first class in Harrisburg, Pennsylvania, and/or

by hand delivery, addressed to the following:

AUSA, ESQUIRE United States Attorney's Office 228 Walnut Street, Room 220 Harrisburg, PA 17101 [email protected] DEFENDANT NAME Address Address Address



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Assistant United States Attorney [AUSA], Esquire, does not concur in the foregoing Motion to

Dismiss the Indictment.



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ORDER OF COURT

AND NOW this _____ day of _____________, 2015, upon consideration of the defendant’s

Motion to Dismiss Indictment, IT IS HEREBY ORDERED that the Motion is GRANTED.

BY THE COURT: _______________________________ JUDGE Judge, United States District Court

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Motion to Seal a Document



MOTION TO SEAL DOCUMENT

AND NOW, comes the Federal Public Defender’s Office, by undersigned counsel, pursuant

to Local Criminal Rule 49 for the Middle District of Pennsylvania, and moves to file under seal the

accompanying document based upon the attached declaration in support.

WHEREFORE, for all the foregoing reasons, the Federal Public Defender’s Office moves to

seal this Motion and the accompanying documents. For the convenience of the Court, a proposed

Order is attached.



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I, ____________________, Esquire, of the Federal Public Defender’s Office, do hereby

certify that I served a copy of the foregoing Motion to Seal Document, via Electronic Case Filing,


by hand delivery, addressed to the following:

_________________, ESQUIRE ___________________________

Assistant United States Attorney United States Probation Office United States Attorney’s Office Ronald Reagan Federal Building 228 Walnut Street, Room 220 228 Walnut Street, Room 720 Harrisburg, PA 17108 Harrisburg, PA 17108

DEFENDANT Address Address Address



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ORDER OF COURT

AND NOW, this _____ day of __________________________, 20___, upon consideration of

the within Motion to Seal Document, IT IS ORDERED that this document only be opened by

appropriate Court personnel of the Middle District of Pennsylvania in the due course of performing

the business of the Clerk’s Office, after which the Clerk is ordered to seal all accompanying

documents until further Order of the Court.

BY THE COURT:

______________________________

CHRISTOPHER C. CONNER CHIEF JUDGE UNITED STATES DISTRICT COURT

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DECLARATION OF __________________, ESQUIRE, ASSISTANT FEDERAL PUBLIC DEFENDER

1. On________, 20____, within counsel filed a _______________ on behalf of

_____________________.

2. The ____________________ includes information relative to the defendant’s physical and

mental health and exhibits of that nature.

WHEREFORE, for the foregoing reasons, ___________________, Esquire, Assistant

Federal Public Defender, avers herein that it is necessary to seal the accompanying

____________________________.



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Ex-Parte Motion for Appointment of Expert Witness


UNITED STATES OF AMERICA : Criminal No. : v. : (Judge) : DEFENDANT : Electronically Filed

PETITIONER’S EX-PARTE MOTION FOR APPOINTMENT OF EXPORT CONTROLS WITNESS AT GOVERNMENT’S EXPENSE

Petitioner, ____________, by his undersigned counsel, moves this Court for an Order

authorizing

Petitioner’s court-appointed counsel to obtain expert services, pursuant to the provisions of 18

U.S.C. §3006A(e), to assist him in developing and verifying the claims raised in Petitioner’s Motion

to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. Section 2255 and to obtain an opinion on

the sine qua non question whether the commodities that Petitioner stands convicted of having

exported unlawfully were “defense articles” or “controlled items” at the time of their alleged export.

Accordingly, Petitioner desires to retain the services of an export controls specialist, to wit:

___________________________. Mr. _______ focuses his practice on international business

transactions, export controls and customs matters. His international business transaction work and

export control work involves representing clients in connection with sales of military equipment and

includes matters involving the Export Administration Regulations administered by the Department

of Commerce and the International Traffic in Arms Regulations administered by the State

Department.

This Motion is made on the grounds that Petitioner is financially unable to obtain such

expert services and that such expert services are necessary to the full development by the Petitioner

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of the factual claims before the Court in this Section 2255 proceeding, as more fully appears in the

Declaration of Petitioner’s Counsel attached hereto.

