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Chapter 1 — Federal Criminal Jurisdiction - Chapter Summary
- I. [1.1] Introduction
-
II. The Power of the Federal Government To Make Conduct Criminal - [1.2] Constitutional Sources of the Power
- [1.3] Legislative Exercise of the Power
- [1.4] Functions of Federal Criminal Law
- [1.5] Historical Development of Federal Criminal Law
- [1.6] Major Bases of Federal Criminal Jurisdiction
- [1.7] Federal Places and Spaces
- [1.8] Federal Status of the Offender, Victim, or Property
- [1.9] Use of the Mails
- [1.10] Interstate Commerce
- [1.11] Major Issues and Controversies
- III. The Power of the Federal Courts To Hear and Decide Criminal Cases
- IV. [1.16] Concurrent Jurisdiction with the States
- V. [1.17] Jurisdictional Analysis of Two Federal Criminal Statutes: The Hobbs Act and the Racketeer Influenced and Corrupt Organizations Act
- VI. [1.22] Appendix — Resources on Federal Criminal Jurisdiction
- Chapter 2 — Grand Jury Procedure
- Chapter Summary
- I. [2.1] Introduction
- II. Basis for the Grand Jury
- III. Grand Jury and Government Attorney
- [2.8] Statutory Authority of Government Attorney To Conduct Proceedings
- [2.9] Prosecutor’s Discretion To Initiate
- [2.10] Power of the Government Attorney — Prosecutor Signs the Indictment
- [2.11] Problems of Unauthorized Presence
- [2.12] Use of Investigative Agents and Others Under Federal Rule of Criminal Procedure 6(e)
- [2.13] Federal Rule of Criminal Procedure 6(e) — Disclosure Preliminary to or in Connection with a Judicial Proceeding
- IV. Grand Jury and the Court as a Supervising Authority
- [2.14] Administrative Duties
- [2.15] Subpoena Enforcement
- [2.16] Participating in the Function of the Grand Jury
- [2.17] Quashing or Modifying a Subpoena
- [2.18] Court’s Limitation of Grand Jury to Its Function
- [2.19] Court’s General Supervisory Authority
- [2.20] Venue Limitations
- [2.21] Grand Jury Subpoenas and Process Outside the United States
- [2.22] Court’s Material Witness Warrants
- [2.23] Challenge to Grand Jury Array During the Investigative Stage
- V. Representing the Subpoenaed Witness
- [2.24] Service of the Subpoena
- [2.25] Conference Between Prosecutor and Counsel for the Witness
- [2.26] Avoiding Grand Jury Appearance
- [2.27] Department of Justice Guidelines Relating to Grand Jury Witnesses
- [2.28] Appearing and Testifying Before a Grand Jury
- [2.29] How To Assert the Fifth Amendment
- [2.30] Recantation To Avoid Perjury Charge
- [2.31] Gelbard Rule — Eavesdropping
- VI. [2.32] Production of Documents to a Grand Jury
- VII. Immunity
- [2.33] Definition
- [2.34] Transactional Immunity
- [2.35] Use Immunity
- [2.36] Immunity Procedures
- [2.37] Informal Immunity
- [2.38] False Statements
- [2.39] Federal vs. State Prosecutions
- Testimony Before the Grand Jury Without Immunity — The Pitfalls
- [2.40] Incriminating Evidence
- [2.41] Impeachment
- [2.42] Further Exposure
- Negotiations for Immunity
- [2.43] Client’s Attitude
- [2.44] Collateral Effects
- [2.45] Timing
- [2.46] Perjury
- [2.47] Perjury Trap
- VIII. Multiple Representation
- IX. Attorney-Client Privilege and Work-Product Doctrine in Grand Jury Investigations
- [2.56] Attorney-Client Privilege
- [2.57] Corporate Privilege
- [2.58] Explanation of Privilege
- [2.59] Coordination with Cocounsel
- [2.60] Work-Product Privilege
- [2.61] Counsel Subpoenaed by Grand Jury
- [2.62] Fee Cases
- [2.63] Identity-of-Client Cases
- [2.64] Document Cases
- [2.65] Physical Evidence
- [2.66] Crime-Fraud Exception
- X. Appendix — Sample Forms
- [2.67] Petition for Order Requiring Witness To Furnish Fingerprints and Palm Prints
- [2.68] Order Requiring Witness To Furnish Fingerprints and Palm Prints
- [2.69] Petition for Order Granting Immunity (Witness Has Refused To Answer Pertinent Questions Before Grand Jury)
- [2.70] Order Instructing Witness To Testify and To Produce Evidence (Witness Has Asserted Privilege)
- [2.71] Petition for Order Granting Immunity (Witness Has Not Appeared Before Grand Jury)
- [2.72] Order Instructing Witness To Testify and To Produce Evidence (Witness Will Assert Privilege)
