Nuts and Bolts of Federal Criminal

DefenseJune 23, 2014

TOPICS• 1. INITIAL APPEARANCES AND PRETRIAL RELEASE• 2. DISCOVERY• 3 PROCEDURAL RULES AND MOTIONS• 4 SENTENCING

Links to Court Rules, Statutes and Guidelines• http://www.ca9.uscourts.gov/rules/ Rules of Appellate Procedure

and Ninth Circuit Rules• http://

www.wawd.uscourts.gov/sites/wawd/files/LocalCriminalRulesFINAL1-31-14.pdf Local Criminal Rules Western District of Washington• http://www.ussc.gov/guidelines-manual/guidelines-manual

Sentencing Guidelines Manual

GENERAL ON LINE RESOURCES• www.fd.org Defender Services Office TRAINING DIVISION• http://www.fd.org/ FPD WD Wash Web Site-CJA Info, Brief Bank• User Name: cjauser Password: panelatty• http://circuit9.blogspot.com/ Ninth Circuit Blog• http://www.ca9.uscourts.gov/ Ninth Circuit Home Page – Jury

instructions, various practice guides and links to district courts

Pretrial Release and Detention Resources• The Bail Reform Act: Getting and keeping them out! http://

www.fd.org/docs/select-topics/bail-pretrial-release/the-bail-reform-act-getting-and-keeping-them-out.pdf?sfvrsn=10• Pretrial Release and Detention- Introductory Outline http://

www.fd.org/docs/select-topics/bail-pretrial-release/pretrial-release-and-detention.pdf?sfvrsn=6• Guide to Judiciary Policy, Pretrial, Alternatives and Conditions of

Release (Monograph 110) http://wvn.fd.org/pdf/Part_B%20110.pdf• Id., Supervision of Federal Defendants (Monograph 111) http://

wvn.fd.org/pdf/Part_C%20111.pdf

Discovery Resources• http://

www.fd.org/navigation/select-topics-in-criminal-defense/discovery• http://

www.fd.org/docs/select-topics/discovery/complex-fraud-discovery-review-strategies.pdf?sfvrsn=4• CJA Brief Bank• Defending a Federal Criminal Case, Federal Defenders of San Diego,

Vol. I, Ch. 3 (2010 Edition)

Sentencing Resources• http://

www.ussc.gov/amendment-process/selected-guideline-application-decisions-circuit • http://

www.fd.org/navigation/select-topics-in-criminal-defense/sentencing-resources/subsections/introduction-to-federal-sentencing

Getting the Government to Hand it Over

FEDERAL DISCOVERY• 1. Fed. Rule Crim P. 16 and the Local Rule 16• 2 18 USC 3500 (Jencks Act), Fed. Rule Crim. P. 6(e) and 26.2• 3 Brady/Giglio/Kyle Exculpatory Information• 4 Rule 17 Subpoenas• 5 Other Sources

Federal Rule of Crim P. 16 Discovery and Inspection• Government’s and Defendant’s Obligations• Defendant’s Statements, Defendant’s Criminal History• Documents and Objects• Reports of Examinations and Tests• Expert Witnesses• Excludes Witness Statements (Jencks Material)• Does Not Mention Brady• Only Invoked By a Party’s Request

Rule 16 is Invoked By Requesting Discovery

CrR 16 (Western District of Washington) – Additional Provisions and Requirements• Oral request on the record at arraignment invokes Rule 16 obligations

on the Government• Requires a discovery conference within 14 Days when government

must “make available .. the items in their custody or control…”• Rule contains more specificity as to which items the Defendant is

entitled to inspect and copy• Requires Government to inform or advise the Defendant about the

existence of evidence which may be subject to suppression motion; wire taps; Brady material; & whether it will provide a witness list.

First Try to Work it Out

Resolving Discovery Disputes and Local Rule Requirements• Court will not hear the motion unless: (a) you have had a discovery

conference; (b) you have discussed with the government a resolution but have been unsuccessful; and (c) must file “Certification of Compliance with this Rule”

• Filing a discovery motion without this “may result in summary denial of the motion or other sanctions”

• Do NOT file boilerplate written motions for discovery – you may get sanctioned if you have not met and conferred and filed the certificate.

Getting Stuff You Know The Government Has

Fed Crim P 16(a)(1)(E)(i) • If in government control and requested by defense: “item[s] … material

to preparing the defense” must disclosed.• Materiality is a low threshold. United States v. Hernandez-Meza, 720 F.3d

760, 768 (9th Cir. 2013).• Rule 16(a)(1)(E)(i) is “broader than Brady…because [i]nformation that is

not exculpatory or impeaching may still be relevant to developing a possible defense.” United States v. Muniz-Jaquez, 718 F.3d 1180, 1183-84 (9th Cir. 2013).• Includes inculpatory evidence because defense must prepare for

potential pitfalls. United States v. Safavian, 233 F.R.D. 12, 15 (D.D.C. 2005)

Clifton Jencks The Ugly

• No statement or report in the possession of the United States which was made by a government witness … shall be the subject of subpoena, discovery or inspection until the witness called by the United States has testified on direct examination in the trial of the case.

