defense practice federal criminal to (fax: 518-465-3249) 2015 cle... · lisa peeblesis the federal...

Federal CriminalDefense Practice

SeminarPresented by

The Office of the FederalDefender for the Northern

District of New York and theNew York State

Defenders Association

Tuesday, May 12, 20158:30 am–4:40 pm

Genesee Grande Hotel1060 E. Genesee St.Syracuse, NY 13210

7.5 CLE Credits

MCLE CreditNYSDA has been certified by the NewYork State Continuing Legal EducationBoard as an Accredited Provider of con-tinuing legal education in the State of NewYork (2013–2016). This nontransitionalprogram has been approved in accor-dance with the requirements of theContinuing Legal Education Board for amaximum of 7.5 credit hours. No CLEcredit may be earned for repeat atten-dance at any accredited CLE activity with-in any one reporting cycle.R

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8:00-8:30 am Registration8:30-8:35 amOpening Remarks — Lisa Peebles, Esq.

8:35-8:45 amCJA Update — Lee Greenstein, Esq.

8:45-10:00 amPut a Ph.D. On It—Using SocialScience at Sentencing — Denise C.Barrett, M.S.W., J.D.

10:00-10:15 am Break10:15-11:30 amIdentifying and Working with MentallyIll Clients — David Freedman, Ph.D.and Sean Bolser, Esq.

11:30 am-12:20 pmNDNY, Federal Criminal Pre-TrialMotion Practice — Lisa Peebles, Esq.

12:20-1:30 pm Lunch (on your own)1:30-2:45 pmPreserving Issues for Appeal — BarryFisher, Esq. and Molly Corbett, Esq.

2:45-3:00 pm Break3:00-3:50 pmSheer Madness—From FederalProsecutor to Prisoner — AndrewMcKenna and Gene Primomo, Esq.

3:50-4:40 pmThe Modern Lawyer: Introduction toComputer Forensics — JuanRodriguez, Esq.

Denise C. Barrett is a National SentencingResource Counsel for the Federal Public andCommunity Defenders. She represents Defenderinterests on matters of federal sentencing policy,consults with defense counsel on a variety of sen-tencing matters, and provides information andtraining primarily on matters related to sentenc-ing mitigation and correctional practices. Denise

earned her J.D., summa cum laude, in 1989 fromthe University of Baltimore School of Law; aM.S.W., magna cum laude in 1983 from theUniversity of Maryland School of Social Work.

Sean Bolser is an attorney with the FederalCapital Appellate Resource Counsel Project. Seangraduated from Harvard College and from theNew York University School of Law. Sean’s capitaldefense practice has run the gamut from state andfederal trial-support and appellate representationthrough state post-conviction and federal habeascorpus proceedings. From 2000 through 2005, heworked as a deputy defender with the New YorkCapital Defender Office. After the New York Courtof Appeals invalidated New York’s death penaltystatute, he served, from 2005 to 2009, as a deputyfederal public defender in the Capital Habeas Unitof the Office of the Federal Public Defender in LosAngeles, California.

Molly Corbett is a Research and WritingAttorney with the Office of the Federal PublicDefender in the Northern District of New York.She has been with the office since its creation in1999. Prior to joining the FPDO, she was withthe New York State Capital Defender Office aftergraduating from Albany Law School. She regu-larly practices in the Second Circuit Court ofAppeals, briefing and arguing cases on appeal.She also provides research and writing supportfor specific issues on the district court level. Shecan be reached at [email protected].

Barry Fisher serves as Federal Capital AppellateResource Counsel, a position he has filled since itwas created in September 2008. Barry has workedfull-time for almost 25 years representing defen-dants facing the death penalty, principally ondirect appeal. He is a graduate of Harvard Collegeand Harvard Law School. In 2007, he was co-counsel in People v. Taylor in the New York Courtof Appeals, which brought an end to the deathpenalty in New York. Mr. Fisher has also taughtcourses on Appellate Litigation and Capital Pun-ishment Law at Albany Law School.

David Freedman works as an expert consult-ant to defense teams in capital trials, providingassistance on recognition of mental healthsymptoms; diagnostic and cognitive functioningtesting and evaluation, including evaluating thereliability and validity of scientific and psycho-metric assessment tools; preparation and pres-entation of scientific evidence; and more gener-

ally, guidance and supervision on the investiga-tion of neurodevelopmental psychopathologyand bio-psychosocial, multi-generational socialhistory. David obtained his Ph.D, at ColumbiaUniversity’s Mailman School of Public Health inEpidemiology, having been awarded an NIMHFellowship in Psychiatric Epidemiology. He ob-tained an Sc.M. from the Harvard School ofPublic Health in 1999.

Andrew McKenna is a former federal prosecu-tor and private attorney, Mr. McKenna ended upserving 60 months in Federal Bureau of Prisonsfor committing a string of bank robberies. Hewill discuss his journey into prison, how hemaximized his time there and stayed out ofharm’s way, and his transition back into the realworld. His experience, having been on bothsides of the criminal justice system, will shinelight on some concepts foreign to criminaldefense attorneys, and perhaps assist them inserving their clients. Andrew has recently pub-lished his memoir, Sheer Madness: From FederalProsecutor to Federal Prisoner.

Lisa Peebles is the Federal Public Defender forthe NDNY. Lisa has been with the Office of theFederal Public Defender since its creation in1999. Prior to being the Federal Public Defender,Lisa was the first Assistant Defender, managingthe Syracuse office.

Gene Primomo graduated from the Universityof Tulsa College of Law in 1986. He practiced asan Assistant United States Attorney in the East-ern District of Oklahoma, and was a partner inthe Law Firm of Wilcoxen & Primomo beforejoining the Federal Public Defender’s Office inthe Northern District of New York in 1999.

Juan Rodriguez joined the Federal PublicDefender Office in Syracuse, NY in 2012, work-ing primarily on e-Discovery coordination andimmigration. Before joining the Federal De-fender office, he worked with the Division ofImmigrant Policies and Affairs at the NYSDepartment of Labor, where he specialized inemployment-based immigration. He receivedhis JD from Villanova University School ofLaw where he served as an editor of the Villa-nova Environmental Law Journal; and a BS/BAfrom Boston University School of Management.He is a member of the New York and New Jerseystate bars.

P R O G R A M

S P E A K E R S

Using Social Science at Sentencing1 Recent research in criminology and other related social and behavioral sciences provides empirical evidence relevant to the purposes of sentencing. Below is a sampling of some of the research that may be helpful.

1. Age A. The “Age-Crime Curve”: “It is well established that antisocial and criminal activity

increases during adolescence, peaks around age 17 (with the peak somewhat earlier for property than for violent crime), and declines as individuals enter adulthood.” Gary Sweeten et al., Age and the Explanation of Crime Revisited, 42 J. Youth & Adolescence 921 (2013).

B. The “age-crime curve” applies across offense type. See Melissa Kearney et al., The Hamilton Project, Ten Economic Facts about Crime and Incarceration in the United States 6 (2014), (“55 percent of offenders committing crimes against persons (such as assault and sex offenses) were ages eleven to thirty. For crimes against property (such as larceny-theft and vandalism) and crimes against society (including drug offenses and weapon law violations), 63 percent and 66 percent of offenders, respectively, were individuals in the eleven-to-thirty age group.”), http://www.brookings.edu/~/media/research/files/papers/2014/05/01%20crime%20facts/v8_thp_10crimefacts.pdf.

C. Recidivism rates decline with age. See USSC, Measuring Recidivism: The Criminal History Computation of the Federal Sentencing Guidelines, Ex. 9 (2004), http://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2004/200405_Recidivism_Criminal_History.pdf.

D. “Research shows that many interventions are effective, not all persons follow the trajectory of the aggregate age-crime curve, turning points divert individuals from paths of persistent offending, offenders can be responsive to changes in local life circumstances, and ‘maturing out’ is something that happens across the lifespan for different reasons at different ages. For public policy this is a promising story, as one need not simply wait for age to have its effect, but can pursue strategies to accelerate desistance from crime.” Gary Sweeten et al., Age and the Explanation of Crime Revisited, 42 J. Youth & Adolescence 921 (2013).

2. Public Opinion on Sentences A. “A strong majority, even among victims, believes prison is not always the best response

to non-violent crime.” Public Opinion Strategies & The Mellman Group, Public Opinion on Sentencing and Corrections Policy in America 2 (2012), http://www.pewstates.org/uploadedFiles/PCS_Assets/2012/PEW_NationalSurveyResearchPaper_FINAL.pdf.

1Prepared by Denise C. Barrett and Laura E. Mate, Sentencing Resource Counsel Project of the Federal Public and Community Defenders. Nov. 2014.

Using Social Science at Sentencing - 2

B. “A survey of Iowa burglary victims found 81 percent wanted restitution, 76 percent wanted community service, and only 7 percent wanted a prisons sentence of a year or more.” Marc Levin, Remember and Empower Victims of Crime, The Hill (Apr. 11, 2014), http://thehill.com/blogs/congress-blog/judicial/203241-remember-and-empower-victims-of-crime, likely referencing (though not citing), Gene M. Lutz et al., Iowa Crime Research Initiative, The 1997 Iowa Adult Crime Victimization Survey (Apr. 1998), http://www.csbs.uni.edu/dept/csbr/pdf/CRI_Crime_Victimization_Survey-1998.pdf. Infographic available at https://magic.piktochart.com/output/1635736-national-crime-victims-rights-we#/pikto-block-0.

3. Mental Illness • “In addition to their often untreated illness, mentally ill prisoners are more likely than

other prisoners to incur disciplinary infractions and suffer punishment as a result, and they are also more likely to be victimized, including sexual victimization, in the course of their confinement.” National Research Council, The Growth of Incarceration in the United States: Exploring Causes and Consequences 223 (Jeremy Travis et al. eds., 2014), http://nap.edu/catalog.php?record_id=18613, citing numerous studies. See also Bureau of Justice Statistics, Department of Justice, Prison Rape Elimination Act of 2003-PREA Data Collection Activities, 2013 2 (June 2013) (“Inmates with a history of mental health problems reported higher rates of sexual victimization than other inmates in 2011–12.”).

4. School-to-Prison Pipeline A. “Sixty years after the Brown decision, de facto segregation persists because of a

complex web of factors rooted in our nation’s long history of discrimination. But segregation is only one of the issues faced by students of color. Increasingly, minority children are drawn into the so-called school-to-prison pipeline – the phenomenon in which draconian disciplinary policies force students out of the educational system and into the criminal justice system.” Dennis Parker, Segregation 2.0: America’s School-to-Prison Pipeline, MSNBC (May 17, 2014), http://www.msnbc.com/msnbc/brown-v-board-students-criminalized. See also New York Civil Liberties Union, A, B, C, D, STPP: How School Discipline Feeds the School-to-Prison Pipeline (2013), http://www.nyclu.org/publications/report-b-c-d-stpp-how-school-discipline-feeds-school-prison-pipeline-2013.

B. “Black students are suspended and expelled at a rate three times greater than white students. On average, 5% of white students are suspended, compared to 16% of black students. American Indian and Native-Alaskan students are also disproportionately suspended and expelled, representing less than 1% of the student population but 2% of out-of-school suspensions and 3% of expulsions.” U.S. Dep’t of Educ. Office for Civil Rights, Civil Rights Data Collection, Data Snapshot: School Discipline 1 (Mar. 2014), http://ocrdata.ed.gov/Downloads/CRDC-School-Discipline-Snapshot.pdf.

C. Disproportionately high suspension rates for students of color begin as early as preschool. “Black children represent 18% of preschool enrollment, but 48% of preschool children receiving more than one out-of-school suspension; in comparison,


white students represent 43% of preschool enrollment but 26% of preschool children receiving more than one out of school suspension.” Id.

D. “Black students represent 16% of student enrollment, 27% of students referred to law enforcement, and 31% of students subjected to a school-related arrest. In comparison, white students represent 51% of students enrolled, 41% of referrals to law enforcement, and 39% of those subjected to school-related arrests.” Id. at 6.

E. “[R]esearch suggests that the substantial racial disparities of the kind reflected in the CRDC data are not explained by more frequent or more serious misbehavior by students of color.” U.S. Dep’t of Just. & U.S. Dep’t of Educ., Dear Colleague Letter: Nondiscriminatory Administration of School Discipline 4 (2014) (citing multiple sources), http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.html.

F. “The increasing use of disciplinary sanctions such as in-school and out-of-school suspensions, expulsions, or referrals to law enforcement authorities creates the potential for significant, negative educational and long-term outcomes, and can contribute to what has been termed the ‘school to prison pipeline.’ Studies have suggested a correlation between exclusionary discipline policies and practices and an array of serious educational, economic, and social problems, including school avoidance and diminished educational engagement; decreased academic achievement; increased behavior problems; increased likelihood of dropping out; substance abuse; and involvement with juvenile justice systems.” Id.

G. “When controlling for campus and individual student characteristics, the data revealed that a student who was suspended or expelled for a discretionary violation was nearly three times as likely to be in contact with the juvenile justice system the following year.” Tony Fabelo et al., Council for State Governments Justice Center & Public Policy Research Institute, Breaking Schools’ Rules: A Statewide Study of How School Discipline Relates to Students’ Success and Juvenile Justice Involvement xii (2011), http://csgjusticecenter.org/wp-content/uploads/2012/08/Breaking_Schools_Rules_Report_Final.pdf.

H. “Black, Latino, American Indian and Native-Alaskan students attend schools with higher concentrations of first-year teachers at a higher rate (3 to 4%) than white students (1%).” U.S. Dep’t of Educ. Office for Civil Rights, Civil Rights Data Collection, Data Snapshot: Teacher Equity 1 (Mar. 2014), http://ocrdata.ed.gov/Downloads/CRDC-Teacher-Equity-Snapshot.pdf.

I. Annie E. Casey Foundation, Kids Count Data Center, (data on education indicators, searchable by city and state) http://datacenter.kidscount.org/data#USA/2/8/10,11,12,13,14,15.

5. Pesticides A. “From infancy on, the children of the mothers with the highest levels of

organophosphates were at the greatest risk for neurodevelopmental problems. That association was present at every stage the researchers checked in on the kids. At 6 months, they were more likely to have poorer reflexes. At 2, they were at higher risk for pervasive developmental disorder, an autism-related condition, like Asperger’s, in which


children have trouble connecting to others. At 5, they were more likely to be hyperactive and have trouble paying attention. At 7, they scored lower on IQ tests, by an average of seven points—the equivalent of being a half-year behind their peers.” Susan Freinkel, Warning Signs: How Pesticides Harm the Young Brain, The Nation (Mar. 11, 2014), http://www.thenation.com/article/178804/warning-signs-how-pesticides-harm-young-brain.

B. Findings from studies on of the effects of organophosphate pesticides on brain development are “‘very similar to what we learned about lead twenty-five to thirty years ago.’ The lead studies found similarly subtle but important brain impacts among kids who weren’t visibly sick from exposure. In addition to lower IQs, they were at higher risk for attention and behavioral problems as well as dyslexia. They had a harder time in school and were more likely to drop out. ‘Further follow-up showed that at 17 or 18, they were more likely to be in trouble with the law.’” Id.

C. “Results of this study showed that higher prenatal CPF exposure, as measured in umbilical cord blood plasma, was associated with decreases in cognitive functioning on two different WISC-IV indices, in a sample of urban minority children at 7 years of age.” Virginia Rauh et al., Seven-Year Neurodevelopmental Scores and Prenatal Exposure to Chlorpyrifos, a Common Agricultural Pesticide, 119 Envtl. Health Persp. 1196, 1200 (2011).

D. See generally, Environmental Health Perspective, a monthly journal of peer-reviewed research and news published with support from the National Institute of Environmental Health Sciences, National Institutes of Health, http://ehp.niehs.nih.gov/; Center for Environmental Research & Children’s Health, http://cerch.org/publications-2/directory-of-publications/ (listing Center’s publications by exposure and health effect); Columbia Center for Children’s Environmental Health, http://ccceh.org/our-research (listing Center’s research by exposure and health effect).

6. Child Abuse • “Child abuse and neglect appear to influence the course of development by altering

many elements of biological, cognitive, psychosocial, and behavioral development; in other words, child abuse and neglect “get under the skin” to have a profound and often lasting impact on development. Brain development is affected, as is the ability to make decisions as carefully as one’s peers, or executive functioning; the ability to regulate physiology, behavior, and emotion is impaired; and the trajectory toward more problematic outcomes is impacted.” Institute of Medicine & National Research Council, New Directions in Child Abuse and Neglect Research 154 (Anne Peterson et al. eds., 2013), http://www.iom.edu/Reports/2013/New-Directions-in-Child-Abuse-and-Neglect-Research.aspx.

7. General Deterrence A. “[T]here is little evidence that increases in the length of already long prison sentence

yield general deterrent effects that are sufficiently large to justify their social and economic costs.” Daniel S. Nagin, Deterrence in the Twenty-First Century, 42 Crime & Just. 199, 201 (2013).


B. “[L]engthy prison sentences cannot be justified on a deterrence-based, crime prevention basis.” Id. at 202.

C. “[E]vidence in support of the deterrent effect of various measures of the certainty of punishment is far more convincing and consistent than for the severity of punishment. . . . The evidence in support of certainty’s deterrent effect pertains almost exclusively to apprehension probability. Consequently, the conclusion that certainty, not severity, is the more effective deterrent is more precisely stated as certainty of apprehension and not the severity of the legal consequence ensuing from apprehension is the more effective deterrent. . . . Thus, this revised conclusion about the deterrent effect of punishment certainly should not be construed as implying that policies mandating severe legal consequences have been demonstrated to achieve deterrent effects.” Id. at 201-202.

D. “[T]here is generally no significant association between perceptions of punishment levels and the actual levels of punishment that the criminal justice system achieves. This in turn implies that increases in punishment levels do not routinely reduce crime through general deterrence mechanisms, because the fundamental link between actual punishment levels and perceptions of punishment levels appears to be weak to nonexistent. . . . There may be some baseline level of deterrent effect generated by punishment-generating activities of the criminal justice system, but this level is apparently one that does not consistently increase with punishment levels or diminish with decreased punishment levels.” Gary Kleck & J.C. Barnes, Deterrence and Macro-Level Perceptions of Punishment Risks: Is There a “Collective Wisdom”?, 59 Crime & Delinq. 1006, 1031-33 (2013).

8. Specific Deterrence • “[T]here is little evidence of a specific deterrent effect arising from the experience of

imprisonment compared with the experience of noncustodial sanctions such as probation. Instead, the evidence suggests that reoffending is either unaffected or increased.” Daniel S. Nagin, Deterrence in the Twenty-First Century, 42 Crime & Just. 199, 201 (2013).

9. Long sentences do not fully account for decreased crime rate • The Pew Charitable Trusts, States Cut Both Crime and Imprisonment, (2013) (“Over the

past five years, the majority of states reduced both crime and imprisonment rates. The relationship between crime and imprisonment is complex, but states are showing that it is possible to reduce them at the same time.”), http://www.pewstates.org/research/data-visualizations/states-cut-both-crime-and-imprisonment-85899528171?utm_campaign=2014-01-09%20PSPP.html&utm_medium=email&utm_source=Eloqua&elq=13ad68e722fc4de49946658ab8fe3bbb&elqCampaignId=1791.

10. Incapacitation A. “For several categories of offenders, an incapacitation strategy of crime prevention can

misfire because most or all of those sent to prison are rapidly replaced in the criminal networks in which they participate. Street-level drug trafficking is the paradigm


case. . . . Drug policy research has . . . shown consistently that arrested dealers are quickly replaced by new recruits. . . . Arrests and imprisonments of easily replaceable offenders create illicit ‘opportunities’ for others.” National Research Council, The Growth of Incarceration in the United States: Exploring Causes and Consequences 146 (Jeremy Travis et al. eds., 2014), http://nap.edu/catalog.php?record_id=18613. See also id. at 88 (“Most drug policy analysts agree that … imprisoning individual drug dealers seldom reduces the availability of drugs or the number of traffickers.”).

B. “Unlike repeat violent offenders, whose incapacitation may protect the public from additional crimes by the offender, criminologists and law enforcement officials testifying before the Commission have noted that retail-level drug traffickers are readily replaced by new drug sellers so long as the demand for a drug remains high. Incapacitating a low-level drug seller prevents little, if any, drug selling; the crime is simply committed by someone else.” USSC, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform 131 (2004).

11. Family Ties A. Fathers who maintain relationships with children are less likely to recidivate. Solangel

Maldonado, Recidivism and Parental Engagement, 40 Family L. Q. 191 (2006) (“The literature … suggests that exconvicts who share close relationships with their children are less likely to recidivate than those who do not.”).

B. “The single best predictor of successful release from prison is whether the former inmate has a family relationship to which he can return. Studies have shown that prisoners who maintain family ties during imprisonment are less likely to violate parole or commit future crimes after their release than prisoners without such ties.” Id. at 196-97.

C. Parents with “less time to serve reported more frequent contact with their children” than those serving longer prison sentences. “About half (47%) of parents who expected to be released within six months reported at least weekly contact with their children, compared to 39% who expected to be released in 12 to 59 months, and 32% in 60 or more months.” Lauren E. Glaze & Laura M. Maruschak, Bureau of Justice Statistics, Office of Justice Programs, U.S. Department of Justice, Parents in Prison and Their Minor Children (2010), http://www.bjs.gov/content/pub/pdf/pptmc.pdf.

D. The results of one recent study “strongly suggest that the experience of incarceration leads to a substantially higher divorce risk among offenders who are married when they enter prison.” Robert Apel et al., The Impact of Imprisonment on Marriage and Divorce: A Risk Set Matching Approach, 26 J. Quant. Crim. 269 (2009). “In our data, by the fifth year post-release, imprisoned men have a divorce probability that is 56.8% higher than comparable, convicted but non- imprisoned men. In light of our methodological approach, we are inclined to attribute this finding to the causal effect of first-time imprisonment on divorce.” Id. at 291. “Considering the (by now) well-established protective role that marriage plays in the criminal career (in the male criminal career, at least), as well as cross-national expansion in the use of incarceration as the predominant


form of crime control, an important social concern is the degree to which widespread use of prison may actually backfire by worsening the life chances of offenders returning to the community after they have paid their debt to society.” Id. at 289.

12. Parental Incarceration A. “It is not the case that [incarcerated parents] were already disengaged from their

children’s lives. For example, in 2007, approximately half of parents in state prisons were the primary provider of financial support for their children – and nearly had lived with their children prior to incarceration.” Melissa Kearney et al., The Hamilton Project, Ten Economic Facts about Crime and Incarceration in the United States 14 (2014). http://www.brookings.edu/~/media/research/files/papers/2014/05/01%20crime%20facts/v8_thp_10crimefacts.pdf

B. “The best evidence produced thus far links paternal incarceration to childhood mental health and behavioral problems, problems that are strongly linked to difficulty in school, trouble finding work, and becoming involved in crime. Paternal incarceration increases behavioral problems by one third to one half a standard deviation and is global in nature, influencing both externalizing behaviors and internalizing behaviors in roughly equal measure. Using conservative estimates and a variety of stringent modeling strategies, we show that the influence of mass incarceration has increased racial disparities in externalizing problems by up to 26% and in internalizing problems by up to 45%.” Sara Wakefield & Christopher Wildeman, Mass Imprisonment and Racial Disparities in Childhood Behavioral Problems, 10 Criminology & Pub. Pol’y 793, 806 (2011).

C. Sara Wakefield & Christopher Wildeman, Children of the Prison Boom: Mass Incarceration and the Future of American Inequality (2013), as summarized in a blog posting, by Holly Yettick, Parental Incarceration Has Worsened Disparities Between Black, White Children, Education Week (Apr. 18, 2014), http://blogs.edweek.org/edweek/inside-school-research/2014/04/a_quarter_of_black_babies.html.

• “Wakefield and Wildeman write that the five-fold increase in children with incarcerated parents that has occurred since 1980 has largely been fueled by locking up nonviolent offenders who tend to have family ties and histories of employment.”

• “‘In most instances,’” Wakefield and Wildeman state, “’the removal of a parent makes a bad situation worse.’”

• “[C]hildren whose fathers have been incarcerated fare worse than similar children whose fathers have not been locked up. For instance, they have higher rates of problems with mental health and behavior.”

• “[C]hildren with incarcerated parents are also more likely than similar children to end up homeless. Wakefield and Wildeman conclude that the black-white gap in childhood homelessness would have been 26 percent to 65 percent smaller had mass imprisonment never occurred.”


• “[C]hildren of incarcerated fathers are more likely to die before the age of 1. ‘According to our estimates,’ the authors write, ‘the effects of parental incarceration on children’s risk of infant mortality are comparable to the effects of maternal smoking on this risk.’”

• “‘The prison is not the place to solve problems that have very little to do with crime,’ Wakefield and Wildeman conclude. ‘[W]e do not therefore suggest that putting parenting programs in prison is the way to improve the lives of children with incarcerated parents. . . . Prisons are as ill-equipped to facilitate quality family functioning as they are at tackling serious mental illness or drug addiction.’”

13. Sentencing Commission A. USSC, 2013 Sourcebook of Federal Sentencing Statistics, http://www.ussc.gov/research-

and-publications/annual-reports-sourcebooks/2013/sourcebook-2013. • Archives of earlier Sourcebooks, http://www.ussc.gov/research-and-

publications/annual-reports-sourcebooks/annual-reports-sourcebooks-archives. B. USSC, Interactive Sourcebook of Federal Sentencing Statistics, http://isb.ussc.gov/Login. C. USSC, Quick Facts, http://www.ussc.gov/research-and-publications/quick-facts.

• Career Offenders • Crack Cocaine Trafficking • Powder Cocaine Sentencing • Oxycodone Trafficking • Marijuana Trafficking • Methamphetamine Trafficking • Heroin Trafficking • Theft, Property Destruction, and Fraud • Section 924(c) Offenders • Felon in Possession of Firearm • Alien Smuggling • Illegal Reentry • National Defense • Mandatory Minimum Penalties

D. USSC, Results of Survey of United States District Judges January 2010 through March 2010 (June 2010), http://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/surveys/20100608_Judge_Survey.pdf.

E. USSC, Report to the Congress: Federal Child Pornography Offenses (2012), http://www.ussc.gov/news/congressional-testimony-and-reports/sex-offense-topics/report-congress-federal-child-pornography-offenses.

F. Other research and reports on the guidelines and mandatory minimum sentencing are available at ussc.gov.

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Office of the Federal Public Defender for the Northern District of New York

Federal Criminal Motion Practice in the NDNY

Lisa A. Peebles Federal Public Defender Thursday, April 30, 2015


Authority

• Fed. R. Crim. P. 12 – Pre-trial Motions • NDNY Local Rule 12.1 – Pre-trial Motions • Fed. R. Crim. P. 16 – Discovery • NDNY Local Rule 14.1 – Discovery • Criminal Pre-trial Order (CPO)

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Discovery Motions

General Omnibus Motions Are Discouraged Unless There Are Exceptional Circumstances

• It is the Court’s policy to rely on the discovery procedure as set forth in this Rule as the sole means for the exchange of discovery in criminal actions except in extraordinary circumstances. This Rule is intended to promote the efficient exchange of discovery without altering the rights and obligations of the parties, while at the same time eliminating the practice of routinely filing perfunctory and duplicative discovery motions. – NDNY Local Rule 14.1(a)


Discovery Motions

No need for the defense to request

discovery • Criminal Pre-Trial Order II(B) • NDNY Local Rule 14.1(b)

If you do not receive discovery which you

believe you are entitled to or does not exist, file

a specific demand

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Discovery Motions

Local Rule 14.1(g) No attorney shall file a discovery motion without first conferring with opposing counsel, and the Court will not consider a motion unless it is accompanied by a certification of such conference and a statement of the moving party’s good faith efforts to resolve the subject matter of the motion by agreement with opposing counsel.

