Federal Rules of Criminal Procedure - 11 forward Flashcards
Can D enter plea reserving right to appeal?
Yes. with Gov’t consent.
Rule 11
What does a D need to prove to be released on bail while on appeal?
Clear & Convincing Evidence
1. D not likely to flee or pose threat;
2. Appeal raises substantial question of law or fact likely to result in reversal
Practice Note: get Gov’t to concur
Is it error for a judge to fail to address D personally during plea?
Yes. Reversible.
Review:
1. Failure - de novo;
2. Factual - “clearly erroneous”
Is failure of CRT to advise D of min. mand. harmful?
Yes.
What if judge fails to give D perjury admonishment under Rule 11?
Probably harmless.
What if judge fails to give warn of waiver of collateral attack means even if guidelines change?
Failure is plain error.
What if CRT fails to inquire as to voluntariness?
Reversal.
Can you modify sentence later if a plea agreement?
Yes. IF based on guidelines. So, good D lawyer, always puts on record that sentence based on guidelines, not just plea agreement
Freeman
Can D withdraw plea?
Yes. 5th Cir. Factors: 1. D asserts innocence; 2. Gov't prejudiced; 3. Amount of delay in D's withdrawal; 4. Withdrawal substantially inconvenience court; 5. Full assistance of counsel; 6. Original plea voluntary and knowing >6th Amend. right to counsel on hearing to withdraw plea
When must Rule 12 motions be filed?
pre-trial
What are Rule 12 motions?
- Defect in instituting prosecution;
- Defect in indictment (duplicity, multiplicity);
- Motion to Suppress;
- Sever;
- Discovery
What are the notice of evidence provisions of Rule 12?
Gov’t may give notice of evidence intended to use, so MTS can be held;
D may request evidence that would be available under Rule 16 so D can file MTS
Does the court have to decide pretrial motions?
Yes, unless “good cause” and court must state essential findings
D waives if not filed.
Does pretrial motion time impact Speedy Trial?
The time is not included in speedy trial calculations.
Do you need to raise venue pretrial?
No, because not an element.
What is not waived if not presented pre-trial?
- Double Jeopardy;
- SOL;
- Immunity;
- Jurisdiction;
- Failure to state offense
When must D file notice of alibi?
Rule 12.1
Within 14 days after Gov’t request
What must D alibi notice contain?
Rule 12.1
Place;
Time;
Witnesses (names, addresses, number)
When must Gov’t file alibi witness information?
Rule 12.1
14 days after receiving D’s notice:
Name, address, number of witnesses
Not victim, unless CRT says so
When does the alibi filing notice requirement expire?
Rule 12.1
Parties must update throughout trial.
What if CRT excludes alibi based on notice failure?
- Object to exclusion on Constitutional grounds 6th mend.
- Suggest lesser sanction;
- Make record of prejudice
What if D has insanity defense?
Rule 12.2
D must file notice with clerk
CRT shall grant order to examine D on Gov’t motion
What if D has mental condition defense?
Rule 12.2
D must notify Gov’t of expert testimony
CRT may order exam of D if Gov’t motion
What if mental condition notice in Capital case PUNISHMENT?
CRT must seal ordered exam until D says actually using expert in Captial (after guilt)
D must disclose expert reports and exam reports
What if exam ordered, but mental condition doesn’t become an issue?
D’s statements in exam are not admissible
What if D withdraws notice?
Cannot use report
What if D fails to make mental condition an issue?
Not cognizable on collateral attack
Should you use same Dr. for competency and insanity?
NO. D’s statements made for insanity that’s not used may come in for competency or at trial if mental health an issue.
What is the burden for an insanity defense?
CLEAR & CONVINCING Evidence
Despite 1895 case Davis
18 USC § 17 - Insanity defense
Can an expert give opinion as to whether D was able to form mens rea?
No. Exception to FRE 704
Expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.
What happens if D found “not guilt by reason of insanity”?
Rule 12.3
If also found to present “substantial risk of bodily injury or serious property damage” must be confined for treatment
To get out, D must show by preponderance of evidence that not a danger
What must D do for “Public Authority Defense”?
D must file notice like pretrial motion
What if D is working for an intelligence agency and wants to claim “Public Authority Defense”?
Rule 12.3
CRT must seal notice
What must D’s notice contain for Pub. Authority Def?
Rule 12.3
- Agency involved;
- Agency D acted for;
- Time D was acting for agency.
What must Gov’t do if get’s notice of Public Authority Defense?
Rule 12.3
1. Admit or deny 14 days after notice - No later than 21 days before trial
- Gov’et may request witnesses 21 days or more before trial
When must D provide witnesses for Public Authority Defense?
Rule 12.3
If Gov’t requests - 14 days after
When must Gov’t provide witnesses in Public Authority Defense?
Rule 12.3
If D gives statement of witnesses - 14 days after
When can joint trial be ordered?
Rule 13
If D or cases could’ve been joined under Rule 8
What cases can be joined at trial?