Jencks Act – The Bad• Reports of Witness Interviews are Not Necessarily Statements • When statements qualify as both Brady and Jencks, Jencks timing may

prevail. US v. Alvarez, 358 F3d 1194 (9th Cir. 2004).• A pretrial request or motion is NOT sufficient to require production or

to preserve the issue for appeal. United States v. Hanna, 55 F3d 1456 (9th Cir. 1995), and cases cited therein. Must make request AFTER direct examination of witness.

Jencks -- The Good• Fed R. Crim. P. 26.2(g) - Applies the rule to preliminary hearings,

sentencing hearings, revocation hearings, detention hearings and 2255 hearings. • May apply to agents handwritten notes of witness interviews.

Goldberg v. United States, 425 US 94 (1976)• If government claims the witness’ statement does not relate to the

witness’ testimony, the court should inspect the statement in camera. 18 USC 3500(c).

Jencks - Practice Tips• Do not be lulled by early disclosure of some Jencks material – always

inquire on cross about additional statements, and orally move for all Jencks after witness is done on direct examination.• If government avoids calling its case agent it is likely hiding something

contained in that agent’s reports and notes.• Ask the government to commit to a date for disclosure of all Jencks

material, and if it refuses to do so attempt to litigate as means of alerting the trial court to likely trial delays attributable to the government.• Well before trial request that government instruct its agents to preserve

all of their notes of witness interviews.

Brady/Giglio/Kyles• Alaska AUSAs, DOJ Public Integrity

Attorneys and FBI Hide Brady/Giglio Information in the Trial of Senator Ted Stevens in 2008• Wrongfully convicted on eve re-

election bid, by less than 4,000 votes.• If this can happen to a sitting US

Senator, from the same party as the President, it can happen to your client.

Brady - The Basics• Constitutional requirement that the government disclose all

exculpatory material to the defendant• Applies to impeachment material. Giglio v. United States, 405 US 150

(1972)• Evidence is material if there is a reasonable probability that the result

would have been different, which means “ a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 US 667 (1985).• Government must seek out information held by related law

enforcement agencies. Kyles v. Whitley, 514 US 419 (1995).

Practice Tips• Get government to agree and trial court to find that the materiality

standard at the pretrial and trial stage is broader than the appellate standard from Brady. See, US v. Phair, No. CR12-00016 RAJ, dkt #116 (Order directing government to apply the more generous pretrial discovery standard set forth in United States v. Sudikoff, 36 F. Supp. 2d 1196 (C.D. Cal. 1999)). Pleading and order in CJA brief bank.• Anticipate what the government, agents or cops may be hiding or

overlooking and make both specific and general requests.• Ask for “information” and beware the AUSA who responds “we have

no records or documents” or “we gave them everything in the file.”

Additional Brady Practice Pointers• Brief the Brady Standards, and case law in your trial brief to put

government on notice and educate the trial court• Ask for any Giglio impeachment that was revealed during

government witness preparation. Prosecutors and agents may not write down what the witnesses say during these sessions, but the “information” revealed, ie inconsistent statements should be disclosed. This was one of the Brady violations in the Stevens case.• The problem is often the case agents and cops, not the AUSAs. Get

them testifying at pretrial proceedings and under oath as often as possible.

Other Rules And Discovery Devices• Fed. R. Crim. P. 6(e) – Discovery of Transcript of Grand Jury Witness

Testimony.• Fed. R. Crim. P. 7 (f) – Bill of Particulars – Should request within 10

days of arraignment.• Fed. R. Crim. 17 – Subpoenas.• Federal Civil Rule 45 – Subpoena commanding a third party to permit

the inspection of premises.

Large and Complex Cases• Best Practices for Electronic Discovery in Criminal Cases (Western

District of Washington, Adopted March 21, 2013) http://www.wawd.uscourts.gov/sites/wawd/files/32113BESTPRACTICESFORELECTRONIC.pdf• Requirement that parties meet and confer• Government must consider “reasonable requests” for production in a

particular electronic format• Addresses costs of production, formatting, search capability of

production, indexes, multi-defendant cases and other issues unique to these large document/information cases.

Litigating Discovery Issues• Judges are receptive to these motions if you have laid the groundwork,

eg tried to work things out through the discovery conference, get shut down and the government approach is adding unnecessary time and expense to the defense function.• District courts have imposed a lower Brady threshold standard. See.

United States v. Phair and Louie, supra.• Imposed broad discovery obligations in multi- defendant cases to include

requiring the government to specify where the evidence relevant to a particular defendant is located within voluminous discovery material. United States v. Silva, No. CR 12-00047MJP, dkt # 452 ( a copy of the order is in CJA brief bank).