United States v. Elliott

363 F. Supp. 2d 439, 445 (N.D.N.Y. 2005)

The court will not consider a discovery motion unless it is accompanied by an attorney certification or notice stating that a pre-motion conference was conducted with opposing counsel, and the certification or notice recites the moving party's good faith efforts to resolve, eliminate or reduce the area of controversy, and arrive at a mutually satisfactory resolution.


Pretrial Motions

• Defect in Instituting the Prosecution

• Defect in Indictment • Suppression • Severance

Fed. R. Crim. P. 12:

4


Pretrial Suppression Motions

Suppression of Physical

Evidence • Illegal Search or Seizure • Fruits of Illegal Arrest

Suppression of

Statements

• Miranda Violations • Due Process Violations • Fruit of Illegal Arrest or Search • 6th Amendment Right to Counsel

Violations


Pretrial Suppression Motions

Criminal Pretrial Order III(B) NDNY Local Rules 12.1(e)

Moving Party Must:

Confer with Opposing Party

Notify the Court in Writing: • Whether Hearing is Necessary • Whether Oral Argument is Necessary

5


Suppression Hearing

If government contests whether the Court should

grant a hearing:

Defense must accompany motion with an affidavit based

upon personal knowledge setting forth facts that if

proven true, would entitle the defendant to relief

• An affidavit by counsel is not required, but a certificate of service is required.

• Court must hold hearing on a motion to suppress if the motion raises a “significantly definite, specific, detailed and non-conjectural” factual basis – United States v. Pena, 961

F.2d 333, 339 (2d Cir. 1992)

NDNY Local Rule 12.1(e)


Affidavit by Defendant

United States v. Pena 751 F.3d 101 (2d Cir. 2014)

• Be careful with the level of detail provided in the affidavit

Caution: • The government may seek an enhancement if convicted after trial for obstruction if they can show defendant’s written statement was false.

• In Pena, the court stated the content of the affidavit was general enough to support inference that they were not fabrications

6


Defendant’s Testimony at Suppression Hearing

Simmons v. United States, 390 U.S. 377 (1968)

Defendant Testifies

Motion to Suppress Denied

Testimony cannot be

used in Government’s case-in-chief


Decision to Testify

• If convicted after trial, the government may seek an enhancement for obstruction if they can show that defendant testified falsely about a material fact

• Likely to come up in cases involving a Terry stop or Miranda issue

• Defendant is not required to testify at the hearing, but it may be difficult for the court to assess credibility

Caution:

7


Preserving Suppression Issues

• If court denies motion and your client wishes to plead guilty, you must preserve the issues by entering into a conditional plea pursuant to Fed. R. Crim. P. 11(a)(2)

• If you prevail on appeal, defendant’s plea is withdrawn

• Be as general as possible with your conditional plea language. For example, if you only preserve the issue related to reasonable suspicion and not the length of the stop, that issue is waived. • See United States v. Finch,

577 Fed. Appx. 56 (2d Cir. 2014)

• Retain challenges to the factual findings upon which the Court based its decision

Caution:


Alternatives to Conditional Pleas

• Proceed to trial on stipulated facts: – You should not be

penalized for going to trial

– You should at least receive a two-level reduction

• Conditional pleas contain all sorts of waivers and concessions that may not be in your client’s best interest

Caution:

8


Warrant Challenges

Read R. 41 and become familiar with the requirements

If motion granted, Court must return property to the movant

Court may impose reasonable conditions to protect access to property and its use later in the proceedings. Fed. R. Crim. P. 41(g)

Determine whether you can sever/redact overbroad portion and compare what is left

Valid vs. invalid: is it significant and does it subsume the valid portion. You can move to have the property returned

Analyze the warrant

Make sure it is not overbroad, allowing for a search of any criminal conduct


Wiretap Challenge

Omnibus Crime Control Act of 1968, Title III

Must Show Necessity

Must Minimize • 18 U.S.C. § 2518

9


Necessity

Example: Government must show objective of the investigation would not otherwise be attainable due to limitations of conventional methods

• Conventional methods were unsuccessful

• Too dangerous to persons or would otherwise compromise the investigation


Wiretap Challenge

Standing Requirements Franks v. Delaware, 438 U.S. 154 (1978)

Which means you are the interceptee, target, or owner of the premises

You must have standing

Standard of Review

• Abuse of Discretion • Clear Error

Necessity

• Were their efforts reasonable?

Minimization

10


Wiretap Challenge

U.S. v. Ojeda Rios, 495 U.S. 257 (1990)

Suppression can happen if Government failed to comply with requirement that it present recordings immediately for sealing and safekeeping

This is not a constitutional requirement, but rather a best evidence requirement


Stingray (It’s a Secret)

• Cell Phone Surveillance Technology

• IMSI Catcher – Captures Content of

Communications – Voice Calls and Text

Messages

11


Problems with Stingray

Collects Third-party Information

Penetrates Homes and Offices

FBI Utilizing This Device in Covert Fashion • Disguising Its Use

Be Aware: Terms Used to Disguise Stingray • Digital Analyzer • Cell Site Simulator • Mobile Tracking Device • Pen Register • Even “Confidential Source”

• If Identification of Client’s Cell Calls Is Necessary Predicate for Wiretaps Order – Find Out How Law

Enforcement Acquired Information

• It Is A Search and Seizure Subject to Fourth Amendment Challenges

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK __________________________________________ UNITED STATES OF AMERICA,

NOTICE OF MOTION v-

CASE NO. JOHN DOE,

Defendant. ___________________________________

PLEASE TAKE NOTICE,that upon the annexed Memorandum of Law and supporting

exhibits, the Indictment and all other proceedings heretofore had herein, a Motion will be made as

follows:

DATE, PLACE AND TIME OF MOTION: December 13, 2013, before the

Honorable Frederick J. Scullin, Sr., in the United States District Court for the Northern District of

New York, James M. Hanley Federal Building,100 South Clinton Street, Syracuse, New York,

13261, at 11:00 A.M. or as soon thereafter as counsel can be heard.

TYPE OF MOTION: Defendant seeks an Order of the Court suppressing any and all

evidence, including physical evidence and any statements attributed to the Defendant, obtained as

a result of the illegal stop and search of the vehicle ____________ was a passenger in.

Alternatively, __________ requests an evidentiary hearing on the matter and for such other and

further relief as the Court may deem just and proper.

DATED: LISA A. PEEBLES

Syracuse, New York Federal Public Defender

By: S/Melissa A. Tuohey, Esq. Assistant Federal Public Defender Bar Roll No. 510807 Office of Federal Public Defender 4 Clinton Square, 3rd Floor Syracuse, New York 13202 (315) 701-0080

TO:

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK __________________________________________ UNITED STATES OF AMERICA,

-v- CASE NO.:

JOHN DOE,

Defendant. __________________________________________

MEMORANDUM OF LAW

IN SUPPORT OF JOHN DOE=S MOTION TO SUPPRESS EVIDENCE

DATED: Respectfully submitted,

Syracuse, New York LISA A. PEEBLES Federal Public Defender

By:

Randi Juda Bianco, Esq. Assistant Federal Public Defender Bar Roll No. 507514 Office of the Federal Public Defender 4 Clinton Square, 3rd Floor Syracuse, New York 13202 (315) 701-0080

STATEMENT OF FACTS

On July 4, 2012, the Oswego County Sheriff=s Office received a report of an intoxicated

male walking on County Route 35 in Palermo, New York. Deputy __________ responded to the

call, which he characterized as a Acheck the welfare complaint.@ Exhibit A (__________

narrative). He was backed up by Deputy __________ and Deputy __________. Id. The male,

who appeared Ahighly@ and Aextremely@ intoxicated, was walking with a small dog. Id. Upon

police questioning, the male identified himself as John Doe and produced identification. Id. He

stated he was walking from Red=s Market in Palermo to his home on County Route 35 in the Town

of New Haven. Id. Deputy __________ ran Mr. John Doe=s name through Data. There was no

indication that he had committed any crime, and there was no evidence to suggest he had any

outstanding warrants. The three Deputies then gave Mr. John Doe Aa courtesy transport@ to his

home without his consent. Id.

Once they arrived at the residence, the officers discovered it was a single wide trailer. The

police asked Mr. John Doe to Ashow proof@ that this was his residence in the form of mail or a bill

with his name on it. Id. Mr. John Doe stated he had some inside the trailer. Id. There are two

doors to gain entry into the residence. Affidavit of John Doe. The first door was a Amud room,@

and Mr. John Doe did not have a key to the mud room, as he was in the process of changing the

locks. Id. Mr. John Doe then used a knife to open the mud room door and was about to use his

house key to enter the main door. Id. The police asked Mr. John Doe to give them consent to

enter the premises and he refused. Id. Mr. John Doe took the key and opened the main door and

the police rushed in behind him without his consent and without a warrant. Id. Deputy

__________ claimed to have seen John Doe stuff Asomething under a couch cushion.@ Exhibit A

(__________ narrative). Patrol looked under the cushion and observed a frisbee with marijuana

on it. Id. Patrol then proceeded to search the entire residence and found marijuana and marijuana

plants after opening a closed door to a room. Id. (__________ narrative).

After finding the plants, Patrol called EMS to Acheck out the male.@ Id. EMS checked

Mr. John Doe who stated he was AOK and wanted to sign off.@ Id. Patrol then ordered Mr. John

Doe to submit to an alco sensor test, which reported a .35% BAC, and then pursuant to Apolicy@

had to have him checked by a doctor and they had EMS return and transport him to the hospital

without his consent. Id.

While Mr. John Doe was at the hospital, Investigator Moody of the Oswego County

Sheriff=s Department obtained a search warrant from the Mexico Town Justice. See Exhibit B.

The trailer was searched at 10:30 p.m. and concluded at 2:20 a.m. the following morning. During

the search, the marijuana plants and other related evidence was photographed and seized.

John Doe now moves for suppression of any and all evidence obtained and derived from

his unlawful detention and the unlawful intrusion into and search of his home, including physical

evidence and statements seized and obtained __________ to and pursuant to the subsequent search

warrant. See Wong Sun v. United States, 371 U.S. 471, 484-85 (1963). In support, John Doe

respectfully submits that his detention and the officers= warrantless and non-consensual entry into

and search of his home violated his Fourth Amendment rights under the Constitution of the United

States, and that the subsequent discovery of evidence underlying the indictment, including the

drugs and related paraphernalia, were not in fact discovered in plain view.

A court must hold a hearing on a motion to suppress if the motion raises a Asufficiently

definite, specific, detailed, and non-conjectural@ factual basis. United States v. Pena, 961 F.2d

333, 339 (2d Cir. 1992). A defendant challenging the general voluntariness of a consensual

search also has the right to Aa fair hearing and a reliable determination on the issue of 2

voluntariness.@ Jackson v. Denno, 378 U.S. 368, 377 (1964). Therefore, John Doe moves this

Court to suppress the evidence underlying the indictment or, in the alternative, to hold an

evidentiary hearing.

ARGUMENT

I. THE POLICE HAD NO AUTHORITY TO DETAIN JOHN DOE AND ORDER HIM TO PRODUCE PROOF THAT THE TRAILER WAS HIS RESIDENCE.

Law enforcement officers unlawfully detained John Doe. Under New York State law, a

police officer encountering an intoxicated individual is given no authority to transport that

individual to his home. Instead, when a person=s intoxication poses a likelihood to result in harm

to the person or to others, a police officer may only transport that individual to a hospital or

designated treatment facility. See N.Y. Mental Hygiene Law ' 22.09(c). However, the statute

does not give officers authority to compel an individual to be transported to his home.

Furthermore, because John Doe was Ahighly@ and Aextremely@ intoxicated and seen

stumbling on the street and falling on the road, he was incapable of voluntarily consenting to be

transported to his home. See, e.g., United States v. Capps, 716 F.3d 494 (8th Cir. 2013)

(explaining that intoxication is one factor in determining validity of consent). Indeed, John Doe

was later forcibly hospitalized, against his will, due to his intoxication, which registered a .35%

BAC. See Exhibit A.

After the three police officers gave Mr. John Doe Aa courtesy transport@ to his home, he

should have been free to go. He was not under arrest, had produced valid identification, and was

not suspected of any criminal wrongdoing. Rather than merely drop John Doe off at his home

after the Acourtesy transportation,@ the officers detained him requiring that he show proof that he

3

resided in the trailer in the form of a bill or a letter.1

When the officers demanded he produce proof of residence, he was detained and the

purpose of the detention was unlawful. Therefore, any statements and evidence obtained and

derived from that initial unlawful detention, including any such evidence obtained and derived for

the subsequent search warrant, should be suppressed.

II. THE WARRANTLESS ENTRY INTO AND SEARCH OF JOHN DOE=S HOME VIOLATED THE FOURTH AMENDMENT BECAUSE THE POLICE OFFICERS LACKED CONSENT TO ENTER THE HOME.

1It is significant that John Doe did not try to enter the residence before the police demanded proof he resided at the trailer. The fact that John Doe did not have a key to the mud room door was not discovered by the police until after they required him to produce proof of his residence. See Exhibit A (Affidavit of Deputy James Prior).

4

The Fourth Amendment to the Constitution of the United States guarantees Athe right of

people to be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures.@ U.S. CONST. Amend IV. It is a Abasic principle of Fourth Amendment law that

searches and seizures inside a home without a warrant are presumptively unreasonable.@ Groh v.

Ramirez, 540 U.S. 551, 559 (2004) (quoting Payton v. New York, 445 U.S. 573, 586 (1980)

internal quotations omitted)). AAt the very core@ of the Fourth Amendment Astands the right of a

man to retreat into his own home and there be free from unreasonable governmental intrusion.@

Silverman v. United States, 365 U.S. 505, 511 (1961). AWith few exceptions, the question

whether a warrantless search of a home is reasonable and hence constitutional must be answered

no.@ Kyllo v. United States, 533 U.S. 27 (2001) (citing Illinois v. Rodriguez, 497 U.S. 177, 181

(1990)). Law enforcement officials may search a home without a warrant when Avoluntary

consent has been obtained, either from the individual whose property is searched, or from a third

party who possesses common authority over the premises.@ Illinois v. Rodriguez, 497 U.S. 177,

181 (1990) (citations omitted).

Here, law enforcement officers cannot rely on any claim of consent to enter the home for

several minutes. First, John Doe specifically refused to give consent for the police to enter his

home and he was the only resident who resided there. Affidavit of John Doe. Without John Doe=s

consent, the entry was illegal and the challenged evidence was not lawfully seized. Second, even

if John Doe consented, which he did not, any claimed consent cannot be relied upon because it was

purportedly given while he was unlawfully detained. Third, even if John Doe consented and did

so while lawfully detained, neither of which are true, the fact that he was Ahighly@ and Aextremely@

intoxicated rendered any claim of consent invalid. See supra, Point I. Furthermore,

5

the search of John Doe=s home was unconstitutional. After entering the residence, the Officers

claim to have observed John Doe stuff something under a cushion. Patrol then looked under the

cushion and observed the frisbee with marijuana on it. Exhibit A. Patrol then proceeded to

search the entire residence and found marijuana and marijuana plants in a room after opening the

closed door. See Exhibit A (Deputy __________ statement).

Accordingly, the Officers appear to rely on the plain view doctrine to support their search of

the trailer. Under the plain view doctrine, Aif police are lawfully in a position from which they

view an object, if its incriminating character is immediately apparent, and if the officers have a

lawful right of access to the object, they may seize it without a warrant.@ Minnesota v. Dickerson,

508 U.S. 366, 375 (1993).

Because the police were not lawfully in a position from which to observe the frisbee with

marijuana, it was not Ain plain view.@ The subsequent search of the residence was done without

consent and without a warrant. Therefore, the officers were not lawfully in a position to view any

object in the home. Furthermore, the officers= discovery of the frisbee required them to lift up and

remove a cushion. Consequently, the frisbee with marijuana was not in plain view. See Arizona

v. Hicks, 480 U.S. 321, 325 (1987) (ABut taking action, unrelated to the objectives of the

authorized intrusion, which exposed to view concealed portions of the apartment or its contents,

did produce a new invasion of respondent's privacy unjustified by the exigent circumstance that

validated the entry.@). Finally, the officers lacked any basis to open a door where they discovered

marijuana plants. Obviously, the requirement to open a door kept the marijuana plants out of

plain view, and there was no reason for them to open the door. Therefore, this Court should find

that the entry into and search of John Doe=s residence was unconstitutional

III. THE SEARCH WARRANT WAS DEFECTIVE BECAUSE IT WAS 6

BASED ON INFORMATION OBTAINED DURING AN ILLEGAL SEARCH.

After the police initially entered the defendant=s residence without his consent, they

conducted an unlawful search and found evidence of marijuana growing on the premises. The

police then used only the observations gleaned from the unlawful search in order to apply for a

search warrant. See Exhibit B (Robert Moody=s warrant affidavit). An unlawful search taints all

evidence obtained at the search or through leads uncovered by the search. See United States v.

Paroutian, 299 F.2d 486, 489 (2d Cir. 1962). Evidence is not admissible under the independent

source doctrine if the agents= decision to seek a search warrant was prompted by what they had

seen during initial their unlawful entry of the premises or if the information obtained during such

illegal entry was presented to a magistrate and affected the magistrate's decision to issue search

warrant. See Murray v. United States, 487 U.S. 533 (1988). In other words, this Court should

suppress any and all evidence obtained and derived from the unlawful entry and search of John

Doe=s residence, including the evidence seized during the execution of a warrant as fruit of the

poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 484-85 (1963).

Here, Investigator Moody used the evidence viewed from the unlawful search as the entire

basis of his affidavit in support of probable cause to obtain the search warrant from the Mexico

Town Judge. Exhibit B. Thus, if this Court were to excise all of the information obtained from

the unlawful search of the premises, there would be no evidence remaining to provide any basis to

support the warrant. Thus, the warrant cannot be salvaged. See United States v. Gillenwaters, 890

F.2d 679 (4th Cir. 1989) (holding that in determining whether affidavit established probable cause,

7

court properly excised all information which officer might have obtained from an unauthorized

search of the premises and then determined whether the remaining material provided probable

cause for a search).

CONCLUSION

Based on the above analysis, any and all evidence, including physical evidence and any

statements of the Defendant, obtained as a result of the illegal detention of John Doe and the illegal

entry into and search of John Doe=s home, should be suppressed. Alternatively, John Doe

requests an evidentiary hearing on the matter.


LISA A. PEEBLES Federal Public Defender

By: s/ Randi Juda Bianco, Esq. Asst. Federal Public Defender Bar Roll No: 510807 Attorney for Defendant, Notorus Jackson 4 Clinton Square, 3rd Floor Syracuse, New York 13202 (315) 701-0080

TO:

8

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________ UNITED STATES OF AMERICA,

-v- CASE NO.:

JOHN DOE,

Defendant. ______________________________________________

SUPPLEMENTAL MEMORANDUM OF LAW

IN SUPPORT OF JOHN DOE=S MOTION TO SUPPRESS EVIDENCE

DATED:

Respectfully submitted, Syracuse, New York


By:

Melissa A. Tuohey, Esq. Assistant Federal Public Defender Bar Roll No. 510807 Office of the Federal Public Defender 4 Clinton Square, 3rd Floor Syracuse, New York 13202 (315) 701-0080

PRELIMINARY STATEMENT

On June 5, 2014, a Suppression Hearing was held before the Hon. Frederick J. Scullin, Jr.,

Senior U.S. District Court Judge for the Northern District of New York, in connection with

defendant=s motion to suppress evidence that was filed with the Court on November 8, 2013.

At that hearing, the Government called two witnesses to testify, Syracuse Police Officers

____________ and ___________. Following the hearing, the Court granted the parties

permission to further brief the issues raised in the defendant=s motion to suppress.

The Suppression Hearing testimony supports John Doe=s motion to suppress any and all

evidence, including physical evidence and statements attributed to him, seized and derived from a

stop and subsequent search of a vehicle he was traveling in on March 22, 2013. See Wong Sun v.

United States, 371 U.S. 471, 484-85 (1963) (establishing fruit of the poisonous tree doctrine to

suppress evidence obtained as both a direct and indirect result of an unlawful search or seizure).

ARGUMENT

I. THE SUPPRESSION HEARING TESTIMONY ESTABLISHED THAT THE OFFICERS CONDUCTED A TERRY STOP OF THE VEHICLE AND ITS OCCUPANTS.

Syracuse City Police Officers ___________________ and ___________________ were

on routine patrol on March 22, 2013 at 11:07 PM driving south on North Townsend Street when

they made a left hand turn onto Catawba Street. Exhibit A, p. 71. They were in uniform and in a

marked patrol vehicle. Exhibit A., p. 42. They observed a white Chevy Impala that was stopped

on the wrong side of the Odd/Even parking regulations. Exhibit A, p. 9. The possible violation

of this ordinance caused Officer ___________________ to immediately drive their marked patrol

vehicle across the road, driving on the wrong side of the road, and parking directly in front of the

1 Exhibit A references the Transcript of the Suppression Hearing held on June 5, 2014.

Chevy Impala. Exhibit A, p. 85. The marked patrol vehicle was now Aheadlight to headlight@;

Anose to nose@ with the Chevy Impala occupied by three people. Exhibit A, pp. 20, 52.

Uniformed Officers ___________________ and ___________________ immediately

exited the marked patrol vehicle with flashlights in hand and approached the Chevy Impala.

Exhibit A, p. 88. Officer ___________________ approached the driver of the vehicle and Officer

___________________ approached the front passenger of the vehicle. Exhibit A, p. 10. The

actions Officer ___________________ took upon approaching the vehicle are also telling.

Officer ___________________ asked _____________ for her drivers license, which is a

necessary part of a vehicle traffic stop. Exhibit A, p. 43. These factors demonstrate that the

officers made a show of authority that resulted in the seizure of the vehicle and its occupants.

A person is Aseized@ when, Aby means of physical force or a show of authority, his freedom

of movement is restrained.@ United States v. Mendenhall, 446 U.S. 544, 553 (1980). A[W]here

officers detain an already stationary suspect by hindering his future as opposed to ongoing

progress, that they did not stop the suspect as the term is commonly understood does not foreclose

the inquiry into whether their conduct constitutes an investigatory stop.@ United States v. Kim, 25

F.3d 1426, 1430 (9th Cir. 1994) (citing United States v. Berry, 670 F.2d 583, 597 (5th Cir. 1982)).

The testimony of the officers established that the driver of the vehicle, Kathleen _____________,

could not freely leave the scene. AQuestioning by law enforcement officers constitutes an

investigatory stop only if >in view of all the circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave.=@ Id. (citing INS v. Delgado, 466 U.S.

210, 215 (1984)). _____________ could not drive forward because the patrol vehicle was

approximately 5 feet in front of the Chevy Impala. Exhibit A., p. 12. If she tried to drive away by

driving forward and then turning the wheel to veer off, she ran the risk of driving into Officer 2

___________________ who was walking on Catawba street toward the driver=s side of the

vehicle. Exhibit A, p. 89. Therefore, _____________ had two options: to stay put or to drive the

vehicle into Officer ___________________ while attempting to leave the scene. Exhibit A, p. 12.

Finally, Officer ___________________=s own account of their actions during his direct

examination prove they executed a stop of the vehicle. Defense counsel was conducting voir dire

regarding photographs of the vehicle that were being offered into evidence by the Government.

Defense counsel asked Officer ___________________ whether the photograph accurately

depicted the scene at the time of the stop. Exhibit A, p. 68. In response, Officer

___________________ admitted, AAt the time we stopped the car, no. At the time of the picture,

yes.@ Id. (emphasis added). Officer ___________________ characterized their actions as

stopping the car.

II. BOTH OFFICERS TESTIFIED A VIOLATION OF THE ODD/EVEN PARKING ORDINANCE HAD NOT OCCURRED.

Both Officers agreed that the Chevy Impala was not in violation of the Odd/Even parking

ordinance because New York Vehicle and Traffic law allows a driver to temporarily stop in a

no-parking zone to load or unload passengers or merchandise . Exhibit A., pp. 38, 91; See also

N.Y. Veh. & Tr. ' 1200(c). Additionally, there were no signs or regulations in that area stating

that it was a ANo-Standing@ zone. Exhibit A, p. 85. The officers took no time to observe whether

or not the passengers were exiting or entering the vehicle. Exhibit A., pp. 43-44, 50, 84-85. They

saw the vehicle and immediately approached it within ten seconds. Exhibit A., p. 85. And when

they did approach the vehicle, the car was still running. Exhibit A., p. 33. The car could not

possibly be parked if the engine was on. Additionally, the car was occupied and the driver had

informed Officer ___________________ that she was in front of her residence. Exhibit A., pp.

3

10, 33, 84.

III. THE TERRY STOP WAS NOT SUPPORTED BY REASONABLE

SUSPICION .

AAn investigatory stop requires a reasonable, >articulable suspicion that a person has

committed or is about to commit a crime.=@ Florida v. Royer, 460 U.S. 491, 498 (1983). It has

already been proven that a violation of the Odd/Even parking ordinance had not been committed.

The only other factor the officers could offer for the Terry Stop was that the vehicle was allegedly

located in a high crime area. The law is well established that location in a high crime area alone is

not a sufficient basis to support a Terry Stop. The Supreme Court has specifically held that A[a]n

individual=s presence in an area of suspected criminal activity, standing alone, is not enough to

support a reasonable, particularized suspicion that the person is committing a crime.@ Illinois v.

Wardlow, 528 U.S. 119, 124 (2000)(citing Brown v. Texas, 443 US. 47, 61 (1979)).

At the time of the stop, it was Officer ___________________=s belief that the passengers

in the vehicle were a threat and that Avery large things come out of small things.@ Exhibit A., pp.

82, 87. This is hard to reconcile given that the officers noticed nothing suspicious about the

vehicle or the passengers. Exhibit A, pp. 32-33, 85. The only thing suspicious was the location of

the vehicle, which was not a crime. Officer ___________________ agreed that there is nothing

suspicious about people driving a vehicle to their residence which is what _____________ was

doing at the time the vehicle was stopped. Exhibit A., p. 36. The Avery small thing@ in this case

was that a possible violation of the Odd/Even ordinance could result in a fine of $25.00. Exhibit

A, p. 37. This was such a minor violation that issuance of a ticket was discretionary. Exhibit A.,

p. 11-12. However, in this instance a ticket was issued even though no violation had occurred. It

seems that it was Officer ___________________=s intention to create a very large thing out of a 4

very small thing when he first observed the white Chevy Impala on Catawba Street from North

Townsend Street on March 22, 2013, at 11:07 PM.