- Similar character;
- Same transaction;
- Common scheme.
When can Ds be joined at trial?
- Same transaction;
2. Same series of transactions
How does D get relief from prejudicial joinder?
D file Rule 14 motion requesting severance
Does a CRT have to severe trials?
Of course not. But may, or grant other relief.
What may the CRT require of Gov’t in determining Rule 14 severance?
Gov’t submit D’s statements for in camera inspection
What would be a typical severance situation (rare)?
- One offense is much more prejudicial than the other;
- One offense would NOT be independently admissible (Think 404b); and
- Not much overlapping evidence (no judicial economy because different evidence)
What should you argue in severance?
Makes cases too complex, jurors cannot compartmentalize
Doesn’t save time because not much overlap
What can you argue about priors in severance?
One case requires proof of priors SO other case is prejudiced
What is the MOST common reason for severance of cases?
D wishes to testify in Case 1 but not Case 2
What is MOST common severance for Ds?
Dumbass D1 confessed, but doesn’t intend to testify. So, D2 cannot cross-examine D1 about confession 6th A
Bruton ‘68
So, what if D1 confesses but doesn’t testify and D2 can’t cross in joined case?
- Harmless error;
- Both may confess;
- May not be issue if D1 not mentioned in confession;
- D1 confession not admitted, instead give pro se statement;
- Bruton doesn’t change co-conspirator exception
What if D1 will testify FOR D2?
Need affidavit from D1 that intends to testify and will exculpate D2
What are common alternatives to severance?
- Limiting instruction;
- Impanel separate jury;
- Redact portions of D1’s statement;
- Conduct trial in stages
What if Ds have irreconcilable defenses?
“Compromise specific trial right” but still judge’s discretion
Blame shifting is not enough though
Can you move to severe at trial?
Yes. If facts become known at trial, make Rule 14 motion
How do you preserve a Rule 14 severance denial?
Renew motion when prejudice presents itself OR YOU WAIVE!
What’s the review of a Rule 14 denial?
“Resulted in clear or compelling prejudice” AND outweighs Gov’t interest in joint trials
What if a witness is unavailable to COME to trial to testify?
Rule 15 - adjourn to take Depo. BIG 6th Amendment issue 1. Prospective witness unavailable; 2. Material; 3. Depo. would prevent failure of justice
What if witness is detained, so can’t come to trial?
Need exceptional circumstance if party requests depo.
Don’t need exception circumstance if witness requests depo.
What’re the objections to a deposition in trial?
- Confrontation Clause;
- FRCP 15(f) object to admissibility;
- FRE 804
- FRE 402
Which Federal rule applies to discovery?
Rule 16
- D oral statement’s IF Gov’t intends to use - must request
- D written/recorded statements - must request
- D’s prior record - upon request
- Documents & Objects - upon request (inspect)
- If material
- Gov’t intends to use in case in chief
- Gov’t obtained from D - Reports of Examination & Tests - upon request
- Expert Witness - upon request
- WRITTEN SUMMARY!! - opinion, bases, reasons, qualifications
Jencks Act 18 USC 3500 - statements of G witnesses
Is there reciprocal discovery?
If Gov’t complies - yes, for D case in chief NOT impeachment
What is a subpoena for “oral testimony” called?
Subpoena Ad Testificandum
What is a subpoena for “documents” called?
Subpoena Duces Tecum
What is the test for reviewing withheld exculpatory evidence?
“Reasonable Probability” of “Difference Verdict”
What must D show for “New Trial” based on discovery violation?
Substantial Prejudice
- Nature of Evidence
- How it bears on critical issue;
- Reason for violation;
- Strength of evidence;
- Timing of production.
On what basis do you challenge Venue?
Rule 18
Art. III Section 2 of U.S. Constitution
6th Amendment of Constitution
Trial in district of offense
So, can Congress pass a law that changes where venue is?
Can’t change “venue in district where crime committed” BUT can change what is considered “where crime committed”
What’s the Gov’t’s burden for Venue?
Preponderance of Evidence
Where is Venue for conspiracy?
Anywhere conspiracy is furthered
Where is venue for aiding and abetting?
May be where substantive crime occured
Where is venue for money laundering?
Where laundering occurred NOT place where underlying crime occured
Where is venue for crime on “high seas”?
Wherever D arrested
When do you object to Venue?
Always BEFORE verdict
- At close of Gov’t case if not apparent in Indictment;
- Object pretrial if clear from Indictment
How do you object Pretrial to Venue?
- File Bill of Particulars;
2. File motion to dismiss
What do you do if clear in Indictment, but Gov’t fails to prove?
- Move for judgment of acquittal Rule 29;
- Also, object to jury being improperly instructed on venue;
- Cite factors in Rule 18
Can D consent to transfer of venue?
Yes. If going to plea guilty (nolo contendre)
Written request
Gov’t agrees
Can a juvenile case transfer venue?
Yes. If CRT, D counsel, and Gov’t agree and JUV is warned
Can a case be transfered for sentencing?
