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Table of Contents
-
List of Forms by Chapter - Chapter 1 — Federal Criminal Jurisdiction
- 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 RICO
- VI. [1.22] Appendix — Resources on Federal Criminal Jurisdiction
- Chapter 2 — Grand Jury Procedure
- 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 Rule 6(e)
- [2.13] Rule 6(e) — Disclosure Preliminarily 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. Production of Documents to a Grand Jury
- VII. Immunity
- [2.34] Definition
- [2.35] Transactional Immunity
- [2.36] Use Immunity
- [2.37] Immunity Procedures
- [2.38] Informal Immunity
- [2.39] False Statements
- [2.40] Federal vs. State Prosecutions
- Testimony Before the Grand Jury Without Immunity — The Pitfalls
- [2.41] Incriminating Evidence
- [2.42] Impeachment
- [2.43] Further Exposure
- Negotiations for Immunity
- [2.44] Client’s Attitude
- [2.45] Collateral Effects
- [2.46] Timing
- [2.47] Perjury
- [2.48] Perjury Trap
- VIII. Multiple Representation
- IX. Attorney-Client Privilege and Work-Product Doctrine in Grand Jury Investigations
- [2.57] Attorney-Client Privilege
- [2.58] Corporate Privilege
- [2.59] Explanation of Privilege
- [2.60] Coordination with Cocounsel
- [2.61] Work-Product Privilege
- [2.62] Counsel Subpoenaed by Grand Jury
- [2.63] Fee Cases
- [2.64] Identity-of-Client Cases
- [2.65] Document Cases
- [2.66] Physical Evidence
- [2.67] Crime Fraud Exception
- X. Appendix — Sample Forms
- [2.68] Petition for Order Requiring Witness To Furnish Fingerprints and Palm Prints
- [2.69] Order Requiring Witness To Furnish Fingerprints and Palm Prints
- [2.70] Petition for Order Granting Immunity (Witness Has Refused To Answer Pertinent Questions Before Grand Jury)
- [2.71] Order Instructing Witness To Testify and To Produce Evidence (Witness Has Asserted Privilege)
- [2.72] Petition for Order Granting Immunity (Witness Has Not Appeared Before Grand Jury)
- [2.73] Order Instructing Witness To Testify and To Produce Evidence (Witness Will Assert Privilege)
- [2.74] Informal Immunity Letter
- [2.75] Nonsubject Letter
- [2.76] Letter Hiring Investigator
- [2.77] Proffer Letter
- Chapter 3 — Release and Detention Under the Bail Reform Act of 1984
- 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. Release on Recognizance — Section 3142(b)
- V. Release on Conditions — Section 3142(c)
- VI. [3.9] Release Orders
- VII. [3.10] Amendment of Release Orders
- VIII. [3.11] Temporary Detention — Section 3142(d)
- IX. The Detention Hearing — Section 3142(f)
- [3.12] Circumstances Under Which Hearing May Be Held
- [3.13] Hearings Under §3142(f)(1)
- [3.14] Hearings Under §3142(f)(2)
- [3.15] Timing of Hearing
- [3.16] First Appearance Requirement
- [3.17] Right to Continuance
- [3.18] Burden of Proof
- Risk of Flight
- [3.19] Burden
- [3.20] Meeting the Government’s Burden
- Risk of Danger to the Community
- [3.21] Burden
- Meeting the Government’s Burden
- [3.22] In general
- [3.23] Constitutionality of detention based on dangerousness
- [3.24] Meaning of dangerousness
- [3.25] Permissible Forms of Government Evidence
- [3.26] Rights of Defendants at Detention Hearings
- [3.27] Right to Counsel
- [3.28] Right To Testify
- [3.29] Right To Present Witnesses
- [3.30] Right To Cross-Examine and Confront Witnesses
- [3.31] Right To Receive Documents Underlying Electronic Surveillance
- [3.32] Right To Obtain Discovery
- Constitutional Issues
- [3.33] In General
- [3.34] Length of Detention as a Due-Process Violation
- Presumption Under §3142(e)
- [3.35] Types of Presumptions
- [3.36] Effect of Presumptions
- [3.37] Release or Detention of a Material Witness