- [2.73] Informal Immunity Letter
- [2.74] Nonsubject Letter
- [2.75] Nontarget Letter
- [2.76] Letter Hiring Investigator
- [2.77] Proffer Letter
- Chapter 3 — Release and Detention Under the Bail Reform Act of 1984
- Chapter Summary
- I. [3.1] Introduction
- II. [3.2] Purposes of the Bail Reform Act
- III. [3.3] Statutory Factors To Be Considered at Release or Detention Hearing — Section 3142(g)
- IV. [3.4] Release on Recognizance — Section 3142(b)
- V. Release on Conditions — Section 3142(c)
- VI. [3.8] Release Orders
- VII. [3.9] Amendment of Release Orders
- VIII. [3.10] Temporary Detention — Section 3142(d)
- IX. The Detention Hearing — Section 3142(f)
- [3.11] Circumstances Under Which Hearing May Be Held
- [3.12] Hearings Under §3142(f)(1)
- [3.13] Hearings Under §3142(f)(2)
- [3.14] Timing of Hearing
- [3.15] First Appearance Requirement
- [3.16] Right to Continuance
- [3.17] Burden of Proof
- Risk of Flight
- [3.18] Burden
- [3.19] Meeting the Government’s Burden
- Risk of Danger to the Community
- [3.20] Burden
- Meeting the Government’s Burden
- [3.21] In general
- [3.22] Constitutionality of detention based on dangerousness
- [3.23] Meaning of “dangerousness”
- [3.24] Permissible Forms of Government Evidence
- [3.25] Rights of Defendants at Detention Hearings
- [3.26] Right to Counsel
- [3.27] Right To Testify
- [3.28] Right To Present Witnesses
- [3.29] Right To Cross-Examine and Confront Witnesses
- [3.30] Right To Receive Documents Underlying Electronic Surveillance
- [3.31] Right To Obtain Discovery
- Constitutional Issues
- [3.32] In General
- [3.33] Length of Detention as a Due-Process Violation
- Presumption Under §3142(e)
- [3.34] Types of Presumptions
- [3.35] Effect of Presumptions
- [3.36] Release or Detention of a Material Witness
- [3.37] Detention Orders
- X. Review of Pretrial Release or Detention Order — Section 3145
- XI. Release or Detention Pending Sentence or Appeal — Section 3143
- [3.40] Release or Detention Pending Sentence — Section 3143(a)
- [3.41] Release or Detention Pending Appeal — Section 3143(b)
- [3.42] Substantial Question of Law or Fact
- [3.43] Likelihood of Reversal on Appeal
- [3.44] Standard of Review on Appeal
- [3.45] Written Reasons
- [3.46] Procedure on Appeal
- [3.47] Release Pending Appeal by the Government
- [3.48] Release Pending Certiorari
- [3.49] Release Pending Resentencing
- [3.50] Release Pending Habeas Corpus
- [3.51] Release Pending Deportation Hearing
- [3.52] Release Pending Extradition Hearing
- [3.53] Release Pending Revocation of Supervised Release
- [3.54] District Court Jurisdiction Pending Appeal
- XII. Offenses Added Under the Bail Reform Act
- XIII. [3.60] Conclusion
- Chapter 4 — Initial Appearance and Preliminary Hearing
- Chapter Summary
- I. [4.1] Introduction — Scope of Chapter
- II. [4.2] Initial Appearance
- [4.3] General Applicability of Rule 5
- [4.4] Place of Initial Appearance and “Removal Hearings”
- [4.5] Timing and “Unnecessary Delay”
- [4.6] Timing of the Initial Appearance in the Northern District of Illinois
- [4.7] Calculating the Time Expended Before the Initial Appearance
- [4.8] Suppression of Postarrest Statements As a Consequences of Delay
- [4.9] When Charged by Indictment
- [4.10] Substance of the Initial Appearance and Right to Counsel
- [4.11] Preparing for the Initial Appearance
- [4.12] Rule 5’s Subject Matters To Be Communicated to Defendants
- [4.13] The Charging Instrument
- [4.14] Right To Retain Counsel or To Seek Appointed Counsel
- [4.15] Circumstances of Possible Pretrial Release
- [4.16] Preliminary Hearing Right
- [4.17] Right To Not Make a Statement
- [4.18] Consular Notification
- [4.19] Brady Notification
- [4.20] Detention Issues at the Initial Appearance
- [4.21] Crime of Violence
- [4.22] Initial Appearances for Misdemeanors and Petty Offenses
- [4.23] Initial Appearances for Arrested Juveniles
- [4.24] Pretrial Services and the Initial Appearance
- III. [4.25] Preliminary Hearing
- [4.26] Preliminary Hearings: An Overview
- [4.27] The Preliminary Hearing’s Limited Purpose
- [4.28] The Government’s Preliminary Hearing Case
- [4.29] The Defense’s Preliminary Hearing Case