The proposed expert, __________, has agreed to reduce his normal hourly rate to $350.00

per hour from $650 per hour and it is anticipated that he will spend at least ten hours in reviewing

records and preparing his report. Therefore, Petitioner further requests that advance authorization be

granted to obtain services in an amount in excess of the maximum allowed under the provisions of

subsection (e)(3) of the Criminal Justice Act, 18 U.S.C. Section 3006A, in order to provide fair

compensation for services of an unusual character.



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v. : (Judge) : Defendant : (Electronically Filed)

DECLARATION IN SUPPORT OF PETITIONER’S EX-PARTE MOTION FOR APPOINTMENT OF

EXPORT CONTROL EXPERT AT GOVERNMENT’S EXPENSE

State of Pennsylvania :

: ss.

County of Lackawanna :

___________, hereby declares and states as follows:

1. I am the attorney for Petitioner, __________, in the above-entitled action, having been

appointed to represent Petitioner on ___________. This declaration is submitted in support of

Petitioner’s Motion for Appointment of ________, Esquire, a licensed attorney, who focuses his

practice on export controls and international business transactions involving military equipment, to

assist in the presentation of the factual claims raised in Petitioner’s Motion to Vacate, Set Aside or

Correct Sentence Pursuant to 28 U.S.C. Section 2255.

2. Petitioner, _________, pled guilty to a one count superseding information, charging him

with a violation of Title 18, U.S.C. §371 and was sentenced to_________________.

3. On ________, Petitioner, __________, filed a Motion to Vacate, Set-Aside or Correct

Sentence Pursuant to 28 U.S.C. §2255.

4. In his Section 2255 Motion, and Amendments, Petitioner maintains, among other things,

that: _______________________________________________________________.

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5. Given the foregoing, the undersigned requires the services of an expert in the field of

international transactions in military weapons and export controls to verify and validate the

Petitioner’s factual claims. A qualified expert is also needed to determine whether the items that

Petitioner is convicted of having exported unlawfully were, in fact, either “defense articles” or

“controlled items” at the time of their alleged export and whether any exemptions to the export

license requirements applied to this case. This is an esoteric area involving highly technical statutes

and regulations. Therefore, expert services of an unusual nature are required.

6. Petitioner is currently incarcerated at ________, and therefore, the undersigned believes that

he is financially unable to obtain and pay for such expert services.

7. I hereby declare the statements made herein are true and correct.



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:

v. : (Judge)

:


ORDER

The Motion of Petitioner, _______, for an Order authorizing Petitioner’s counsel to obtain

the services of ________, Esquire, a licensed attorney with special expertise in the fields of

international business transactions in military equipment and export controls, pursuant to 18 U.S.C.

§3000A(e), having been considered ex-parte and the Court being clearly advised, and good cause

appearing therefor, it is hereby

ORDERED that the Motion of Petitioner, _________ be, and hereby is, in all respects,

GRANTED.

It is further ORDERED that CJA Form 21 for the appointment of_________________, be,

and hereby is, APPROVED.

It is further ORDERED that the moving papers submitted by Petitioner in support of the

Motion be sealed and the contents thereof not revealed to the United States.

BY THE COURT:

________________________

CHRISTOPHER C. CONNER CHIEF JUDGE UNITED STATES DISTRICT COURT

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Suppression Motions:



:

v. : (Judge)

:


PRETRIAL MOTIONS TO SUPPRESS EVIDENCE

AND NOW, comes the defendant, [Defendant], by his attorney, [Attorney], Esquire, of the

Federal Public Defender’s Office, and files this Pretrial Motion to Suppress Evidence, averring as

follows:

I. Procedural History

1. By indictment filed September 10, 2014, the defendant, [Defendant], was charged with felon

in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

2. On September 16, 2014, Mr. [Defendant] appeared before the Honorable [Judge] and

entered a plea of not guilty to the indictment.

3. Trial is currently set for December 8, 2014.

II. Factual History

4. On March 19, 2014, Officer [Officer] of the York City Police Department was dispatched to

[Address], to take a domestic report.

5. Officer [Officer] interviewed [Witness] who allegedly stated that her boyfriend, Mr.

[Defendant], had assaulted her, threatened to “blow her head off,” and “pistol whip” her while at

their residence, [Address].

6. Ms. [Witness] told the officer that after the argument, Mr. [Defendant] demanded that she

leave the house, and that when she refused, Mr. [Defendant] punched her in the face several times.