- [3.38] Detention Orders
- X. Review of Pretrial Release or Detention Order — Section 3145
- XI. Release or Detention Pending Sentence or Appeal — Section 3143
- [3.41] Release or Detention Pending Sentence — Section 3143(a)
- [3.42] Release or Detention Pending Appeal — Section 3143(b)
- [3.43] Substantial Question of Law or Fact
- [3.44] Likelihood of Reversal on Appeal
- [3.45] Standard of Review on Appeal
- [3.46] Written Reasons
- [3.47] Procedure on Appeal
- [3.48] Release Pending Appeal by the Government
- [3.49] Release Pending Certiorari
- [3.50] Release Pending Resentencing
- [3.51] Release Pending Habeas Corpus
- [3.52] Release Pending Deportation Hearing
- [3.53] Release Pending Extradition Hearing
- [3.54] Release Pending Revocation of Supervised Release
- [3.55] District Court Jurisdiction Pending Appeal
- XII. Offenses Added Under the Bail Reform Act
- XIII. [3.61] Conclusion
- Chapter 4 — Initial Appearance and Preliminary Hearing
- I. [4.1] Introduction — Scope of Chapter
- II. Initial Appearance
- Appearance Upon an Arrest
- [4.2] Timing and Judicial Officer
- [4.3] Place
- [4.4] Unnecessary Delay
- [4.5] Calculation
- [4.6] Consequences of Unnecessary Delay
- [4.7] Effect of an “Unarrest”
- [4.8] When Charged by Indictment
- [4.9] Substance of Initial Appearance
- [4.10] The Right to Counsel
- [4.11] Pretrial Release
- [4.12] Lesser Offenses
- [4.13] Juvenile Offenses
- [4.14] Pretrial Services
- III. Preliminary Hearing
- Chapter 5 — Plea Bargaining
- Chapter 6 — Warrants and Motions To Suppress
- 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, 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 Discovery in Federal Criminal Cases
- I. Introduction
- II. Fed.R.Crim.P. 16 — Discovery and Inspection
- [7.3] History and General Comments
- Fed.R.Crim.P. 16(a)(1): Information Subject to Disclosure by the Government
- [7.4] Relevancy
- [7.5] Specificity of Discovery Requests
- [7.6] Scope
- [7.7] Defendant’s Own Statements
- [7.8] Oral statements
- [7.9] Written and recorded statements
- [7.10] Statements by coconspirators
- [7.11] Corporate Defendants
- [7.12] Defendant’s Testimony Before the Grand Jury
- [7.13] Defendant’s Prior Record
- [7.14] Documents and Tangible Objects
- [7.15] Reports of Examinations and Tests
- [7.16] Expert Witnesses
- [7.17] Exceptions to Fed.R.Crim.P. 16(a)(1) Discovery
- [7.18] Attorney Work Product
- [7.19] The Jencks Act
- [7.20] Applicability
- [7.21] Sanctions
- [7.22] In Litigation
- [7.23] Reciprocal Discovery by the Government
- [7.24] Protective and Modifying Orders
- [7.25] Sanctions for Failure To Comply
- [7.26] Specific Requests for Discovery Under Fed.R.Crim.P. 16
- [7.27] Statements
- [7.28] Names and Addresses of Potential Witnesses
- [7.29] Criminal Records
- [7.30] Names of Government Informers
- [7.31] Government Press Releases
- [7.32] Governmental Agency Rules and Regulations
- [7.33] Discovery Regarding Prosecutorial Vindictiveness
- III. [7.34] Motion for Grand Jury Testimony
- IV. [7.35] Bills of Particulars
- V. Fed.R.Crim.P. 12.1 — Notice of Alibi
- VI. Fed.R.Crim.P. 12.2 — Notice of Insanity
- VII. [7.43] Fed.R.Crim.P. 12.3 — Notice of Defense Based on Public Authority
- VIII. [7.44] Fed.R.Crim.P. 17 — Subpoenas
- IX. [7.45] Fed.R.Crim.P. 5.1 — Preliminary Hearings and Detention Hearings
- X. [7.46] Fed.R.Crim.P. 15 — Depositions
- XI. Motions To Produce Evidence Favorable to the Defendant
- [7.47] In General
- [7.48] The Need for Filing a Motion
- [7.49] Does Brady Allow Pretrial Disclosure?
- [7.50] Who Determines What Constitutes Favorable Evidence?
- [7.51] What Constitutes “Prosecution” in Terms of Duty To Disclose?