No.
How many jurors?
12
11 once jury retires (for good cause)
How is Voir Dire conducted?
CRT examines
MUST allow: 1. parties to examine; or 2. parties submit proper questions
How many peremptory challenges does each side get?
Capital 20
Felony Gov’t 6 and D 10
Misd. 3
How many alternates?
Up to 6
What must CRT instruct if alternate juror joins?
Deliberation must begin “anew”
How many peremptory challenges are added for alternate jurors?
1 or 2 then 1
3 or 4 then 2
5 or 6 then 3
How do you challenge jury panel?
“Fair Cross Section” Challenge:
1. excludes distinctive group;
2. not fair representation compared to community;
3. caused by systematic exclusion
(compare population stats to juror stats)
When must you challenge the jury panel?
Before Voir Dire
7 days of discovery with due diligence
Can a magistrate conduct Voir Dire?
Yes, but D may object.
Does the CRT ever have to individually voir dire?
Yes. 5th Cir. on “prejudicial matters”
Can the CRT substitute juror in penalty phase of capital case?
No, must object.
When can a new judge take over?
Upon judge’s death, sickness, or disability
AND new judge certifies familiar with trial record
Usually courts grant mistrial
When must party turn over witness statements?
Rule 26.2
Upon motion after witness testifies
Jencks Act 18 USC 3500
Receiving party gets to review
What if party fails to turn over?
Rule 26.2
- D - then CRT must strike testimony;
- Gov’t - then CRT must grant mistrial “if justice so requires”
What is considered a statement?
Rule 26.2 Under Jencks Act 1. Written or adopted; 2. Substantially verbatim recording/writing 3. Testimony at Grand Jury
When does duty to provide statements apply?
Rule 26.2
- trial;
- prelim hearing;
- Sentencing;
- Revocation;
- Detention Hearing;
- Rule 8 & 28 USC 2255
What about interview notes?
Gov’t MUST produce IF:
- Witness reads (hears) notes entirely;
- Witness formally and unambiguously approves (orally or in writing)
Does a summary after an interview constitute a statement?
No.
What must happen before judge grants a mistrial?
Allow D and Gov't to speak on the matter Party may: 1. Object; or 2. Suggest alternative. !!! D that consents generally waives Double Jeopardy complaint
What rule applies to judgment of acquittal?
Rule 29
When must CRT grant judgment of acquittal?
Rule 29
If evidence insufficient for conviction and moved for at: close of Gov’t case; Close of evidence
You don’t waive by putting on evidence - if didn’t move for Rule 29 then your evidence gets considered
Does the CRT have to rule immediately on Rule 29?
No, but can only consider evidence at time of motion.
When can D renew Rule 29 motion?
14 days after verdict (this can be first time motion made)
What must CRT do if grants Rule 29 AFTER verdict?
Make a preliminary ruling on whether a new trial should be required
What is the standard for Rule 29 motion?
“There is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt”
What if Gov’t did a bad job and you move for Rule 29?
CRT can allow to reopen
If judge grants a partial Rule 29 motion, what should you do?
Request mistrial on prejudice cause by joinder
What should you do if you put on evidence after Rule 29 motion?
RENEW motion
What can Rule 29 be granted for?
Insufficient Evidence or Trial Error (appealable)
How do you frame closing argument objections?
“Fair Trial” and “Misconduct”
Which rule pretains to jury instructions?
Rule 30
When should you request jury instructions?
Limiting Instructions - at time of objection;
Jury Charge - at close of evidence
When can court give jury instructions?
Before or after argument
Do federal charges define “reasonable doubt”?
They can, and can define presumption of innocence
Is it reversible error if CRT excludes 5th A instruction?
Yes, if D objects
How does the rule work for jury instructions objections?
Rule 30
Must make specific objection before the jury retires. Court must allow objection outside presence of jury. CRT must allow other party opportunity to respond.
Can the judge comment on evidence?
Yes, but not suggest an opinion of guilt.
Does judge have to profer entire charge?
No.
What if judge gives different charge than profered to parties?
D must show:
- Prevented him from making argument; OR
- Substantially misled in formulating argument.
D must object AGAIN if presented charge is still objectionable
Which rule controls jury verdict?
Rule 31
Explain how verdict returned:
Rule 31
- Unanimous verdict in open court;
- May return verdict as to any D at any time;
- May return verdict on some counts, and hang on others;
- D may be found guilty of: less, attempt, attempted lesser;
Does federal judge have to poll jurors?
Yes, Rule 31, if party requests.
Must not continue polling if juror expresses lack of unanimity
May not pressure desenting juror
What must the jurors be unanimous on?
“Factual Elements” only
Does 6th Amendment require unanimous verdict?
Yes in Federal
No in State.
How should “elaboration” on verdict be handled?
Should disregard, unless cast doubt on unanimity
What if a juror expresses a reasonable doubt?
5th Cir. - Order to: (1) continue to deliberate; or (2) dismiss
What if jury asks if partial verdict is OK?