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7. While Ms. [Witness] was collecting her things to leave, Mr. [Defendant] allegedly stated that

he was going to “blow her head off” if the cops came.

8. Ms. [Witness] left the [Address] and went to her mother’s at [Address] and called the police.

9. Officers [Officer] and [Officer] went to [Address], removed Mr. [Defendant] from the

residence, and took him into custody.

10. Later, Officer [Officer] transported Ms. [Witness] back to [Address] where she allegedly gave

written consent to search the house. A written copy is attached. See (Exhibit A).

11. During a search of the [Address] residence, a silver Ruger .44 Magnum Caliber Super Black

Hawk revolver was recovered.

12. Mr. [Defendant] is challenging: 1) Ms. [Witness] consent to search the residence; and 2) his

removal from the residence in order to prevent him from objecting to the search.

13. While a third party may give consent to search a place in which both she and the defendant

have a legitimate expectation of privacy, a defendant can challenge the validity of the consent given

by the third party.

14. Ms. [Witness] consent was not valid as Mr. [Defendant] alleges herein that she did not sign

the consent to search document.

15. If the consent was not valid as to Ms. [Witness], then Mr. [Defendant] constitutional rights

were violated as well. These facts will have to be developed at a hearing.

16. Moreover, in this case, the officers arrested Mr. [Defendant] at his residence.

17. The officers could have asked Mr. [Defendant] for consent but the officers intentionally

removed him from the residence in order to avoid any objections to such a search.

18. The officers violated Mr. [Defendant] Fourth Amendment rights when they searched his

residence without a warrant and without consent. U.S. CONST., amend IV.

19. Mr. [Defendant] requests that a hearing be held to develop the facts.

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WHEREFORE, for the foregoing reasons, Mr. [Defendant] respectfully requests that this

Honorable Court schedule a hearing and thereafter suppress the unlawfully obtained evidence.



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a copy of the foregoing Pretrial Motions to Suppress Evidence, via Electronic Case Filing, and/or

by placing a copy in the United States mail, first class in Harrisburg, Pennsylvania, and/or by hand

delivery, addressed to the following:

AUSA, ESQUIRE United States Attorney’s Office 228 Walnut Street, Room 220 Harrisburg, PA 17101 [email protected] [DEFENDANT] Address Address Address


/s/ ATTORNEY______ ATTORNEY, ESQUIRE Federal Public Defender Attorney ID #PAXXXXX 100 Chestnut Street, Suite 306 Harrisburg, PA 17101 Tel. No. (717) 782-2237 Fax No. (717) 782-3881 <[email protected]> Attorney for (defendant’s name)

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:

v. : (Judge)

:




Assistant United States Attorney [AUSA], Esquire, does not concur in the foregoing Pretrial

Motions to Suppress Evidence.



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:

v. : (Judge)

:


ORDER

AND NOW, this ___ day of _______________, 2015, upon consideration of the within

Pretrial Motions to Suppress Evidence, IT IS HEREBY ORDERED that a hearing in this matter

shall be scheduled for the following date and time:

_____________________________________________________________.

BY THE COURT: ______________________________ [JUDGE] Judge, United States District Court

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:

v. : (Judge)

:


PRETRIAL MOTION TO SUPPRESS STATEMENTS

AND NOW comes the defendant, [Defendant], by his attorney [Attorney], Esquire, of the

Federal Public Defender's Office, and files this Pretrial Motion to Suppress Statements, averring as

follows:

1. By indictment filed January 14, 2009, the defendant, [Defendant], was charged with

conspiracy to distribute and possess with the intent to distribute more than 100 grams of heroin, in

violation of 21 U.S.C. § § 846 and 841(a)(1) and (b)(1)(A)(iii), and 18 U.S.C. § 2; and with

distribution and possession with the intent to distribute more than 100 grams of heroin, in violation

of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii), and 18 U.S.C. § 2.

2. Mr. [Defendant] appeared before the Honorable [Judge] on January 27, 2009, and entered a

plea of not guilty to the charges.

3. Trial is set for April 6, 2009, and pretrial motions are due on or before February 16, 2009.

4. On December 3rd and 9th, 2008, law enforcement allegedly conducted controlled purchases

of heroin, utilizing an informant, from the defendant, [Defendant].