- [7.52] Standard of Review
- [7.53] Prosecutor’s Duty To Preserve Evidence
- [7.54] Specific Examples of Material Deemed Exculpatory
- XII. [7.55] Disclosure and Production of Electronic Surveillance or Unlawfully Overheard Conversations
- XIII. [7.56] Miscellaneous Matters
- XIV. [7.64] Discovery Pursuant to Northern District of Illinois Local Criminal Rule 16.1
- XV. [7.65] Discovery Under the Sentencing Reform Act of 1984
- XVI. Appendix — Sample Forms
- [7.66] Motion for Discovery and Inspection
- [7.67] Motion for Production of Grand Jury Testimony
- [7.68] Motion for a Bill of Particulars
- [7.69] Motion for Issuance of Subpoena Duces Tecum
- [7.70] Motion To Produce Evidence Favorable to Defendant
- [7.71] Motion for Disclosure and Production of Electronic Surveillance or Unlawfully Overheard Conversations
- [7.72] Notice of Request for Pretrial Discovery
- [7.73] Motion for Additional Discovery and Inspection
- [7.74] Motion for Discovery Requests for Determining the Advisory Sentencing Range Under the Federal Sentencing Guidelines
- Chapter 8 — Pretrial Motions
- I. [8.1] Scope of Chapter
- II. Practice with Respect to All Motions
- III. [8.9] Fed.R.Crim.P. 12 Motions
- [8.10] Mandatory Motions
- [8.11] Defects in Instituting the Prosecution
- [8.12] Misconduct Before the Grand Jury
- [8.13] Defects in the Grand and Petit Jury Selection Procedures
- [8.14] Unauthorized Prosecutor
- [8.15] Selective and Vindictive Prosecutions
- [8.16] Pretrial Delay
- [8.17] Other Defenses
- [8.18] Defects in the Indictment or Information
- [8.19] Jurisdiction
- [8.20] Failure To Allege an Offense
- [8.21] Constitutionality of Statute
- [8.22] Multiplicity and Duplicity
- [8.23] Motion To Suppress
- [8.24] Search and Seizure
- [8.25] Statements
- [8.26] Wiretaps
- [8.27] Return of Seized Property: Fed.R.Crim.P. 41(g)
- [8.28] Motion To Sever
- [8.29] Fed.R.Crim.P. 8 — Joinder
- [8.30] Joinder of offenses
- [8.31] Joinder of defendants
- [8.32] Fed.R.Crim.P. 13
- [8.33] Fed.R.Crim.P. 14
- [8.34] Severance Due to Codefendant’s Confession
- Motions for Discovery
- [8.35] Bill of Particulars
- [8.36] Inspection of Grand Jury Minutes (Fed.R.Crim.P. 6(e)(3)(E)(i))
- [8.37] Fed.R.Crim.P. 17 Subpoenas
- Other Motions
- [8.38] Recusal
- [8.39] Relevant Statutory Provisions
- [8.40] Procedure for Invoking 28 U.S.C. §§144 and 455
- [8.41] Standard of Proof
- [8.42] Extrajudicial Source Doctrine
- [8.43] Procedural Distinctions: Motions for Disqualification Based on Actual vs. Perceived Bias or Prejudice
- [8.44] Timing
- [8.45] Certification requirement
- [8.46] Appeal
- [8.47] Motion To Transfer (Fed.R.Crim.P. 21)
- [8.48] Fed.R.Crim.P. 21(a)
- [8.49] Fed.R.Crim.P. 21(b)
- [8.50] Motion To Strike (Fed.R.Crim.P. 7(d))
- [8.51] Fed.R.Evid. 404(b)
- [8.52] Similarity and Timing
- [8.53] Sufficiency of the Evidence
- [8.54] Fed.R.Evid. 403 Balancing Test
- [8.55] Undue Delay
- [8.56] Pre-Indictment
- [8.57] Post-Arrest Delay in Presenting Charges
- Speedy Trial Act
- [8.58] In General
- Specific Provisions of the Speedy Trial Act
- [8.59] Judicial officer must set case for trial (18 U.S.C. §3161(a))
- Time Limits
- [8.60] Filing of indictment or information (18 U.S.C. §3161(b))
- [8.61] Commencement of trial (18 U.S.C. §3161(c))
- [8.62] Trial after dismissal of complaint (18 U.S.C. §3161(d)(1))
- [8.63] Trial after order granting new trial (18 U.S.C. §3161(e))
- [8.64] Additional conditions for time limit between arrest and indictment (18 U.S.C. §3161(f))
- [8.65] Additional conditions for time limits between arraignment and trial (18 U.S.C. §3161(g))
- [8.66] Delays that toll the statute (18 U.S.C. §3161(h))
- [8.67] Mental or physical examination of defendant (18 U.S.C. §3161(h)(1)(A))
- [8.68] Defendant on trial for other charges (18 U.S.C. §3161(h)(1)(B))
- [8.69] Interlocutory appeal (18 U.S.C. §3161(h)(1)(C))
- [8.70] Pretrial motions (18 U.S.C. §3161(h)(1)(D))
- [8.71] Transfer (18 U.S.C. §3161(h)(1)(E))
- [8.72] Transportation (18 U.S.C. §3161(h)(1)(F))
- [8.73] Plea agreement (18 U.S.C. §3161(h)(1)(G))