- [4.30] Timing of Preliminary Hearing
- [4.31] Place of Preliminary Hearing
- [4.32] Probable Cause at the Preliminary Hearing
- [4.33] Rule 26.2 Discovery at the Preliminary Hearing
- [4.34] Waiver of the Preliminary Hearing
- [4.35] Right to Counsel at the Preliminary Hearing
- [4.36] Record
- Chapter 5 — Plea Bargaining
- Chapter 6 — Warrants and Motions To Suppress
- Chapter Summary
- I. [6.1] Introduction
- II. Arrest Warrants
- III. Search Warrants
- [6.8] Authority To Issue a Search Warrant
- Issuance of a Search Warrant
- [6.9] Warrants upon Affidavit
- [6.10] Warrants upon Oral Testimony or Requested by Telephonic or Other Reliable Electronic Means
- [6.11] Contents of the Search Warrant and Affidavit
- [6.12] Procedure To Obtain a Search Warrant
- [6.13] Warrants for Electronically Stored Information or Tracking Devices
- [6.14] Sealed Search Warrants and Affidavits
- Execution of a Search Warrant
- [6.15] Persons Authorized To Serve a Warrant
- [6.16] Timing and Manner of Execution
- [6.17] Manner of Entry
- [6.18] Protective Measures
- [6.19] Execution and Return with Inventory
- [6.20] Filing with Clerk
- [6.21] Motions for Return of Property
- IV. Motions To Suppress
- V. Suppression Hearings
- [6.28] Right to an Evidentiary Hearing and Burdens of Proof
- [6.29] Warrantless Searches and Seizures
- [6.30] Searches and Seizures Under Warrants
- [6.31] Electronic Surveillance
- [6.32] Identification Testimony
- [6.33] Confessions/Statements
- [6.34] Evidentiary Rules
- [6.35] Prehearing Discovery
- [6.36] Simmons Immunity
- [6.37] Findings of Fact and Appealability
- Chapter 7 — Pretrial Motions
- Chapter Summary
- I. [7.1] Scope of Chapter
- II. Practice with Respect to All Motions
- III. [7.9] Federal Rule of Criminal Procedure 12 Motions
- [7.10] Mandatory Motions
- [7.11] Defects in Instituting the Prosecution
- [7.12] Misconduct Before the Grand Jury
- [7.13] Defects in the Grand and Petit Jury Selection Procedures
- [7.14] Unauthorized Prosecutor
- [7.15] Selective and Vindictive Prosecutions
- [7.16] Pretrial Delay
- [7.17] Other Defenses
- [7.18] Defects in the Indictment or Information
- [7.19] Jurisdiction
- [7.20] Failure To Allege an Offense
- [7.21] Constitutionality of Statute
- [7.22] Multiplicity and Duplicity
- [7.23] Motion To Suppress
- [7.24] Search and Seizure
- [7.25] Statements
- [7.26] Wiretaps
- [7.27] Return of Seized Property — Federal Rule of Criminal Procedure 41(g)
- [7.28] Joinder and Severance
- [7.29] Federal Rule of Criminal Procedure 8 — Joinder of Offenses or Defendants
- [7.30] Joinder of offenses
- [7.31] Joinder of defendants
- [7.32] Federal Rule of Criminal Procedure 13 — Joint Trial of Separate Cases
- [7.33] Federal Rule of Criminal Procedure 14 — Relief from Prejudicial Joinder
- [7.34] Severance Due to Codefendant’s Confession
- Motions for Discovery
- [7.35] Bill of Particulars
- [7.36] Inspection of Grand Jury Minutes (Federal Rule of Criminal Procedure 6(e)(3)(E)(i))
- [7.37] Federal Rule of Criminal Procedure 17 Subpoenas
- Other Motions
- [7.38] Recusal
- [7.39] Relevant Statutory Provisions
- [7.40] Procedure for Invoking 28 U.S.C. §§144 and 455
- [7.41] Standard of Proof
- [7.42] Extrajudicial Source Doctrine
- [7.43] Procedural Distinctions: Motions for Disqualification Based on Actual vs. Perceived Bias or Prejudice
- [7.44] Timing
- [7.45] Certification requirement
- [7.46] Appeal
- [7.47] Motion To Transfer (Federal Rule of Criminal Procedure 21)
- [7.48] Federal Rule of Criminal Procedure 21(a)
- [7.49] Federal Rule of Criminal Procedure 21(b)
- [7.50] Motion To Strike (Federal Rule of Criminal Procedure 7(d))
- [7.51] Federal Rule of Evidence 404(b)
- [7.52] Relevance Without a Propensity Inference
- [7.53] Federal Rule of Evidence 403 Balancing Test
- [7.54] Moving Away from Similarity and Timing
- [7.55] Undue Delay
- [7.56] Preindictment
- [7.57] Postarrest Delay in Presenting Charges
- Speedy Trial Act
- [7.58] In General
- Specific Provisions of the Speedy Trial Act
- [7.59] Judicial officer must set case for trial (18 U.S.C. §3161(a))
- Time Limits
- [7.60] Filing of indictment or information (18 U.S.C. §3161(b))