Court should instruct:
- Partial verdict permissible;
- Mat wait until all deliberation complete; AND
- any reported verdict cannot be reconsidered.
What is the “lesser included” test for federal cases?
Schmuck Elements Test - elements must be included in the statute NOT conduct proved at trial
What if verdict reached on some counts, but not on others?
Rule 31
Mistrial on some counts, not on others
When must the CRT sentence?
Rule 32
without ‘unnecessary delay’
Must a presentence report be prepared?
Yes, unless “Special hearing to determine whether a sentence of death is justified” 18 USC § 3593, or other statute; OR
CRT makes finding that it may meaningfully exercise it’s sentencing authority under 18 U.S.C. 3553, AND the court explains that on the record.
Is restitution included in presentence report?
Yes, if law allows restitution, it’s mandatory.
Can attorney go to PSI interview?
Yes, if D counsel requests, must give notice and reasonable opportunity to attend interview.
What must a PSI report do?
Rule 32
- Identify all applicable SG and policy statements;
- Calculate offense level and crim. his. cat.;
- State resulting range and “kinds of sentences available”;
- Identify factors relevant to: kind of sentence; or appropriate sentence in range;
- Identify basis for departing from applicable range.
What must the PSI CONTAIN?
A. D's characteristics: 1. crim hist. 2. financial condition; 3. important behavior B. Victim Impact; C. Restitution; D. Statement of Forfeiture E. Court ordered study F. Non-prison report; G. 3553 factors
What must the PSI report exclude?
- any diagnosis that may disrupt rehab;
- any sources promised confidentiality;
- Information that might result in harm to D or other
When can PSI be disclosed?
Rule 32.
AFTER “Guilty”
When does D attorney get PSI report?
35 days before sentencing
Is the recomendation of the officer included in the report?
Rule 32.
CRT, or local rule, may order that recommendation be only disclosed to CRT
When do objections to PSI report have to be filed?
Rule 32.
14 days after getting report
Must be served on parties and PO
What happens with report after sentencing?
Rule 32.
PO may meet with parties for further investigation;
PO must RE-submit report 7 days before sentencing
When must PSI report be submitted?
Rule 32.
Initially, 35 days before sentencing;
After objections, 7 days before sentencing.
What must judge do before departing?
Give 1. Notice & 2. Reason for considered departure
What must CRT do regarding PSI before sentencing?
Verify D and D’s attorney have read and discussed PSI report
What must CRT do if it intends to use information not contained in the PSI report?
Give notice: written or in camera
Do parties have an oppotunity to comment on report?
Rule 32
Yes. CRT must let.
Can parties object after the 14 day limit on objections?
Rule 32
Yes, only for “good cause”
Are parties entitled to give live testimony on objections to PSI?
Rule 32.
No, CRT MAY allow.
Rule 26.2 applies
In objections to the PSI, what must the CRT rule on?
Any disputed fact, UNLESS no affect or not considered
What must CRT do with its sentencing “determination”?
Append to report for Bureau of Prisons
Who has an opportunity to speak at sentencing?
CRT must allow:
- D’s attorney;
- D
- Gov’t
- Vic. if present
CRT must address D specifically about speaking. Cannot suggest mere formailty.
Must the CRT admonish about appeal?
Rule 32
- If plea “NG” right to appeal;
- ANY right to appeal;
- Right to appeal “in forma pauperis”
Who files notice of appeal?
Rule 32
If D requests, the Clerk shall immediately file “notice of appeal” on D’s behalf
In addition to term and type of sentence, what else does PSI determine?
- Furloughs,
- Level of custody;
- Programs available;
- Type of supervision
Is D confined after finding of guilt?
IF SG is for imprisonment, Rule 46 & judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community
18 U.S.C.A. § 3143 (West)
What are the aggravating presentence release circumstances?
(A) a crime of violence or terrorism - 10 + sentence;(B) sentence is life imprisonment or death;
(C) CSA 10+ sentence;
(D) 2 or more priors of above; or
(E) minor victim;
(F) possession or use of a firearm or dangerous weapon;
(G) failure to register
18 U.S.C.A. § 3142 (West)
What must be found for release if aggravating circumstances of conviction awaiting sentencing?
substantial likelihood:
Motion for acquittal or New trial; or
(ii) an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person; and
(B) the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community.
Does D get credit for time while awaiting sentencing?
Yes.
Does D get credit if in State custody?
If it is established D was held due to Fed. charge
Is D likely to get “double credit” for state and Fed time?
No.
What should PSI do if sex offense?
Notice of registration
What happens if CRT doesn’t allow D to object to PSI?
D must show “prejudice” - longer sentence based on factual inaccuracies
What should you do if CRT resights more specific findings than in PSI?
Object or waive.
Can D get Co-D report?
Test is: Does mitigating, exculpatory, or impeachment evidence outweigh value or need for confidentiality?
What is a “Departure”?
Non-Guideline sentence USING Guideline framework
What is a “Variance”?