- [8.74] Proceeding under advisement (18 U.S.C. §3161(h)(1)(H))
- [8.75] Good conduct (18 U.S.C. §3161(h)(2))
- [8.76] Absence or unavailability of defendant or witness (18 U.S.C. §§3161(h)(3)(A), 3161(h)(3)(B))
- [8.77] Mental incompetence or physical inability (18 U.S.C. §3161(h)(4))
- [8.78] Reindictment (18 U.S.C. §3161(h)(5))
- [8.79] Joinder with codefendant (18 U.S.C. §3161(h)(6))
- [8.80] Ends of justice continuance (18 U.S.C. §3161(h)(7)(A))
- [8.81] Court congestion or government unprepared (18 U.S.C. §3161(h)(7)(C))
- [8.82] Evidence in foreign country (18 U.S.C. §3161(h)(8))
- [8.83] Withdrawal of plea (18 U.S.C. §3161(i))
- [8.84] Defendant serving term of imprisonment (18 U.S.C. §3161(j))
- [8.85] Burden of proof
- [8.86] Waiver
- Sanctions for Speedy Trial Act violations
- [8.87] Dismissal (18 U.S.C. §§3162(a)(1), 3162(a)(2))
- [8.88] Other sanctions (18 U.S.C. §3162(b))
- [8.89] Defendant causes delay
- [8.90] Competency
- [8.91] Evaluation of the Defendant
- [8.92] Evidentiary Hearing
- Brady, Giglio, and Jencks Act Motions
- [8.93] Brady v. Maryland
- [8.94] Suppression
- [8.95] Favorable to the defense
- [8.96] Materiality
- [8.97] Burden of proof
- [8.98] Giglio v. United States
- [8.99] Jencks Act
- [8.100] Double Jeopardy
- [8.101] Burden of Proof
- [8.102] Retrials and Mistrials
- IV. [8.103] Fed.R.Crim.P. 12.1 — Notice of an Alibi Defense
- V. [8.104] Fed.R.Crim.P. 12.2 — Notice of an Insanity Defense
- VI. [8.105] Fed.R.Crim.P. 12.3 — Notice of a Public Authority Defense
- Chapter 9 — Jury Selection and Instructions
- I. [9.1] Scope of Chapter
- II. [9.2] Peremptory Challenges
- III. [9.3] Constitutional Challenges
- IV. [9.4] Statutory Challenges
- V. [9.5] Qualifications for Jury Service
- VI. [9.6] Access to Juror Information
- VII. [9.7] Challenges for Cause
- VIII. [9.8] Voir Dire
- IX. [9.9] Anonymous Jury
- X. [9.10] Methods of Jury Selection
- XI. [9.11] Questioning
- XII. [9.12] Selection of Alternate Jurors
- XIII. [9.13] Types of Questions
- XIV. [9.14] Highly Publicized Cases
- XV. Instructions
- XVI. [9.20] Conclusion
- XVII. Appendix
- Chapter 10 — Selected Issues Under the Federal Rules of Evidence
- I. Introduction
- II. Relevancy and its Limits; Evidence of Other Crimes: Rules 401 – 403 and 404(b)
- [10.3] In General: Test for Admissibility
- [10.4] Relevancy of the Evidence to an Issue Other than Criminal Propensity: Rules 401, 402, and 404(b)
- [10.5] Requirement That the Other Act Be Similar Enough and Close Enough in Time To Be Relevant
- [10.6] Requirement That Evidence of the Other Act Be Sufficiently Supported
- [10.7] Weighing Probative Value Against Unfair Prejudice: Rule 403
- [10.8] Procedural Issues
- [10.9] Summary
- III. Impeachment: Rules 607 – 609 and 613
- [10.10] In General
- [10.11] Who May Impeach? — Rule 607
- Impeachment and Rehabilitation by Opinion and Reputation Evidence: Rule 608(a)
- [10.12] Impeachment of Witness with Evidence of Character for Untruthfulness
- [10.13] Rehabilitation of Witness with Evidence of Character for Truthfulness
- Cross-Examination Concerning Misconduct Probative of Untruthfulness: Rule 608(b)
- [10.14] In General
- [10.15] Cross-Examination of Rule 608(a) Character Witnesses
- [10.16] Procedural Issues
- Impeachment by Evidence of Conviction of Crime: Rule 609
- [10.17] Admissibility of Convictions Under Rule 609(a)(1)
- [10.18] Admissibility of Convictions Under Rule 609(a)(2)
- [10.19] Rules 609(b) and 609(c)
- [10.20] Other Issues Under Rule 609
- [10.21] Procedural Issues
- [10.22] Impeachment by Prior Inconsistent Statement: Rule 613
- IV. Hearsay — Selected Issues: Rules 801 – 803
- [10.23] In General
- [10.24] Confrontation Clause
- [10.25] Prior Consistent Statements: Rule 801(d)(1)(B)
- [10.26] Coconspirator Statements: Rule 801(d)(2)(E)
- [10.27] Present Sense Impressions; Excited Utterances; and Then Existing Mental, Emotional, or Physical Conditions: Rules 803(1) – 803(3)
- [10.28] Business Records: Rule 803(6)
- [10.29] Public Records and Reports: Rule 803(8)