This case is very similar to the facts and circumstances set forth in United States v. See, 574

F.3d 309 (6th Cir. 2009), where the Sixth Circuit held that law enforcement=s blocking of

defendant=s automobile in a parking lot with the officer=s marked patrol car amounted to a Terry

stop that was not supported by reasonable suspicion requiring suppression of the evidence

discovered during the unlawful stop.

In See, officers on routine patrol observed three men sitting in an unlit car in a Ahigh-crime

area@ at 4:30 AM that was backed into a parking space in a dimly lit parking lot. Id. at 311. The

officer noticed that the defendant=s car did not have a front license plate. Id. After observing this

vehicle, the officer pulled his patrol car in front of the defendant=s vehicle, thereby blocking the

defendant in. Id. at 312. The encounter led to a search of the defendant=s vehicle and a firearm

was found.

The Sixth Circuit agreed with the district court that Athe blocking of [See=s car] to

determine the identity of the occupants and maintain the status quo while obtaining this

information was a warrantless Terry seizure.@ Id. at 313. This is very similar to the actions of

Officers ___________________ and ___________________ in this case. These uniformed

police officers placed their marked patrol vehicle Anose to nose@ with the vehicle John Doe was in

preventing it from driving forward. Even if _____________ could have safely driven away, the

officers displayed such a show of authority that a reasonable person in her position would not have

believed that she was free to leave.

The Sixth Circuit held that the Terry stop was not supported by reasonable suspicion

5

because at the time the officer parked his patrol car in front of the defendant=s vehicle, the officer

Awas not responding to a complaint, he did not suspect the men of a specific crime, he had not seen

the men sitting in the car for an extended period of time, he was not acting on a tip, he had not seen

the men do anything suspicious, and the men did not try to flee upon seeing [the officer] approach.@

Id. at 314. The only possible violation in that case was the missing front license plate on the

vehicle. However, that could not provide reasonable suspicion for the Terry stop because under

Ohio law, this did not constitute a traffic infraction. Id.

IV. THE TESTIMONY FAILED TO SHOW THAT OFFICER ___________________ COULD HAVE SEEN DRUGS IN PLAIN VIEW ON JOHN DOE=S LAP.

Officer ___________________ did not see anything that Officer ___________________

allegedly observed on John Doe=s lap nor did he witness the struggle that Officer

___________________ claimed to have occurred with John Doe. Officer _______________

spoke with _____________ for approximately twenty seconds when he approached the driver=s

side of the vehicle. Exhibit A., p. 21. During this time period, he looked inside the vehicle with

his flashlight and he did not observe a bag of drugs on John Doe=s lap. Exhibit A, pp. 28, 37, 39.

Despite being in such close proximity to John Doe and Officer ___________________, he did not

witness any of the events Officer ___________________ testified about. Exhibit A., pp. 10-11,

21. Officer ___________________ was only alerted to the alleged struggle when Officer

___________________ called him over to the passenger side of the vehicle for assistance.

Exhibit A, p. 11.

It is difficult to fathom that Officer ___________________ would not have noticed the

events Officer ___________________ described through the driver side window of the Impala.

Officer ___________________ described John Doe as non-compliant from the moment that he 6

told him he was under arrest. Exhibit A., p. 58. He stated John Doe=s left hand was aiming for

the center console and he ordered him to take his seat belt off and get out of the vehicle. Exhibit

A., p. 58. John Doe then turned his body away from Officer ___________________ and reached

for the center console which caused Officer ___________________ to grab a hold of John Doe.

Exhibit A., p. 58. Officer ___________________ then called to Officer ___________________

for help. Exhibit A., p. 58. Officer ___________________=s testimony on direct examination

about this was as follows:

Q: And when you heard him yell that to you, were you able to make any observations? Did you see what was going on?

A: Not right away. I had to go over to his side of the vehicle.

Exhibit A., p. 11.

Moreover, it is nearly impossible that Officer ___________________ could have seen or

known what was in the bag allegedly on John Doe=s lap. Regarding what he first observed,

Officer ___________________ testified:

When I got to the passenger=s side of the vehicle, I immediately observed that the front passenger had on his lap a knotted sandwich bag containingBa clear sandwich bag containing a beige chunky substance, that through my experience and training in the police academy I identified as crack cocaine. Exhibit A., p. 53.

It was night time and Officer ___________________ took only a few seconds to look at it before

he grabbed the item from John Doe=s lap and immediately placed it in his back right pant pocket.

Exhibit A., p. 54. He then notified John Doe that he was under arrest. He further testified that the

crack cocaine was the size of a marble and located in a sandwich bag that was tied in a knot.

Exhibit A., p. 79-80. Undoubtedly, the knotted bag would have obscured from view the contents

of the bag. Despite this, Officer ___________________ told John Doe he was under arrest and

ordered him out of the vehicle. Exhibit A., p. 54. 7

Given that Officer ___________________ cannot substantiate the claims made by Officer

___________________ and the unlikely ability of Officer ___________________ to see the

contents of the sandwich bag allegedly on John Doe=s lap, the Government=s plain view argument

fails. To justify a warrantless seizure based on plain view three conditions must be met. First,

the seizing officer must not have violated the Fourth Amendment Ain arriving at the place from

which the evidence could be plainly viewed.@ Horton v. California, 496 U.S. 128, 136 (1990). It

has already been established that the initial Terry stop was unlawful since no parking violation had

occurred. Second, the item must not only be in plain sight, but Aits incriminating character must

also be immediately apparent.@ Id. As set forth above, it would have been impossible for Officer

___________________ to immediately see the contents of the knotted sandwich bag. Finally,

Anot only must the officer be lawfully located in a place from which the object can be plainly seen,

but he or she must also have a lawful right of access to the object itself.@ Id.

CONCLUSION

Based on the Defendant=s original moving papers, the testimony at the Suppression

Hearing, and the above analysis, any and all evidence, including physical evidence and any

statements attributed to the Defendant, obtained as a result of the illegal stop and search of the

vehicle and John Doe, must be suppressed.

DATED: June 19, 2014 Respectfully submitted, LISA A. PEEBLES Federal Public Defender

By: S/Melissa A. Tuohey, Esq.

Asst. Federal Public Defender Bar Roll No: 510807 4 Clinton Square, 3rd Floor Syracuse, New York 13202 (315) 701-0080

8

TO:

9

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

-v- CASE NO.:

JOHN DOE,

Defendant.

MEMORANDUM OF LAW

IN SUPPORT OF JOHN DOE MOTION TO SUPPRESS EVIDENCE


Syracuse, New York LISA A. PEEBLES Federal Public Defender

By:

Melissa A. Tuohey, Esq. Assistant Federal Public Defender Bar Roll No. 510807 Office of the Federal Public Defender 4 Clinton Square, 3rd Floor Syracuse, New York 13202 (315) 701-0080

PRELIMINARY STATEMENT

John Doe moves to suppress any and all evidence, including physical evidence and

statements attributed to him, seized and derived from a stop and subsequent search of a vehicle he

was traveling in on March 22, 2013. See Wong Sun v. United States, 371 U.S. 471, 484-85 (1963)

(establishing fruit of the poisonous tree doctrine to suppress evidence obtained as both a direct and

indirect result of an unlawful search or seizure). Based on evidence seized pursuant to the

challenged search and seizure, a federal grand jury returned a three-count superseding indictment

on September 11, 2013, charging John Doe with one count of unlawful possession of a firearm, in

violation of 18 U.S.C. ' 922(g), one count of possession with intent to distribute cocaine base, in

violation of 21 U.S.C. ' 841(a)(1), and one count of possession of a firearm in furtherance of a

drug trafficking crime, in violation of 18 U.S.C. ' 924(c). A court must hold an evidentiary

hearing on a motion to suppress if the motion raises a Asufficiently definite, specific, detailed, and

non-conjectural@ factual basis. United States v. Pena, 961 F.2d 333, 339 (2d Cir. 1992).

Because John Doe=s motion raises a factual issue concerning the stop and search of a vehicle and

his person, John Doe moves this Court to suppress the evidence underlying the indictment or, in

the alternative, to hold an evidentiary hearing.

STATEMENT OF FACTS

At approximately 11:00 p.m. on March 22, 2013, ______________ was driving a 2006

Chevrolet Impala (AImpala@) from Valley Drive in Syracuse, New York. See Affidavit of John

John Doe (AAffidavit@). John Doe was riding in the front passenger seat and ____________ was

traveling in the back seat. Id. At approximately 11:07 p.m., Dings pulled the Impala over on the

north side of the 300 block of Catawba Street. Id. Just as the Impala came to rest on the side of

the road, a marked police vehicle pulled up and parked directly in front of and facing it, preventing 2

the Impala from moving forward. Id. See also Exhibit A (CNYLEADS Narrative Supplement 1

by Jeremy Decker, Mar. 22, 2013).

Officers ___________________ exited the vehicle and rushed toward the Impala. Officer

____________ went to the driver side and asked _________ for her drivers licence, while Officer

__________ quickly approached the passenger side. See Exhibit A. As Officer _________

questioned __________, he reported receiving a request for assistance from Officer ___________

on the passenger side of the Impala. Id. Officer __________ reported observing in plain view a

Aknotted sandwich bag containing a beige chunky substance located on John Doe=s lap.@ See

Exhibit B (CNYLEADS Narrative Supplement 1 by ___________, Mar. 22, 2013). Officer

____________ then opened the front passenger door and attempted to place John Doe under

arrest. Id. Aided by Officers ____________ pulled John Doe from the vehicle and placed him

in handcuffs. Id. A search of John Doe=s person revealed A(l) clear plastic sandwich bag

containing white/beige residue located in his front right pants pocket, (1) black handled steak

knife located in his front right coat pocket, and $90.00 in US currency cash money separated

between several pockets which included: (4) $20 bills and (2) $5 bills.@ Id. A search of the

Impala uncovered a Glock, model 19, 9 mm handgun, located in the front center console. Id.

ARGUMENT

I. THIS COURT SHOULD SUPPRESS THE EVIDENCE BECAUSE THE POLICE OFFICERS UNCONSTITUTIONALLY STOPPED THE IMPALA.

The Fourth Amendment to the Constitution of the United States guarantees Athe right of

people to be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures.@ U.S. CONST. Amend IV. As the Supreme Court has acknowledged, the temporary

detention of an individual during a traffic stop is subject to limitation under the Fourth Amendment 3

as a seizure of the person. See Whren v. United States, 517 U.S. 806, 809B10 (1996). Importantly,

the Fourth Amendment protects both the driver and the passengers of a vehicle stopped during a

traffic stop. See Brendlin v. California, 551 U.S. 249 (2007). The Fourth Amendment requires

that an officer making such a traffic stop have probable cause or reasonable suspicion that the

person stopped has committed a traffic violation or is otherwise engaged in or about to be engaged

in criminal activity. Id. at 810; United States v. Arvizu, 534 U.S. 266, 273 (2002). Reasonable

suspicion is Asome minimal level of objective justification@ and Amust be based on >a reasonable

suspicion supported by articulable facts that criminal activity >may be afoot.=@ United States v.

Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)). An officer=s

inchoate suspicion or mere hunch is insufficient to justify an investigative stop, or Terry stop.

Terry, 392 U.S. at 27. AA court must determine whether there is reasonable suspicion under the

totality of the circumstances, and >must evaluate those circumstances Athrough the eyes of a

reasonable and cautious police officer on the scene, guided by his experience and training.@=@

United States v. Troche, 181 F.Supp.2d 340, 345 (S.D.N.Y. 2002) (quoting United States v. Colon,

250 F.3d 130, 134 (2d Cir. 2001) (citation omitted)).

The Second Circuit has taken the position that Aa police officer should not be empowered to

[conduct a Terry stop] unless the officer reasonably suspects the person of being engaged in illegal

activity.@ United States v. Swindle, 407 F.3d 562, 567 (2005). Moreover, a Terry stop must be

justified at its inception. Id. (citing Feathers v. Aey, 319 F.3d 843, 848-49 (6th Cir. 2003) (AThe

question is whether, at the moment that they initiated the stop, the totality of the circumstances

provided the officers with the reasonable suspicion required in order to detain a citizen under

Terry.@ Id. See also Florida v. J.L., 529 U.S. 266, 271 (2000) (holding the Areasonableness of

4

official suspicion must be measured by what the officers knew before they conducted their

search.@). Indeed, the Second Circuit has made it clear that Aan illegal stop cannot be made legal

by incriminating behavior that comes after the suspect is stopped.@ Id.

In order for the stop here to be legal, Officers ________________ must have had

reasonable suspicion that the Impala and its occupants were engaged in illegal activity. The

alleged finding of drugs on John Doe=s lap after the inception of the Terry stop cannot be used to

justify the stop in the first place.

The police reports suggest two possible grounds for the stop of the Impala. First, the

officers claim to have believed that the Impala, which ________ pulled over on the north side of

the 300 block of Catawba Street, was parked in violation of the Syracuse City Odd/Even parking

ordinance. Second, the report of Officer ____________, though not Officer _________, claims

that the Impala was observed in a Aknown high crime area inundated with criminal activity.@

Exhibit B. Neither one of these grounds rises to the level of reasonable suspicion.

As a preliminary matter, there can be no doubt that the Impala and its occupants were

stopped by law enforcement officers. A seizure for Fourth Amendment purposes occurs both

through physical force and Aby a show of authority and without the use of physical force.@

Brendlin, 551 U.S. at 254. A seizure occurs when a car stops following a show of law

enforcement force or authority. Id. ATo be sure, where officers detain an already stationary

suspect by hindering his future as opposed to ongoing progress, that they did not stop the suspect

as the term is commonly understood does not foreclose inquiry into whether their conduct

constitutes an investigatory stop.@ United States v. Kim, 25 F. 3d 1426, 1430 (9th Cir. 1994)

(citing United States v. Berry, 670 F.2d 583, 597 (5th Cir.1982)). See e.g. United States v. Brown,

5

334 F.3d 1161, 1164 (D.C. Cir. 2003) (opening door of already parked car constituted

investigatory stop and search for Terry purposes).

In this case, the police reports make plain that the officers initiated a stop of the Impala.

The officers parked their marked police car directly in front of the Impala, which they claim to

have believed was illegally parked. Both uniformed officers then exited their marked police

vehicle and approached the Impala. Officer ___________ approached the driver side and asked

________ for her drivers license. Because the police vehicle was parked directly in front of the

Impala, thereby preventing the Impala from freely moving forward, and because the officers

demanded _________ identification, the officers initiated a stop and a reasonable person

occupying the Impala would not feel Afree to decline the officers= request or otherwise terminate

the encounter.@ Florida v. Bostick, 501 U.S. 429, 439 (1991).

A. The Impala was not in violation of the Syracuse City Odd/Even parking ordinance and, therefore, any alleged parking violation cannot be the basis of the officers= reasonable suspicion.

The Impala was not Aparked@ within the meaning of New York State law and was,

therefore, not in violation of the Syracuse City Odd/Even parking ordinance. The Syracuse

Odd/Even parking ordinance Adictates that from 6 p.m. on an odd day to 6 p.m. on an even day,

cars may park on the odd- addressed side of the street. At 6 p.m., vehicle owners must switch the

side of the street on which their car is parked to the even side.@ City of Syracuse, Parking FAQ=s,

http://www.syracuse.ny.us/parking_faqs.aspx (last visited November 7, 2013). Under New York

State law, even where Aparking@ is prohibited, such as by the Syracuse City Odd/Even parking

ordinance, a vehicle may still Astop or stand temporarily for the purpose of and while actually

engaged in loading or unloading merchandise or passengers.@ N.Y. Veh. & Tr. ' 1200(c).

6

In this case, Officers ________________ observed no more than the Impala come to a

stationary position on the 300 block of Catawba Street in Syracuse, New York. See Exhibit A.

The incident reports gave no indication that the officers had observed the Impala long enough after

it came to a stationary position to determine whether it was indeed Aparked@ within the meaning of

New York State law in order to reasonably suspect it was in violation of the City of Syracuse

Odd/Even parking ordinance. See Exhibit A; Exhibit B. And because ___________ had just

pulled over immediately before the officers parked their marked vehicle directly in front of the

Impala, the officers could not have observed it long enough to determine whether the Impala was

parked. Therefore, there was no basis to believe that the Impala was illegally parked.

Furthermore, it is legal for a vehicle to temporarily stop or stand where parking is

prohibited. Consequently, even if the officers initially believed the Impala to have been illegally

parked, any suspicion in that regard was dispelled once the officers observed that the Impala=s

engine was running and that the car was being occupied by three individuals. No officer could

reasonably believe the Impala was parked. Therefore, the alleged parking violation cannot be

used as the justification for the Terry stop.

B. The mere fact that the Impala was located in a high-crime area is insufficient to justify a Terry stop.

Other than the fact that the vehicle was stationary, the only other possible ground presented

to justify the officers= suspicion was that the Impala was observed in what was considered to be a

high-crime area.1 See Exhibit A.2 Even if true,3 however, the Supreme Court has specifically

1 Because the officers clearly indicated that the basis for the stop was their claim that the Impala was illegally parked, it is doubtful that this Court may even rely on any claim that the Impala was observed in a high-crime area.

2 Only Officer _________ claimed that the Impala was observed in a high-crime area. 7

held that A[a]n individual=s presence in an area of expected criminal activity, standing alone, is not

enough to support a reasonable, particularized suspicion that the person is committing a crime. @

Illinois v. Wardlow, 528 U.S. 119, 124 (citing Brown v. Texas, 443 U.S. 47, 61 (1979)). It is only

one of the factors considered when assessing the totality of the circumstances. Wardlow, 528 U.S.

at 124 (citing Adams v. Williams, 407 U.S. 143, 144 (1972)). Here, the fact that the Impala was in

a high crime area is the only other factor that Officer Ettinger considered before conducting a

Terry stop, other than the fact that the vehicle was stationary. As demonstrated above, no

reasonable person could believe the Impala was illegally parked. Therefore, the question is

whether there was reasonable suspicion to initiate a Terry stop of a vehicle that was temporarily

stationary in what was claimed to be a high-crime area. The fact that the vehicle lawfully came

temporarily to rest on a side of the street where parking was not then permitted and in an area that

is claimed to have high crime rate does not rise to the level of reasonable, particularized suspicion

that the occupants of the Impala were engaged in illegal activity. Because the Impala was merely

doing what it was permitted to do under the Vehicle and Traffic Laws of the State of New York,

i.e., temporarily stand and stop, means that the only basis that the officers could have relied upon

to initiate the Terry stop was the Impala=s presence in a claimed high-crime area. Because the

Supreme Court has clearly held that more is needed, the totality of these circumstances do not

sufficiently support the officers= suspicion that illegal activity was afoot. Therefore, the stop was

unjustified and unconstitutional. Consequently, any and all evidence obtained from the illegal

stop of the Impala should be suppressed as fruit of the poisonous tree.

Officer Decker made no similar claim.

3 John Doe does not concede that the area was a high-crime are.

8

II. THIS COURT SHOULD SUPPRESS THE EVIDENCE BECAUSE THE OFFICERS LACKED ANY BASIS TO SEARCH JOHN DOE AND THE IMPALA.

Even if the officers had reasonable suspicion to stop the Impala, they lacked any basis upon

which to search both John Doe and the vehicle. As indicated in the police reports, the sole basis

upon which the officers searched John Doe and the Impala was Officer _____________=s claim to

have seen crack cocaine in plain view. According to Officer ___________, after parking the

police vehicle directly in front of the Impala, he approached the passenger side, where he observed

through the front passenger window a knotted sandwich bag containing a beige chunky substance

on John Doe=s lap.

The surrounding circumstances render Officer ______________=s claim entirely

implausible. First, the stop in question took place at 11:07 p.m. See Exhibits A-B. Even if it

were conceivable that a passerby, from a non-intrusive vantage point, could see something on the

lap of an occupant of a vehicle during the daytime, it is not conceivable that such could be the case

at night. There is no indication that the interior light was on or that there were street lights

overhead illuminating John Doe=s lap. Second, the object in a question, a sandwich bag

containing no more than four grams of crack cocaine, was too small to observe from the side of the

street, especially at night. Third, it defies logic that John Doe would have a bag of crack cocaine

on his lap after just observing a marked police vehicle park directly in front of the Impala. And

even if he had a bag of crack cocaine on his lap when viewing the marked police vehicle park

directly in front of the Impala, he surely would not have left the bag on his lap when two uniformed

officers exited the police vehicle and approached the Impala. Absent Officer _______________=s

claim to have observed crack cocaine in John Doe=s lap, there was no basis to search John Doe or

9

the Impala, and, therefore, this Court should suppress any and all evidence obtained directly and

indirectly from the stop and search of John Doe and the Impala.

CONCLUSION

Based on the above analysis, any and all evidence, including physical evidence and any

statements attributed to the Defendant, obtained as a result of the illegal stop and search of the

vehicle and John Doe, should be suppressed. Alternatively, John Doe requests an evidentiary

hearing on the matter.



By: S/Melissa A. Tuohey, Esq.

Asst. Federal Public Defender Bar Roll No: 510807 4 Clinton Square, 3rd Floor Syracuse, New York 13202 (315) 701-0080

TO:

10

1

Working a Case for Successful Outcomes

Preservation Decisions:

Indictment or

Information

Plea Agreement

No Agreement

Charge

Sentence

Cooperate

ConditionalPlea

Waivers

Sentence

Waivers

Trial on Stipulated Facts Sentence

Preservation of Rights for Review

“Contemporaneous Objection” Rule:An appellate court generally will review an issue only if the appellant made a specific, timely objection at or before trial or sentencing. -without objection may forfeit issue or waivefuture reconsideration

2

Preserving Pre-Trial Issues:

Fed. R. Crim. P. 12(b)(2)“A motion that the court lacks

jurisdiction may be made at any time while the case is pending.”

Pre-Trial Issues to Preserve ►Indictment Challenge which goes to the power of the

federal government to prosecute►Charge failed to state a prohibited offense►Proper exercise of Congress’ commerce power►Void for Vagueness or Overbroad “As applied” to the facts of the case Facially overbroad –

►Territorial Jurisdiction

Predicate convictions do not qualify►Not crime of violence, violent felony, aggravated felony►Foreign conviction

More Defects Not Waived

►Prior Conviction: Information not filed 21 USC sec. 851

►Lack of Factual Basis for the Plea (limited)

►Double Jeopardy (limited)

►Unknowing and Involuntary Plea

►Ineffective Assistance of Counsel

3

Pre-Trial Issues: Waived or Forfeited by Plea unless decided on motion or preserved in plea agreement

Fed. R. Crim. P. 12(b)(3)“[D]efenses, objections and requests must be raised by pre-trial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits.”

Non-Jurisdictional Issues Subject to Waiver or Forfeiture

►Discovery Violations► Severance►Grand Jury Challenges► Suppression► Indictment Defects Fails to state facts

► Selective Prosecution► Plea Agreement Breach► Speedy Trial► Statute of Limitations►Double Jeopardy►Venue when defect apparent

from indictment

SentencingPre-SentenceInterview

Draft PSR

FactualObjections

PSR

Addendum

Hearing

Sentencing

Sentencing Memo:Unresolved Factual Objections

Guideline ObjectionsAdjustments/Departures

3553(a) Arguments

4

PSR►Interview Offense Conduct Statement Prior or Uncharged Criminal Conduct

►Draft PSR

►Objections in Writing & Filed CM-ECF Factual Scoring of Guidelines

►Probation Response Addendum Revision of PSR

Sentence Memorandum►Factual Issues Accuracy Reliability : minimum due process requirement

►Guideline Application Issues Base Offense Levels Specific Offense Characteristics Adjustments and Departures

►18 U.S.C. §3553(a) Factors & Info.

Sentencing Proceeding► Factual Issues in Contention (F.R.Crim.P. 32) Hearing or No Hearing Ruling or Indicate Will not Consider

►Guidelines Issues Application Legal and Factual Support

► including Conditions of Supervision and Restitution Amounts

►Section 3553(a) Factors

►Statements of the Court Reason for Sentence; Resolve Contended Factual Issues Terms and Conditions of Supervision

5

Factual Issues►Rule 32 Maintain objections to specific facts even if PSR adopted

► Fatico Hearing What is the Guideline Calculation Based Upon?

►Reasonable or Unreasonable Estimate vs. Actual►Level of Reliability for the Basis of the Factual Finding

►Court Says Will Consider Contended Facts Not Abuse of Discretion but Procedural Error Pay Attention to statements of the court

Application of Guidelines► Base Offense Level & Specific Offense Characteristics

Relevant Conduct Quantity/Composition of Drugs Loss Amounts Number, content of and act related to images

► Criminal History

► Predicate Convictions Prior Crimes of Violence, Aggravated Felony, Sexual Abuse or Sexual

Exploitation► Taylor/Shepherd/Begay/Descamps► Johnson

► Portrayal of Substantial Assistance

► Affirmative Reductions - Adjustments Minor role, no distribution, not pecuniary gain, sporting purposes Acceptance of Responsibility

Procedural Error: ►Misapplication of the Guidelines Legal or Factual

►Erroneous Finding of Fact Not in Record, Unsupported by Record or Used

Facts Court Said it would not consider

►Statement at Sentencing Insufficient

►Inappropriate Weight Given to the Guidelines

►Court Believed it was without Discretion

6

18 USC §3553(a) Factors►Need for the Sentence Imposed Policy departures

► Deconstruction of Guidelines Lack of Commission study and empirical support Child Porn., Career Offender, MDMA, Agg. Re-Entry

►Unwarranted Disparity in sentencing Fast Track, Child Porn.

► Sufficient but not greater than necessary to comply with the purposes for the sentence.

►Court does not have to address specifically but should in general in relation to length of sentence

Objections Needed to Preserve Procedural Error

►Did Court State its Reasons For the Sentence ? Need for Imprisonment, Supervision, Recidivism, Rehabilitation

►Ruling on Facts Providing Basis for Sentence Illegal application Erroneous or lacking factual basis Use of facts court said it would not consider

►Rebut the Presumption that District Court “Faithfully Discharged” its Duty to Consider §3553(a) Factors Restate Arguments for Departures/Adjustments Present significant mitigation information Establish Differences from other Similarly Situated Offenders of Offenses Sentence is greater than needed to fulfill purposes of sentencing.