- [7.61] Commencement of trial (18 U.S.C. §3161(c))
- [7.62] Trial after dismissal of complaint (18 U.S.C. §3161(d)(1))
- [7.63] Trial after order granting new trial (18 U.S.C. §3161(e))
- [7.64] Additional conditions for time limit between arrest and indictment (18 U.S.C. §3161(f))
- [7.65] Additional conditions for time limits between arraignment and trial (18 U.S.C. §3161(g))
- [7.66] Delays that toll the statute (18 U.S.C. §3161(h))
- [7.67] Mental or physical examination of defendant (18 U.S.C. §3161(h)(1)(A))
- [7.68] Defendant on trial for other charges (18 U.S.C. §3161(h)(1)(B))
- [7.69] Interlocutory appeal (18 U.S.C. §3161(h)(1)(C))
- [7.70] Pretrial motions (18 U.S.C. §3161(h)(1)(D))
- [7.71] Transfer (18 U.S.C. §3161(h)(1)(E))
- [7.72] Transportation (18 U.S.C. §3161(h)(1)(F))
- [7.73] Plea agreement (18 U.S.C. §3161(h)(1)(G))
- [7.74] Proceeding under advisement (18 U.S.C. §3161(h)(1)(H))
- [7.75] Good conduct (18 U.S.C. §3161(h)(2))
- [7.76] Absence or unavailability of defendant or witness (18 U.S.C. §§3161(h)(3)(A), 3161(h)(3)(B))
- [7.77] Mental incompetence or physical inability (18 U.S.C. §3161(h)(4))
- [7.78] Reindictment (18 U.S.C. §3161(h)(5))
- [7.79] Joinder with codefendant (18 U.S.C. §3161(h)(6))
- [7.80] Ends of justice continuance (18 U.S.C. §3161(h)(7)(A))
- [7.81] Court congestion or government unprepared (18 U.S.C. §3161(h)(7)(C))
- [7.82] Evidence in foreign country (18 U.S.C. §3161(h)(8))
- [7.83] Withdrawal of plea (18 U.S.C. §3161(i))
- [7.84] Defendant serving term of imprisonment (18 U.S.C. §3161(j))
- [7.85] Burden of proof
- [7.86] Waiver
- Sanctions for Speedy Trial Act violations
- [7.87] Dismissal (18 U.S.C. §§3162(a)(1), 3162(a)(2))
- [7.88] Other sanctions (18 U.S.C. §3162(b))
- [7.89] Defendant causes delay
- [7.90] Competency
- [7.91] Evaluation of the Defendant
- [7.92] Evidentiary Hearing
- Brady, Giglio, and Jencks Act Motions
- [7.93] Brady v. Maryland
- [7.94] Suppression
- [7.95] Favorable to the defense
- [7.96] Materiality
- [7.97] Burden of proof
- [7.98] Giglio v. United States
- [7.99] Jencks Act
- [7.100] Double Jeopardy
- [7.101] Burden of Proof
- [7.102] Retrials and Mistrials
- IV. [7.103] Federal Rule of Criminal Procedure 12.1 — Notice of an Alibi Defense
- V. [7.104] Federal Rule of Criminal Procedure 12.2 — Notice of an Insanity Defense
- VI. [7.105] Federal Rule of Criminal Procedure 12.3 — Notice of a Public-Authority Defense
- Chapter 8 — Jury Selection and Instructions
- Chapter Summary
- I. [8.1] Scope of Chapter
- II. [8.2] Jury Selection — An Introduction
- [8.3] Qualifications for Jury Service
- [8.4] Constitutional Challenges
- [8.5] Statutory Challenges
- [8.6] Voir Dire
- [8.7] Methods of Jury Selection
- [8.8] Questioning
- [8.9] Challenges for Cause
- [8.10] Peremptory Challenges
- [8.11] Highly Publicized Cases
- [8.12] Access to Juror Information
- [8.13] Selection of Alternate Jurors
- [8.14] Anonymous Jury
- III. Instructions
- [8.15] In General
- [8.16] Pattern Instructions
- [8.17] Non-Pattern Instructions
- Specific Instructions
- [8.18] Good-Faith Instruction in Fraud Cases
- [8.19] Eyewitness Identification Instruction
- [8.20] Unanimity Instruction
- [8.21] Deadlocked Jury Instruction
- [8.22] Additional Required Instructions
- [8.23] Objections to Proposed Instructions
- IV. [8.24] Conclusion
- Chapter 9 — An Introductory Tour Through the Federal Sentencing Guidelines and Sentencing Procedures
- Chapter Summary
- I. [9.1] Introduction and Background
- II. Chapter One — Introduction, Authority, and General Application Principles
- [9.4] Part A — Introduction
- Part B — General Application Principles
- [9.5] General Instructions on Using the Guidelines — Guidelines §§1B1.1, 1B1.2
- [9.6] Relevant Conduct — Guidelines §1B1.3
- [9.7] Significance of Commentary — Guidelines §1B1.7
- [9.8] Retroactivity of Amended Guidelines Range — Guidelines §1B1.10; Use of Guidelines Manual in Effect on Date of Sentencing — Guidelines §1B1.11
- III. Chapter Two — Offense Conduct
- [9.9] General Concepts
- Part D — Offenses Involving Drugs
- [9.10] General Considerations
- [9.11] Mixtures or Substances Containing Controlled Substances