- Chapter 11 — An Introductory Tour Through the Federal Sentencing Guidelines and Sentencing Procedures
- I. Background
- II. Chapter One — Introduction, Authority, and General Application Principles
- [11.3] Part A — Introduction
- Part B — General Application Principles
- [11.4] General Instructions on Using the Guidelines — Guidelines §§1B1.1, 1B1.2
- [11.5] Relevant Conduct — Guidelines §1B1.3
- [11.6] Significance of Commentary — Guidelines §1B1.7
- [11.7] 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
- [11.8] General Concepts
- Part D — Offenses Involving Drugs
- [11.9] General Considerations
- [11.10] Mixtures or Substances Containing Controlled Substances
- [11.11] The Safety Valve
- [11.12] Possession of a Dangerous Weapon — Guidelines §2D1.1(b)(1)
- [11.13] Crack vs. Powder Cocaine
- [11.14] Incomplete Transactions and Reverse Stings
- [11.15] Part B — Offenses Involving Fraud
- [11.16] Calculating the Loss
- [11.17] Misrepresentation and Violation of Court Orders
- [11.18] Part K — Offenses Involving Public Safety
- IV. [11.19] Chapter Three — Adjustments
- [11.20] Part A — Victim-Related Adjustments
- [11.21] Hate Crimes or Vulnerable Victim — Guidelines §3A1.1
- [11.22] Official Victim — Guidelines §3A1.2
- [11.23] Part B — Role in the Offense
- [11.24] Aggravating Role — Guidelines §3B1.1
- [11.25] Mitigating Role — Guidelines §3B1.2
- [11.26] Abuse of a Position of Trust or Use of Special Skill — Guidelines §3B1.3
- [11.27] Part C — Obstruction
- [11.28] Part D — Multiple Counts
- [11.29] Groups of Closely Related Counts — Guidelines §3D1.2
- [11.30] Offense Level Applicable to Each Group — Guidelines §3D1.3
- [11.31] Determining the Combined Offense Level — Guidelines §3D1.4
- [11.32] Part E — Acceptance of Responsibility
- V. [11.33] Chapter Four — Criminal History and Criminal Livelihood
- [11.34] Part A — Criminal History
- [11.35] Criminal History Category — Guidelines §4A1.1
- [11.36] Definitions and Instructions for Computing Criminal History — Guidelines §4A1.2
- [11.37] Adequacy of Criminal History Category — Guidelines §4A1.3
- Part B — Career Offenders and Criminal Livelihood
- [11.38] Career Offenders — Guidelines §§4B1.1, 4B1.2
- [11.39] Criminal Livelihood — Guidelines §4B1.3
- [11.40] Armed Career Criminal — Guidelines §4B1.4
- VI. [11.41] Chapter Five — Determining the Sentence
- [11.42] Part A — The Sentencing Table
- [11.43] Part B — Probation — Guidelines §§5B1.1 – 5B1.3
- [11.44] Part C — Imprisonment — Guidelines §§5C1.1, 5C1.2
- [11.45] Part D — Supervised Release — Guidelines §§5D1.1 – 5D1.3
- [11.46] Part E — Restitution, Fines, Assessments, Forfeitures
- [11.47] Part F — Sentencing Options — Guidelines §§5F1.1 – 5F1.8
- [11.48] Part G — Implementing the Sentence of Imprisonment
- [11.49] Sentencing on a Single Count of Conviction — Guidelines §5G1.1
- [11.50] Sentencing on Multiple Counts of Conviction — Guidelines §5G1.2
- [11.51] Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment — Guidelines §5G1.3
- [11.52] Parts H and K — Departure Issues
- [11.53] Offender Characteristics — Part H
- [11.54] Departures — Part K
- [11.55] Substantial Assistance — Guidelines §5K1.1
- [11.56] Other Grounds for Departure — Guidelines §§5K2.0 – 5K2.24
- VII. Chapter Six — Sentencing Procedures, Plea Agreements, and Crime Victims’ Rights
- VIII. [11.59] Chapter Seven — Violations of Probation and Supervised Release
- IX. [11.60] Conclusion
- Chapter 12 — Posttrial Motions in Federal Criminal Cases
- I. [12.1] Introduction
- II. Motion for Judgment of Acquittal
- [12.2] Text of Federal Rule of Criminal Procedure 29
- [12.3] Nature of Motion for Judgment of Acquittal
- [12.4] Practice Note
- [12.5] Standard of Review
- [12.6] Timing of a Motion for Judgment of Acquittal
- [12.7] Pretrial Motions for Judgment of Acquittal
- [12.8] Interlocutory Motions for Judgment of Acquittal
- [12.9] Posttrial Motions for Judgment of Acquittal
- [12.10] Post-Verdict Motions for Judgment of Acquittal
- [12.11] Appellate Review and the “Unanimous” Waiver Doctrine
- [12.12] Appellate Review
- III. Motion for a New Trial
