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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 the Racketeer Influenced and Corrupt Organizations Act
- 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 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] Non-Target 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. [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] The “17-Hour Rule” 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] Initial Appearances for Misdemeanors and Petty Offenses
- [4.22] Initial Appearances for Arrested Juveniles
- [4.23] Pretrial Services and the Initial Appearance
- III. [4.24] Preliminary Hearing
- [4.25] Preliminary Hearings: An Overview
- [4.26] The Preliminary Hearing’s Limited Purpose
- [4.27] The Government’s Preliminary Hearing Case
- [4.28] The Defense’s Preliminary Hearing Case
- [4.29] Timing of Preliminary Hearing
- [4.30] Place of Preliminary Hearing
- [4.31] Probable Cause at the Preliminary Hearing
- [4.32] Rule 26.2 Discovery at the Preliminary Hearing
- [4.33] Waiver of the Preliminary Hearing
- [4.34] Right to Counsel at the Preliminary Hearing
- [4.35] Record
- [4.36] Appeal of Judge’s Probable Cause Ruling
- 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 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
- 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
- I. [8.1] Scope of Chapter
- II. [8.2] Jury Selection — An Introduction
- III. [8.3] Qualifications for Jury Service
- IV. [8.4] Constitutional Challenges
- V. [8.5] Statutory Challenges
- VI. [8.6] Voir Dire
- VII. [8.7] Methods of Jury Selection
- VIII. [8.8] Questioning
- IX. [8.9] Challenges for Cause
- X. [8.10] Peremptory Challenges
- XI. [8.11] Highly Publicized Cases
- XII. [8.12] Access to Juror Information
- XIII. [8.13] Selection of Alternate Jurors
- XIV. [8.14] Anonymous Jury
- XV. 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
- XVI. [8.24] Conclusion
- Chapter 9 — An Introductory Tour Through the Federal Sentencing Guidelines and Sentencing Procedures
- 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] Misrepresentation and Violation of Court Orders
- [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
- [9.38] Adequacy of Criminal History Category — Guidelines §4A1.3
- Part B — Career Offenders and Criminal Livelihood
- [9.39] Career Offenders — Guidelines §§4B1.1, 4B1.2
- [9.40] Criminal Livelihood — Guidelines §4B1.3
- [9.41] Armed Career Criminal — Guidelines §4B1.4
- 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
- [9.54] Offender Characteristics — Part H
- [9.55] Departures — Part K
- [9.56] Substantial Assistance — Guidelines §5K1.1
- [9.57] Other Grounds for Departure — Guidelines §§5K2.0 – 5K2.24
- VII. Chapter Six — Sentencing Procedures, Plea Agreements, and Crime Victims’ Rights
- VIII. [9.60] Chapter Seven — Violations of Probation and Supervised Release
- IX. [9.61] Conclusion
- Chapter 10 — Posttrial Motions in Federal Criminal Cases
- 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
- I. [11.1] Scope of Chapter
- II. [11.2] Remedy for State Prisoners — 28 U.S.C. §2254
- [11.3] Rules Governing Section 2254 Cases
- [11.4] Form of the Petition
- [11.5] Custody Requirement
- [11.6] Naming the Proper Respondent
- [11.7] Filing and Service
- [11.8] Preliminary Consideration by District Judge
- [11.9] Answer
- [11.10] Discovery
- [11.11] Evidentiary Hearing
- Standard of Review
- [11.12] Presumption of Correctness and Reasonableness
- [11.13] Harmless Error
- [11.14] Defenses to Habeas Corpus
- Failure To Exhaust State Remedies and Non-Cognizable Claims
- [11.15] Exhaustion
- [11.16] Federal Nature of Claim
- [11.17] State Remedy Inadequate or Unavailable
- [11.18] Discretionary Review
- [11.19] Mixed Petitions
- [11.20] Waiver of Exhaustion Defense
- Procedural Default
- [11.21] Independent and Adequate State Grounds
- [11.22] “One Complete Round” Default
- [11.23] Fair Presentment Default
- [11.24] Excusing Procedural Default — Cause and Prejudice/Fundamental Miscarriage of Justice
- [11.25] Nonretroactivity of New Rules of Constitutional Law (Teague Bar)
- [11.26] Definitions of “New Rule” and “Final”
- Successive Petitions
- [11.27] Distinguishing Successive Petitions from Abuse of the Writ
- [11.28] Statutes Governing Successive Petitions