- [9.12] The Safety Valve
- [9.13] Possession of a Dangerous Weapon — Guidelines §2D1.1(b)(1)
- [9.14] Crack vs. Powder Cocaine
- [9.15] Incomplete Transactions and Reverse Stings
- [9.16] Part B — Offenses Involving Fraud
- [9.17] Calculating the Loss
- [9.18] Section 2B1.1 Specific Offense Characteristics
- [9.19] Part K — Offenses Involving Public Safety
- IV. [9.20] Chapter Three — Adjustments
- [9.21] Part A — Victim-Related Adjustments
- [9.22] Hate Crimes or Vulnerable Victim — Guidelines §3A1.1
- [9.23] Official Victim — Guidelines §3A1.2
- [9.24] Part B — Role in the Offense
- [9.25] Aggravating Role — Guidelines §3B1.1
- [9.26] Mitigating Role — Guidelines §3B1.2
- [9.27] Abuse of a Position of Trust or Use of Special Skill — Guidelines §3B1.3
- [9.28] Part C — Obstruction
- [9.29] Part D — Multiple Counts
- [9.30] Groups of Closely Related Counts — Guidelines §3D1.2
- [9.31] Offense Level Applicable to Each Group — Guidelines §3D1.3
- [9.32] Determining the Combined Offense Level — Guidelines §3D1.4
- [9.33] Part E — Acceptance of Responsibility
- V. [9.34] Chapter Four — Criminal History and Criminal Livelihood
- [9.35] Part A — Criminal History
- [9.36] Criminal History Category — Guidelines §4A1.1
- [9.37] Definitions and Instructions for Computing Criminal History — Guidelines §4A1.2
- Part B — Career Offenders and Criminal Livelihood
- [9.38] Career Offenders — Guidelines §§4B1.1, 4B1.2
- [9.39] Criminal Livelihood — Guidelines §4B1.3
- [9.40] Armed Career Criminal — Guidelines §4B1.4
- [9.41] Zero-Point Offenders — Guidelines §4C1.1
- VI. [9.42] Chapter Five — Determining the Sentence
- [9.43] Part A — The Sentencing Table
- [9.44] Part B — Probation — Guidelines §§5B1.1 – 5B1.3
- [9.45] Part C — Imprisonment — Guidelines §§5C1.1, 5C1.2
- [9.46] Part D — Supervised Release — Guidelines §§5D1.1 – 5D1.3
- [9.47] Part E — Restitution, Fines, Assessments, Forfeitures
- [9.48] Part F — Sentencing Options — Guidelines §§5F1.1 – 5F1.8
- [9.49] Part G — Implementing the Sentence of Imprisonment
- [9.50] Sentencing on a Single Count of Conviction — Guidelines §5G1.1
- [9.51] Sentencing on Multiple Counts of Conviction — Guidelines §5G1.2
- [9.52] Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment — Guidelines §5G1.3
- [9.53] Parts H and K — Departure Issues
- VII. Chapter Six — Sentencing Procedures, Plea Agreements, and Crime Victims’ Rights
- VIII. [9.56] Chapter Seven — Violations of Probation and Supervised Release
- IX. [9.57] Conclusion
- Chapter 10 — Posttrial Motions in Federal Criminal Cases
- Chapter Summary
- I. [10.1] Introduction
- II. Motion for Judgment of Acquittal
- III. Motion for a New Trial
- [10.7] Text of Federal Rule of Criminal Procedure 33
- [10.8] Nature of Motion for a New Trial
- [10.9] Practice Note and Timing Considerations
- [10.10] Standard of Review
- [10.11] Granting a New Trial on the Basis of Newly Discovered Evidence
- [10.12] Four Criteria for Motions Based on Newly Discovered Evidence
- [10.13] Introduction of False or Perjured Testimony
- [10.14] Prosecutorial Withholding of Evidence
- [10.15] Retroactive Misjoinder
- [10.16] Joinder and Prejudicial Spillover
- [10.17] Granting a New Trial on Other Grounds
- [10.18] Miscarriage of Justice
- [10.19] Ineffective Assistance of Counsel
- [10.20] Jury Issues
- [10.21] Communications with Jurors
- [10.22] Juror Bias
- [10.23] Juror Misconduct
- [10.24] Cumulative Error and Other Nonstructural Errors
- [10.25] Cumulative Error
- [10.26] Improper Remarks by the Prosecution
- IV. Motion for Arrest of Judgment
- V. Release Pending Sentencing or Appeal
- [10.29] Governed by Statute
- [10.30] Release or Detention Pending Sentence
- [10.31] Burden
- [10.32] Standard
- [10.33] Procedure
- [10.34] Practice Note
- [10.35] Release or Detention Pending Appeal by the Defendant
- [10.36] Burden
- [10.37] Standard
- [10.38] Crimes for Which Release Pending Appeal Is Not Available
- [10.39] Practice Note
- [10.40] Release Pending Resentencing
- [10.41] Appeal of Order Granting or Denying Release
- VI. [10.42] Conclusion
- Chapter 11 — Federal Habeas Corpus and Posttrial
- Chapter Summary