- [12.13] Text of Federal Rule of Criminal Procedure 33
- [12.14] Nature of Motion for a New Trial
- [12.15] Practice Note
- [12.16] Standard of Review
- [12.17] Timing Considerations
- [12.18] Granting a New Trial on the Basis of Newly Discovered Evidence
- [12.19] Four Criteria for Motions Based on Newly Discovered Evidence
- [12.20] Perjured Testimony or Recantation
- [12.21] Prosecutorial Suppression of Evidence
- [12.22] Retroactive Misjoinder and Prejudicial Spillover
- [12.23] Granting a New Trial on Other Grounds
- [12.24] Miscarriage of Justice
- [12.25] Ineffective Assistance of Counsel
- [12.26] Structural Errors Denying a Fair Trial
- [12.27] Incapacity of the Tribunal
- [12.28] Cumulative Error and Other Non-Structural Errors
- [12.29] Cumulative Error
- [12.30] Improper Remarks by the Prosecution
- [12.31] Erroneously Admitted Evidence
- [12.32] Multiplicity of Charges
- [12.33] Absence of Codefendant
- IV. Motion for Arrest of Judgment
- V. Release Pending Appeal or Sentencing
- [12.42] Governed by Statute
- [12.43] Release or Detention Pending Sentence
- [12.44] Burden
- [12.45] Standard
- [12.46] Procedure
- [12.47] Practice Note
- [12.48] Recent Application of §3143(a)
- [12.49] Release or Detention Pending Appeal by the Defendant
- [12.50] Burden
- [12.51] Standard
- [12.52] Crimes for Which Release Pending Appeal Is Not Available
- [12.53] Practice Note
- [12.54] Recent Application of §3143(b)
- [12.55] Release Pending Resentencing
- [12.56] Release or Detention Pending Appeal by the Government
- [12.57] Appeal of Order Granting or Denying Release
- [12.58] Prison Choice
- VI. Section 2255 Motions
- Chapter 13 — Federal Habeas Corpus and Posttrial
- I. [13.1] Scope of Chapter
- II. [13.2] Remedy for State Prisoners — 28 U.S.C. §2254
- [13.3] Rules Governing §2254 Cases
- [13.4] Form of the Petition
- [13.5] Custody Requirement
- [13.6] Naming the Proper Respondent
- [13.7] Filing and Service
- [13.8] Preliminary Consideration by District Judge
- [13.9] Answer
- [13.10] Discovery
- [13.11] Evidentiary Hearing
- Standard of Review
- [13.12] Presumption of Correctness
- [13.13] Harmless Error
- [13.14] Defenses to Habeas Corpus
- Failure To Exhaust State Remedies and Non-Cognizable Claims
- [13.15] Exhaustion
- [13.16] Federal Nature of Claim
- [13.17] State Remedy Inadequate or Unavailable
- [13.18] Discretionary Review
- [13.19] Mixed Petitions
- [13.20] Waiver of Exhaustion Defense
- Procedural Default
- [13.21] Independent and Adequate State Grounds
- [13.22] Claims Never Raised in State Court
- [13.23] Excusal of a Procedural Default — Cause and Prejudice/Fundamental Miscarriage of Justice
- [13.24] Distinguishing Exhaustion from Procedural Default
- [13.25] Non-Retroactivity of New Rules of Constitutional Law (Teague Bar)
- [13.26] Definition of “New Rule” and “Final”
- [13.27] Exceptions
- [13.28] New Rules Favoring the Prosecution
- [13.29] Teague After the AEDPA
- Successive Petitions and Abuse of the Writ
- [13.30] Distinguishing Successive Petitions from Abuse of the Writ
- [13.31] Statutes and Rules Governing Successive Petitions and Abuse of the Writ
- [13.32] Innocence as a Claim in Habeas Corpus
- [13.33] Appeals from Adverse Rulings
- III. [13.34] Remedy for Federal Prisoners — 28 U.S.C. §2255
- [13.35] Rules Governing §2255 Proceedings
- [13.36] Form of the Petition
- [13.37] The Custody Requirement
- [13.38] Naming the Proper Respondent
- [13.39] Filing and Service
- [13.40] Preliminary Consideration by District Judge
- [13.41] Answer
- [13.42] Discovery
- [13.43] Evidentiary Hearings
- [13.44] Standards for Relief Under §2255
- Defenses to §2255 Motions
- [13.45] Failure To Exhaust Remedies
- [13.46] Procedural Default of Claims Brought Under §2255
- [13.47] Successive Motions
- [13.48] Appeals from Adverse Rulings
- IV. General Habeas Corpus Statute
- V. [13.56] Writ of Error Coram Nobis
- Chapter 14 — Appeals
- I. [14.1] Introduction
- II. [14.2] Defense Appeals
- Final Decisions
- [14.3] Conviction and Sentence
- [14.4] Denial of New Trial