5. On December 9, 2008, Mr. [Defendant] was arrested.

6. After he was arrested, Mr. [Defendant] was taken to the state police barracks at York.

According to agents, Mr. [Defendant] was read his Miranda rights and the following were

statements allegedly taken from Mr. [Defendant]:

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[Defendant] related that he was bringing up 100 grams of heroin from Baltimore and he was going to get paid $10,000 for this heroin. He then related that he then would have to take $7000 back to this supplier. He would not give the name of his supplier. [Defendant] also related that he has a few people in Baltimore that he can get heroin from and that he has got up to 500 grams of heroin at a time from one of his suppliers.

7. Mr. [Defendant] denies that he made these statements. Mr. [Defendant] claims that the

arrest left him dizzy as he had fallen to the ground. Moreover, he had used approximately three

grams of heroin about twenty minutes before his arrest.

8. Mr. [Defendant] seeks to suppress his statements as he was “dizzy and high,” and does not

recall much of what was said. U.S. CONST. amend. V.

9. The Government has the burden to establish by a preponderance of the evidence that a

challenged confession is voluntary.

10. A hearing is requested so that Mr. [Defendant] can establish that any statements he may

have made were not voluntary.

WHEREFORE, for the foregoing reasons, the defendant, [Defendant], respectfully requests

that this Honorable Court schedule an evidentiary hearing so that a determination can be made as to

the voluntariness of Mr. [Defendant] statements.



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I, [Attorney] of the Federal Public Defender’s Office, do hereby certify that on this date I

served a copy of the foregoing Pretrial Motion to Suppress Statements via Electronic Case Filing,


by hand delivery addressed to the following:

AUSA, ESQUIRE United States Attorney’s Office 228 Walnut Street, Room 220 Harrisburg, PA 17108 [email protected]




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:

v. : (Judge)

:




Assistant United States Attorney [Attorney], Esquire, does not concur in the foregoing Pretrial

Motion to Suppress Statements.



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:

v. : (Judge)

:


ORDER OF COURT

AND NOW this _______ day of___________________, 2015, upon consideration of the

within Pretrial Motion to Suppress Statements, IT IS HEREBY ORDERED that the motion is

GRANTED. A hearing in this matter shall be scheduled for the following date and time:

_______________________.

BY THE COURT: __________________________________ [JUDGE] Judge, United States District Court

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Severance Motions




:

v. : (Judge)

:


DEFENDANT X MOTION FOR SEVERANCE OF DEFENDANTS PURSUANT TO

FEDERAL RULE OF CRIMINAL PROCEDURE 8 AND 14

AND NOW, this ___TH DAY OF _____ 201_, comes the Defendant, by and through his

attorney,__________, Esquire and files this Motion For Severance respectfully representing as

follows:

1. On ______ a 5 Count Superseding Indictment was filed charging and approximately 18 other

individuals with:

2. The defendant entered a plea of not guilty to the above charges and was ordered detained.

3. Discovery has been provided by the Government and the trial in this matter is currently

scheduled for _________.

4. Mr. X’s case is currently joined with eighteen (18) codefendants who are also listed on the

Superseding Indictment.

5. The Superseding Indictment of _________ alleges that Mr. X and other persons conspired to

distribute controlled substances in several locations in Pennsylvania as well as New York, Texas,

Florida, Georgia, New Jersey, Puerto Rico and Aruba.

6. The Discovery in this matter reveals that the Government has conducted extensive

surveillance on the majority of the Defendants named in the Superseding Indictment, has observed

transactions involving controlled substances and the U.S. has found both controlled substances and

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large quantities of currency in the residences of several of the co-defendants. Many of these

residences are located outside of the Commonwealth of Pennsylvania.

7. A review of the discovery provided to date reveals that, expect for a limited number of text

messages and phone calls to one co-defendant and an alleged historical witness, the United States

does not have the above forms of evidence against Mr. X in any manner that connects him to the co-

defendants listed in the Superseding Indictment.

8. In addition, Count Three of the Superseding Indictment charges 12 of Mr. X’s codefendants

with Criminal Conspiracy to Possess Firearms in Furtherance of Drug Trafficking.

9. A review of the discovery provided by the United States reveals a significant distinction

between the evidence and allegations related to Mr. X and the evidence and allegations related to his

Co-Defendants.

10. Mr. X avers that the United States’ allegations fail to establish a temporal or logical

connection between the charges alleged against him and those alleged against his codefendants.