Substantive Error: ► Length of Sentence Imprisonment, Term of Supervision “Shocks the Conscience”, other more egregious offenses

with lesser sentence

►Statement of Reasons does not support sentence Length of Sentence with respect to mitigation and relative

culpability

► Disparity Same Offense Conduct Among Similarly Situated Offenders

(Similar Criminal Records)

7

Judgment andStatement of Reasons

►18 U.S.C. §3553(c)

► Judgment of Conviction Oral Pronouncement vs. Written Reasons

►Statement of Reasons Non-Guidelines sentence Conditions of Supervision Restitution

► Letter of Objection once Judgment received

Resources

► http://sentencing.typepad.com/sentencing_law_and_policy/

► http://www.fd.org/

► http://www.nynd-fpd.org/

HOW, WHEN, & WHY

TO OBJECT, RAISE & PRESERVE ISSUES

Rosemary T. Cakmis

Assistant Federal Public Defender

Chief, Appellate Division

[email protected]

James T. Skuthan

Acting Federal Public Defender

Middle District of Florida

201 S. Orange Avenue, Suite 300

Orlando, Florida 32801

(407) 648-6338

S:\Cakmis\1-preserve error\1 preserve error may 2008.wpd

ContentsI. General Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. Goals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1B. How . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1C. When . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2D. Why . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. Pre-Trial Motions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7A. Fed. R. Crim. P. 12 Motions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7B. Tips . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

III. Contemporaneous Objection Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11A. A party must make a timely “contemporaneous” objection to issues to get the

district court to correct them and to preserve them for appeal . . . . . . . . . . . . . . . 11B. Fed. R. Evid. 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12C. Judge Tjoflat on Preserving Evidentiary Objections v. Plain Error Review of

Evidentiary Rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12D. Exceptions to Contemporaneous Objection Rule are Rare . . . . . . . . . . . . . . . . . . . . 12

IV. Some Common Trial Applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16A. Closing Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16B. Confrontation Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16C. Evidence - Brady . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16D. Judgment of Acquittal Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17E. Juror Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19F. Jury Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

V. Guilty Plea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21A. In General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21B. Plea Agreement - Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22C. Plea Agreement - Appeal Waiver Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22D. CAVEAT on Defendant’s Right to Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

VI. Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24A. General Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24B. Sentencing - in General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32C. Sentencing - Allocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36D. Sentencing - Restitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37E. Resentencing the Second Time Around . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38F. Federal Rule Criminal Procedure 35(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

VII. Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45A. Arguing on Appeal against Forfeiture of Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45B. Issues Can be Waived During Appeal Even if Those Issues were Preserved in the

District Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

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I. General Rules.

A. Goals.

* Zealously represent your client and advocate his rights at all stages of the proceedings - trial,plea, sentencing, and appeal.

* If your client wants to plead guilty, ensure that his plea is knowingly, intelligently, andvoluntarily entered.

* If your client wants to enter a plea agreement, ensure that it is in his best interests and is notbreached.

* If your client wants to go to trial, ensure that he has a fair trial and receives effectiveassistance of counsel, who does everything ethically possible to achieve a verdict of notguilty.

* If the verdict is guilty, be sure that every issue/ruling is preserved for appeal.* Obtain the best possible sentence for your client at sentencing.* If the sentence imposed is not the best possible sentence, be sure that every issue/ruling is

preserved for appeal.* Do everything ethically possible to convince the appellate court to reverse any adverse

rulings made by the trial court.

B. How.

Raise every issue. Object to every error. Argue every aspect of your claim. Proffer evidence.Make standing/continuing objections. Adopt co-defendants' motions/objections. File pre-trialmotions in limine, and motions to dismiss and suppress. Renew motions/objections whenappropriate. Preserve the record.

One party objects, and the others join. Know your judge and the rules of his/her court.Sometimes it is presumed that all parties opt in on each other's objections. To be safe, you shouldannounce you opt in on all co-defendants' objections at the beginning of trial. Also, check to be sureif this applies to motions as well.

For example, in United States v. Moore, 104 F.3d 377 (D.C. Cir.1997), a motion forseverance, made by a co-defendant charged with drug and weapons possession, was not attributedto the defendant for purposes of satisfying the requirement that the defendant preserve his objectionfor appellate review. The agreement between the defendants and court that all defense objectionswould be deemed jointly made did not apply to motions, and in any event the co-defendant's motionhad been based on inability to call the defendant as a witness, and the defendant was basing his claimfor severance on irreconcilable defenses.

Review the PSR thoroughly with your client. Object to the facts and conclusions in the PSRand at sentencing. Articulate all arguments and issues.

Expect to win in the district court, but do not forget to preserve the record for appeal, just incase. Even if relegated to plain error standard, still raise it -- chances are better on direct appealthan on collateral attack.

Do not ignore issues that your circuit has ruled against. The Eleventh Circuit has suggestedlitigants raise such issues, lest they be deemed abandoned in the event of a change in the law. "[A]litigant is never precluded from raising an issue simply because a previous appeal has been decided

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that rejects a particular argument." United States v. Levy, 379 F.3d 1241 (11th Cir. 2004), reh'g enbanc denied, 391 F.3d 1327 (11th Cir. 2004) (Hull, J., concurring). "This is so because there isnothing prohibiting this Court sitting en banc or the Supreme Court from reconsidering or overrulingarguments that had been previously rejected." Id. (citing Engle v. Isaac, 456 U.S. 107, 130, 102 S.Ct. 1558, 1573 (1982) ("Even a state court that has previously rejected a constitutional argument maydecide, upon reflection, that the contention is valid.")).

C. When.

If possible, catch the error before it occurs. For example, prior to trial, file a motion in limineor a motion to suppress evidence. If your pretrial motion is denied, raise the objection again at theappropriate time during trial, e.g., object when the evidence sought to be suppressed or admitted isadmitted or excluded at trial. Again, proffer facts and explain all grounds and why the evidence isprejudicial or necessary. See, e.g., United States v. Rutkowski, 814 F. 2d 594 (11th Cir. 1987) (rulingthat the defendant failed to preserve the evidentiary issue for appeal, because even though thedefendant's attorney objected before trial to admission of the evidence, he failed to object duringtrial).

As discussed below, certain motions must be filed pre-trial, like motions challenging defectsin the proceedings, discovery motions, and severance motions. See FRCrP 12(b)(3). The districtcourt sets time limits for filing such motions. Failure to comply with these time limits can waive theright to file such motions in the district court.

There are also rules regarding objections during trial, such as the contemporaneous objectionrule. Rules like the contemporaneous objection rule are not just a trap for the unwary practitioner.They actually can be helpful, in that they can bring an error to the district court's attention, so thatit can rule on (and hopefully correct) the error in a timely manner.

There are also time constraints in place at sentencing. Everyone is alerted to the time periodsfor objections to the pre-sentence report (PSR). In the end, all objections to the PSR and the sentencemust be presented to the district court before or at sentencing. The PSR must also be presented tothe client at least 10 days before sentencing.

D. Why.

1. Why so many rules and time limits?

Not that I'm the rule guru, but there is some logic to the theory that if all the rules are timelyfollowed in the trial court, then the trial court will have the opportunity to rule on and correct anyand all errors. If every error gets fixed in the trial court, the client gets a perfect trial - no need forappeal. If the trial court rules against your client, by objecting and specifying facts and arguments,you preserve the issue for further review.

The contrary holds true as well. If an issue is not timely objected to or raised in the districtcourt, the district court is not presented with the first opportunity to correct the "error" and the issueis not preserved for appellate review.

United States v. Burgess, 175 F.3d 1261, 1265 (11th Cir. 1999): "The law is clear that, tobe given effect, 'an objection must be framed with precision sufficient to inform the trial judge asto the matter about which the objection is raised and the grounds therefor.' . . . The idea behind thisrequirement is that the district court should be given 'the chance to correct errors before the case goesto the jury.'" [Citations omitted.]

United States v. Pielago, 135 F.3d 703, 709 (11th Cir. 1998): "The contemporaneous

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objection rule fosters finality of judgment and deters 'sandbagging,' saving an issue for appeal inhopes of having another shot at trial if the first one misses . . . . The contemporaneous objection rulealso promotes the salutary interest of making the trial the main event. Failure to enforce it 'tends todetract from the perception of the trial of a criminal case. . . .as a decisive and portentous event.' .. . Moreover, requiring timely objections allows trial courts to develop a full record on the issue,consider the matter, and correct any error before substantial judicial resources are wasted on appealand then in an unnecessary retrial. . . . A full record and a prior decision in the district court areessential ingredients to our substantive review of issues-- they flesh out an issue in a way the parties'briefs may not." [Citations omitted.]

2. What are the consequences of failing to comply with these rules and timelimits?

The generic answer is: Losing the ability to have the district or appellate court correct an erroror having to deal with a higher standard of review (plain error).

However, the reality is that your client is the one who ends up doing more time because anissue may have been won under harmless error review, but is lost under plain error review; or anissue is not raised at all. Not only does the client lose, but also you lose and the system loses becausemore litigation is very likely to ensue. See, e.g., Martin v. Maxey, 98 F.3d 844 (5th Cir. 1996)(finding failure to file a motion to suppress may be grounds for an ineffectiveness claim); Sager v.Maass, 84 F.3d 1212 (9th Cir. 1996) (finding counsel ineffective for not objecting to inadmissibleevidence); United States v. Glover, 97 F.3d 1345 (10th Cir. 1996) (finding it was ineffective forcounsel to fail to object to the higher methamphetamine range).

a. Forfeiture v. Waiver.

United States v. Lewis, 492 F.3d 1219 (11th Cir. 2007) (en banc): "Whereas forfeiture isthe failure to make the timely assertion of a right, waiver is the intentional relinquishment orabandonment of a known right." Id. at 1121 (quoting United States v. Olano, 507 U.S. 725, 733, 113S. Ct. 1770, 1777 (1993)) (emphasis added). In Olano, the Supreme Court clarified that "[m]ereforfeiture, as opposed to waiver, does not extinguish an 'error' under Rule 52(b)." Olano, 507 U.S.at 733, 113 S.Ct. at 1777 (citation omitted). Thus, while forfeited claims are reviewed under Rule52(b) for plain error, waived claims are not. Lewis, 492 F.3d at 1221 (citing Olano, at 733, 113 S.Ct.at 1777. "Under Federal Rule of Criminal Procedure 52(b), this Court may correct a 'plain error thataffects substantial rights ... even though it was not brought to the [district] court's attention.'" Lewis,492 F.3d at 1221 (quoting FED. R. CRIM. P. 52(b)).

Lewis is important for several reasons. It is a 2007 en banc decision. It rejected prior EleventhCircuit precedent that refused to consider double jeopardy claims raised for the first time on appeal.In doing so, it clarified the distinction between waiver and forfeiture. Before Lewis, the courts, aswell as counsel, used the term "waiver" loosely to refer to almost any claim not raised in the districtcourt. Even after Lewis, the word "waiver" is often inadvertently used in lieu of forfeiture. However,the difference between waiver and forfeiture is not a matter of mere semantics, but is critical towhether an issue is lost forever or can be revived under plain error review. Olano is the leadingSupreme Court case on plain error.

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b. Defining Plain Error.

United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770 (1993): A court of appeals hasdiscretion under Rule 52(b) to correct "plain errors or defects affecting substantial rights" that wereforfeited because not timely raised in the district court, which it should exercise only if the errors"seriously affect the fairness, integrity or public reputation of judicial proceedings," United Statesv. Atkinson, 297 U.S. 157, 160 (1936). There are three limitations on appellate authority under Rule52(b). First, there must be an "error." A deviation from a legal rule during the district courtproceedings is an error unless the defendant has waived the rule. Mere forfeiture does not extinguishan error. Whether a particular right is waivable, whether defendant must participate personally in thewaiver, whether certain procedures are required for waiver, and whether defendant's choice must beparticularly informed or voluntary depend upon the right at stake. Second, the error must be "plain,"a term synonymous with "clear" or, equivalently, "obvious." Third, the plain error must "affec[t]substantial rights," which normally means that the error must be prejudicial, affecting the outcomeof the district court proceedings. Normally a court of appeals engages in a specific analysis of thedistrict court's record to determine prejudice, and the defendant bears the burden of persuasion. TheCourt did not decide whether the phrase "affecting substantial rights" is always synonymous with"prejudicial" or whether there are errors that should be presumed prejudicial.

United States v. Atkinson, 297 U.S. 157, 160 (1936): The error is plain error where it wouldseriously affect the "fairness, integrity, or public reputation of judicial proceedings".

United States v. Cotton, 535 U.S. 625, 122 S. Ct. 1781 (2002): While indictment's failureto include any allegation regarding quantity of drugs involved in alleged conspiracy renderedconspirators' enhanced sentences erroneous under Apprendi v. New Jersey, 530 U.S. 466, 490, 120S. Ct. 2348 (2000), error did not seriously affect fairness, integrity, or public reputation of judicialproceedings, and thus did not rise to level of plain error, where evidence that this conspiracyinvolved at least 50 grams of cocaine base was overwhelming and essentially uncontroverted.

United States v. Pielago, 135 F.3d 703, 709 (11th Cir. 1998):"The narrowness of the plainerror rule is a reflection of the importance, indeed necessity, of the contemporaneous objection ruleto which it is an exception. . . . 'In the absence of plain error. . . it is not our place as an appellatecourt to second guess the litigants before us and grant them relief they did not request, pursuant tolegal theories they did not outline, based on facts they did not relate.' Because the contemporaneousobjection rule is essential to the integrity and efficiency of our judicial process, we have stressed that'[t]he plain error test is difficult to meet.'" [Citations omitted.]

The Eleventh Circuit further explained that two situations in which an error becomes "plainerror" are (1) where a squarely-on-point intervening decision of the Eleventh Circuit or the SupremeCourt makes the error plain, or (2) where the error is egregious and strikes at a core principle whichthe violated rule or law embodies. Id. at 711.

United States v. Antonietti, 86 F.3d 206 (11th Cir. 1996): Reversal for error that has notbeen objected to is possible, but not required, where error is plain and affects substantial rights.

c. Plain Error v. Harmless Error.

Plain error is a difficult standard of review to meet, but it is not impossible, and it is certainlybetter to have some review than no review at all. Harmless error, which is applied to preservedissues, is a much better standard of review. The difference between plain error review and harmlesserror review is often outcome determinative on appeal. The Eleventh Circuit explained the differencebetween plain and harmless error review in United States v. Turner, 474 F.3d 1265, 1275-1276(11th Cir.2007):

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Plain-error review differs from harmless-error review in both purpose and scope. SeeUnited States v. Simmons, 961 F.2d 183, 185 n. 1 (11th Cir.1992) (per curiam). Mostnotably, unlike harmless-error review, plain-error review is intended to enforce therequirement that parties lodge timely objections to errors at trial so as to provide thedistrict court with an opportunity to avoid or correct any error, and thus avoid thecosts of reversal and a retrial. Id. (citing United States v. Sorondo, 845 F.2d 945, 949(11th Cir.1988)). "Consequently, proof of a plain error involves not only a showingof harm, but also proof that the error was so conspicuous that the 'judge andprosecutor were derelict in countenancing it.' " Id. (quoting United States v. Bonavia,927 F.2d 565, 570 (11th Cir.1991)). "An error that is not harmless, then, is notnecessarily a plain error." Id. In addition to the differences in purpose served by theplain-error and harmless-error standards, the standards also differ in application intwo significant ways. United States v. Monroe, 353 F.3d 1346, 1352 (11th Cir.2003).First, under plain-error review, the defendant bears the burden of persuasion to showprejudice or an effect on substantial rights, whereas under harmless-error review, thegovernment has the burden of establishing harmlessness beyond a reasonable doubt.Id. Second, "plain-error review has the additional requirement that an appellate courtthen must decide whether to exercise its discretion to notice a forfeited error." Id. Wewill exercise our discretion to correct only those errors that "seriously affect [ ] thefairness, integrity or public reputation of judicial proceedings." United States v. Vonn,535 U.S. 55, 63, 122 S. Ct. 1043, 152 L. Ed.2d 90 (2002) (quoting United States v.Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 123 L. Ed.2d 508 (1993)).

d. Some cases where the plain error standard was met:

United States v. Miranda, 197 F.3d 1357, 1359 (11th Cir 1999): The defendant wasconvicted of conspiracy to launder money based on conduct that occurred before the enactment ofthe substantive money laundering statutes. The Eleventh Circuit held that this "naked ex post factoviolation" constituted plain error. Id. The court did not mention whether the error seriously affectedthe fairness, integrity, or public reputation of judicial proceedings.

United States v. Webster, 84 F.3d 1056 (11th Cir. 1996): When a law is clarified betweentrial and appeal, a point of appeal will be preserved as plain error.

United States v. Cobbs, 967 F.2d 1555 (11th Cir. 1992): Illegal sentences subject to reviewas plain error include sentences that are beyond the statutory power of the court to impose them.

Harris v. United States, 149 F.3d 1304 (11th Cir. 1998): In this § 2255 case, the EleventhCircuit reiterated existing authority, which holds that jurisdictional defects cannot be procedurallydefaulted. The defendant received an enhanced sentence based upon 21 U.S.C. § 851(a)(1). Thatdrug enhancement statute (unlike the "career offender" guidelines and the armed career criminalstatute) requires the government to file an information, prior to the sentencing hearing, in order totrigger the statutory enhancement provision. In the instant case, the defendant had actual notice thatthe government was seeking to enhance his sentence pursuant to § 851. However, the governmentdid not follow the proper procedure and did not file an "information" with the clerk.

After beginning his prison term, the defendant filed a § 2255 action. The governmentresponded that the claim was procedurally defaulted and that even if defense counsel was ineffectivefor failing to raise the issue on direct appeal, there was no prejudice since the defendant was awareof the enhancement at the change of plea hearing.

The Eleventh Circuit reiterated that a sentencing court is without jurisdiction to impose anenhanced sentence, pursuant to § 851, unless the government properly files the § 851 notice in

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compliance with the statute (see United States v. Olson, 716 F.2d 850, 853 (11th Cir. 1993). Thecourt then held, as to defendant's §2255 claim, that he did not have to show cause and prejudice tocollaterally attack an enhanced sentence on the grounds that the district court lacked jurisdiction toimpose the enhanced sentence. The court held that such was the case even though the defendantfailed to object at trial or on direct appeal. Thus, any defendant who pled under similarcircumstances, or where the information was filed AFTER the change of plea, may be entitled torelief.

United States v. Alborola-Rodriguez, 153 F.3d 1269 (11th Cir. 1998): One issue the courtdealt with involved its ability to sua sponte address the district court's lack of subject matterjurisdiction. The district court ordered that the defendant be deported as a condition of hissupervised release. Since the district court lacked jurisdiction to impose such a condition, theEleventh Circuit sua sponte reversed this condition of supervised release.

United States v. Barajas-Nunez, 91 F. 3d 826, 833 (6th Cir. 1996): The court concludedit was plain error for a sentencing court to disregard the guidelines because"[p]ermitting sentencingcourts to disregard governing law would diminish the integrity and public reputation of the judicialsystem."

e. Some cases where the plain error standard was not met.

Johnson v. United States, 520 U. S. 461 (1997): The district court plainly erred in failingto submit the question of the materiality of a false statement to the jury. However, the Supreme Courtheld that this plain error did not seriously affect the fairness, integrity, or public reputation of judicialproceedings because the evidence supporting materiality was overwhelming and materiality wasessentially uncontraverted at trial and on appeal. Id. at 470. Reversal for failure to allow the jury toconsider materiality in light of the overwhelming, uncontraverted evidence of materiality, wouldhave had no effect on the judgment. In deciding that the jury instruction did not seriously affect thefairness, integrity, or public reputation of judicial proceedings, the Supreme Court stated "[r]eversalfor error, regardless of its effect on the judgment, encourages litigants to abuse the judicial processand bestirs the public to ridicule it." Id. (quoting R. Traynor, The Riddle of Harmless Error, 50(1970)).

United States v. Frost, 139 F.3d 856 (11th Cir. 1998): As in Johnson v. United States, 520U. S. 461 (1997), the Frost court found that there was overwhelming evidence of materiality. Basedon this overwhelming evidence and the lack of any convincing argument that the false statement wasnot material, the court found no basis to conclude that the error seriously affected the fairness,integrity, or public reputation of judicial proceeding or resulted in a miscarriage of justice. Id. at 860-861.

United States v. Humphrey, 164 F.3d 585 (11th Cir. 1999): The defendant pled guilty topossessing cocaine base with intent to distribute (21 U.S.C. § 841(a)(1)), and to using and carryinga firearm in a drug trafficking crime (18 U.S.C. § 924(c)(1)). At the plea hearing, the district courtfailed to inform the defendant that sentences on these two counts had to be served consecutively.No one objected. The Eleventh Circuit found this was not plain error under the rule requiring thata defendant be informed of the consequences of his guilty plea because federal circuits were split onthe issue of whether the court is required to inform a defendant about the consecutive nature ofmultiple sentences. Because said issue had not been resolved by the governing circuit, any error wasnot so obvious or clear under current law that it could be termed "plain error."

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II. Pretrial Motions.

Some issues should be raised pretrial, and some must be raised pretrial in order to get thedistrict court to consider them. As a general rule, if it can be raised pretrial, raise it, unless there issome particular reason it will harm your case.

A. Fed. R. Crim. P. 12 Motions.

1. Fed. R. Crim. P. 12(b)(2) provides: "A party may raise by pretrial motion anydefense, objection, or request that the court can determine without a trial of the general issue."(Emphasis added).

This may be done, for example, by way of a motion in limine. However, be advised that amotion in limine does not eliminate the need for objection at trial.

Ohler v. United States, 529 U.S. 753, 120 S. Ct. 1851 (2000): The Supreme Court ruled thata defendant waived the right to appeal an adverse in limine ruling that her prior conviction wasadmissible for impeachment purposes when she preemptively introduced evidence of the convictionon her direct examination. The Court noted the ordinary rule that a party waives an objection to theintroduction of evidence when that party introduces evidence on the same subject matter. The Courtpointed out that a ruling on a motion in limine is not final, and that the trial judge could reversehis/her ruling up until the time the government sought to impeach the defendant with the priorconviction.

2. Rule 12(b)(3) provides that certain motions must be raised before trial,including challenges to the following:

a. defects in the institution of the proceedings, for example:

The Speedy Trial Act provides, in pertinent part, that "[f]ailure of the defendant to move fordismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of theright to dismissal under this section." 18 U.S.C. § 3162(a)(2); United States v. Register, 182 F.3d 820(11th Cir. 1999) (holding the defendant waived relief under the Speedy Trial Act by failing to makea motion to dismiss the indictment based on the Act).

When raising a speedy trial claim, be sure to raise the constitutional claim also and challengeit at all relevant junctures.

United States v. Twitty, 107 F.3d 1482 (11th Cir. 1997): Delay of two years between thedefendant's indictment on multiple charges related to bank fraud and conspiracy in connection withreal estate development and the beginning of his trial did not violate his Sixth Amendment right tospeedy trial, even though length of delay was presumptively prejudicial. The government was foundto be neither negligent nor purposefully dilatory in its prosecution of defendant. Of particularimportance, of course, was the fact that the defendant failed to assert his constitutional speedy trialright in timely fashion, to object to any grant of continuance, to object to any of co-defendants'motions requesting additional delays, to request severance, or to identify actual prejudice to hisdefense resulting from delay. The failure to assert the constitutional right to speedy trial is weighedheavily against the defendant. The defendant's failure to object here militated against finding aconstitutional violation.

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Where defendants do not file a motion for a change of venue prior to trial, they alsohave been held to have waived any objection to venue and have not been allowed to raise achallenge to venue for the first time on appeal.

United States v. Dabbs, 134 F.3d 1071, 1078 (11th Cir. 1998) (holding that "the appellantswaived their venue challenge when they failed to raise it in the district court."); United States v.Bustos-Guzman, 685 F.2d 1278, 1280 (11th Cir. 1982)(“Because defendants did not file a motionfor a change of venue prior to trial, they waived any objection to venue and may not raise it for thefirst time on appeal.”); United States v. Hankins, 581 F.2d 431, 438 n. 11 (5th Cir.1978) (“It iselementary that venue can be waived if not timely raised.”).

In Dabbs, the Eleventh Circuit rejected the defendants' reliance on United States v. Bowdach,414 F.Supp. 1346 (S.D.Fla.1976), aff'd, 561 F.2d 1160 (5th Cir.1977), for the proposition that ageneral motion for acquittal is sufficient to preserve a venue challenge unless the district courtrequires the defendants to particularize their objections. Additionally, the Eleventh Circuit rejectedBowdach 's suggestion that defendants do not have to specifically articulate a challenge to venue orthat the district court bears responsibility for notifying defendants of their burden. Instead, theEleventh Circuit read its holding in Bustos-Guzman as requiring defendants to clearly articulate theirobjection to venue. Bustos-Guzman, 685 F.2d at 1280. The Eleventh Circuit noted that othercircuits also require defendants to specifically articulate a venue challenge. See United States v.Potamitis, 739 F.2d 784, 791 (2d Cir. 1984); Gilbert v. United States, 359 F.2d 285, 288 (9th Cir.1966).

The Dabbs Court also noted that there is an exception to the rule that a failure to object tovenue before trial constitutes a waiver, but that exception was irrelevant in Dabbs. 134 F.3d at 1078n.8. In United States v. Daniels, 5 F.3d 495, 496 (11th Cir.1993), the Court held that “when anindictment contains a proper allegation of venue so that a defendant has no notice of a defect ofvenue until the Government rests its case, the objection is timely if made at the close of theevidence.” (Internal quotation marks omitted.).

b. defects in the indictment/information--BUT at any time while the case ispending, the court may hear a claimthat the indictment or informationfails to invoke the court'sjurisdiction or to state an offense;

United States v. Ross, 131 F.3d 970 (11th Cir. 1997): The defendants' appellate vaguenessobjection to the indictment was rejected because they made no prior objection to the form of theindictment and there was no clear prejudicial error given that the closing arguments of the partiesshowed a mutual understanding of the straightforward language of the indictment.

United States v. Rivera, 77 F.3d 1348 (11th Cir. 1996): Appellant waived his claim that theconjunctive indictment was so duplicitous as to violate Fifth Amendment where he failed to objecton this ground prior to trial.

c. suppression of evidence,

Remember: if your pretrial motion to suppress is denied, you must object again if thegovernment refers to the evidence in opening statements, closing arguments, and when thegovernment offers the evidence at trial. See, e.g., United States v. Rutkowski, 814 F. 2d 594 (11thCir. 1987) (holding Defendant failed to preserve the evidentiary issue for appeal, because even

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though the defendant's attorney objected before trial to admission of the evidence, he failed to objectduring trial).

Also remember: if your client pleads guilty, he waives any suppression issue unlessspecifically preserved during the guilty plea. See United States v. Crumpton, 222 Fed. Appx. 914,2007 WL 879807 (11th Cir. March 26, 2007) (holding defendant waived the right to appeal thedistrict court's denial of his motion to suppress when he entered an unconditional, voluntary guiltyplea, and the district court was not required to explain general waiver effect guilty plea had onappellate rights).

d. discovery (Rule 16);

See, e.g., United States v. Amaral, 488 F.2d 1148 (9th Cir. 1973): Where there was no reasonto believe that discovery was inadequate to notify defense counsel of intent by government tointroduce evidence of out-of-court photographic identification of defendant, defendant's motion forpretrial hearing regarding such evidence, made on day of trial, came too late.

e. severance of parties or charges (Rule 14).

United States v. Gelzer, 50 F.3d 1133 (2d Cir. 1995): Failure to raise claim of improperjoinder before trial results in waiver of that issue on appeal.

But see United States v. Bordeaux, 84 F.3d 1544 (8th Cir. 1996): First defendant, whorenewed motion for severance at time he moved for judgment of acquittal or new trial, preservedseverance issue for plenary review, while second defendant who did not renew severance motion,and thus prevented district court from ruling on motion at any time after exact nature of firstdefendant's testimony was known, was entitled to review only for plain error.