- [14.5] Sentence Reduction
- [14.6] Correction of Sentence
- [14.7] Administration of Probation and Supervised Release
- [14.8] Forfeiture Orders
- [14.9] Habeas Proceedings
- [14.10] Interlocutory Decisions
- Appealable Interlocutory Decisions
- [14.11] Pretrial Detention
- [14.12] Double Jeopardy
- [14.13] Right to Grand Jury Indictment
- [14.14] Forced Medication
- [14.15] Expansion of Interlocutory Jurisdiction in the Lower Courts
- [14.16] Mental Competency
- [14.17] Pretrial Gag Orders
- [14.18] Juveniles Transferred for Adult Prosecution
- [14.19] Death Penalty Notices
- [14.20] Videotaped Trials
- [14.21] Non-Appealable Interlocutory Decisions
- [14.22] Grand Jury Proceedings
- [14.23] Grand Jury Immunity
- [14.24] Disqualification of Counsel
- [14.25] Attorney-Client Privilege
- [14.26] Motions To Terminate Grand Jury Investigation
- [14.27] Motions for Disclosure of Grand Jury Materials
- [14.28] Extradition
- [14.29] Speedy Trial
- [14.30] Motions Alleging Prosecutorial Misconduct
- [14.31] Recusal of the Trial Judge
- [14.32] Motions To Suppress
- [14.33] Disqualification of Trial Counsel
- [14.34] Sanction of Defense Counsel
- [14.35] Denial of Motion To Stay Trial
- [14.36] Denial of Motion for Acquittal
- [14.37] Vacation of Guilty Pleas and Plea Agreements
- [14.38] Loss of the Right To Appeal
- [14.39] Appellate Waivers
- [14.40] Appeals by Fugitives
- III. [14.41] Government Appeals
- IV. [14.42] Appeals by Victims
- V. Initiating the Appeal
- VI. [14.48] Release of Defendant Pending Appeal
- VII. Appendix — Sample Forms
Authors
- Timothy A. Bass
Timothy A. Bass
No bio available.
- Carol A. Brook
Carol A. Brook
No bio available.
- Jonathan R. Buck
Jonathan R. Buck
No bio available.
- 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 B.A. from Northwestern University, where he was a Chick Evans Scholar, and his J.D. with honors from DePaul University College of Law, where he was a member of the Order of the Coif.
- J. Gregory Deis
J. Gregory Deis
No bio available.
- James P. Fieweger
James P. Fieweger
James P. Fieweger is a Partner at Michael Best & Friedrich LLP in Chicago, where he focuses on commercial litigation and criminal defense. He is a member of the Illinois State Bar Association and the Wisconsin State Bar Administration. Fieweger received his B.A. from the University of Notre Dame and his J.D. 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.
- Michael D. Frisch
Michael D. Frisch
Michael D. Frisch counsels clients on regulatory compliance, investigations, and enforcement matters involving digital assets. He also advises them on investments and corporate and organizational structuring, governance, and best practices. Clients in the cryptocurrency, digital asset, Web3, and DeFi industry depend on Mr. Frisch’s substantial experience navigating emerging government regulation and structuring transactions and investments in that space. His experience with cryptocurrency began at the Commodity Futures Trading Commission (CFTC), where he brought one of the CFTC’s first enforcement actions involving cryptocurrency (CFTC v. Bitfinex) and was part of the team responsible for the CFTC’s action against Tether in 2021. While at the CFTC, Mr. Frisch was part of the litigation team in CFTC v. Monex, a landmark case concerning the applicability of §2(c)(2)(D) of the CEA, and contributed to the CFTC’s Final Interpretive Guidance on Actual Delivery for Digital Assets. He currently serves as the Chair of the Public Policy and Regulatory Committee of the Global Digital Asset & Cryptocurrency Association (Global DCA), an organization founded to support the growth of the global digital economy and to guide the evolution of digital assets, cryptocurrencies, and underlying technologies through standards and consensus-based solutions that address the major challenges facing the industry. Immediately prior to joining Croke Fairchild Morgan & Beres LLC, Mr. Frisch served as Senior Advisor and Legal Counsel to Mayor Lightfoot, advising the Mayor and city leaders on legal, policy, and labor issues.