11. Mr. X avers that the Government’s allegations do not provide the necessary link between his

actions and the alleged conspiracy.

12. Mr. X avers that a jury impaneled in the above matter will not be able to compartmentalize

the evidence against him from that presented against his Codefendants.

13. Mr. X avers that the majority of the Government’s witnesses will provide information and

testimony unrelated to the allegations against him and that those witnesses testifying against Mr. X

will provide information and testimony unrelated to and inadmissible against his Co-defendants.

14. Mr. X further avers that the language of the Superseding Indictment and the information

provided via discovery suggest that the primary focus of the Government’s case and the majority of

the evidence against his codefendants will not relate to his case and will be prejudicial.

15. Mr. X avers that his case was incorrectly joined with that of his codefendants under Federal

Rule of Criminal Procedure 8 in that, the Government has not offered evidence to suggest that he

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and any of his codefendants participated in the same act or transaction constituting the offenses

charged.

16. Accordingly, Mr. X avers that a joint trial held on the allegations against him in conjunction

with those against his codefendants will prejudice his right to receive a fair trial and that this Court

must sever his trial from that of his Codefendants in accordance with Federal Rule of Criminal

Procedure 14. .

17. Assistant United States Attorney was contacted by undersigned counsel and she indicated

that she does not concur in this Motion.

WHEREFORE, the Defendant respectfully requests that this Honorable Court find his case

misjoined with that of his codefendants, or in the alternative, sever his trial on the above captioned

charges from the trial scheduled against his Codefendants in accordance with Federal Rule of

Criminal Procedure 8 and 14.



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:

v. : (Judge)

:



I hereby certify that on ______, 201_, I contacted or attempted to contact __________,

Esquire, the ASSISTANT UNITED STATES ATTORNEY assigned to this case and sought

concurrence in Defendant’s Motion for Severance in the above captioned case:

[] Concurrence was granted.

[x] Concurrence was not granted.

[] Concurrence or non-concurrence could not be obtained because opposing counsel was







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person(s) named below via electronic filing.

AUSA, ESQUIRE United States Attorney’s Office 228 Walnut Street, Room 220 Harrisburg, PA 17108 [email protected]




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:

v. : (Judge)

:


ORDER

AND NOW, this _________day of _______________, 201, upon consideration of

Defendant’s Motion for Severance, it is hereby ORDERED AND DECREED that the same be and

hereby is GRANTED.

BY THE COURT

_____________________

WILLIAM H. CALDWELL

United States District Judge

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:

v. : (Judge)

:


PRETRIAL MOTION TO SEVER CHARGES

AND NOW, comes the defendant, [Defendant], by his attorney, [Attorney], Esquire, of the

Federal Public Defender’s Office, and files this Pretrial Motion to Sever Charges, averring as

follows:

1. By indictment filed November 12, 2014, the defendant, [Defendant], was charged with wire

fraud, in violation of 18 U.S.C. § 1343 (6 Counts).

2. By superseding indictment filed April 15, 2015, Mr. [Defendant] was charged with wire

fraud, in violation of 18 U.S.C. § 1343 (Counts 1-3); money laundering, in violation of 18 U.S.C. §§

1956 and 2 (Counts 4-30); aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1) (Count

31); felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count 32); and a forfeiture

allegation, in violation of 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c).

3. On April 28, 2015, Mr. [Defendant] appeared before this Honorable Court and entered a

plea of not guilty to the superseding indictment.

4. Trial is currently set for June 9, 2015.

5. The Government is alleging that from November 25, 2012, to November 20, 2014, Mr.

[Defendant] orchestrated a scheme to defraud investors using an individual named [Name].

6. Mr. [Name] solicited money from investors to invest in a government program. Investors

were guaranteed a return of three times their initial investment.

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7. Mr. [Name] allegedly received more than $350,000 from approximately nineteen investors,

which he claims he turned over to Mr. [Defendant] for investment purposes. The money was

allegedly never invested and never returned to the investors.

8. The Government is also alleging in Count 32 of the superseding indictment, felon in

possession of a firearm, that [Name] straw purchased a firearm for Mr. [Defendant] on December

24, 2013.

9. Mr. [Defendant] is prohibited from owning or possessing a firearm because of his prior

record. There are no allegations that Mr. [Defendant] used or possessed this firearm in relation to

any of the fraud allegations.