- I. [11.1] Scope of the Chapter
- II. [11.2] Habeas Relief for State Prisoners — 28 U.S.C. §2254
- [11.3] What Relief Can Be Obtained
- [11.4] What To Call the Document Seeking Relief
- [11.5] Where To Commence Proceedings
- What To Allege
- [11.6] Basic Format
- [11.7] Custody
- [11.8] Proper Respondent
- [11.9] Timely Filed
- [11.10] Exhaustion
- [11.11] One Complete Round
- [11.12] Fair Presentment
- [11.13] State Remedy Inadequate or Unavailable
- [11.14] Mixed Petitions
- [11.15] Innocence as a Claim in Habeas Corpus
- Proceedings after Filing
- [11.16] Preliminary Consideration by District Judge
- [11.17] Respondent’s Answer
- [11.18] The Defense of Failure To Exhaust State Remedies
- [11.19] The Defense of Procedural Bar
- [11.20] Adequate and independent state grounds
- [11.21] Excusing procedural default: cause and prejudice; fundamental miscarriage of justice
- [11.22] The defense of nonretroactivity
- [11.23] The defense of statute of limitations
- [11.24] Petitioner’s Reply
- [11.25] Supporting Evidence
- [11.26] Discovery
- [11.27] Evidentiary Hearing
- Legal Standard
- [11.28] AEDPA and Claims “Adjudicated on the Merits”
- [11.29] The “Contrary to” Clause of 28 U.S.C. §2254(d)(1)
- [11.30] The “Unreasonable Application” Clause of 28 U.S.C. §2254(d)(1)
- [11.31] Antiterrorism and Effective Death Penalty Act of 1996 and Claims Not “Adjudicated on the Merits”
- [11.32] The Supreme Court’s Equitable Doctrines
- [11.33] Non-Cognizability
- [11.34] Harmless Error
- How To Handle Adverse Final Orders
- [11.35] Appeals
- [11.36] Successive Petitions
- III. [11.37] The Original Writ — 28 U.S.C. §2241
- IV. [11.46] Relief for Federal Prisoners — 28 U.S.C. §2255
- [11.47] What Relief Can Be Obtained
- [11.48] What To Call the Document Seeking Relief
- [11.49] Where To Commence Proceedings
- What To Allege
- [11.50] Form
- [11.51] Custody Requirement
- [11.52] Proper Respondent
- Proceedings After Filing
- [11.53] Preliminary Consideration by District Judge
- [11.54] Answer
- [11.55] Discovery
- [11.56] Evidentiary Hearings
- Legal Standard
- [11.57] Standards for Relief Under 28 U.S.C. §2255
- [11.58] Defenses: Failure To Exhaust Remedies
- [11.59] Procedural Default of Claims Brought Under 28 U.S.C. §2255
- How To Handle Adverse Final Orders
- [11.60] Appeals from Adverse Rulings
- [11.61] Successive Motions
- V. [11.62] The Writ of Error Coram Nobis
- Chapter 12 — Appeals
- Chapter Summary
- I. [12.1] Introduction
- II. [12.2] Defense Appeals
- Final Decisions
- [12.3] Conviction and Sentence
- [12.4] Denial of New Trial
- [12.5] Sentence Reduction
- [12.6] Correction of Clerical Error
- [12.7] Administration of Probation and Supervised Release
- [12.8] Forfeiture Orders
- [12.9] Habeas Proceedings
- [12.10] Interlocutory Decisions
- Appealable Interlocutory Decisions
- [12.11] Pretrial Detention
- [12.12] Double Jeopardy
- [12.13] Right to Grand Jury Indictment
- [12.14] Forced Medication
- [12.15] Expansion of Interlocutory Jurisdiction in the Lower Courts
- [12.16] Mental Competency
- [12.17] Pretrial Gag Orders
- [12.18] Juveniles Transferred for Adult Prosecution
- [12.19] Death Penalty Notices
- [12.20] Video Recorded Trials
- [12.21] Nonappealable Interlocutory Decisions
- [12.22] Grand Jury Proceedings
- [12.23] Grand Jury Immunity
- [12.24] Disqualification of Counsel
- [12.25] Attorney-Client Privilege
- [12.26] Motions To Terminate Grand Jury Investigation
- [12.27] Motions for Disclosure of Grand Jury Materials
- [12.28] Extradition
- [12.29] Speedy Trial
- [12.30] Motions Alleging Prosecutorial Misconduct
- [12.31] Recusal of the Trial Judge
- [12.32] Motions To Suppress
- [12.33] Disqualification of Trial Counsel
- [12.34] Sanction of Defense Counsel
- [12.35] Denial of Motion To Stay Trial
- [12.36] Denial of Motion for Acquittal
- [12.37] Vacation of Guilty Pleas and Plea Agreements
- [12.38] Loss of the Right To Appeal
- [12.39] Appellate Waivers
- [12.40] Appeals by Fugitives
- III. [12.41] Government Appeals
- IV. [12.42] Appeals by Victims
- V. Initiating the Appeal
- VI. [12.48] Release of Defendant Pending Appeal
- VII. Appendix — Sample Forms