3. Rule 12(b)(4), which is entitled "Notice of the Government's Intent to UseEvidence," provides:

(A) At the Government's Discretion. At the arraignment or as soon afterward aspracticable, the government may notify the defendant of its intent to use specifiedevidence at trial in order to afford the defendant an opportunity to object before trialunder Rule 12(b)(3)(C). (B) At the Defendant's Request. At the arraignment or as soon afterward aspracticable, the defendant may, in order to have an opportunity to move to suppressevidence under Rule 12(b)(3)(C), request notice of the government's intent to use (inits evidence-in-chief at trial) any evidence that the defendant may be entitled todiscover under Rule 16.

4. Rule 12(c) allows the district court "at thearraignment or as soon afterward as practicable,set a deadline for the parties to make pretrialmotions and may also schedule a motion hearing."

Read all pretrial orders, including seemingly form orders like standard discovery orders,carefully. Discovery orders differ among the judges. Judges sometimes change their orders anddeadlines without notice. Make waiver work for you. Hold the other party to his/her deadlines.Whatever you do, don't miss your deadlines. See, e.g.:

United States v. Avery, 205 Fed. Appx. 819, 2006 WL 3713766 (11th Cir. 2006): On

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September 6, 2005, before trial, the district court had entered a scheduling order, requiring the partiesto submit all motions, including motions to dismiss the indictment, by September 26, 2005. Theorder also included a waiver provision, which indicated that the failure to raise any defenses orobjections in a timely motion would constitute waiver unless the party could demonstrate excusableneglect. On November 25, 2005, Avery filed a motion to dismiss the indictment on the basis of"outrageous government conduct." Id. at 822. The district court did not rule on Avery's motion todismiss the indictment, and trial began on November 28, 2005. Avery renewed his motion to dismissthe indictment at the close of the government's case. The court first found that Avery's motion wasuntimely and that he did not establish a sufficient excuse for the delay. The court also denied Avery'smotion on the merits. Id.

On appeal, the Eleventh Circuit's holding dealt with Federal Rules of Criminal Procedure12(b)(3)(B), (c), & (e).

A motion to dismiss an indictment must be made prior to trial. Fed.R.Crim.P.12(b)(3)(B). A district court may set a deadline by which parties must make pre-trialmotions. Fed.R.Crim.P. 12(c). However, "[a] party waives any Rule 12(b)(3) defense,objection, or request not raised by the deadline the court sets under Rule 12(c) or byany extension the court provides. For good cause, the court may grant relief from thewaiver." Fed.R.Crim.P. 12(e). In Avery's case, the district court entered a schedulingorder in which the court required that any motion to dismiss the indictment be filedby September 26, 2005. Avery filed his motion to dismiss on November 25, 2005,which was the Friday before his trial began the following Monday. Thus, under theexplicit language of Rule 12 and the court's scheduling order, Avery waived his rightto move to dismiss the indictment. Nonetheless, Avery argues on appeal that the factsupon which his motion relied could not have been fully discovered until trial.However, given that Avery's motion to dismiss contained three pages of detailed factsregarding the government's conduct in his case, his argument that the necessary factscould not have been discovered prior to trial is meritless. As such, the district courtcorrectly determined that Avery's motion to dismiss was untimely.

Id. at 824-825.

5. Rule 12(e) states: "A party waives any Rule12(b)(3) defense, objection, or request not raisedby the deadline the court sets under Rule 12(c) orby any extension the court provides. For goodcause, the court may grant relief from the waiver."

B. Tips.

1. Specify facts. Do not wait for an evidentiary hearing to flesh out the factualbasis for your motion. Evidentiary hearings are not always granted. To get an evidentiary hearing,you must provide detailed facts, not conjecture.

2. Specify all your grounds for the motion. Only the grounds presented to thedistrict court will be considered on appeal.

3. Be careful not to open the door or invite the error. When you areintroducing evidence or examining a witness, if you even remotely touch upon some matter thatsomewhat relates to damaging evidence, you will probably be found to have "opened the door" to

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allow that damaging evidence to come in. So even if it would otherwise have been error to haveadmitted it into evidence, once you "opened the door," the government will rush in through theopened door with the tainted evidence and the court will most likely say you invited the error.

See United States v. Love, 449 F.3d 1154 (11th Cir. 2006) (Doctrine of invited error isimplicated where party induces or invites district court into making an error; it is a cardinal rule ofappellate review that party may not challenge as error a ruling or other trial proceeding invited bythat party).

If this occurs, don't give up without a fight. You can still argue the probative value isoutweighed by the prejudice. However, it is best to keep the door shut in the first place.

III. During trial: Contemporaneous objection.

A. A party must make a timely "contemporaneous" objection to issues to get thedistrict court to correct them and to preserve them for appeal.

What is "contemporaneous"? The Eleventh Circuit answered that in United States v.Turner, 474 F.3d 1265 (11th Cir. 2007).

In Turner, the defendant argued that the district court erred by admitting hearsay testimony,in violation of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968). Turner, 474 F.3d at1267. Although the defendant objected in the district court, she did not object when the testimonywas admitted. In fact, as stated by the Eleventh Circuit, "Turner had ample opportunity to lodge aBruton objection during the two direct examinations at issue but did not. An objection was made bythe defense only the next day, and then only after the district court sua sponte raised the matter." Id.at 1276.

Obviously, if the district court sua sponte raised the matter, it knew about it, but that was notsufficient. Nor was it sufficient that the matter was objected to the day after the error occurred, eventhough trial was still ongoing. Rather, the Eleventh Circuit looked to the purposes of thecontemporaneous objection rule and held that the objection the day after the error did not fulfill thepurposes.

We can discern no reason why this Circuit's well-settled requirement of acontemporaneous objection to preserve an evidentiary ruling for appellate reviewshould not apply here. "[O]ne of the fundamental purposes of the contemporaneousobjection rule is to protect judicial resources, in particular by ensuring that the trialcourts will have an opportunity to avoid errors that might otherwise necessitatetime-consuming retrial." United States v. David, 83 F.3d 638, 644-45 (4th Cir.1996).Another purpose of the contemporaneous objection rule is to prevent counsel from" 'sandbagging' the courts by withholding a valid objection from the trial court inorder to obtain a new trial when the error is recognized on appeal." Id. at 645. Neitherpurpose would be served were we to accept Turner's suggestion that hernon-contemporaneous arguments concerning the Bruton-violative testimony sufficedto preserve the issue and entitle her to harmless-error review. . . . By failing tointerpose a timely objection during the direct examination of either witness, thedefense provided the district judge with no timely opportunity to avoid serious errorthat might otherwise have necessitated a time-consuming retrial.

Id. at 1276. Thus, the Bruton violation was reviewed for plain error, instead of harmless error.

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In general, it is permissible to raise an evidentiary objection to physical evidence, i.e., anexhibit, at the time it is offered for admission. See United States v. Weiland, 420 F.3d 1062 (9th Cir.2005).

B. Fed. R. Evid. 103 provides that the party must object to evidentiary rulings and statespecific grounds. If the ruling excludes evidence, the substance of the evidence must be made knownto the court by an offer of proof, unless it is apparent from the context within which the questionswere asked.

United States v. Quinn, 123 F.3d 1415 (11th Cir. 1997): Formal offer of proof is notrequired to preserve an objection to the exclusion of evidence; where the substance of the evidenceis apparent to the court from its context, appellant is entitled to ordinary appellate review of theexclusion.

United States v. Simon, 964 F.2d 1082, 1085 (11th Cir.1992): "This court generally doesnot review evidentiary rulings except on the grounds asserted in a contemporaneous objection."

C. Judge Tjoflat on Preserving Evidentiary Objections v. Plain Error Review ofEvidentiary Rulings.

In United States v. Stephens, 365 F.3d 967 (11th Cir. 2004), Judge Tjoflat discussed the“wide discretion” district courts enjoy in making evidentiary rulings and how a defendant may obtainthe reversal of a conviction based on an evidentiary ruling. Id. at 973.

First, he may argue that the district court erred in applying a Federal Rule ofEvidence . . . . Second, a defendant may contend that, notwithstanding the correctnessof the court's evidentiary ruling, the admission or exclusion of a piece of evidenceviolated a constitutional guarantee. In many cases, this is essentially making anas-applied constitutional challenge to a particular rule of evidence.

Id. In Stephens, the district court erred in applying the Federal Rule of Evidence. Thus, that (asopposed to the constitutional aspects of an evidentiary challenge) was the focus of the Court'sdiscussion.

Judge Tjoflat explained how to present an evidentiary challenge on appeal:To successfully challenge a verdict on the basis of a district court's incorrectevidentiary ruling, a party must follow a three-step process. First, he mustdemonstrate either that his claim was adequately preserved or that the rulingconstituted plain error. See Fed. R. Evid. 103(a), (d). Second, he must establish thatthe district court abused its discretion in interpreting or applying an evidentiary rule.See United States v. Todd, 108 F.3d 1329, 1331 (11th Cir.1997) (“We review adistrict court's evidentiary rulings under the abuse of discretion standard.”). Finally,he must establish that this error “affected ... a substantial right.” Fed.R.Evid. 103(a);see also United States v. Sellers, 906 F.2d 597, 601 (11th Cir.1990) (“Even where anabuse of discretion is shown, nonconstitutional evidentiary errors are not grounds forreversal absent a reasonable likelihood that the defendant's substantial rights wereaffected.”); 28 U.S.C. § 2111 (“On the hearing of any appeal ... the court shall givejudgment after an examination of the record without regard to errors or defects whichdo not affect the substantial rights of the parties.”).

Id. at 974.He also explained how to preserve an objection to a district court's exclusion of certain

evidence:To preserve an objection to a district court's exclusion of certain evidence, “the

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substance of the evidence [must be] made known to the court by offer or [be]apparent from the context within which questions were asked.” Fed.R.Evid.103(a)(2). In this case, Stephens's attorney made a thorough proffer to the court aboutthe anticipated contents of the excluded witnesses' testimony. Consequently, we haveno problem in concluding that the record is sufficiently developed to allow us toreview this claim. See United States v. Sheffield, 992 F.2d 1164, 1170 (11thCir.1993) (“[B]ecause the trial court and prosecutor were well aware of the substanceof the evidence, and the record reflects the substance of the evidence, we find that thedefense counsel made an adequate proffer.”).

Id. (Footnote omitted).Because the defendant properly preserved his objections (and properly presented them on

appeal), and the Eleventh Circuit found the district court erred in excluding certain evidence, theCourt reversed and remanded for a new trial on all counts except for the count where the defendantwas arrested and caught with the drugs in hand. The sentence on that count was vacated. Id. at 970n.3, 980.

In United States v. Smith, 459 F.3d 1276 (11th Cir. 2006), Judge Tjoflat authored themajority opinion, as well as a special concurrence in which he "explain[ed] why I believe appellatecourts so rarely-and, in my view, should only rarely-notice plain evidentiary errors." Id. at 1299(emphasis in original). He limited the scope of his concurrence to discussing "only the admission ofevidence by the prosecution, over no objection, in criminal cases." Id.

In sum, Judge Tjoflat "would not engage in plain error review of the admission of excludableevidence unless I were certain that there could be no reasonable strategic reason for not objectingat the time the evidence was admitted." Id. at 1304. Why?

To begin, I recite what should now be a familiar standard: Under plain errorreview, an appellate court may exercise its discretion to notice an error that is plainand that affects substantial rights, so long as the error affects the fairness, integrity,or public reputation of judicial proceedings. It should be immediately apparent thatthe standard itself sets an extraordinarily difficult burden for a defendant toovercome-particularly in instances where the district court has substantial discretionto admit evidence (for example, where the defendant claims that the probative valueof a piece of evidence is substantially outweighed by its potential for unfair prejudice,seeFed.R.Evid. 403). Evidentiary rulings, of which counsel and the trial judgeshould have been aware, are often quite case- and fact-specific and it is thereforeunlikely that a defendant would be able to point to a court decision or evidentiary rulemaking the admission of the evidence obviously erroneous. Despite this difficulty,there certainly are circumstances in which an appellate court could say that, givenextant case law at the time of appeal, a piece of evidence admitted at trial was clearlyexcludable (e.g., hearsay that is not otherwise admissible under Federal Rules ofEvidence 803 or 804). I do not believe, however, that even such circumstances areproperly recognizable as plain error.

What is often overlooked in the rote application of the plain error standard isthat, without objection, it is almost impossible to conclude that the district courtcommitted error at all. It is one thing to say that evidence, if objected to, shouldhave been excluded; it is quite another to say that admission of evidence over noobjection is error in some abstract sense. The error in the former circumstance is thedistrict court's failure to sustain the defendant's objection; in the latter, the error isevidently the improper infringement upon a defendant's unwaivable right to be tried

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only by admissible evidence. The problem with the second formulation is thatdefense counsel can waive evidentiary restrictions, and often has legitimate strategicreasons for doing so. Defense counsel may believe, for example, that a piece ofevidence will turn out to be exculpatory rather than inculpatory, or counsel may wantto tie a witness to certain statements. Reviewing admission of evidence for plainerror, however, can serve to transform defense counsel's strategic decisions intodistrict court errors. Trial counsel's sound strategy does not become plain error atappellate counsel's urging.

A conclusion that the admission of certain evidence constitutes plain error isa determination that the evidence was so obviously inadmissible and prejudicial that,despite defense counsel's failure to object, the district court, sua sponte, should haveexcluded the evidence. Thus, the existence of plain error review forces the districtcourt, in an effort to avoid the reversal of conviction and a retrial, to intervene andexclude the evidence on its own initiative. In determining whether to do so, thedistrict court must either ignore the possibility that defense counsel is choosing notto object for strategic reasons (and therefore intervene in every instance) or mustweigh that possibility against the potential time and cost of a retrial (assuming oneis even possible under the circumstances). To the extent the district court evenattempts the latter analysis, however, it does so at a specific moment during thecourse of the trial without the benefit of the entire record (in particular, what otherevidence the prosecution is prepared to offer, and what use the prosecution or defenseintends to make of the evidence). Because it is extraordinarily difficult, if notimpossible, to determine, mid-trial, whether the admission of a certain piece ofexcludable evidence prejudices a defendant's substantial rights, the possibility of aretrial creates an incentive for the district court always to intervene. This resultessentially deprives defense counsel of the ability to determine strategically a client'smost effective defense-a consequence I would prefer to avoid. . . .

I should be quick to add that I hold no illusions of infallibility with respectto the legal profession. In some cases, defense counsel may actually fail to noticethat inadmissible evidence is being admitted. In others, however, counsel may makea strategic decision not to object to the admission of evidence. The role of anappellate court under plain error review, therefore, is to sort out the error from thestrategy, to the extent strategy is considered at all. This is a role for which appellatecourts are particularly ill-suited. I believe our ineffective assistance of counsel caselaw is instructive in this regard.

Ineffective assistance claims invariably involve a determination of whetheran attorney was acting strategically or incompetently. We have appropriatelyconcluded that such determinations ought not to be made on direct appeal. . ..Without factual development, it is nearly impossible for an appellate court todetermine whether or not counsel's decisions were strategic or to assess the overallquality of counsel's representation. . . .Similarly, in the context of plain error reviewof “improperly” admitted evidence, it is extremely difficult, although not impossible,to determine whether counsel's failure to object to the admission of excludableevidence was error or strategy. . . .Given the factual dependency of thisdetermination, I do not believe appellate courts should find plain evidentiaryerror-save for the extreme case where there could be no reasonable strategic reasonfor declining to object at the time the evidence is admitted. There is a forum bettersuited for this purpose-namely a collateral attack proceeding on a claim of ineffective

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assistance of counsel.Moreover, were we to review claims of evidentiary error without factoring in

the strategic reasons not to object (i.e., by simply applying the plain error doctrineand assuming that all excluded evidence admitted with no objection is error), wewould, in fact, be providing defense counsel with a strategic reason not to object. Despite our stated concern about ensuring that plain error review does not, in effect,serve as a trial strategy, . . .plain error review in this context does precisely that. Defense counsel may choose not to object to the admission of certainevidence-perhaps believing it may turn out to be exculpatory-with the understandingthat, if wrong, the defendant will have an opportunity to challenge the admission ofthe evidence on appeal. Where we find evidence of this strategy in the record, wedo not find plain error. . . .

Presented, then, with the choice between (1) presuming legitimate strategyand finding error in the extreme case and (2) presuming error and rarely findingimproper strategy, I choose the former. I arrive at this conclusion by borrowingfurther from our ineffective assistance case law. As is oft stated, we generallypresume that lawyers perform competently. . . .

. . . I believe this presumption is just as relevant in the plain error context asin the ineffective assistance context. As such, so long as we are unable to takejudicial notice that no competent attorney would fail to object to the admission ofcertain evidence, I would not say that the district court's failure sua sponte tointervene and exclude the evidence is error.

Not only do I believe that our ineffective assistance case law is instructive asto how we should treat claims of plain evidentiary errors, but I also believe that thereis a connection between the two issues that is rarely, if ever, discussed. In order tosatisfy the first three prongs of the plain error standard, we would have to find: error,that should have been obvious to counsel, and that seriously prejudiced thedefendant's substantial rights. In other words, counsel was incompetent for nothaving objected. In fact, counsel may have been incompetent as many as three times(once at the time of the evidence was admitted, once more when he failed to moveto strike the evidence, and yet again during closing argument should the Governmentcomment on the evidence) or perhaps only once but as late as closing argument whenthe previously latent prejudice became clear. Yet, if we then choose not to exerciseour discretion to notice the error, or if we could not say that the error affected thefairness, integrity, or public reputation of judicial proceedings, plain error would notbe found. Thus, we would not order a retrial on direct appeal, but, without thebenefit of briefing or factual development, we would essentially be providing a veryfirm grounding for a subsequent ineffective assistance determination on collateralattack. What makes this particularly troubling for me is that in an ineffectiveassistance claim, “the defendant must overcome the presumption that, under thecircumstances, the challenged action ‘might be considered sound trial strategy.’ ” .. . Yet, because we would not find plain error if we were to believe that defensecounsel strategically chose not to object, a finding of plain error that affectsdefendant's substantial rights-a determination likely made with no consideration ofstrategy and certainly made with no stated presumption in favor of strategy-at leastimplies that defense counsel's failure to object was not strategic. Consequently, insuch circumstances, there is a strong argument to be made that we unwittingly shiftedthe presumption on collateral attack from strategy to incompetence. The justification

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for this result is not apparent to me.Id. at 1299-1305 (footnotes and citations omitted).

D. Exceptions to Contemporaneous Objection Rule are Rare.1. Fed. R. Evid. 605: if the presiding judge testifies as a witness, no objection

is needed.2. Fed. R. Evid. 614c: if the judge calls or interrogates a witness, you can defer

the objection until the next available opportunity when jury is out.

IV. Some Common Trial Applications.

A. Closing Argument.Closing argument is fertile ground for improper prosecutorial comments, e.g., appealing to

the emotions of the jury, burden shifting, misusing evidence, commenting on evidence not admittedat trial, etc. However, if there is no objection, the district court does not have a chance to correct theerror, and the appellate court is less likely to correct it under the plain error standard.

United States v. Alexander, 237 Fed. Appx. 399, 2007 WL 934714 (11th Cir. Mar. 29,2007): Because Alexander did not object to the government's closing arguments at trial, "relief isavailable to rectify only plain error that is so obvious that failure to correct it would jeopardize thefairness and integrity of the trial." (Quoting United States v. Bailey, 123 F.3d 1381, 1400 (11thCir.1997)).

B. Confrontation Clause.United States v. Anderton, 136 F.3d 747 (11th Cir. 1998): In this child pornography case

[18 U.S.C. § 2252 (a)], the court held that the district court properly relied on a state child abuseinvestigator's hearsay testimony in departing upward on the basis of sexual exploitation of the minor.The sentencing court found this testimony credible and reliable and used it in imposing theenhancement. The Eleventh Circuit held that the defendant had waived any Confrontation Clauseargument by failing to raise it at the time of the sentencing hearing.

C. Evidence - Brady.United States v. Kersey, 130 F.3d 1463 (11th Cir. 1997): The court held that a defendant's

motion for new trial based on newly discovered evidence under FED. R. CRIM. P. 33 did not properlypreserve the defendant's argument that the government had also committed a Brady violation, wherethe defendant did not specifically argue that a Brady violation had occurred. Instead, the defendantmerely contended that the new evidence would produce a different trial outcome. Distinguishing thestringent 5-part "new evidence" test under Rule 33 from the Brady test of materiality -- whichattaches greater significance to evidence of impeachment value and which, in certain circumstances,requires only a showing of a reasonable probability of a different outcome -- the Court held that thedistrict court did not plainly err in failing to apply a Brady analysis. The new evidence -- a documentof ambiguous evidentiary value that the government disclosed after trial -- did not serve to exculpatethe defendant. "[W]e cannot say that the [late-disclosed document] would have had 'a definite impacton the credibility of an important prosecution witness.' United States v. Crockett, 534 F.2d 589, 601(5th Cir. 1976). Contrary to [the defendant's] view, cross-examining a government witness about thedocument] would not have, with any reasonable probability, changed the verdict. See United Statesv. Arnold, 117 F.3d 1308, 131 (11th Cir. 1997)." Instead, the document was likely more inculpatorythan exculpatory. Thus, the district court did not plainly err in failing to rule on the Brady issue.

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D. Judgment of Acquittal Motion

1. Make your motion at the close of the government's case in chief.2. Renew it at the close of all the evidence.3. State your reasons.

United States v. Jones, 32 F.3d 1512, 1516 (11th Cir.1994): When a defendant "failed torenew his motion for judgment of acquittal at the end of all of the evidence, his conviction must beaffirmed unless a manifest miscarriage of justice would result" because "a defendant's decision topresent his case after denial of a motion for judgment of acquittal operates as a waiver of hisobjection to the denial of his motion for acquittal."

United States v. Greer, 440 F.3d 1267, 1271 (11th Cir. 2006): "This [manifest miscarriageof justice] standard requires [us to determine] that the evidence on a key element of the offense isso tenuous that a conviction would be shocking."

United States v. Bichsel, 156 F.3d 1148 (11th Cir. 1998), is a classic example of why youneed to renew your motion for judgment of acquittal after the close of all the evidence. Thedefendants herein were charged with entering the military installation located at Ft. Benning,Georgia. They were on the property protesting U.S. military policies. To prove the case against thedefendants, the government had to show they had received notice that Ft. Benning's commander hadbarred future entry, pursuant to 18 U.S.C. § 1382. As to some of the defendants, the only proof thatsaid notice was received was the signed returned receipt postcards bearing the alleged signature ofthe defendant. These defendants argued that there was insufficient proof to establish that the actualdefendants had, in fact, endorsed the cards. Unfortunately, although the defendants moved for ajudgment of acquittal after the government rested, they did not renew their motion at the close of allthe evidence. Consistent with Eleventh Circuit case law, the court held that the defendants waivedany objection to the sufficiency of the evidence. In such cases, the court held, the convictions wouldbe affirmed unless there is a manifest miscarriage of justice – if the evidence "on a key element ofthe offense is so tenuous that a conviction would be shocking." (quoting United States v. Tapia, 761F.2d 1488, 1491-92 (11th Cir. 1985)). The court conceded that some of the defendants may nothave actually received the letters barring future entry. However, the court held that "a factfinder maylegitimately infer that a defendant actually received a letter addressed to him or her when the senderreceived a return receipt bearing what purports to be the defendant's signature. This inference isstrong enough that the district court's reliance on it is hardly 'shocking.'" 156 F.3d at 1150-51.

United States v. Reddick, 2007 WL 1063149 (11th Cir. April 11, 2007): Both Defendantsmoved for a judgment of acquittal after the government rested. Defendant Houston presented a case,but did not renew his motion for judgment of acquittal after presenting his case at trial. On appeal,the Eleventh Circuit held that his conviction was reversible only for manifest injustice.

Defendant Reddick did not present a case or renew his motion after his co-defendant's case,which presumably did not relate to him. No mention was made on appeal of him waiving orforfeiting his right to appeal on this basis. However, the government argued that Reddick's failureto offer reasons to the district court in support of his motion did not preserve his argument for ajudgment of acquittal based on insufficient evidence. The Eleventh Circuit responded: "Evenassuming that Reddick preserved his argument, we decide, for the reasons that will be discussed, thathis claim fails."

The moral: It is better to state your reasons for your JOA argument because if you have agood argument, the court might not be willing to assume it is preserved.

United States v. Hunerlach, 197 F.3d 1059 (11th Cir. 1999): The court noted that thedefendant had moved for a judgment of acquittal based on sufficiency of the evidence. The

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defendant's argument in the district court is not detailed in the opinion. On appeal, the defendantargued that the district court had erred in denying the motion for two reasons. The first reasonconcerned the lack of proof as to the elements of the crime. The court reviewed this matter de novoand found sufficient evidence as to the elements. Id. at 1068. The second aspect of the defendant'sargument on appeal was a purely legal matter, to-wit: whether, under Eleventh Circuit precedent, IRSForm 433A was a "return" or "statement" that could serve as a basis for a conviction under 26 U.S.C.§ 7206(1). Id. Because the defendant did not raise this legal issue before the district court, theEleventh Circuit reviewed the matter under the plain error standard. Id. at 1068-1069.

United States v. Castro-Lara, 970 F.2d 976 (1st Cir. 1992): A defendant who moves forjudgment of acquittal at the end of the prosecution's case, but then fails to renew that motion afterpresenting evidence in his own behalf, waives the original motion. However, even absent any motionfor judgment of acquittal at trial, a defendant who files a timely post-trial motion for acquittal standson the same footing as a defendant who moves for acquittal at the close of all evidence, and isaccordingly entitled to the benefit of the same standard of appellate review on a challenge to thesufficiency of evidence to support the conviction as a defendant who seeks judgment of acquittal atthe close of the evidence.

United States v. Cardenas Alvarado, 806 F.2d 566 (5th 1986): The court discussed theadvantages and disadvantages of renewing a JOA motion after a co-defendant presents a case:

In examining the evidence, Cardenas contends that we can consider only theevidence introduced during the government's case-in-chief in evaluating thesufficiency of the evidence against him because he rested at the close of thegovernment's evidence. Cardenas is incorrect because he renewed his motion forjudgment of acquittal at the close of all of the evidence. When a defendant choosesto present evidence in his behalf following his motion for acquittal and then renewshis motion for judgment of acquittal at the end of all the evidence, we have held that“the ‘waiver doctrine’ requires the reviewing court to examine all the evidence ratherthan to restrict its examination to the evidence presented in the Government'scase-in-chief.” United States v. White, 611 F.2d 531, 536 (5th Cir.), cert. denied,446U.S. 992, 100 S. Ct. 2978, 64 L. Ed.2d 849 (1980). In White, the defendantapparently called witnesses and presented evidence, whereas in this case Cardenasdid not do so. Cardenas, however, utilized his codefendant's testimony concerningduress in his closing argument, and requested that the jury be instructed on duress.In addition, an examination of the record reveals no other reason for Cardenas to askfor a coercion instruction except that he hoped to benefit from his codefendants'version of what happened. Under these circumstances, we believe that White allowsus to review all of the evidence in evaluating its sufficiency. We express no opinion,however, on whether or not our view would be the same in a situation where adefendant has other reasons to ask for a coercion instruction apart from hoping tobenefit from the testimony of codefendants.