10. Mr. [Defendant] is asking this Court to sever Count 32, felon in possession, from the

remainder of the counts in the superseding indictment.

11. The offense of felon in possession of a firearm was improperly joined with the fraud offenses

and should be severed from the fraud offenses to avoid any prejudice.

12. Rule 8 of the Federal Rules of Criminal Procedure provides:

(a) Joinder of Offenses. The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged – whether felonies or misdemeanors or both – are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.

See FED. R. CRIM. P. 8(a)

13. Rule 14(a) of the Federal Rules of Criminal Procedure provides:

(a) Relief. If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires.

See FED. R. CRIM. P. 14(a).

14. The fraud offenses and the firearm offense have nothing in common other than that the

firearm offense occurred during a part of the time frame the fraud offenses are alleged to have

occurred.

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15. The Government has not alleged that the firearm was used during or in relation to the fraud

offenses, and the introduction into a trial of a firearm on the fraud offenses would prejudice Mr.

[Defendant].

16. Mr. [Defendant] is asking this Court to sever Count 32, felon in possession, from the

remaining counts of the superseding indictment.

WHEREFORE, for the foregoing reasons, it is respectfully requested that this Honorable

Court grant the within Pretrial Motion to Sever Charges.



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a copy of the foregoing Pretrial Motion to Sever Charges, via Electronic Case Filing, and/or by

placing a copy in the United States mail, first class in Harrisburg, Pennsylvania, and/or by hand

delivery, addressed to the following:

AUSA, ESQUIRE United States Attorney’s Office 228 Walnut Street, Room 220 Harrisburg, PA 17101 [email protected] [DEFENDANT] Address Address Address



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:

v. : (Judge)

:




Assistant United States Attorney [AUSA], Esquire, does not concur in the foregoing Pretrial Motion

to Sever Charges.



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:

v. : (Judge)

:


ORDER

AND NOW, this ___ day of _______________, 2015, upon consideration of the within

Pretrial Motion to Sever Charges, IT IS HEREBY ORDERED that the motion is GRANTED.

BY THE COURT: ______________________________ JUDGE NAME Judge, United States District Court

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Motion for Leave to File Interim Voucher



:

v. : (Judge)

:


MOTION FOR LEAVE TO FILE INTERIM VOUCHER

AND NOW, this ____ day of ______, 20_, comes, esquire, and requests permission from the

court to file an interim voucher in the above captioned case, respectfully representing as follows:

1. Undersigned counsel was court appointed to represent_______ on ______.

2. Mr. __________ was charged with violations of __________.

3. Counsel was served with and reviewed voluminous discovery documents in this matter.

4. In addition, due to the complex nature of this case, numerous interviews of the defendant

were conducted via phone and in person at three different prisons.

5. At the time of the indictment__________ was being held at _________in Harrisburg. Due to

his state parole detainer he was transported to _______ where he has been held in state custody since

________.

6. On two occasions counsel has obtained permission for overnight travel to_________ (August

2011 and March 2012). The prison is located four hours from counsel’s office and home in

Harrisburg, Pennsylvania. Counsel has incurred expenses for lodging, mileage and travel time for

these necessary trips.

7. Due to ________regulations all telephone contact with the defendant is through Global Tel

Link and is billed to undersigned counsel.

8. The date for sentencing has not yet been set by this court.

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9. To date counsel’s fees and expenses in this case total $_______.

10. Due to the complex nature of this case and its extended duration counsel avers that it would

be a financial hardship for her not to receive an interim payment of counsel fees and expenses.

11. Accordingly, counsel is requesting a interim payment in the amount of $_____.

WHEREFORE, undersigned counsel respectfully requests that this court grant this motion

and permit counsel to submit an interim voucher in the amount of $_____.



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Motion for Interim Payment


FOR THE MIDDLE DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA : Criminal No. : v. : (Judge) : DEFENDANT : (Electronically Filed)

MOTION FOR INTERIM PAYMENT

AND NOW, this _____ day of _______, 20_, comes _______, esquire, and requests

permission from the court to file an interim payment in the above captioned case, respectfully

representing as follows:

1. Undersigned counsel was court appointed to represent _______on __________.

2. ________ was charged in this court in a one count criminal information. The defendant was

charged with xxx.

3. On ______, _______ pled guilty to the information pursuant to a written plea agreement.

4. On ________ the defendant filed a motion to continue her sentencing until after the trials of

her codefendants in order that she may be able to complete her cooperation.