- List of Forms by Chapter
- Johanna M. Christiansen
Johanna M. Christiansen
Johanna M. Christiansen is an Assistant Federal Public Defender for the Federal Public Defender’s Office for the Central District of Illinois in Peoria, where she primarily works as an appellate attorney and Appellate Division Chief. In addition to representing her clients in the Seventh Circuit, she writes the Case Law Update from her office, summarizing recently developments in criminal law in the Seventh Circuit and United States Supreme Court and highlighting pending criminal issues at the Seventh Circuit. In 2026, Christiansen was awarded the Seventh Circuit Bar Association’s Advocacy Award. She also coaches moot court teams as an adjunct professor at the University of Illinois College of Law. Prior to obtaining her position with the Federal Public Defender’s Office, she served as an appellate law clerk to the late Honorable Daryl L. Hecht of the Iowa Court of Appeals (later of the Iowa Supreme Court). Christiansen received her BA from St. Olaf College and her JD from Drake University School of Law.
- Daniel J. Collins
Daniel J. Collins
Daniel J. Collins is a Partner at Katten Muchin Rosenman LLP in Chicago, where he focuses on internal investigations and white-collar matters. He is a Fellow of the American College of Trial Lawyers and a recipient of both the National Intelligence Exceptional Achievement Award and the Director’s Award for Superior Performance as an Assistant United States Attorney. Collins received his BA from Northwestern University, where he was a Chick Evans Scholar, and his JD with honors from DePaul University College of Law, where he was a member of the Order of the Coif.
- Jack Corfman
Jack Corfman
Jack Corfman is a staff attorney for the Federal Defender Program in Chicago, where he focuses on criminal defense. He has served as a law clerk to Judge Kim McLane Wardlaw in the U.S. Court of Appeals for the Ninth Circuit and Judge Robert W. Pratt in the U.S. District Court for the Southern District of Iowa. Corfman received his BA cum laude from Macalester College and his JD with honors from the University of Chicago Law School.
- SaDella Duval D’Adrian
SaDella Duval D’Adrian
SaDella Duval D’Adrian is an associate at Benesch Friedlander Coplan & Aronoff LLP in Chicago, where she focuses her practice on complex civil litigation and alternative dispute resolution, representing clients in a range of commercial disputes. She was included in the American Bar Association’s 2021 Pro Bono Honor Roll. D’Adrian received her JD summa cum laude and a Certificate in Business Law from the DePaul University College of Law, where she served as President of the Student Bar Association and was recognized for excellence in advocacy and scholarship.
- James P. Fieweger
James P. Fieweger
James P. Fieweger is a Partner at Michael Best & Friedrich LLP in Chicago, where he focuses on litigation. He received his BA from the University of Notre Dame and his JD cum laude from DePaul University College of Law, where he was a member of the Law Review and was selected to the Order of the Coif.
- Gabriel A. Fuentes
Gabriel A. Fuentes
Gabriel A. Fuentes is a U.S. Magistrate Judge in the U.S. District Court for the Northern District of Illinois. He serves on the Board of Directors for the Federal Bar Association (Chicago Chapter) and is an adjunct faculty member at the Northwestern University Pritzker School of Law and the University of Illinois Chicago School of Law. He had been named the Hispanic National Bar Association’s Latino Pro Bono Lawyer of the Year (2015) and received the Chicago Bar Association/Chicago Bar Foundation’s Edward J. Lewis II Pro Bono Service Award (2015) and Jenner & Block’s Albert E. Jenner Pro Bono Award. He received his BS from Northwestern University and his JD cum laude from the Northwestern University Pritzker School of Law.
- Ashni Gandhi
Ashni Gandhi
Ashni Gandhi is an associate at Michael Best & Friedrich LLP in Chicago, where she focuses her practice on litigation. She received her BA from the University of Illinois Urbana-Champaign and her JD at the Loyola University Chicago School of Law.