Non-Guideline sentence USING 18 USC 3553(a)
Does CRT have to give notice of Departure?
Under Rule 32
No, if Guideline grounds in PSI or prehearing submissions
HOWEVER, SG 6A1.2 - states a hearing on disputed factors
BE SURE to explain this to your client
When must CRT rule on objections to PSI?
Not at hearing BUT before sentence
5th Cir. requires WRITTEN determination on controverted matters
What should you do at sentencing for deportable aliens?
ALWAYS move for recommendation against deportation
Code moved in June
Where must initial appearance be for motion to revoke or modify?
Rule 32.1
- If D in custody in district of violation - THERE;
- If D in other district - there OR adjacent if more prompt
What must MAG advise at Initial Appearance for motion to revoke?
Rule 32.1
- Alleged Violations;
- Right to Preliminary Hearing under 32.1
- Right to counsel
If D arrested in district without jurisdiction, what should Initial Appearance on motion to revoke do?
Rule 32.1
- If violation occurred in dist. of arrest - transfer if P.C., dismiss if No P.C.
- If violation occurred in other dist. - CRT transfer IF Gov’t produces certified (e-copy OK) judgment, warrant, AND warrant application
May a person be released pending hearing on motion to revoke?
Rule 32.1
Yes, if prove by clean & convincing evidence no risk of fleeing or danger
What hearings is a D entitled to if motion to revoke filed?
- Initial Appearance;
- Preliminary Hearing;
- Revocation Hearing.
NOTE: Prelim and Initial can be combined
When must a preliminary hearing be held on motion to revoke?
“prompty” to determine P.C.
What are the requirements of the Preliminary Hearing?
- Must be recorded;
- MG give notice of: hearing purpose; notice of violation; and right of counsel.
- Opportunity to be heard;
- Upon REQUEST opportunity to question witnesses UNLESS MG determines in “interest of justice” doesn’t require (mostly to protect informants)
NOTE: D must request Witnesses be present
When is a Preliminary Hearing NOT required on a Motion to Revoke?
If D held on State charges, too.
When must a Revocation hearing happen?
“reasonable time”
What’re D’s rights at revocation hearing?
- Written notice of violations;
- Disclosure of evidence against him;
- Opportunity to appear
- Opportunity to present evidence
- Opportunity to question witness (unless interest of justice)
- Notice of right to counsel
- Make statement and mitigate
What can prompt a “modificatoin” of probation?
- Violation;
- Change in circumstance;
- Innovation in treatment
Does Jencks Act apply to revocation hearings?
Yes. Rule 26.2
How long does CRT maintain jurisdiction for revocation?
“Reasonable Time”
Can be years, if waiting on trial of new offense
Is there a mandatory revocation situation?
Yes. “Possession of Illegal Drugs” SHALL revoke, minimum 1/3 sentence
Can Magistrate do a revocation hearing?
Not in 5th Cir.
What is the standard of review for revocation hearings, and common issues?
Abuse of Discretion
- Unreasonable delay
- Circumstances inherently misleading;
- Failure to pay without finding of non-indigency
Where is the criminal forfeiture provision?
Rule 32.2
What is required for notice of forfeiture?
Rule 32.2
Notice must be in Indictment (Information)
>Should not be a count;
>Need not identify property
What should you do if forfeiture notice doesn’t identify property?
File for Bill of Particulars
When is forfeiture issue tried?
Rule 32.2
After “guilty” - CRT has to identify property
Who determines property that is forfeited?
Rule 32.2
The CRT
What happens when CRT determine property is subject to a forfeiture hearing?
Make a Preliminary Order so A.G. can seize
When should CRT enter forfeiture order?
If practical, before sentencing
When is forfeiture order final?
At sentencing, but not as to 3rd parties
Can a jury decide forfeiture?
Yes, submitted by special verdict form.
If jury to be retained, must be determined PRIOR to deliberation
When does appellate deadline run on forfeiture order?
When judge enters final order as to D, so sentencing. 3rd Party is seperate
What happens to forfeiture order while D appealing verdict?
CRT may stay
What if Gov’t discovers property that is not in the order?
They can move to amend at any time.
No jury required.
What rule governs Motion for New trial?
Rule 33
When must a Motion for New Trial be filed?
14 days
Unless for newly discovered evidence 3 years
Can the CRT grant an extension for filing of Motion for New Trial?
Yes, but NOT retroactively
What grounds may you file a motion for new trial?
- Interest of Justice;
2. New evidence
How is the requirement for motion for new trial different from Texas as it relates to appeal?
It must state grounds for appeal or WAIVED
Is there a right to counsel for Motion for New Trial?
Yes, for 14 day filed motion
NOT for 3 year motion, “new evidence”
CRT’s discretion on “3 year
What are proper grounds for “interest of justice” Motion for New Trial?
- Misconduct - judge, jury, counsel;
- Improper Allen Charge
- Improperly admitted evidence if “reasonable possibiltity” would influence verdict;
- Verdict against weight of evidence;
- Brady
If “misconduct” is proved at Motion for New trial, what happens?