- Gabriel A. Fuentes
Gabriel A. Fuentes
Gabriel A. Fuentes is a U.S. Magistrate Judge in the Northern District of Illinois. He was the Hispanic National Bar Association’s 2015 Latino Pro Bono Lawyer of the Year and recipient of the 2015 Chicago Bar Association/Chicago Bar Foundation’s Edward J. Lewis II Pro Bono Service Award. Fuentes also served as Jenner & Block LLP’s Pro Bono Committee Chair (2009 – 2013). He received his B.S. from Northwestern University and his J.D. cum laude from Northwestern University Pritzker School of Law.
- Jonathan W. Garlough
Jonathan W. Garlough
No bio available.
- Laura R. Hammargren
Laura R. Hammargren
No bio available.
- Rebecca Hanson
Rebecca Hanson
No bio available.
- Rodger A. Heaton
Rodger A. Heaton
No bio available.
- David H. Iskowich
David H. Iskowich
David H. Iskowich is a Supervising Attorney in the Criminal Appeals Division of the Office of the Illinois Attorney General in Chicago, where he focuses on criminal and constitutional law. Mr. Iskowich B.A. cum laude from the University of Pennsylvania and his J.D. from the Indiana University School of Law.
- Candace R. Jackson
Candace R. Jackson
No bio available.
- Jason F. Krigel
Jason F. Krigel
Jason F. Krigel is an Assistant Attorney General in the Office of the Illinois Attorney General, in Chicago. Mr. Krigel is a member of the Illinois Appellate Lawyers and the Chicago Bar Associations. He served as a law clerk to U.S. District Court Judge Joan B. Gottschall in the Northern District of Illinois, and he received his J.D. from the University of Chicago Law School.
- Joel R. Levin
Joel R. Levin
No bio available.
- Rosalie Lindsay Guimarães
Rosalie Lindsay Guimarães
No bio available.
- Terence F. MacCarthy
Terence F. MacCarthy
No bio available.
- Edward F. Malone
Edward F. Malone
No bio available.
- Katherine Markowski
Katherine Markowski
No bio available.
- Richard H. McLeese
Richard H. McLeese
Richard H. McLeese is a sole practitioner in Chicago, where he focuses on criminal defense. He is a member of the National Association of Criminal Defense Lawyers, the Federal and Chicago Bar Associations, and the Chicago Council of Lawyers (former Secretary and Member of the Board of Governors). He is a panel lawyer for the Federal Defender Program for the Northern District of Illinois, serving as a proctor in the proctor/intern program, and has lectured on a variety of criminal defense topics. Mr. McLeese received his J.D. from the University of Chicago Law School.
- Michael B. Nash
Michael B. Nash
No bio available.
- Gordon B. Nash, Jr.
Gordon B. Nash, Jr.
No bio available.
- 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 is a Lecturer in Law at the University of Chicago Law School. Noller is Chambers ranked, Band One, in White Collar Criminal Defense and Band Two in False Claims Act Defense. Noller received her B.A. from Boston College and her J.D. from the University of Chicago Law School.
- Benjamin P. O'Glasser
Benjamin P. O'Glasser
No bio available.
- Anthony J. O'Neill
Anthony J. O'Neill
No bio available.
- Ryan A. Patricka
Ryan A. Patricka
No bio available.
- Charles Redfern
Charles Redfern
No bio available.
- Shorge K. Sato
Shorge K. Sato
No bio available.
- Meredith A. Shippee
Meredith A. Shippee
No bio available.
- Stephen M. Soltanzadeh
Stephen M. Soltanzadeh
No bio available.
- Daniel M. Tardiff
Daniel M. Tardiff
No bio available.
- William H. Theis
William H. Theis
No bio available.
- Elaine Vullmahn
Elaine Vullmahn
No bio available.
- Benno Weisberg
Benno Weisberg
No bio available.
- Daniel W. Werly
Daniel W. Werly
No bio available.
- Benjamin M. Whipple
Benjamin M. Whipple
No bio available.
Federal Criminal Practice (ARCHIVED 2011 EDITION & 2014 SUPPLEMENT)
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