Furthermore, our decisions in United States v. Belt, 574 F.2d 1234 (5thCir.1978), and United States v. Arias-Diaz, 497 F.2d 165 (5th Cir.1974), cert. denied,420 U.S. 1003, 95 S. Ct. 1446, 43 L. Ed. 2d 761 (1975), are not to the contrary. InBelt the codefendant Williams tried to show through testimony that Belt, and notWilliams, was the guilty party. Belt rebutted that testimony but did not attempt torebut the government's case against him. We held that the district court erred infailing to grant a judgment of acquittal for Belt at the close of the government's case.In Arias-Diaz we held that the testimony by a codefendant does not result in a waiver.497 F.2d at 169. As we have already mentioned, however, Cardenas utilized his

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codefendant's testimony concerning duress and requested a jury instruction on duress.Consequently, we believe that Belt and Arias-Diaz are inapplicable to the instantcase.

Id. at 570 n.2.

E. Juror Issues.

1. Refusal to strike a juror for cause.a. Use a peremptory challenge to strike the juror who the court refused

to strike for cause.b. Use all your peremptory challenges.c. Identify other jurors who you would have stricken if you had not had

to use your preemptories on jurors who should have been stricken forcause.

2. Improper use of peremptory (Batson)a. Object before venire is dismissed and trial begins. (It is not enough

to object before the jury is sworn.)b. Make a prima facie case of why the strike was exercised for an

impermissible reason; then the burden shifts to the other party toshow a permissible reason.

c. Object to the reasons given and ask for a ruling.

3. Fair Cross-Section Challenge

Campbell v. Louisiana, 523 U.S. 392 (1998): The Court declined to consider whether a "faircross-section" challenge to the jury could be made because that claim had not been perfected in thecourt below.

4. Alternate Jurors During Deliberations

United States v. Olano, 507 U.S. 725 (1993): The presence of the alternate jurors during jurydeliberations was not objected to in the trial court and was an error that the court of appeals wasauthorized to correct under Rule 52(b).

United States v. Bendek, 146 F.3d 1326 (11th Cir. 1998): On Thursday, the fourth day ofthe trial, the court learned that one of the jurors had an airline reservation for a trip out of town onSaturday and was not scheduled to return until the following Tuesday. Since it was not clear that thejury would have returned a verdict by the end of the day Friday, the court suggested allowing all 13jurors to retire and commence deliberations. If they could not reach a verdict by Friday, theremaining 12 jurors (11 of the original jurors plus the alternate) could come back on Monday andcontinue deliberations. The attorneys were asked whether they objected. No one did. The court ofappeals held that, assuming permitting the alternate juror to deliberate and return a verdict with theregular jurors constituted plain error which affected the defendants' substantial rights, it did notwarrant reversal because the defendants could not show that the jury size affected the fairness,integrity or public reputation of the proceeding.

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F. Jury Instructions.

Bryan v. United States, 524 U.S. 184 (1998): The Supreme Court held that to support aconviction for conspiring to engage in the sale of firearms without a license and actually engagingin sale of firearms without a license under 18 U.S.C. §§ 922(a)(1)(A), 924(a)(1)(D), the governmentwas required to show willful conduct on the part of the defendant. The Supreme Court went on toexplain that "willfully" violating the statute requires a showing that the defendant knew his conductwas unlawful, not that he was aware of the particular licensing requirement. The Court then foundthat although the trial court erred by instructing the jury that a defendant need not know that hisconduct was unlawful, the error did not require reversal. How could this not require reversal? TheSupreme Court reasoned that the defendant did not object to the instruction at trial; it was unlikelythat the jury was misled given the other instructions that were given; the defendant did not raise theargument in the court of appeals; and the grant of certiorari did not cover the issue.

Jones v. United States, 527 U.S. 373 (1999): The Court rejected Jones' argument that theinstructions confused the jury regarding the consequences of a deadlock. The Court noted that theinstructions were reviewable for "plain error" because Jones did not voice objections to theinstructions; further, his request for an instruction did not preserve an objection to the instruction asgiven, because courts cannot speculate on what "sorts of objections might be implied through arequest for an instruction."

United States v. Burgess, 175 F.3d 1261 (11th Cir. 1999): The defendant was charged withtraveling in interstate commerce with the intent to engage in sexual relations with a juvenile [18U.S.C. § 2423(b)] and with two counts of using a computer affecting interstate commerce toknowingly entice a juvenile to engage in sexual acts [18 U.S.C. § 2422(b)]. The case was reversedand remanded to the district court for a new trial based on the judge's failure to read a requested juryinstruction. During the charge conference, defense counsel asked the court to read the standardEleventh Circuit pattern jury instruction relating to the defendant's decision not to testify. Thedistrict court indicated that it would give the instruction. However, at the conclusion of theinstructions, when the district court asked if there were any objections, defense counsel indicated thatthe district court had not read the requested instruction regarding the defendant not testifying. Thedistrict court responded that it believed the instruction had been given. On appeal, the governmentargued that the defendant had waived the issue because his attorney did not "press the point anyfurther after the court said the instruction had been given." The Eleventh Circuit held that thedefendant clearly had met his burden of raising a sufficient objection and had preserved the issue forappeal. However, a reversal is not automatic when the judge fails to give a requested instructionregarding the defendant not testifying at trial. The Eleventh Circuit analyzed the district court's errorunder the harmless error doctrine. It then held that it was not convinced beyond a reasonable doubtthat the district court's error did not contribute to the conviction.

Moral: Even when you object, the government argues waiver.United States v. West, 142 F.3d 1408 (11th Cir. 1998): At the charge conference, the court

decided to instruct the jury that it could determine whether a coconspirator authored the notebook.This was error the Eleventh Circuit held. However, the defense attorney did not object to this juryinstruction. Thus, the Eleventh Circuit held that the plain error standard applied. In affirming theEleventh Circuit stated: ". . . the court's instruction to the jury, while plainly erroneous, did not affectthe defendant's substantial rights such that it was prejudicial and not harmless."

United States v. Mitchell 146 F.3d 1338 (11th Cir. 1998): Because the defendant did notobject to the district court's failure to instruct the jury that 18 U.S.C. § 2113(a) [bank robbery] is alesser- included offense of § 2113(d)[armed bank robbery], the district court's failure to so instructthe jury did not require reversal. Since the choice not to seek a lesser included offense instruction

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may be due to trial strategy, requiring a district court to give such an instruction is "at odds" withsuch strategy.

V. Guilty Plea.

A. In General

United States v. Crumpton, 222 Fed. Appx. 914, 916-917, 2007 WL 879807 (11th Cir.March 26, 2007): Eleventh Circuit law is clear that when a defendant enters a voluntary,unconditional guilty plea, he waives the right to challenge all nonjurisdictional defects in theproceedings, which would include a court's denial of a motion to suppress. See United States v. Patti,337 F.3d 1317, 1320 (11th Cir.2003). "A defendant who wishes to preserve appellate review of anon-jurisdictional defect while at the same time pleading guilty can do so only by entering a'conditional plea' in accordance with Fed.R.Crim.P. 11(a)(2)." United States v. Pierre, 120 F.3d1153, 1155 (11th Cir.1997).

Where there is a plea agreement, Federal Rule of Criminal Procedure 11(b)(1)(N)requires that the district court inform the defendant of "the terms of anyplea-agreement provision waiving the right to appeal" in open court during thecolloquy. But there is nothing in Rule 11 imposing an obligation on the district courtto inform the defendant that his unconditional plea waives some of his appellaterights. . . .Nor can we find any binding circuit precedent suggesting that the districtcourt must inform a defendant entering an unconditional, voluntary guilty plea thathe is waiving his right to appeal any nonjurisdictional issues.Libretti v. United States, 516 U.S. 29 (1995): FED. R. CRIM. P. 1 l(f)'s requirement that a trial

court find a factual basis for a guilty plea does not, by its plain language, apply to issues surroundingcriminal forfeiture. Therefore, the trial court is not required to find a factual basis for a stipulatedcriminal forfeiture embodied in a plea agreement. The right provided by Rule 3 l(e) to a special juryverdict regarding forfeiture can be waived by a defendant pleading guilty. Without said right beingmentioned in the plea agreement and without specific advice by the court that the right will bewaived by a guilty plea.

United States v. Tomeny, 144 F.3d 749 (11th Cir. 1998): The defendants were charged withmaking a false statement, in violation of 18 U.S.C. § 1001. Both defendants filed a motion todismiss on the theory that 16 U.S.C. § 1857(1)(I), preempted § 1001, based on the facts of thisparticular case. After the district court denied the motion to dismiss, the defendants pled guilty andappealed based on the preemption issue. As an initial issue, the Eleventh Circuit held that, byarguing § 1857(1)(I) preempts § 1001, the defendants effectively claimed that the indictment failedto charge a legitimate offense. Thus, the appellate court held, the defendants' claim wasjurisdictional and was not waived by entering a plea of guilty.

United States v. Tyndale, 209 F.3d 1292 (11th Cir. 2000): The court rejected the argumentthat the defendant's guilty plea was involuntary or was taken in violation of Fed. R. Crim. P. 11because the sentencing court failed to advise him of the sentence enhancements to which he wassubject, pursuant to 18 U.S.C. § 3147 and U.S.S.G. § 2J1.7, because his crime occurred while he wasreleased on bond awaiting trial. The court noted that no objection was raised at the colloquy and theissue was therefore reviewable for plain error. The court found no plain error, noting that the districtcourt did advise the defendant that he would be sentenced under the guidelines, and that the statutoryenhancement could have been for as little as one day, a "de minimis" increase.

United States v. Pierre, 120 F.3d 1153 (11th Cir. 1997): Defendant's unconditional plea ofguilty, made knowingly, voluntarily, and with benefit of competent counsel, waives all non-

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jurisdictional defects in that defendant's court proceedings, including speedy trial issues. To preserveappellate review of a non-jurisdictional defect while pleading guilty, the defendant must enter a"conditional plea" which must be in writing and must be consented to by court and by thegovernment. The government's consent to such a plea requires express approval, i.e., direct assentrequiring no inference or implication. Silence or inaction by government is not consent. However,here, the guilty plea that was entered and accepted only on the reasonable, but mistaken, belief thatdefendant preserved speedy trial issues for appeal was, as matter of law, not knowing and voluntary.

United States v. Cunningham, 194 F.3d 1186 (11th Cir. 1999): As a condition of his guiltyplea, defendant reserved the right to appeal only whether § 922(g)(8) required him to know that hispossession of the firearm violated federal law. Nevertheless, because the defendant offered noargument on this issue on appeal, the court of appeals found that he abandoned it.

B. Plea Agreement - Breach.

United States v. Hedges, 175 F.3d 1312 (11th Cir. 1999): The defendant argued that thegovernment violated its obligation under the plea agreement to recommend that he be sentencedbased upon a lesser amount of loss. The defendant claimed the government reached a plea agreementby (1) endorsing the PSR's $92 million loss estimate and adducing evidence at the sentencing hearingto support that estimate; (2) contending the defendant played a crucial role in the conspiracy; and (3)disputing the defendant's narrow interpretation of relevant conduct under U.S.S.G. § 1B1.3. TheEleventh Circuit held that this argument was barred absent plain error because the defendant failedto object at sentencing. The court then found no plain error, stating that the government did notviolate the plea agreement because the agreement did not bind the government regarding the totalloss, the level of the defendant's involvement in the conspiracy, or the proper interpretation of"relevant conduct."

C. Plea Agreement - Appeal Waiver Language.

Be aware (and beware) of the waiver of appeal language in the plea agreement. This is acommon form of catch-22 in the Eleventh Circuit, especially the Middle District of Florida.

United States v. Howle, 166 F.3d 1166 (11th Cir. 1999): A plea agreement containing adefendant's knowing and voluntary waiver of his right to appeal was enforceable to bar thedefendant's appeal of his sentence, even though the sentencing judge strongly encouraged him toappeal the sentence, and even though the legal issues the defendant sought to raise were difficult ordebatable. In fact, the appeal waiver even precludes the appeal of blatant error. First, in footnote 6,the court stated:

We note that Howle, after the district court suggested that the case involved adifficult legal issue appropriate for appellate review, could have moved to withdrawhis guilty plea. See Fed.R.Crim.P. 32(e). If the motion were granted, Howle thenwould have regained the right to appeal (and the Government would have regainedthe right to pursue the other counts in the indictment). Howle did not make such amotion.

Although the footnote is clearly dicta, it gives at least some opening in those situations where thereis waiver language and where the guidelines sentence was not anticipated by the defendant at thetime of the plea. In such a case, it may be worth a try to move to withdraw the plea based uponfootnote 6. The other interesting footnote in the case is footnote 5 which speaks for itself. Indescribing that even blatant error can be waived by an appeal waiver clause, Judge Tjoflat indicatesin footnote 5 that: "In extreme circumstances -- for instance, if the district court had sentenced

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Howle to a public flogging -- due process may require that an appeal be heard despite a previouswaiver". Note that Judge Tjoflat indicated that a public flogging MAY (not SHALL!) constitute adenial of due process.

United States v. Benitez-Zapata, 131 F.3d 1444 (11th Cir. 1997): Pursuant to the pleaagreement in this case, the defendant effectively waived his right to appeal the sentencing court'sdecision that he was a minor participant in the conspiracy and its refusal to review the government'sdecision not to move for a downward departure based on substantial assistance. The district courtspecifically questioned the defendant about waiver at the plea hearing, and the defendantacknowledged the terms of the waiver, which included issues appealed. The court also found thatthe record demonstrated the defendant's understanding of the significance of the waiver. Moreover,the defendant's waiver of the right to appeal the sentence was not rendered invalid by the districtcourt's statement during the sentencing hearing that the defendant could appeal the sentence within10 days, notwithstanding the defendant's claim that the statement made the waiver confusing. Thestatement was made as a closing remark at the sentencing hearing after the waiver was discussed andestablished at the plea hearing, and was consistent with the defendant's right to appeal under theexceptions to the waiver specified in the plea agreement.

United States v. Buchanan, 131 F.3d 1005 (11th Cir. 1997): The defendant pled guiltypursuant to a plea agreement. In the agreement, the defendant waived his right to appeal. Thedefendant then sought to appeal an issue the plea agreement said the parties agreed to dispute at thesentence hearing. The court held that the defendant's waiver in the plea agreement of his right toappeal the sentence was enforceable because it was knowingly and voluntarily entered. The waiverwas found to include the issues the parties agreed to dispute at the sentence hearing because theissues were not expressly exempted from the appeal waiver language in the plea agreement.

The court also stated that when a defendant attempts to appeal a sentence in the face of anappeal waiver, the government may file a motion to dismiss the appeal based upon a waiver andattach a copy of the plea agreement, any part of the plea colloquy related to the waiver, and any otherpart of the record that casts light on whether the defendant knowingly and voluntarily agreed to thewaiver. In response, the defendant may put forward any part of the record that the government hasnot already brought to the appellate court's attention. Where it is clear from the plea agreement andplea colloquy, or from some other part of the record, that the defendant knowingly and voluntarilyentered into a sentence appeal waiver, that waiver should be enforced without requiring briefing onthe merits.

Cases where appeal waiver was not enforced:

United States v. Petty, 80 F.3d 1384 (9th Cir. 1996): Waiver of appeal of an unanticipatederror was not enforceable.

United States v. Ready, 82 F.3d 551 (2nd Cir. 1996): Waiver of appeal did not cover issueof restitution and was not waived.

United States v. Zink, 107 F.3d 716 (9th Cir. 1997): Waiver of appeal of sentence did notcover a restitution order.

United States v. Agee, 83 F.3d 882 (7th Cir. 1996): A waiver of appeal, not discussed atthe plea colloquy, was invalid.

United States v. Ruelas, 96 F.3d 1324 (9th Cir. 1996): Waiver of appeal did not waivejurisdictional claim.

United States v. Baramdyka, 95 F.3d 840 (9th Cir. 1996): An appeal waiver does not bara claim of ineffective assistance of counsel.

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D. CAVEAT on Defendant's Right to Appeal

Even if your client has an appeal waiver & even if he said he did not want to appeal beforehe was sentenced, be sure to thoroughly discuss the pros & cons of appeal with your client aftersentencing. It is imperative that you personally visit your client after sentencing and discuss whetherhe wants to appeal. It is wise to confirm his decision in writing, with his signature, so there is nomistake later. At a minimum, send him a follow-up letter.

The Supreme Court noted in Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000), that counsel'sperformance is clearly deficient if he "disregards specific instructions from the defendant to file anotice of appeal. . . ." Thus, if the client wants to appeal, you must file a notice of appeal, regardlessof whether you think the appeal is frivolous. You can always file an Anders brief. See Anders v.California, 386 U.S. 738 (1967). However, if your client states he wants to appeal and you fail tofile the notice of appeal, you are ineffective. If you fail to discuss his right to appeal after sentencing,and the 10 days lapse, and you receive a letter asking you to appeal on the 11th day, you have aproblem that a simple visit with a confirmation letter after sentencing could have solved.

Montemoino v. United States, 68 F.3d 416 (11th Cir. 1995): Absent an express waiver ofthe right to appeal his sentence, a defendant who pleads guilty and who is sentenced under theguidelines has a right to direct appeal of his sentence. Because of that opportunity, a defendant hasno right to raise guideline sentencing issues in a § 2255 proceeding. Therefore, if the defendantrequests his attorney to file an appeal and counsel fails to do so, he is entitled to an out-of-timeappeal on any sentencing issue, even without a showing that there would have been a viable groundfor the appeal.

Although Montemoino excepted cases where there was an express waiver of the right toappeal the sentence, if the district court finds the defendant asked his attorney to appeal and theattorney did not appeal, the defendant will be granted a belated appeal almost without fail. Possibleissues on appeal could include the voluntariness of the plea and an exception to the appeal waiver.

VI. Sentencing.

A. General Rules

United States v. Lawrence, 47 F.3d 1559 (11th Cir. 1995): Lawrence is a good case to readfor its lessons on the importance of objections as they relate to the fact finding process at sentencingand the meaning of the preponderance of the evidence standard.

Although not as rigorous as the reasonable doubt or clear and convincing standards,the preponderance standard is not toothless. It is the district court's duty to ensurethat the Government carries this burden by presenting reliable and specific evidence. As one of our sister circuits noted:

[T]he Guidelines do not reduce district court judges to mereautomatons, passive compilers of ciphers, or credulous naifs whomust accept as canon all that which is presented to them regarding adefendant's involvement in the crime charged or conduct relevantthereto.... [T]he preponderance of the evidence standard ... does notrelieve the sentencing court of the duty of exercising the criticalfact-finding function that has always been inherent in the sentencingprocess.... [The standard signifies] a recognition of the fact that if theprobation officer and the prosecutor believe that the circumstances ofthe offense, the defendant's role in the offense, or other pertinent

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aggravating circumstances, merit a lengthier sentence, they must beprepared to establish that pertinent information by evidence adequateto satisfy the judicial skepticism aroused by the lengthier sentencethat the proffered information would require the district court toimpose.

Id. at 1566-1567 (quoting United States v. Wise, 976 F.2d 393, 402-03 (8th Cir.1992)). Moreover, while the Guidelines allow a district court to “consider relevantinformation without regard to its admissibility under the rules of evidence applicableat trial, provided that the information has sufficient indicia of reliability to supportits probable accuracy,” U.S.S.G. § 6A1.3(a) (Nov. 1, 1994), this relaxed evidentiarystandard does not grant district courts a license to sentence a defendant in the absenceof sufficient evidence when that defendant properly objects to a PSR's conclusoryfactual recitals. See id. § 6A1.3 comment. (“The court's resolution of disputedsentencing factors will usually have a measurable effect on the applicablepunishment. More formality is therefore unavoidable if the sentencing process is tobe accurate and fair.”). The necessity of requiring reliable evidence in support of theGovernment's conclusions is particularly manifest in cases such as this, where thequantity of drugs attributed to a defendant can have a marked impact on the lengthof his sentence. See United States v. Morillo, 8 F.3d 864, 870 (1st Cir.1993) (notingthat “drug quantity profoundly affects sentence length”).

Id. at 1567.Once the Government has presented proper evidence, the district court must either:(1) make an explicit factual finding as to the allegation; or (2) determine that no suchfinding is necessary because the matter controverted will not be taken into accountin sentencing the defendant. Fed.R.Crim.P. 32(c)(3)(D). If the court declines toresolve a factual challenge because it is not relying on the disputed matter indetermining the sentence, it must expressly set out in writing any disputed facts leftunresolved. Id.; see also Shukwit v. United States, 973 F.2d 903, 904-05 (11thCir.1992) (per curiam).

Id.Because the defendants in Lawrence objected to the government's approximation of the drug

quantity attributable to them, the government was required to move forward with evidencesupporting its position. The Court thus applied the clear error standard of review, because thedefendants objected in the district court, to determine whether the district court clearly erred infinding that the government had proved the quantity attributable to each defendant by apreponderance of the evidence. Id. The Eleventh Circuit found that the district court had so erred.Id. at 1567-1569.

The district court primarily relied on the PSRs as the basis for its findings. Unfortunately, the PSRs did not provide the necessary evidentiary foundation tosupport the appellants' sentences. . . .

The only other sources of evidence that could possibly support the court'sfindings are the prosecutor's brief proffers of evidence and the appellants' admissionsat their Rule 11 hearings. Like the PSRs, however, these sources do not sufficientlysupport the court's findings. The proffers consisted of perfunctory summaries of theevidence that the Government stood ready to present and references to the videosurveillance tapes that were entered into evidence at the separate trial of some of theappellants' co-indictees. The district court heard no testimony on the quantity issue,did not require that any surveillance videotapes be entered into evidence at the

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hearings, and did not examine any physical evidence. As a result, there is noevidence from the sentencing hearings for us to review. Moreover, no trial evidenceexists because none of the appellants went to trial. . . .

The only testimonial evidence on the record relevant to the quantitycalculation is the testimony the appellants gave at their Rule 11 hearings; thistestimony does not, however, sufficiently support the scope of responsibility assessedor the facts and conclusions asserted in the PSR and adopted by the district court. Each appellant merely admitted that he distributed (or aided and abetted thedistribution of) cocaine base in the vicinity of 3855 April Street on a specific day;this does not-by itself or in combination with the other information-make theappellants responsible for the cocaine base dealt in the vicinity over the followingtwo months. . . .Finally, although evidence and testimony that was presented atanother trial may be used in a defendant's sentencing hearing, the Government'sreferences to the evidence presented at the trials of co-indictees is insufficient in thiscase: None of the appellants was given the opportunity to test its reliability orvalidity . . .nor is that evidence before us in any form that enables us to review thedistrict court's findings in a meaningful way.

Id. at 1567-1568 (citations omitted). In vacating the sentences and remanding for further proceeding, the Court concluded by

stating:In this case, the district court did not ensure-as it was obligated to-that theGovernment carried its burden of proof. As a result of this failure, the record in eachappellant's case does not support the district court's findings. We therefore remandthe appellants' cases to the district court for resentencing. See [United States v.Ismond, 993 F.2d 1498, 1499 (11th Cir.1993)] (remanding for resentencing becausethe district court failed to make individualized findings and because the trial evidencedid not support the quantity of drugs attributed to each appellant); [United States v.Beasley, 2 F.3d 1551, 1561-1563 (11th Cir.1993)](remanding for resentencingbecause of the lack of a discernable factual basis for the appellants' sentences). Inremanding, we express no opinion regarding whether the quantity of cocaine base theGovernment contended was properly attributable to each appellant may ultimatelybe proven correct. We do require, however, that the district court base its findingson reliable and specific evidence rather than on the conclusory language of a PSR,the sparse evidence given at a Rule 11 hearing, and the prosecution's mere referenceto evidence adduced in the separate trials of co-indictees.

Id. at 1568-1569.

1. Object or Forfeit.

United States v. Jones, 899 F.2d 1097, 1103 (11th Cir. 1990), is the landmark - or at leastthe most often cited - case in the Eleventh Circuit on the requirement for objections at sentencing.Jones also introduced the requirement that the district courts conduct a Jones inquiry. After the courtimposes sentence, it must offer the parties the opportunity to object. [Jones was later reversed onother grounds, it remains the law of the Eleventh Circuit.]

"Where the district court has offered the opportunity to object and a party issilent or fails to state the grounds for objection, objections to the sentence will bewaived for purposes of appeal, and this court will not entertain an appeal based uponsuch objections unless refusal to do so would result in manifest injustice."

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United States v. Bostic, 371 F.3d 865 (6th Cir. 2004):Therefore, we exercise our supervisory powers over the district courts and announcea new procedural rule, requiring district courts, after pronouncing the defendant'ssentence but before adjourning the sentencing hearing, to ask the parties whether theyhave any objections to the sentence just pronounced that have not previously beenraised. If the district court fails to provide the parties with this opportunity, they willnot have forfeited their objections and thus will not be required to demonstrate plainerror on appeal. If a party does not clearly articulate any objection and the groundsupon which the objection is based, when given this final opportunity speak, then thatparty will have forfeited its opportunity to make any objections not previously raisedand thus will face plain error review on appeal. Providing a final opportunity forobjections after the pronouncement of sentence, "will serve the dual purpose[s] ofpermitting the district court to correct on the spot any error it may have made and ofguiding appellate review."

Id. at 872-873 (quoting United States v. Jones, 899 F.2d 1097, 1102 (11th Cir. 1990)) (footnoteomitted).

United States v. Weir, 51 F.3d 1031 (11th Cir. 1995): The government had not waived theissue by its failure to repeat its objection after sentence was imposed. "If the relevant objection israised after the presentation of the [pre-sentence] report, however, but before the actual impositionof the sentence, Jones is satisfied."

2. Object or Admit.

United States v. Wade, 458 F.3d 1273 (11th Cir. 2006): In his written response to the PSI,Wade objected to application of the Armed Career Criminal Act (ACCA), but only on the basis that“attempted burglary cannot be used as a predicate offense under the definition used [in] 18 U.S.C.§ 924(e).” Id. at 1275. That objection focused on attempted burglary as a category of crime; it didnot dispute the PSI's allegation that stated “Court documents” established that Wade had beenconvicted of the crime as a result of attempting to kick in the door of a residence and commit a theftinside. Id.

When the district court pointed out that the crime involved Wade attempting to kick the doorin, Wade did not dispute that. Nor did he voice any disagreement with the prosecutor's statementthat “in this case the defendant attempted to kick the person's door.” Id. at 1276. In overrulingWade's objection, the district court acknowledged the general concerns about use of attemptedburglary convictions for ACCA purposes, but explained, “when he's trying to kick in the door, [that]presents conduct which is narrow and offers the potential for violence.” Id. Wade made no protestabout the court's characterization of the actual facts underlying the conviction, nor did he questionthe source of those facts. Id.

On appeal, Wade argued that the district court erred in sentencing him as an armed careercriminal because attempted burglary under Georgia law is not a violent felony within the meaningof § 924(e)(2)(B) and therefore cannot serve as one of the three predicate offenses. Wade also arguedthat his implicit admission throughout the sentence proceeding, even when coupled with the explicitone at oral argument on appeal, that he was convicted because he attempted to kick in the door ofa residence, is immaterial under the categorical approach of Taylor v. United States, 495 U.S. 575,600, 110 S.Ct. 2143, 2159 (1990). The Eleventh Circuit disagreed.