“Misconduct” is presumed prejudicial, so Gov’t must prove harmless
What happens if motion for new trial based on juror misconduct?
Conduct a “Remmer” Hearing
Evidenciary hearing on EXTERNAL influences only
Burden shifts to Gov’t if D shows “likelihood” of prejudice
How is “Misconduct” motion for new trial reviewed on appeal?
Abuse of Discretion
D must show “more probable than not” misconduct affected verdict
De Novo if D says CRT applied wrong standard
Why should you be sure to distinguish Rule 29 motion from Motion for New Trial on “Greater Weight”?
Rule 29 court cannot consider credibility
MNT court can
How is motion for new trial based on Brady decided?
D must show:
1. Gov’t failed to disclose;
2. Exculpatory;
3. “Material” meaning “reasonable probability that undermined the outcome”
UNLESS deliberately withheld, then 1. “might” have affected IF D requested; or 2. “sufficient to create reasonable doubt” IF D did NOT request
What if motion for new trial is based on perjury ?
This is new evidence.
- If Gov’t knew or should have known: granted if perjury MIGHT have affected verdict;
- If Gov’t didn’t know: grant if most likely NOT convicted if perjury exposed
What’s the standard for evaluating “materiality” for Brady purposes?
If not deliberate:
“reasonable probability that undermined the outcome”
If deliberately withheld, then
- “might” have affected IF D requested; or
- “sufficient to create reasonable doubt” IF D did NOT request
What if you discover new evidence more than 3 years after judgment?
28 USC 2255
or Writ of Error Coram Nobis
What is a writ of coram nobis?
A petition for a writ of coram nobis provides a way to collaterally attack a criminal conviction for a person, like Chaidez, who is no longer “in custody” and therefore cannot seek habeas relief under 28 U.S.C. § 2255 or § 2241.
It brings new evidence before court
Where is protection for writ of habeas corpus protected in U.S. Constitution?
Art. 1 Section 9
When can a court grant a motion arresting judgment?
Rule 34
- Indictment fails to state offense;
- CRT doesn’t have jurisdiction;
If could’ve been raised earlier in Rule 12 or 7, CRT should deny
When must you file a motion to arrest judgment?
within 14 days of judgment
Does motion to arrest judgment toll appellate deadline?
Yes.
When can the CRT correct a sentence?
Within 14 days
arithmetic, technical, or clerical error
Under which rule can Gov’t move to reduce sentence based on substantial assistance?
Rule 35
What’s the deadline for Rule 35 motion?
1 year, or after if:
- D didn’t know information until after 1 year;
- D’s information was not useful until after 1 year;
- It wasn’t “reasonably apparent” D’s information would be helpful until after 1 year
What is the relief a D can seek if Gov’t refuses to file Rule 35?
Mandamus if for unconstitutional purpose
28 USC 2255 - writ
28 USC 3742 - appeal
What is considered “sentencing” under Rule 35?
Oral pronouncement
When can a clerical error be corrected?
Rule 35 - within 14 days, no notice
Rule 36 - anytime after appropriate notice
When does D have to file notice of appeal?
Within 14 days (from judgment or Gov’t notice of appeal) FRAP 4
When does Gov’t have to file notice of appeal?
Within 30 days (from judgment or D’s notice) FRAP 4
Which motions “toll” the deadline for D to file appeal?
D must file notice of appeal 14 days after order on:
Rule 29 - Judgment of Acquittal
Rule 33 - Motion for New Trial
Rule 34 - Motion for Arrest of Judgment
Can you get an extension to file notice of appeal?
Yes. Up to 30 days if CRT finds “excusable neglect or good cause”
Does a motion to correct the sentence toll the notice of appeal deadline?
No. Rule 35(a) motions DO NOT
What is considered “entry” of judgment or order?
“entered on the criminal docket”
Special rule for inmate filing notice of appeal?
Mailbox Rule for Institutions mailbox
When does Gov’t have to file notice of appeall if inmate files notice?
30 days after later of:
- Entry of judgment;
- Entry of D’s notice of appeal on docket
What is an “Indicative Ruling”?
Court enters a ruling when it doesn’t have jurisdiction to INDICATE what it would or intends to do Rule 37
What kind of motions would an “Indicative Ruling” most often be used for?
After CRT has lost jurisdiction because of appeal:
Rule 33 (Motion for New Trial) - based on new evidence
Rule 35(b) (Motion to Reduce Sentence)
18 USC 3582 - modification of sentence (Bureau of Prisons motion - extraordinary circumstance, 70 year old with 30 years served)
What can a CRT do when a motion is filed after it loses jurisdiction?
Rule 37
- Defer consideration;
- Deny motion;
- Make a statement it would grant motion on remand
What must the movant do if filing motion after CRT loses jurisdiction while on appeal?
Promptly notify circuit clerk under FRAP 12.1 of filing
What must counsel do after filing notice of appeal?