5. This court granted Ms. _______ motion and sentencing is now scheduled for _______.

6. To date counsel’s fees and expenses in this case total $______.

7. Counsel does not expect that fees and expenses for the remainder of this case will exceed the

statutory limit.

8. Due to the complex nature of this case and its extended duration counsel avers that it would

be a financial hardship for her not to receive an interim payment of counsel fees and expenses.

9. Accordingly, counsel is requesting one interim payment in the amount of $_________.

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WHEREFORE undersigned counsel respectfully requests that this court grant this motion

and permit counsel to submit one interim voucher in the amount of $. The amount of the interim

payment together with the final payment will not exceed the statutory threshold requiring approval

by the circuit court.



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UNITED STATES OF AMERICA : Criminal No. : v. : (Judge) : DEFENDANT : (Electronically Filed)

ORDER FOR INTERIM PAYMENT

AND NOW, this ____ day of ________________, 201_, it is hereby ordered that the within

motion for interim payment filed by ____________, Esquire is granted. Counsel will be permitted to

submit one interim voucher in the amount of $______ which shall be accompanied by detailed and

itemized time and expense statements

BY THE COURT:

________________________ CHRISTOPHER C. CONNER

CHIEF JUDGE UNITED STATES DISTRICT COURT

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Motion to Travel Outside of District



DEFENSE COUNSEL’S EX-PARTE MOTION TO APPROVE TRAVEL OUTSIDE OF THE MIDDLE DISTRICT

AND NOW, this __ day of ______, 20_, comes Defendant, by and through his

attorney,______________ , Esquire, and requests that this Court grant this Motion to Approve

Travel, respectfully representing as follows:


2. The Defendant was arraigned on and is charged with_____; in violation of _____

3. The Defendant has (add procedural history here).

4. State reasons why travel is necessary. For example: Due to his parole status the Defendant is

housed at SCI._________________ SCI_______________ is located in the Western District of

Pennsylvania.

5. Defense counsel is requesting approval to travel to SCI ______________ to meet with her

client to discuss the presentence report and determine what, if any, objections should be filed.

6. State how travel will be accomplished. For example: Counsel will travel to SCI in her

personal vehicle. The trip will take approximately four hours one way from Harrisburg. Because of

the extent of travel involved counsel believes that it will be necessary to remain in the _____, PA

area overnight.

7. Counsel requests compensation for travel time, mileage, meals and overnight

accommodations.

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8. Counsel believes that the proposed visit to the defendant is necessary in order to review the

presentence report with her client and determine what, if any, objections should be filed. The travel

will be accomplished in the most economical and expeditious fashion possible.

WHEREFORE, undersigned counsel requests that she be allowed to claim, in addition to other

compensation which will be set forth on the CJA 20, travel time to and from SCI ____, mileage,

overnight hotel accommodations and the cost of meals in connection with a visit to the defendant in

this case.



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Motion to Hire Investigator at Government’s Expense



DEFENDANT’S EX PARTE MOTION FOR APPOINTMENT OF INVESTIGATOR AT GOVERNMENT EXPENSE

Defendant,__________ by his undersigned counsel, moves the Court for an order

authorizing Defendant’s counsel to obtain the services of a licensed, private investigator, to wit:

_________, pursuant to the provisions of 18 U.S.C. §3006A(e), for the purpose of assisting in the

preparation of the defense in this case.

This motion is made on the grounds that Defendant is financially unable to obtain such

investigative services, and that such investigative services are necessary to the preparation by

Defendant of an adequate defense to the charges pending against him as more fully appears in the

affidavit of defense counsel attached hereto.



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AFFIDAVIT IN SUPPORT OF DEFENDANT’S EX PARTE MOTION FOR APPOINTMENT OF INVESTIGATOR

AT GOVERNMENT EXPENSE


: ss


______________________, being duly sworn, states:

1. I am the attorney for the Defendant in the above-entitled action, having been appointed to

represent the Defendant on __________. This affidavit is submitted in support of Defendant’s

motion for appointment of ______________, a licensed investigator, to assist in the preparation of

the defense in this case.

2. Defendant is charged in a multiple count First Superseding Indictment with possession with

intent to distribute cocaine base (crack), cocaine and marijuana in violation of 21 U.S.C. §841(a)(1)

and possession of a firearm in relation to a drug trafficking felony in violation of 18 U.S.C. §924(c).