- [11.29] Innocence as a Claim in Habeas Corpus
- [11.30] Appeals from Adverse Rulings
- III. [11.31] Remedy for Federal Prisoners — 28 U.S.C. §2255
- [11.32] Rules Governing §2255 Proceedings
- [11.33] Form of the Petition
- [11.34] Custody Requirement
- [11.35] Naming the Proper Respondent
- [11.36] Filing and Service
- [11.37] Preliminary Consideration by District Judge
- [11.38] Answer
- [11.39] Discovery
- [11.40] Evidentiary Hearings
- [11.41] Standards for Relief Under §2255
- Defenses to §2255 Motions
- [11.42] Failure To Exhaust Remedies
- [11.43] Procedural Default of Claims Brought Under §2255
- [11.44] Successive Motions
- [11.45] Appeals from Adverse Rulings
- IV. General Habeas Corpus Statute
- V. [11.53] Writ of Error Coram Nobis
- Chapter 12 — Appeals
- 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
- Hayley L. Altabef
Hayley L. Altabef
Hayley L. Altabef is an associate at Foley & Lardner LLP in Chicago, where she focuses on government enforcement defense and investigations. Altabef received her B.A. magna cum laude from Northwestern University and her J.D. from the University of Chicago Law School, where she was also a staff member on the Chicago Journal of International Law.
- 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 focuses on criminal defense. She is an adjunct professor at the University of Illinois College of Law and served as an appellate law clerk to the Honorable Daryl L. Hecht of the Iowa Court of Appeals (now of the Iowa Supreme Court.) Christiansen received her B.A. from St. Olaf College and her J.D. 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 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.
- 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 B.A. cum laude from Macalester College and his J.D. with honors from the University of Chicago Law School.
- 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.
- 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.
- 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 Chicago Bar Association and the National Association of Criminal Defense Attorneys. He was named a Super Lawyer in 2019. Hunter received his A.B. from the University of Michigan and his J.D. from the University of Michigan Law School.
- Carolyn Isaac
Carolyn Isaac
Carolyn Isaac is a senior associate at Michael Best & Friedrich LLP in Chicago, where she focuses on litigation. She is a member of the Chicago Bar Association and Illinois Bar Association. Isaac received her B.A. magna cum laude from Lafayette College and her J.D. cum laude from the University of Minnesota Law School, where she was a member of the Law Review.
- Ryan J. Lowry
Ryan J. Lowry
Ryan J. Lowry is an associate at Foley & Lardner LLP in Chicago, where he focuses on government enforcement defense and investigations. Lowry received his B.A. from Temple University and his J.D. magna cum laude from the University of Illinois College of Law.
- Johanes Christian Maliza
Johanes Christian Maliza
Johanes Christian Maliza is of counsel with Bensch, Friedlander, Coplan & Aronoff LLP in Cleveland, Ohio, where he focuses on white-collar defense and litigation. He previously was an Assistant Federal Public Defender for the Federal Public Defender’s Office for the Central District of Illinois in Springfield. Maliza received his B.A. from Stanford University and his J.D. from Harvard Law School.
- Mason E. Maney
Mason E. Maney
Mason E. Maney is an associate at Michael Best & Friedrich, LLP in Raleigh, where he focuses on litigation. Maney received his B.A. cum laude from Florida State University and his and J.D. cum laude from Florida State University College of Law.
- 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.
- 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 and white-collar issues. Silberman has been recognized as a Chambers USA Leading Lawyer in Healthcare, as an Illinois Rising Star and Super Lawyer, and as the Springfield Police Department, Narcotics Unit Prosecutor of the Year. He earned his B.A. cum laude from Brandeis University and his J.D. 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 B.A. with honors from Washington University in St. Louis and his J.D. magna cum laude from the University of Illinois College of Law.
Federal Criminal Practice 2023 Edition
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