File “Representation Statement” FRAP 12
Identifying parties represented
What can the appellate court do upon notice of indicative ruling indicating district court would grant motion?
- Dismiss appeal;
2. Remand and retain jurisdiction of appeal
If appellate court remands, what must party do if district court has made ruling on remand?
“Promptly” file notice of ruling with appellate court FRAP 12.1
When may appellate court remand after indicative ruling?
If District Court says it would GRANT or motion raises SUBSTANTIAL issues
FRAP 12.1
When is stay of death mandatory?
Pending appeal Rule 38
When is imprisonment stayed?
FRAP 9 - D released
Is probation stayed on appeal?
It MAY be
Are “disabilities” stayed on appeal?
Rule 38 - District or Appellate court MAY stay
Who has jurisdiction for D’s detention while on appeal?
Rule 38 - Dist. Court under Rule 9
However, D may file motion in appellate court if Dist. Crt. detains OR appeal from order of detention
What must D do to be released pending appeal?
Rule 46(C)
Prove by Clear and Convincing Evidence:
1. Not likely to flee;
2. Wont endanger safety;
3. Appeal not for delay;
4. Appeal raises substantial issue of fact or law;
5. Likely to result in reversal, new trial, no imprisonment, or reduction
May D be released if Gov’t appeals dismissal?
D is treated like pretrial releasee
What should you alwas do if D is detained pending appeal?
File Rule 38(b) asking D be imprisoned close by for assistance on appeal
Who may issue search warrant for person or property IN DISTRICT?
Magistrate with authority of district judge - if one not readily available then State judge in court of record
Who may issue warrant if property IN DISTRICT but might move OUTSIDE district?
Magistrate with authority of dist. judge
Who has authority for search warrant for terrorism?
Magistrate (not necessary dist. judge powers)
person or property in or out of district
Who can issue search warrant out of districts or states?
Magistrate with Dist. Judge authority
What may a search warrant be issued for?
- Evidene of crime;
- Contraband;
- Instruments;
- Persons (to be arrested or that are unlawfully restrained)
Does a Federal search warrant need an affidavit?
No, not if magistrate takes RECORDED testimony and it’s reasonable under the circumstances
Must file record with clerk
When must a warrant be executed?
Speficied time - no longer than 14 days
Daytime - 6AM to 10PM
How does warrant deadline apply electronically stored information?
14 days applies to time of seizing or copying NOT analysis
What are the requirements of a warrant for a tracking device?
- Identify person or property to track;
- Designate magistrate to whom it must be returned;
- Time must not exceed 45 days (multiple extension of 45 days for “good cause”)
- Warrant must command:
i. Complete installation within 10 days
ii. Daytime installation (unless good cause)
iii. Return warrant to designated judge
What must officer do when executing warrant?
- note exact time;
- Prepare sworn inventory;
- Give receipt;
- Return promptly
What is required for warrant inventory?
Prepare in presence of other officer AND person from whom property taken
If either cannot be present, other credible person
What is required for inventory of electronic information?
Just describe devive info is taken from
May retain copy
What must officer do upon execution of warrant for tracking device?
- Note exact time;
- Return within 10 days;
- Within 10 days after use of tracking, serve person with warrant
What can you do if your client’s property is seized?
Move for return of property under Rule 41
What rule for search warrant?
Rule 41
NOTE: does not impact admissiblity
What’s the statute of limitation on motion to return property seized because of warrant?
6 years
Does Rule 41 apply to State warrants?
No. But argue Fed. involvement
What constitutes “Evidence of Crime” for purposes of warrant?
P.C. that would aid in particular apprehension or conviction
What if something changes before execution of warrant?
Law enforcement must notify Magistrate of material change
Is hearsay OK in affidavit?
Yes, but source should be identified.
How is “informants” reliability established?
- Number of times truthful;
- Corroboration;
- Against penal interest
How specific should a warrant be?
Leave NO discretion to police officers
Reviewed De Novo
Do officers have to “knock and announce”?
Yes, but “No Knock” if:
- Cause danger;
- Cause destruction of evidence;
- Futile
When does Federal Exclusionary Rule NOT apply?
- Warrant obtained and issued in good faith;
- Warrant defect clerical;
- “Inevitable Discovery Doctrine” Nix ‘84
- “Independent Source Doctrine” Segura ‘84
- Rule 41 Violation UNLESS showing of prejudice
When may you go “behind” the warrant?
Franks v. Delaware Hearing
- Affidavit contains misrepresentations of material fact;
- Affidavit contains intentional or reckless misrepresentations
What’s the review for Franks v. Delaware hearing?
Whether hearing granted - De Novo
Decision at Hearing - “clearly erroneous”
How can you get notice of Criminal Contempt?
- Open Court;
- Notice to Show Case;
- Notice in Arrest Order.
What must notice of Criminal Contempt contain?
- Time & Place of Trial
- Reasonable time to prepare;
- State essential facts
- Identify as Criminal Contempt
Do you have a right to jury trial?