3. Pursuant to discovery proceeding, the government has provided defense counsel with

information that one ___________ was a passenger in a taxi cab in which the Defendant was seated

at the time of the Defendant’s arrest on ____________, in the vicinity of ______________________,

Pennsylvania.

4. I have been informed that the suspected controlled substances seized as a result of a search of

said taxi cab and the premises situate at______________, did not belong to the Defendant, but rather

belonged to either _________________or other persons known to her.

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5. I have been further informed that _______no longer resides at _______________,

Pennsylvania, and her current whereabouts are unknown.

6. It is essential to the preparation of an adequate defense that this potential witness be located

and interviewed.

7. Due to the fact that the above witness is believed to be currently residing somewhere in New

York City, and due to the fact that expert investigative techniques must be employed to locate such

witness, it is necessary for an adequate defense that I be able to obtain the services of a qualified

private investigator to assist me in locating and interviewing such witness.

8. Defendant, as is indicated by Defendant’s affidavit of financial status on file herein, is

financially unable to obtain and pay for the services of such investigator


/s/ ATTORNEY______ ATTORNEY, ESQUIRE Federal Public Defender Attorney ID #PAXXXXX 100 Chestnut Street, Suite 306 Harrisburg, PA 17101 Tel. No. (717) 782-2237 Fax No. (717) 782-3881 <[email protected]> Attorney for (defendant’s name). SWORN TO AND SUBSCRIBED BEFORE ME THIS _____ DAY OF ________________, 20__. ____________________________________ NOTARY PUBLIC

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O R D E R

The motion of Defendant for an order authorizing Defendant’s counsel to obtain the services

of _________, a licensed, private investigator, pursuant to 18 U.S.C. §3000A(e), having been

considered ex parte and the Court being fully advised, and good cause appearing; therefore,

IT IS ORDERED that the motion of Defendant be and hereby is in all respects granted.

IT IS FURTHER ORDERED that CJA Form 21 for the appointment of ________be and it

hereby is approved.

IT IS FURTHER ORDERED that the moving papers submitted by Defendant in support of

the motion be sealed and the contents thereof not revealed to the United States.

BY THE COURT:

________________________ JUDGE

UNITED STATES DISTRICT COURT

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Motion to Appoint Mitigation Specialist



DEFENDANT’S EX PARTE MOTION FOR APPOINTMENT OF MITIGATION SPECIALIST AT GOVERNMENT EXPENSE

Defendant, ___________, by his undersigned counsel, moves the Court for an order

authorizing Defendant’s counsel to obtain the services of a sentencing consultant/mitigation expert,

to wit: _______________, pursuant to the provisions of 18 U.S.C. §3006A(e), for the purposes of

investigating Defendant and his family background and investigating all of the mitigating and

aggravating factors in this case.

1. This motion is made on the grounds that Defendant is financially unable to obtain such

services, and that such services are necessary to the investigation and presentation by Defendant of

mitigating circumstances during the sentencing process as more fully appears in the affidavit of

defense counsel attached hereto.



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AFFIDAVIT IN SUPPORT OF DEFENDANT’S EX PARTE MOTION FOR MITIGATION EXPERTAT GOVERNMENT EXPENSE


:


________________, being duly sworn, states:

1. I am the attorney for the Defendant in the above-entitled action, having been appointed to

represent the Defendant on ___________. This affidavit is submitted in support of Defendant’s

motion for appointment of a mitigation specialist and/or sentencing consultant to investigate

Defendant and his family background and to investigate all of the mitigating and aggravating factors

in this case.

2. Defendant is charged in an information with conspiracy to possess with intent to distribute

heroin in violation of 21 U.S.C. §846.

3. It is necessary for effective representation of Defendant during the sentencing process, that I

be able to obtain the services of a qualified mitigation specialist to assist me in the investigation and

presentation of mitigation evidence at sentencing. A copy of the resume of the proposed mitigation

expert, __________, is attached hereto as Exhibit “A”.

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4. Defendant, as is indicated by Defendant’s affidavit of financial status on file herein, is

financially unable to obtain and pay for the services of such investigator.



Sworn to and subscribed before me this _____ day of ________________, 2014. ____________________________________ NOTARY PUBLIC