It is the law of this circuit that a failure to object to allegations of fact in a PSI admitsthose facts for sentencing purposes. . . .It is also established law that the failure toobject to a district court's factual findings precludes the argument that there was error

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in them. . . .Finally, Wade also conceded at oral argument that his attempted burglaryconviction resulted from an attempt to kick in the door of a residence to commit atheft, and we accept that concession. . . .For all of these reasons, we will treat theprior conviction we are considering as one for attempted burglary of a dwelling,which is how it was treated in the district court.

Id. at 1277.

United States v. Bennett, 472 F.3d 825 (11th Cir. 2006): "Bennett failed to object to thefacts of his prior convictions as contained in his PSI and addendum to the PSI despite severalopportunities to do so; thus, he is deemed to have admitted those facts. . . . the district court did noterr in relying on the undisputed facts in Bennett's PSI to determine that his prior convictions wereviolent felonies under the ACCA and, therefore, that he was an armed career criminal. Id. at 833-834.

United States v. Williams, 438 F.3d 1272, 1274 (11th Cir. 2006): The defendant's "failureto contest the 37 grams imputed in the PSR constituted an admission of that quantity."

United States v. Burge, 407 F.3d 1183, 1191 (11th Cir. 2005): The defendant "waived hisobjections to the factual statements about his relevant conduct in the presentence report and,therefore, admitted the facts in that report."

United States v. Hedges, 175 F.3d 1312 (11th Cir. 1999): The defendant did not object tothe conclusory statements set forth in the PSR to support the loss amount. Thus, the statements wereundisputed, and the sentencing court was allowed to rely on them despite the absence of supportingevidence. These undisputed statements were sufficient to support the finding that the defendantcaused or reasonably foresaw the acts that resulted in the $92 million loss because the statementsestablished that this defendant played an important role in the overall conspiracy.

United States v. Stafford, 258 F.3d 465, 475-76 (6th Cir. 2001): The defendant's failure toobject to the PSR was an admission as to the drug quantities and types and thus provided the factualbasis for the sentencing enhancement.

Sample PSR Objection (for ACCA purposes - adapt as needed for career offender orother sentencing issues). This is just one sample outline. You will need to add specificity and claritybased on your own case either in the PSR Objection or in argument at the sentencing hearing.

Mr. Smith objects to the following paragraphs. . . .

Paragraphs #-# & #-#: Mr. Smith objects to being sentenced under the Armed CareerCriminal Act, 18 U.S.C. § 924(e). [explain reasons, such as not a generic burglary, improper relianceon the otherwise clause, etc.].

Based on United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006) (holding that failureto object to allegations of fact in a PSR “admits those facts for sentencing purposes”), Mr. Smithspecifically objects to all the descriptions, characterizations, and information (factual and legal)contained in these paragraphs.

If and as appropriate, you might also make a claim such as . . . Mr. Smith further objects tothe inclusion of these paragraphs and their contents based upon United States v. Booker, 543 U.S.220, 125 S. Ct. 738 (2005), Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), Apprendiv. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215 (1999), and Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998).

Finally, Mr. Smith submits that the descriptions, characterizations, and information in theseparagraph are based upon documents other than those allowed by Shepard v. United States, 544 U.S.

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13, 26, 125 S. Ct. 1254, 1263 (2005) (holding “that enquiry under the ACCA to determine whethera plea of guilty to burglary defined by a nongeneric statute necessarily admitted elements of thegeneric offense is limited to the terms of the charging document, the terms of a plea agreement ortranscript of colloquy between judge and defendant in which the factual basis for the plea wasconfirmed by the defendant, or to some comparable judicial record of this information”).

3. Be specific. State all your grounds for the objections.

Comprehensive written objections to the PSR and addendum are the key to preservingsentencing issues. Renew objections at the sentencing hearing to be safe.

Even if the defendant objects at sentencing, when he does not clearly state the grounds forthe objection in the district court, he is relegated to plain error review on appeal. United States v.Massey, 443 F.3d 814, 818 (11th Cir. 2006); See also United States v. Zinn, 321 F.3d 1084, 1087(11th Cir. 2003).

United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006): The Eleventh Circuitreiterated its precedent that,

[F]or a defendant to preserve an objection to her sentence for appeal, she must “raisethat point in such clear and simple language that the trial court may notmisunderstand it.” United States v. Riggs, 967 F.2d 561, 565 (11th Cir.1992). When the statement is not clear enough to inform the district court of the legal basisfor the objection, we have held that the objection is not properly preserved. Id. Thedefendant also fails to preserve a legal issue for appeal if the factual predicates of anobjection are included in the sentencing record, but were presented to the districtcourt under a different legal theory. See United States v. Reyes-Vasquez, 905 F.2d1497, 1499-1500 (11th Cir.1990).

Id. at 819.In Massey, the record established that defense counsel, "in objecting to the enhancement for

obstruction of justice, repeatedly referenced the effect of Zoloft and heroin on her mental state duringher stay in the hospital. In so doing, he did not specifically utter the words 'intent' or 'mens rea,' andhe often referred to the fact that there was no 'material hindrance,' a different legal theory from'willfulness,' when discussing this issue. " Id. Notwithstanding, the Court found, "in reviewing therecord in its entirety, that the issue of Massey's mental state at the time of the attempted concealment,and, therefore, her capacity to commit the obstruction of justice, was adequately presented to thedistrict court. Thus, we review the issue for clear error." Id.

United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006): A sentencing court's findings of fact may be based on undisputed statements in thePSI. United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989). Where adefendant objects to the factual basis of his sentence, the government has the burdenof establishing the disputed fact. United States v. Sepulveda, 115 F.3d 882, 890 (11thCir. 1997). However, challenges to the facts contained in the PSI must be assertedwith specificity and clarity. See United States v. Aleman, 832 F.2d 142, 145 (11thCir. 1987). Otherwise, the objection is waived. See United States v. Shelton, 400 F.3d1325, 1330 (11th Cir. 2005); United States v. Norris, 50 F.3d 959, 962 (11th Cir.1995). United States v. Gonsalves, 121 F.3d 1416 (11th Cir. 1997): While the defendant did object,

in general, to the district court's failure to adjust his sentencing guidelines downward for acceptanceof responsibility, he did not object specifically to the district court's consideration of past criminal

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activity as one factor. Noting that the properly considered and articulated factors were sufficient tosupport the district court's denial of the adjustment, the Eleventh Circuit refused to hear thedefendant's challenge to the erroneous consideration of an additional factor (past criminal activity)because that same argument was not presented to the district court.

United States v. Bougie, 279 F.3d 648, 650-51 (8th Cir. 2002): Court could accept specificfacts in PSR as true because the defendant did not object to specifics.

United States v. Williams, 469 F.3d 963 (11th Cir. 2006): Williams is another example ofwhy when you object, you have state all your arguments. On appeal, the defendant argued that thedistrict court erred by applying the mandatory minimum term of life imprisonment under §841(b)(1)(A)(ii) for two reasons. One was preserved, one was not, resulting in two differentstandards of review.

First, Williams argued that, in order to be subject to mandatory minimum term of lifeimprisonment under § 841(b)(1)(A)(ii)(II), he had to be involved in a transaction involving five ormore kilograms of cocaine after his second prior conviction became final. He contended that themandatory life sentence was erroneously imposed because, after his June 28, 2005 convictionbecame final, he was not involved in a violation of § 841(a) involving five or more kilograms ofcocaine and, at most, conspired to possess with intent to distribute two kilograms of cocaine. Thisargument regarding the interpretation and application of § 841(b)(1)(A) was preserved and wasreviewed de novo. Id. at 965-968.

Alternatively, Williams argued that there was insufficient time and criminal conduct betweenhis state conviction and federal arrest to warrant the use of the state conviction for enhancementpurposes. He pointed out that slightly more than two months elapsed between his conviction andthe end of the conspiracy and the extent of his involvement after his conviction was telephoneconversations concerning possessing with intent to distribute cocaine. Williams did not object beforethe district court on the ground that his second prior conviction could not be used for enhancementpurposes due to insufficient time and criminal conduct. Accordingly, this argument was reviewedfor plain error.

In order for an error to be plain, it must be obvious or clear under current law. . ..“[W]here neither the Supreme Court nor this Court has ever resolved an issue, andother circuits are split on it, there can be no plain error in regard to that issue.” . . .

Id. at 966 (citations omitted).If there was an error in counting his June 28, 2005 conviction as a prior convictionunder § 841(b)(1)(A), Williams cannot establish that it was plain. The test as towhether to use a prior conviction to enhance a sentence under § 841(b)(1)(A) is notmere passage of time; rather “the focus of the inquiry is on the degree of criminalactivity that occurs after a defendant's conviction for drug-related activity is finalrather than when the conspiracy began.” . . . Although less than two months elapsedbetween the time Williams's prior conviction became final and his arrest onSeptember 20, 2005, the focus of the inquiry is on the degree of criminal activityfollowing the prior conviction's finality. . . . Furthermore, we have not set a minimumtime limit. . . .

Williams, 469 F.3d at 967 (citations omitted). The Court also noted the circuit split on the issue. Id.at 967-968.

Accordingly, Williams cannot show that his attempt to obtain two kilograms ofcocaine, which was prevented by the actions of law enforcement officers, was clearlyor obviously an insufficient degree of criminal activity so as to preclude the use ofhis second prior conviction for enhancement purposes.

Id. at 968.

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4. Object to anything that occurs at sentencing, but is not covered in yourobjections to the PSR, e.g., the court's failure to make findings.

United States v. Gregg, 179 F.3d 1312 (11th Cir. 1999): The defendant waived his objectionto the absence of more factual findings by the district court by not requesting more detailed findingsat sentencing.

5. Exception to Objection Requirement at Sentencing: 18 U.S.C. §3553(c)(1).

Pursuant to 18 U.S.C. § 3553(c)(1), a district court is required to state, in open court, thereason for its particular sentence, and if the sentence “is of the kind, and within the range[recommended by the Guidelines] and that range exceeds 24 months, the reason for imposing asentence at a particular point within the range.” 18 U.S.C. § 3553(c)(1).

United States v. Williams, 438 F.3d 1272, 1274 (11th Cir. 2006): The Eleventh Circuit hasrejected the government's argument that by not objecting in the district court, a defendant abandonshis claim under § 3553(c)(1) and our standard of review is for plain error only. The Court cited itspre-Booker decision in United States v. Veteto, 920 F.2d 823, 826 (11th Cir.1991): “Congress hasspecifically proclaimed that a sentencing court shall state ‘the reason for imposing a sentence[exceeding 24 months] at a particular point within the range.’ ... When a sentencing court fails tocomply with this requirement, the sentence is imposed in violation of law . . . .” Williams, 438 F.3dat 1274 (quoting Veteto, 920 F.2d at 826) (alterations in original) (emphasis removed).

United States v. Bonilla, 463 F.3d 1176 (11th Cir. 2006): The question of whether a districtcourt complied with 18 U.S.C. § 3553(c)(1) is reviewed de novo, even if the defendant did not objectbelow.

6. The party does not waive an objection at sentencing where the issue isnot apparent until written judgment is entered.

United States v. Bull, 214 F.3d 1275 (11th Cir. 2000): The court upheld the sentencingcourt's imposition of mental health treatment for anger control as a special condition of supervisedrelease, unrelated to the nature of the conviction for use of an unauthorized access device, inviolation of 18 U.S.C. § 1029(a)(2). The court rejected the government's argument that the defendanthad waived the issue, pointing out that he could not have objected to it because the court firstrequired the treatment in its written judgment.

7. Be sure your client shows up for sentencing.

United States v. Jordan, 216 F.3d 1248 (11th Cir. 2000): The court held that a defendantwho voluntarily absents himself from sentencing by becoming a fugitive, and who is then sentencedin absentia in accordance with Fed. R. Crim. P. 43, waives his right, under 18 U.S.C. § 3552, to haveten days to review the PSR. Citing United States v. Ortega-Rodriguez, 13 F.3d 1474 (11th Cir.1994),the court concluded that flight in this situation warrants a waiver because it creates an undue burdenon the government (due to the delay and uncertainty), and a significant interference with theoperation of the judicial process (due to the disruption of finality).

United States v. Davenport, 151 F.3d 1325 (11th Cir. 1998): Shortly after his guilty plea,the defendant absconded and could not be located. Twenty-two days prior to the scheduledsentencing, the defendant's attorney received the PSR in the case. The day before the scheduled

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sentencing, the defendant was apprehended. The next morning, the defendant had three hours toreview the PSR with his attorney. The defense attorney moved for a continuance on the grounds thathe needed additional time to review the PSR with his client. In denying the continuance, the districtcourt held that the lack of time to evaluate the PSR was attributable to the defendant and his conduct.On appeal, the Eleventh Circuit reversed holding that 18 U.S.C. § 3552(d) unambiguously providesa criminal defendant with at least ten days in which to review his PSR before sentencing. Thegovernment argued that the defendant had waived the ten-day period by his actions. The EleventhCircuit held that a defendant's flight is not a manifestly clear indication of a knowing and voluntaryrelinquishment of the statutory right to review a PSR. Thus, a defendant does not waive his rightto a PSR solely by absconding prior to sentencing, as long as he shows up for sentencing.

8. Don't invite the Error!

In United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006), the Eleventh Circuit did notreach the merits of the defendant's arguments because it concluded that he induced or invited theruling he claimed was error. “It is a cardinal rule of appellate review that a party may not challengeas error a ruling or other trial proceeding invited by that party.” United States v. Ross, 131 F.3d 970,988 (11th Cir.1997) (quotations omitted). “The doctrine of invited error is implicated when a partyinduces or invites the district court into making an error.” United States v. Stone, 139 F.3d 822, 838(11th Cir.1998). “Where invited error exists, it precludes a court from invoking the plain error ruleand reversing.” United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir.2005) (quotations omitted).

Love induced or invited the district court to impose a sentence that included a termof supervised release. In his plea agreement and again at the plea colloquy, heexpressly acknowledged the court could impose a term of supervised release of upto five years. At his sentencing, he did not object to a sentence including supervisedrelease. To the contrary, Love's counsel repeatedly requested that in lieu ofadditional jail time the court sentence Love to time served followed by supervisedrelease, and even suggested the court impose a term of two years' supervised release.Thus, Love is precluded from claiming the court erred in sentencing him to a termof five years' supervised release.

Id. at 1157.

B. Sentencing - in General.

United States v. Dudley, 463 F.3d 1221 (11th Cir. 2006): The defendant argued that USSG§ 2A6.1(b)(4) was applied in violation of the Confrontation Clause because the district court reliedon hearsay testimony at sentencing. Because he did not raise this argument before the district court,this claim was reviewed only for plain error. Id. at 1227. The defendant did not get past the secondprong of the plain error analysis – the "plain" prong – because the Court found his argument wasforeclosed by United States v. Chau, 426 F.3d 1318, 1323 (11th Cir.2005), wherein the Court heldthat a district court's reliance on hearsay testimony at a sentencing hearing is not plain error. Id.Because the Court ruled that Chau controlled, it held: "If the district court did rely on hearsaytestimony to enhance Dudley's sentence, it did not plainly err in doing so." 463 F.3d at 1227.

The defendant also argued, for the first time on appeal, that his sentence violated his SixthAmendment due process rights because of a USSG § 2A6.1(b)(4) enhancement. Specifically, heargued that his sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), andUnited States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), because the enhancement was basedon facts he did not admit. Because this argument was raised for the first time on appeal, it was also

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reviewed only for plain error. 463 F.3d at 1227-1228.United States v. Smith, 459 F.3d 1276, 1298-1299 (11th Cir. 2006): Smith was sentenced

to 188 months (15 years, 8 months). On appeal, Smith requested resentencing, arguing that, prior tosentencing, he was not given formal notice of either (1) the enhanced sentencing range arising froma prior conviction "relating to the sexual exploitation of children," 18 U.S.C.A. § 2251(d); or (2) therequirement that he register as a sex offender as a condition of his supervised release.

At arraignment on the initial indictment, the court advised Smith that the § 2251(a) chargecarried a 10-year minimum and 20-year maximum sentence. According to the statute effective atthe time, the enhancement (based on his prior conviction) increased the sentencing range from 10-20years to 15-30 years. 18 U.S.C.A. § 2251(d) (Apr. 2003 amendments). At arraignment on thesuperseding and second superseding indictments, Smith waived formal readings of the indictments.At no point prior to receiving the PSR was he advised that he might face anything more than a 10-20sentence. Smith asserted this was a violation of his constitutional right to due process.

The Eleventh Circuit noted it was aware of no case law mandating a formal reading of theFederal Sentencing Guidelines. "The statute under which he was charged, 18 U.S.C. § 2251,specifically delineates the sentencing range for violations of its provisions, both with and withoutprior offenses relating to sexual exploitation of children. Moreover, 18 U.S.C. § 3583(d) mandatesregistration as a condition of supervised release for any person described in 18 U.S.C. § 4042(c)(4),a category of persons that includes individuals convicted of offenses categorized as 'SexualExploitation and Other Abuse of Children' (including both 18 U.S.C. § 2251 & 2252A). 18 U.S.C.§ 4041(c)(4), 18 U.S.C. ch. 110; USSG § 5D1.3(7). The statutory scheme therefore mandatedSmith's sentence." 459 F.3d at 1298-1299. Further, the Court ruled that the district court did notplainly err by not providing additional notice of the minimum sentencing provisions.

United States v. Harness, 180 F.3d 1232 (11th Cir. 1999): The court reversed for plainerror an aggravating role sentence enhancement based on U.S.S.G. § 3B1.1(c), but affirmed an abuseof trust enhancement based on § 3B1.3, finding no plain error. Defendant, an accountant employedby the Red Cross, was convicted of illegal diversion of federal funds intended to benefit needyindividuals facing eviction from their homes. The sentencing court imposed an aggravating roleenhancement because the defendant had responsibility over the property and assets of the victim.The court held that this was an improper enhancement, because the enhancement requires that thedefendant "organize, lead, manage, or supervise another participant in the criminal scheme."Because defendant was sentenced to the high end of the applicable guideline range, the error wasplain and required resentencing even in the absence of defense objection at sentencing. The court,however, rejected the defendant's challenge to the enhancement based on abuse of a position of trust.The Court noted that defendant failed to object at sentencing that the only victim of his fraud wasthe U.S. government, with whom he did not have a position of trust. Citing United States v. Hedges,175 F.3d 1312 (11th Cir. 1999), the court observed that the PSR identified the Red Cross as thevictim, and that defendant failed to object to that conclusory statement, and the sentencing courtcould therefore rely on it. Given that factual premise, the defendant did abuse a position of trust,since he was a director of the very Red Cross program from which he was diverting money forpersonal use.

United States v. Garrison, 133 F.3d 831 (11th Cir. 1998): Appellant's counsel did not objectto the $2,500,000 fine when it was imposed. When the district judge asked if Appellant's counsel had"any objection to the Court's finding of fact and conclusions of law or to the manner in whichsentence was pronounced", the following colloquy ensued:Counsel: Your Honor, to preserve the record, we do object on the abuse of trust

and role in the offense. Additionally, although not argued to youtoday, we footnoted in our sentencing memorandum our objection to

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an upward departure in the fine level which the Court has imposedhere.

Court: Yes.Counsel: And we would state that we respectfully do not believe that the record

reflects that the elements for such an upward departure exist in thiscase. And therefore, we wish to preserve our appellate issues on that.

Court: Certainly. All right. That is the judgment of the Court.The Eleventh Circuit concluded that Appellant received reasonable notice of the potential

of an upward departure in her fine because Appellant acknowledged that she received notice of thepossibility of upward departure in her fine six days prior to her sentencing in the revised PSR, sheobjected to an upward departure in her sentencing memorandum, and she relied on that objection atsentencing. She acted upon this notice in her responsive sentencing memorandum and was contentto rely upon her footnote response in that memorandum at sentencing, although the district judgegave her counsel the opportunity to object at sentencing following his statement of the reasons forupward departure in the fine. The district judge based his reasons for the upward departure inAppellant's fine on facts found in the PSR, which Appellant asserted to the court that she hadreviewed, understood, and accepted as accurate. Appellant admitted that at the sentencing hearing,she did not object specifically to the lack of notice of the upward departure in the fine. Therefore,the standard of review was plain error, and the court found there was no plain error regarding noticeof the upward departure in Appellant's fine.

United States v. Hernandez, 160 F.3d 661 (11th Cir.1998): The Eleventh Circuit found thatthe district court erred in departing upward, pursuant to U.S.S.G. § 4A1.3 (defendant's criminalhistory is understated), where the district court relied, in part, on the defendant's arrest record in thePSR without any additional evidence of the defendant's specific conduct in connection with saidarrests. The court found, however, that this was harmless error because the probation office hadmiscalculated the defendant's criminal history score in favor of the defendant. Thus, the defendantshould have been in the higher criminal history category. What the court did not discuss is that thegovernment never objected to the criminal history level at the time of sentencing, nor did thegovernment cross-appeal based upon the erroneous calculation of the criminal history.

Additionally, the defendant objected to the imposition of a fine. However, the defendant didnot raise said objection in the district court. Thus, the Eleventh Circuit reviewed under a "plainerror" analysis. The court held that the district court need not make specific findings with regard tothe fine provided that the record reflects the district court's consideration of pertinent factors priorto imposing the fine. Finding such evidence in the record, the Eleventh Circuit affirmed theimposition of the fine. The court indicated, however, that when the record provides no guidance asto the court's reasons for imposing a fine, the case must be remanded so that factual findings can bemade.

United States v. Bozza, 132 F.3d 659 (11th Cir. 1998): The defendant's sentence wasenhanced pursuant to 18 U.S.C. § 3147 and U.S.S.G. § 2J1.7, because the charged offenses werecommitted while the defendant was released on bond. The defendant had pled guilty toimpersonating a federal officer and travel fraud. Said offenses were committed while the defendantwas released on bond in an unrelated case. After the defendant pled guilty to the impersonation andtravel fraud charges, the government filed a notice to enhance his sentence pursuant to 18 U.S.C. §3147 and U.S.S.G. § 2J1.7. The trial court imposed a consecutive sentence because of the fact thecrimes were committed while the defendant was on bond. The defendant appealed, arguing that henever received notice of the enhancement prior to entering his plea of guilty, that § 2J1.7commentary requires he receive sufficient notice before the government may seek such anenhancement, and that "sufficient" means prior to the trial or the entry of the plea. The defendant also

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argued that the lack of notice violated Fed. R. Crim. P. 11, and thus invalidated his guilty plea. Thegovernment responded that the defendant was on sufficient notice on three occasions: when hesigned his bond for his prior conviction; prior to sentencing, when the government filed a noticeseeking enhancement; in the revised PSR. The court of appeals held that § 2J1.7 does not require adistrict court to notify the defendant of the sentencing enhancement prior to accepting his/her guiltyplea. The court acknowledged that this position was contrary to the position of the Fifth Circuit inUnited States v. Pierce, 5 F.3d 791, 793 (5th Cir. 1993). In reaching its decision, the Eleventh Circuitalso cited United States v. Browning, 61 F.3d 752 (10th Cir. 1995). In that case, it was undisputedthat the only notice the defendant received concerning the sentencing enhancement came from thePSR. The Tenth Circuit held that the notice of enhancement was sufficient because the defendantreceived the notice prior to sentencing and, thus, had the opportunity to object to the enhancement.The Eleventh Circuit found Browning persuasive and held that the defendant in the instant case hadnotice of the enhancement prior to the sentencing hearing and had the opportunity to object.

United States v. Kersey, 130 F.3d 1463 (11th Cir. 1997): Since the defendant failed topreserve an objection, under the Ex Post Facto Clause, to the district court's failure to use thesentencing guidelines manual in effect at the time of the defendant's commission of the offense, "wewill review his Ex Post Facto argument only if failure to do so would result in manifest injustice. SeeUnited States v. Jones, 899 F.2d 1097, 1103 (11th Cir.), cert. denied, 498 U.S. 906 (1990)." Thecourt found "no manifest injustice in refusing to review" the error where the sentence the defendantactually received -- 15 months -- fell within the guideline range that the defendant himself claimedto be applicable.

United States v. Masters, 118 F.3d 1524 (11th Cir. 1997): When the sentencing judge waswrong on the guidelines issue, the prosecutor tried to give judge another avenue to upward depart.(The Eleventh Circuit called the prosecutor's behavior reprehensible in a footnote because theprosecutor was duty bound to inform the court that it could not do what it was doing.) Defensecounsel objected to the upward departure and continued to object, but the defendant overrodecounsel and told the judge to proceed. The Eleventh Circuit held that even though the court erred andeveryone knew that the court erred, the fact that the defendant overrode counsel's objections meantthat he knowingly waived the objection. Plain error did not apply because of the defendant's ownobjections. (The defendant is serving an additional 119 months.)

Moral: Reprehensible prosecutors and uncontrollable clients (who are probably just scared)= an extra 119 months and that is ok.

United States v. Antonietti, 86 F.3d 206 (11th Cir. 1996): Counting seedlings as marijuanaplants to calculate the base offense level was plain error affecting substantial rights and warrantingvacatur of the sentences.

United States v. Reese, 67 F.3d 902 (11th Cir. 1995): The trial court erred by attributing tothe defendants all the cocaine distributed by the conspiracy while the defendants were involved inthe conspiracy, on the grounds that the defendants could have reasonably foreseen such distribution,without considering the scope of criminal activity that each defendant agreed to undertake. This waserror because the commentary to U.S.S.G. § lB1.3, which is binding under Stinson v. United States,508 U.S. 36, 113 S. Ct. 1913 (1993), was amended to require that defendants be held accountablefor other conduct that is reasonably foreseeable and within the scope of criminal activity that thedefendant agreed to undertake. The court also noted that although the defendants did not mentionchange in the circuit's law due to the amendment or the amendment's commentary, they had objectedto the quantities of cocaine attributed to them. This was held to be sufficient to preserve the issuefor appellate review.

United States v. Smith, 39 F.3d 1143 (11th Cir. 1994): The government's objection atsentencing to the downward departure preserved the issue of the district court's authority to depart,

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although the government did not articulate its argument before the district court in detail.United States v. Barajas-Nunez, 91 F. 3d 826, 833 (6th Cir. 1996): The Sixth Circuit

concluded it was plain error for a sentencing court to disregard the guidelines because"[p]ermittingsentencing courts to disregard governing law would diminish the integrity and public reputation ofthe judicial system."

United States v. Ivey, 83 F.3d 1266 (10th Cir. 1996): The government's failure to object toa presentence report waived its complaint.

United States v. Perkins, 89 F.3d 303 (6th Cir. 1996): Orally raising an issue at sentencingpreserved it for appeal.

United States v. Byerley, 46 F.3d 694 (7th Cir. 1996): The government waived an argumentby taking an inconsistent position at sentencing.

United States v. Martinez-Vargas, 321 F.3d 245, 249 (1st Cir. 2003): Defendant waived orforfeited objection to PSR by not filing in timely manner.