Yes, unless “petty” meaning 6 months jail
What state of mind is required for contempt?
Reckless or willful
When is D not required?
- If organizational defendant and counsel present
- Misd. < 1 year - D consents in writing and CRT permits video
- Conference on legal question
- Sentence correction
Can a pretrial motion to suppress be held by video conference?
Yes.
Does Rule 43 provide same protection for D’s presence as 5th and 6th Amendment?
It provides more. It only requires “prejudice’
How is “joint representation” reviewed?
On appeal D must show;
1. Conflict of interest;
2. Failure to warn.
THEN
Gov’t must show absence of any likelihood of prejudice
(Reversal may be automatic if objection and no hearing)
What is the requirement for “waiver of counsel”?
Magistrate must conduct “searching inquiry into attempted waiver of counsel” or invalid ‘
Giles ‘48
If CRT grants hearing on “joint represenation” objection what must D show?
- Actual conflict;
- Conflicted affected attorney’s representation
Rule 44 provides more protection
What does 6th Amendment require for “joint representation” objections?
No hearing
D must bring to CRTs attention if not readily apparent
On appeal D must show ACTUAL conflict
Rule 44 provides more protection
How are days computed?
- Exclude day that “triggers”
- Count weekends and holidays;
- Include last day (or next working day)
How are hours computed?
- Immediately on trigger;
- all hours
- Period runs until “same time” on next work day if falls on Sat, Sun, or holiday
What if clerk’s office is closed?
Unless CRT orders otherwise:
- Time extends until clerk’s office is accessible;
- Time extends until “same time” on day accessible
When does the last day end for computing deadlines?
“last day” unless rule says otherwise, midnight
What is the standard for extension of time on deadline?
- “Good Cause” if before expires;
2. “Excusable Neglect” if after expires.
What does 6th Amendment require for “joint representation” objections?
No hearing
D must bring to CRTs attention if not readily apparent
On appeal D must show ACTUAL conflict
Rule 44 provides more protection
How are days computed?
- Exclude day that “triggers”
- Count weekends and holidays;
- Include last day (or next working day)
How are hours computed?
- Immediately on trigger;
- all hours
- Period runs until “same time” on next work day if falls on Sat, Sun, or holiday
What if clerk’s office is closed?
Unless CRT orders otherwise:
- Time extends until clerk’s office is accessible;
- Time extends until “same time” on day accessible
When does the last day end for computing deadlines?
“last day” unless rule says otherwise, midnight
What is the standard for extension of time on deadline?
- “Good Cause” if before expires;
2. “Excusable Neglect” if after expires.
When must motions and notics be served?
Rule 47
7 days before hearing - including affidavits
Opposing party must serve affidavits 1 day before hearing
Can Gov’t dismiss a case pretrial?
Rule 48
Yes, with leave of CRT
Can Gov’t dismiss a case during trial?
Rule 48
Yes, with D’s consent
Can the CRT dismiss a case?
Rule 48 Yes, if unnecessary delay: 1. presenting to GJ 2. filing an Information; 3. Bringing case to trial
Can Gov’t dismiss counts?
Rule 48
Yes, CRT has little discretion
CRT must dismiss unless “clearly contrary to manifest public interest” (i.e. dismissal in bad faith)
When does a disissal under Rule 48 bar prosecution?
Bad Faith + Prejudice = dismissal with prejudice
What are the Barker v. Wingo Factors?
- Duration of Delay (starts with “accusatorial act”)
- The Cause for Delay;
- D demand for speedy trial;
- Prejudice to Case on Merits
AND other factors
What is the appropriate objection for delay in arrest or prosecution?
Not 6th A. Speedy Trial - rather Due Process
What are you looking for in Speedy Trial situation regarding prejudice?
- Impact on mental health;
- Impact on livelihood;
- Prejudice presumed if protracted delay;
Zedner ‘06 - Speedy trial is not just for D, but also public interest in efficient justice
What kinds of errors are there in FRCP?
Rule 52
Harmless Error - doesn’t affect substantial right
Plain Error - plain, and affects substantial right
What is the test for Plain Error?
Pucket Test
- Error;
- Plain;
- Substantial Right;
- Serious affect on integrity and fairness
What are “structural errors”?
Errors that automatically satisfy the “Substantial Right” prong of plain error review
Are cameras or video records allowed in federal court?
NO. Rule 53
However, 42 USC 10608 - if prosecution is 350+ miles away then CRT must make available closed circuit TV for those with compelling interst - result of OK City Bombing
Can a magistrate take a “petty” offense plea if D objects to magistrate?
Yes. Rule 58
However, can appeal to District Judge within 14 days, but not de novo
Can a magistrate take a plea on misdemeanor if D objects?
No.
What may be referred to magistrate?
All petty offenses
Any other case, anything that does not “dispose of the case”
Magistrate may have hearing and “recommend” on dispositive matter, but if object in 14 days considered de novo
When must you object to referral to magistrate?
within 14 days of order