- Meghan Golden
Meghan Golden
Meghan Golden is an associate at Benesch Friedlander Coplan & Aronoff LLP in Chicago, where she concentrates her practice in litigation. She received her BA from the University of Wisconsin–Madison and her JD from the University of Chicago Law School.
- Douglas B. Harper
Douglas B. Harper
Douglas B. Harper is an attorney practicing in Chicago, where he focuses his work on business litigation, civil rights litigation, plaintiff’s age discrimination, state and federal appellate litigation, and post-conviction/habeas work. He is also an adjunct professor of law at Northwestern University Pritzker School of Law and a faculty instructor with the National Institute for Trial Advocacy. In 2005, he received an award from the United States District Court for the Northern District of Illinois for his successful handling of a §1983 civil rights jury trial as plaintiff’s counsel. In 2009, he prevailed in a post-conviction case that won the release of a wrongly convicted prisoner serving a life sentence. Harper is a graduate of Yale University and the New York University Law School.
- Steven R. Hunter
Steven R. Hunter
Steven R. Hunter is the owner of the Law Office of Steven R. Hunter in Chicago, where he focuses on criminal defense. He is a member of the National Association of Criminal Defense Attorneys. He was named a Super Lawyer in 2019. Hunter received his AB from the University of Michigan and his JD from the University of Michigan Law School.
- Ryan J. Levitt
Ryan J. Levitt
Ryan J. Levitt is Of Counsel at Benesch Friedlander Coplan & Aronoff LLP in Chicago, where he concentrates his practice in white-collar crime, government investigations, and regulatory compliance. He received his JD from the DePaul University College of Law.
- Johanes Maliza
Johanes Maliza
Johanes Maliza is a Partner with Benesch Friedlander Coplan & Aronoff LLP in Cleveland, Ohio, where he represents clients in a broad range of litigation, with extensive experience in federal criminal matters and commercial litigation. As a former Assistant Federal Public Defender for the Central District of Illinois, he has represented hundreds of clients and is a member of the Criminal Justice Act Panel for the U.S. Courts of Appeals for the Sixth and Seventh Circuits, as well as for the Northern District of Ohio. He is an adjunct professor at the University of Illinois at Chicago School of Law, where he teaches International Bribery, Federal Criminal Law, and Expert Witnesses. He is also a guest instructor at the University of Chicago School of Law, where he has taught at the Intensive Trial Practice Workshop since 2023. Maliza received his BA from Stanford University and his JD from Harvard Law School.
- Richard H. McLeese
Richard H. McLeese
Richard H. McLeese is an attorney in Chicago. He focuses his practice on criminal defense. He has been recognized by Super Lawyers (2012, 2013, 2017 – 2026) and has spoken at continuing legal education programs presented by the Federal Defender Program for the Northern District of Illinois, the Administrative Office of the United States Courts, the Office of the Illinois State Appellate Defender, the Office of the Cook County Public Defender, and IICLE®. McLeese received BA from Beloit College and his JD from the University of Chicago Law School.
- Lisa M. Noller
Lisa M. Noller
Lisa M. Noller is a Partner with Foley & Lardner LLP in Chicago, where she focuses on government enforcement defense and investigations. She has been recognized as among the Top 50 Female Lawyers and the Top 200 Litigators by Forbes. She is Chambers ranked in White Collar Criminal Defense (Band One) and in False Claims Act Defense (National). Noller received her BA cum laude from Boston College and her JD from the University of Chicago Law School.
- Luke D. Shadley
Luke D. Shadley
Luke D. Shadley is an associate with Foley & Lardner LLP in Chicago, where he concentrates his practice in government enforcement defense and investigations. He received his BA from the University of Notre Dame and his JD cum laude from Northwestern University Pritzker School of Law.
- Mark J. Silberman
Mark J. Silberman
Mark J. Silberman is a Partner with Benesch Friedlander Coplan & Aronoff LLP in Chicago, where he focuses his practice on healthcare, white-collar crime, and government investigations. He is Chambers ranked in Healthcare (2018 – present) and was awarded Crain’s Gen X Leader in Law (2021). He was also recognized as among the Legal 500 — White Collar (2026). Silberman received his BA cum laude from Brandeis University and his JD cum laude from the University of Illinois College of Law.
- Christopher J. Stetler
Christopher J. Stetler
Christopher J. Stetler is a Partner with Katten Muchin Rosenman LLP in Chicago, where he focuses on white-collar defense and internal investigations. Stetler received his BA with honors from Washington University in St. Louis and his JD magna cum laude from the University of Illinois College of Law.
- Chelsea Zielke
Chelsea Zielke
Chelsea Zielke is Senior Counsel at Michael Best & Friedrich LLP in Chicago, where she focuses her practice on commercial litigation. She received her JD cum laude from the University of Wisconsin Law School.
Federal Criminal Practice 2026 Edition
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