United States v. Diaz, 176 F.3d 52 (2d Cir. 1999): Defendant failed to preserve sentencingclaim for appeal by failing to object to PSR's 4-level enhancement.

United States v. Aramony, 166 F.3d 655, 662 (4th Cir. 1999): Mere objection by defendantto accuracy of PSR without affirmative showing that information is inaccurate leaves district courtfree to adopt findings of PSR.

United States v. Clark, 139 F.3d 485, 490 (5th Cir. 1998): If defendant fails to submitaffidavits or other evidence to rebut information contained in PSR, sentencing court may adopt PSRwithout "further inquiry or explanation."

United States v. Wing, 135 F.3d 467, 469 (7th Cir. 1998): By failing to object at sentencinghearing, defendant waived right to object to PSR finding that he had supervisory role in illegalgambling operation.

United States v. Overholt, 307 F.3d 1231, 1251- 52 (10th Cir. 2002): Court may rely onPSR to apply aggravating role enhancement because defendant did not challenge PSR untilsentencing hearing.

United States v. Saro, 24 F.3d 283, 290-91 (D.C. Cir. 1994): Defendant waived right toobject to factual allegations because objections to PSR not made in timely manner; plain error,however, required resentencing.

C. Sentencing - Allocation

United States v. Prouty, 303 F.3d 1249 (11th Cir. 2002): Because the defendant failed toobject to the failure of the court to grant him his right to allocution, the issue was reviewed on appealfor plain error. Because Rule 32(c)(3)(C), FRCrP, specifically requires the district court to offer thedefendant the opportunity to allocute, the court's failure to do so was a "clear" or "obvious" error.Id. at 1252. The court then held that "failing to give a defendant the opportunity to speak to the courtdirectly when it might affect his sentence is manifestly unjust. Moreover, the right of allocution is'the type of important safeguard that helps assure the fairness, and hence legitimacy, of thesentencing process.'" Id. at 1253. Because the defendant was not sentenced to the lowest possiblesentence, his sentence was vacated and the case was remanded for resentencing. Id.

United States v. Ramsdale, 179 F.3d 1320 (11th Cir. 1999): The Court rejected theargument that the sentencing court failed to seek allocution at the resentencing, noting that thedefendant did not object to this at the time, and that no "manifest injustice" occurred because of the"limited nature" of the resentencing. Also, he had been allowed to allocute at the original sentencing.

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D. Sentencing - Restitution.

United States v. Morris, 286 F.3d 1291 (11th Cir. 2002): On appeal, Morris argued that thedistrict court violated Federal Rule of Criminal Procedure 11 by ordering restitution where it failedto advise him, before he pled guilty, of the possibility that such an order might be issued. Becausehe did not raise the Rule 11 violation in the district court, it was reviewed for plain error on appeal.

The government conceded that Morris was not made aware of the possibility of an order ofrestitution at either the plea hearing or in the plea agreement. Id. at 1293. Thus, the Eleventh Circuitfound that because the district court erred by failing to inform Morris of the possibility of restitution,it had to determine whether the error affected his substantial rights. Id. at 1294. In this regard, theCourt noted:

Both the plea agreement and the plea colloquy, however, informed Morris that hefaced a maximum fine of $250,000 on the conspiracy to defraud count and a fine onthe conspiracy to launder money count of the greater of $500,000 or twice the valueof the transaction. Because Morris faces a restitution order that is below the amounthe was informed he could face in fines, the government contends that the hissubstantial rights were not impaired.

This is a question of first impression for this court. In United States v.McCarty, 99 F.3d 383 (11th Cir.1996), we concluded that a defendant's substantialrights were not affected when a district court failed to mention specifically thepossibility of restitution but the defendant had been fully advised of his obligation tomake restitution in the plea agreement. See id. at 386-87. Morris, however, was notmade aware of the possibility of restitution in either the plea agreement or the pleahearing.

Although Federal Rule of Criminal Procedure 11(c) requires the district courtto explain a defendant's liability for both fines and restitution, we hold that failure todo so does not impact a defendant's substantial rights where he was warned of apotential fine larger than the actual amount of restitution ordered. Here, therestitution order was considerably less than the fine Morris was warned of at the timeof his guilty plea. In a case that involved an earlier version of Rule 11, the SupremeCourt stated that "matters of reality, and not mere ritual, should be controlling."McCarthy v. United States, 394 U.S. 459, 467-68 n. 20, 89 S.Ct. 1166, 22 L.Ed.2d418 (1969) (citation omitted). We agree with the holding of seven of the eightcircuits to have ruled on this question that a defendant "is not prejudiced so long ashis liability does not exceed the maximum amount that the court informed him couldbe imposed as a fine. It is the amount of liability, rather than the label 'restitution,'that affects [a defendant's] substantial rights." United States v. Glinsey, 209 F.3d386, 395 (5th Cir.2000). Accordingly, we conclude that the district court's failure tomention the possibility of restitution was not plain error.

Id. at 1294-1295 (footnote omitted, but cases related below).In the footnote omitted above, the court cited the First, Fourth, Sixth, Seventh, Ninth, and

Tenth Circuits, which agreed with the Fifth Circuit. See United States v. Raineri, 42 F.3d 36, 42 (1stCir.1994) (holding that error is harmless where defendant is required to pay restitution in an amountless than the potential fine of which he was warned); United States v. Gabriele, 24 F.3d 68, 71 (10thCir.1994) (holding that defendant's substantial rights not impaired when ordered to pay $100,000 inrestitution when he knew he could be fined up to $750,000); United States v. Fox, 941 F.2d 480,484-85 (7th Cir.1991) (holding that decision to plead guilty not prejudiced by court's failure to adviseof possibility of restitution when defendant had notice of a possibly greater fine); United States v.

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Miller, 900 F.2d 919, 921 (6th Cir.1990) (holding that error was harmless where defendant wasrequired to pay restitution in an amount less than the maximum possible fine amount of which hehad knowledge); United States v. Pomazi, 851 F.2d 244, 248 (9th Cir.1988), overruled in part onother grounds, Hughey v. United States, 495 U.S. 411, 110 S.Ct. 1979 (1990) (holding that there isno surprise or prejudice in failure to mention restitution in Rule 11 hearing when defendant was toldof potential liability of $500,000 and $64,229 restitution order imposed); United States v. Fentress,792 F.2d 461, 466 (4th Cir.1986) (holding that there is no surprise or prejudice by the imposition of$38,000 restitution order when defendant might have been ordered to pay a maximum fine of$40,000).

Only the Second Circuit took the opposite view. See United States v. Showerman, 68 F.3d1524, 1528 (2d Cir.1995) (holding that the failure to mention the possibility of restitution at the Rule11 hearing is not harmless error even when the restitution imposed is less than the maximum finethe defendant understood he might receive).

The Morris Court then moved on to the offense level enhancement for abuse of position oftrust, which the defendant objected to, thereby properly preserving the issue for appellate review.The majority reversed and remanded on this issue, finding that said enhancement was not warrantedon the facts of this case. Id. at 1300. Dissenting in part, Judge Hull would have affirmed theenhancement, relying, inter alia, on United States v. Hedges, 175 F.3d 1312, 1315 (11th Cir. 1999),(noting defendant "did not object to the statements in the PSI" and thus "these statements wereundisputed, and the court was permitted to rely on them despite the absence of supportingevidence"). Morris, 286 F.3d at 1303 n.3.

United States v. Romines, 204 F.3d 1067 (11th Cir. 2000): While on supervised release,the defendant absconded and stole money from someone unrelated to the offense for which he wason supervised release. At the revocation and sentencing hearing, the district court ordered him to payrestitution for the money he stole when he absconded from supervised release. The defendant failedto object to the restitution order at sentencing. The Eleventh Circuit held that the restitution orderwas plain error because it ordered restitution for conduct for which restitution was not authorizedunder the Victim and Witness Restitution Act, 18 U.S.C. §§ 3556, 3663(a)(1). Finding that thedefendant could not be ordered to pay restitution for a crime for which he had not been convicted,the Eleventh Circuit vacated the judgment of restitution. (In so doing, the Court did not mentionwhether the error seriously affected the fairness, integrity, and public reputation of the judicialproceedings, presumably because an unauthorized sentence necessarily has such effect.)

United States v. Miranda, 197 F.3d 1357, 1359 (11th Cir 1999): The defendant wasconvicted of conspiracy to launder money based on conduct that occurred before the enactment ofthe substantive money laundering statutes. The Eleventh Circuit held that this "naked ex post factoviolation" constituted plain error. (The court did not mention whether the error seriously affectedthe fairness, integrity, or public reputation of judicial proceedings.)

United States v. Stinson, 97 F.3d 466 (11th Cir. 1996): The district court may delegate tothe U.S. Probation Office the authority to set the amount of monthly restitution payments to be madeby the defendant during supervised release. The defendant's failure to timely object to the districtcourt's restitution order constitutes a waiver of the issue for appellate purposes.

E. Resentencing the Second Time Around.

Bousley v. United States, 523 U.S. 614 (1998): This case started before the Supreme Courtdecided Bailey v. United States, 516 U.S.137 (1995). Petitioner pled guilty to drug possession withintent to distribute, 21 U.S.C. § 841(a)(1), and to "using" a firearm"during and in relation to a drugtrafficking crime," 18 U.S.C. § 924(c)(1), but reserved the right to challenge the quantity of drugs

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used in calculating his sentence. He appealed his sentence, but did not challenge the validity of theplea. The Eighth Circuit affirmed.

Subsequently, Petitioner sought habeas relief, claiming his guilty plea lacked a factual basisbecause there was no connection between the firearms found in the bedroom of the house and thegarage where the drug trafficking occurred. The district court dismissed the petition on the groundthat a factual basis for the plea existed because the guns were in close proximity to the drugs andwere readily accessible. While Petitioner's appeal was pending, the Supreme Court held in Baileythat a conviction for using a firearm under § 924(c)(1) requires the government to show the activeemployment of the firearm, not its mere possession. In affirming the dismissal in this case, theEighth Circuit rejected Petitioner's argument that Bailey should be applied retroactively.

The Supreme Court held that although Petitioner's claim was procedurally defaulted, he maybe entitled to a hearing on its merits if he makes the necessary showing to relieve the default, i.e.,he must demonstrate either "cause and actual prejudice," or that he is "actually innocent". Hisarguments that the legal basis for his claim was not reasonably available to counsel at the time of hisplea and that it would have been futile to attack the plea before Bailey do not establish cause for thedefault.

However, the district court did not address whether Petitioner was actually innocent of thecharge, and the government did not contend that he waived this claim by failing to raise it below.Thus, on remand, Petitioner may attempt to establish actual innocence. Actual innocence meansfactual innocence, not mere legal insufficiency. Thus, the government would not be limited to theexisting record, but could present any admissible evidence of Petitioner's guilt. Petitioner's actualinnocence showing must also extend to charges that the government has forgone in the course of pleabargaining. The indictment only charged Petitioner with "using" firearms, and there was no recordevidence that the government elected not to charge him with "carrying" a firearm in exchange forhis guilty plea, Petitioner would not have to prove actual innocence of both "using" and "carrying"a firearm in violation of § 924(c)(1).

Unites States v. Milano, 32 F.3d 1499 (11th Cir. 1994), superceded by statute on otherground, as recognized in United States v. Cook, 291 F.3d 297 (11th Cir. 2002): Appellant filedwritten objections to the PSR. At the original sentencing in 1990, however, Appellant chose not toproceed on his objections, as a result of receiving the benefit of the government's motion fordownward departure based upon U.S.S.G. § 5K1.1. With respect to his objections to the PSR,Appellant's trial counsel stated that "the fundamental question here is really how much in the wayof drugs Mr. Milano had in his possession at the time he was arrested, or in his house, et cetera."Counsel then represented to the sentencing judge that Appellant's objections "might be moot"because the government had made a § 5Kl.1 motion and that, if the judge were to "do somethingextraordinary" by sentencing Appellant to a term of supervised release and no further jail time, then"we needn't do anything with the PSI," and "what's in the PSI doesn't matter."

The district court adopted the recommendation in the PSR as to the applicable guidelinesfactors, granted the government's departure motion, withheld the imposition of confinement andplaced Appellant on probation for a period of five years, subject to certain enumerated conditionsof probation. The defendant then violated probation and returned to the court for the revocation andresentencing. Now that he was not facing probation, the errors became critical. However, the courtheld that because he waived any requirement that district court make findings as to any allegedfactual inaccuracies contained in PSR at initial sentencing hearing, the district court was not requiredto consider defendant's objections to PSR before imposing sentence at probation revocation hearing!

Also, the defendant's claim that sentencing court in probation revocation proceeding wasunaware of its statutory discretion to sentence defendant to term shorter than original sentence wouldnot be considered on appeal, as defendant failed to raise that objection at sentencing and there was

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no manifest injustice. The sentencing court properly offered defendant opportunity to make specificobjections to sentence, and defendant failed to articulate that objection.

United States v. Manarite, 44 F.3d 1407, 1419 (9th Cir. 1995): Defendant waived his rightto object to the PSR because he withdrew his objections at sentencing.

United States v. Stinson, 97 F.3d 466 (11th Cir. 1996): On resentencing, following reversalof the original sentence due to the district court's erroneous determination that the defendant was acareer offender under U.S.S.G. § 4Bl.1, the district court was not bound by its original denial of thegovernment's motion for an upward departure. Thus, on resentencing the district court properlygranted the departure motion so as to give the defendant exactly the same sentence he originallyreceived when he was erroneously treated as a career offender, even though "the original sentencingcourt declined to depart upward." The government did not waive "its right to seek an upwarddeparture at resentencing by not appealing the denial of departure at the original sentencing . . ..[T]he government is authorized to appeal only a downward departure from the guideline range.Thus, the denial of the government's upward departure motion was not an issue that the governmentcould have raised on appeal."

United States v. Carter, 110 F.3d 759 (11th Cir. 1997): The court vacated the denial of thedefendant's motion to reduce sentence where the district court abused its discretion by erroneouslyconcluding that it would be impossible to estimate the dry weight of marijuana attributed to thedefendant at the original sentencing. The defendant was sentenced before the 1993 amendment tothe sentencing guidelines providing that only the usable weight of a controlled substance is to becounted in determining the applicable drug guideline. A 1995 guideline amendment clarified thatin the case of wet marijuana, only the dry weight of the marijuana should be counted. Although thewet marijuana amendment was not made retroactive by the Sentencing Commission, it is effectivelyretroactive because even prior to that amendment's effective date, the Eleventh Circuit held that onlythe dry weight of marijuana is to be counted. The district court's denial of the sentence reductionmotion --based on the sole reason that it was "impossible" to estimate the dry weight --- was notsupported by the record where the defendant identified "witnesses who can testify concerning thedegree of weight reduction that drying entailed." The court rejected the government's proceduraldefault argument (that the defendant should have raised his claim on direct appeal, rather than byreduction motion ) where the government failed to make the default argument in the district courtand therefore waived the issue.

F. Federal Rule Criminal Procedure 35(a).

Rule 35(a), Fed. R. Crim. P., provides: "Within 7 days after sentencing, the court maycorrect a sentence that resulted from arithmetical, technical, or other clear error." Prior to 2002,the language contained in the current Rule 35(a) was located in Rule 35(c). See Fed.R.Crim.P. 35,Advisory Comm. Notes, 2002 Amendments. Thereafter, subsection (c) was moved to subsection (a),but no change in practice was intended by the move. Id.

United States v. Lett, 483 F.3d 782 (11th Cir. 2007): Lett pled guilty to seven counts ofpossession with intent to distribute, all in violation of 21 U.S.C. § 841(a)(1). The PSR recommended,and the government did not object to, that level being lowered: by two levels because he met the fivecriteria for a safety valve reduction; by another two levels because he accepted responsibility for hiscrime; and by one more level because he timely notified the government of his intention to pleadguilty. Those reductions resulted in an offense level of 27.

He faced a mandatory minimum prison sentence of 60 months on five of the counts under21 U.S.C. § 841(b)(1)(B). About those statutory mandatory minimum sentences, and the resulting

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inapplicability of the U.S.S.G. § 5C1.2 safety valve provision, the PSR stated: "Based on a totaloffense level of 27 and a criminal history category of I, the guideline range of imprisonment is 70to 87 months. Counts 8, 9, 10, 11, and 12, each carry a mandatory minimum penalty of 60 months. Although it appears that the defendant is eligible for consideration under U.S.S.G. § 5C1.2, becausethe minimum of the guideline range is 70 months, which is greater than the statutory mandatoryminimum 60 months, 5C1.2 consideration is a moot issue." 483 F.3d at 784.

Neither the government nor Lett lodged any objection to the PSR, and with the consent ofboth parties the district court adopted it as written. Id. The district court determined that a variancefrom the guidelines was warranted, but also decided that the statutory five-year mandatory minimumprovided the lowest sentence it could impose: "There is no way that I can legally go below thatfive-year mandatory minimum, even if I wanted to. So, discretion is limited by Congress, who hasdictated that people who commit these kind of crimes shall serve no less than 60 months, or fiveyears." Id. at 785. Hence, the court sentenced the defendant to 5 years' in prison. Id.

Four days after sentencing, a friend of the defendant wrote the court to state that the safetyvalve provisions in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 operated to free the court of themandatory minimum otherwise required by 21 U.S.C. § 841(b)(1)(B). He told the court he wasconcerned that defense counsel had not raised the argument, and that time for doing something aboutit under Fed.R.Crim.P. 35(a) was running out. He sent copies of his letter to defense counsel andthe government, but the record shows neither filed a response. Id. at 786.

The district court issued an order modifying Lett's sentence on the last day of the seven-dayperiod for correcting sentences under Rule 35(a), as extended by the counting provision inFed.R.Crim.P. 45(a)(2). The court explained that at the sentence hearing it had accepted the PSR'srecommendation that the safety valve provision did not apply to Lett's sentence because neither Lettnor the government had objected to the PSR, and because the court believed that result was correct.Having reconsidered, the court now decided otherwise.

In setting out the reasons for changing its mind, the court explained in detail how it hadinterpreted the safety valve provision in § 5C1.2 before the decision in United States v. Booker, 543U.S. 220, 125 S.Ct. 738 (2005). The district court concluded that in the post-Booker world, “whenall five conditions of § 5C1.2 are satisfied, the Defendant is safety valve eligible and the Court'ssentencing discretion is not bounded by a statutory mandatory minimum sentence, irrespective ofwhether the accurately calculated advisory guidelines sentencing range is above or below thatmandatory minimum.” Id. at 786-787. The district court then resentenced the defendant to timeserved, followed by supervised release. Id. at 787. The government appealed and the EleventhCircuit reversed.

Rule 35(a)'s single sentence provides: “Within 7 days after sentencing, thecourt may correct a sentence that resulted from arithmetical, technical, or other clearerror.” Fed.R.Crim.P. 35(a). The district court did not claim, and Lett does notargue, that the court made an arithmetical or technical error in imposing the originalsentence of sixty months. Instead, the issue is whether the district court's initialdecision that the safety valve guideline did not apply to remove the mandatoryminimum provision in Lett's case was a “clear error.”

The Criminal Rules Advisory Committee explained that what it meant by“clear error” was “acknowledged and obvious errors in sentencing.” Fed.R.Crim.P.35 advisory committee's notes (1991). The committee went on to add:

The authority to correct a sentence under this subdivision is intended to bevery narrow and to extend only to those cases in which an obvious error or mistakehas occurred in the sentence, that is, errors which would almost certainly result in aremand of the case to the trial court for further action .... The subdivision is not

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intended to afford the court the opportunity to reconsider the application orinterpretation of the sentencing guidelines or for the court simply to change its mindabout the appropriateness of the sentence ....

....Rule 35(c) provides an efficient and prompt method for correcting obvious

technical errors that are called to the court's attention immediately after sentencing.Id.

The Court went on to explain:The [United States v. Yost, 185 F.3d 1178 (11th Cir.1999)], [United States

v. Rico, 902 F.2d 1065 (2d Cir.1990)], and [United States v. Cook, 890 F.2d 672(4th Cir.1989)] decisions trace out the boundaries of a narrow corrective powerlimited in scope to those obvious errors that result in an illegal sentence or that aresufficiently clear that they would, as the committee notes specify, “almost certainlyresult in a remand of the case to the trial court for further action.” Fed.R.Crim.P. 35advisory committee's notes (1991). In this case the district court did not sentenceLett under the wrong guideline, as in Yost; it did not impose a sentence differentfrom the one in the plea agreement, as in Rico; and it did not impose a sentence thatwas illegal under the applicable guidelines and statutory provisions, as in Cook.

At most, the district court misunderstood the breadth of its discretion underthe safety valve provisions of 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, read in lightof the Booker decision, causing the court to impose a sentence higher than it wouldhave had it correctly gauged the law. Even so, the sentence the court did impose wasplainly permissible under the guidelines and applicable statutes. We say “at most,”because it is not clear that the district court's initial understanding of the scope of itsdiscretion was mistaken. It is not obvious that the Booker decision evisceratedmandatory minimum sentences in every case where the defendant meets the fivecriteria for safety valve treatment, including those in which the advisory guidelinerange is above the mandatory minimum. That result would be the effect of adoptingthe theory on which the re-sentencing in this case is based.

. . . .. . . the issue before us is whether, at the time the district court entered its Rule 35(a)order, it was clear that the court had erred in its earlier conclusion that a sentencebelow the mandatory minimum was not permissible in the circumstances of this case. We are confident that conclusion was not clear error. Reasonable arguments canbe made on both sides of the post-Booker mandatory minimum issue, and we haveno doubt that they will be. But arguable error is one thing, and clear error is another. Regardless of how this issue is ultimately determined on the merits, the sentence thedistrict court initially imposed was not illegal, and any error was not of anacknowledged and obvious type, the kind that would “almost certainly result in aremand of the case to the trial court for further action.” Fed.R.Crim.P. 35 advisorycommittee's notes (1991).

Id. at 788-789.When clear error did not work, appellate counsel tried another argument. Unfortunately,

it did not carry the day either, but it is interesting:At oral argument, Lett's present counsel (who did not represent him in the districtcourt) invited us to import into the Rule 35(a) “clear error” measure the plain errorstandard of Rule 52(b), as interpreted and applied in countless decisions. Theinvitation is logically appealing because the narrow purpose of Rule 35(a) dovetails

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nicely with the scope of the plain error rule. Before an error is subject to correctionunder the plain error rule, it must be plain under controlling precedent or in view ofthe unequivocally clear words of a statute or rule; it must have adversely affected theoutcome of the proceedings; and it must be such that the failure to correct it wouldseriously affect the fairness, integrity or public reputation of judicial proceedings.United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 1776-79, 123 L.Ed.2d508 (1993); United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005). Ifan error meets all those requirements, it is also the kind of obvious error that “wouldalmost certainly result in a remand of the case to the trial court for further action” andwould therefore come within the narrow scope of Rule 35(a). Fed.R.Crim.P. 35(a)advisory committee's notes (1991). As a margin note here, we point out that theSupreme Court has described the plain error rule with language that sounds like theRule 35(a) “clear error” standard. In the Olano opinion, for example, the Court saidthat the “plain” in plain error “is synonymous with ‘clear’ or, equivalently,‘obvious.’” 507 U.S. at 734, 113 S. Ct. at 1777.

All this may be well and good, but it does not help Lett. For the same reasonsthat the district court's view of the mandatory minimum requirements in light of thesafety valve provisions is not an obvious error or mistake that almost certainly wouldhave caused the sentence to be overturned on appeal, it is not plain error. . . .

We agree with the district court's recognition that the proper resolution of themandatory minimum and safety valve issue that prompted its Rule 35(a) modificationof Lett's sentence is not clear. There is no decision on point from any court, andreasonable people could differ about the matter. That means the court's initialunderstanding was not “an obvious error or mistake ... which would almost certainlyresult in a remand” if not corrected, which is the proper standard of clarity under therule. Fed.R.Crim.P. 35(a) advisory committee's notes (1991). The district courtused Rule 35(a) to take another stab at interpreting the applicable statutory andguideline provisions in light of the Booker decision, and the committee notes forbiduse of the rule for that purpose. Id. (The rule “is not intended to afford the court theopportunity to reconsider the application or interpretation of the sentencingguidelines.”).

We do not question the district court's good faith in attempting to work itsway through the problem, and we are not unsympathetic to its desire to give Lett asentence less than the mandatory minimum. Our review, however, is de novo, andour reading of Rule 35(a) requires that we vacate the court's order re-sentencing Lettand remand the case with instructions that it impose the original sentence of sixtymonths to run concurrently on each count.

Id. at 790-791 (citations omitted).

United States v. Del Castillo, 212 Fed. Appx. 818, 2006 WL 3772035 (11th Cir. Dec.21, 2006): Del Castillo was indicted on two counts: (1) knowingly and willfully, with the intentto do bodily harm, assaulting Felipe Avena with a dangerous weapon by stabbing him with a knife,without just cause or excuse, in violation of 18 U.S.C. § 113(a)(3) (count one); and (2) knowinglyand willfully assaulting Avena by stabbing him with a knife, which resulted in serious bodilyinjury, in violation of 18 U.S.C. § 113(a)(6) (count two). At his original sentencing hearing, thedistrict court determined that his guideline range for both counts of the indictment was 51 to 63months' imprisonment, to run concurrently. The government then stated that, "I did notice the Courtsaid concurrently, but I think because [Del Castillo] was charged with two subsections of the same

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statute that a sentence on only one count would be appropriate in this case, not on both counts." Id.at **1. Del Castillo did not object to the government's request. The court sentenced Del Castillo to62 months' imprisonment, three years' supervised release, and a $100 special assessment on count1. Id.

Thereafter, the government filed an emergency motion to amend or correct Del Castillo'ssentence, arguing that it erroneously urged the court not to sentence Del Castillo on count two ofhis indictment. The government maintained that, under the test set forth in Blockburger v. UnitedStates, 284 U.S. 299, 52 S. Ct. 180 (1932), the two offenses to which Del Castillo pled guiltywere separate offenses, and, thus, each required separate sentences. Del Castillo objected to thegovernment's motion and argued: (1) Federal Rule of Criminal Procedure 35 was not the properavenue for the government to raise previously litigated issues; and (2) the two counts were notseparate offenses because they involved the same conduct and the statute of conviction merelycreated two separate punishment provisions. Id. at ** 1.

After a hearing, the district court found that the two counts, as charged in the indictment,constituted separate offenses because count one required proof that Del Castillo used a dangerousweapon and count two required proof that Del Castillo caused serious bodily injury. The courtthen resentenced Del Castillo to 62 months' imprisonment and 3 years' supervised release on bothcounts, to run concurrently, and a $100 special assessment on each count, for a total of $200. Id.at ** 2.

Del Castillo appealed this sentence, which the district court imposed upon the government'sFederal Rule of Criminal Procedure 35(a) motion to correct his original sentence. Because Rule35(a) gives the district court the authority to correct clear errors in an original sentence, the crux ofthe issue on appeal was whether the district court's failure to impose a sentence on both counts ofDel Castillo's indictment was a clear error for purposes of Rule 35(a).

The authority to correct a sentence under this subdivision is intended to bevery narrow and to extend only to those cases in which an obvious error or mistakehas occurred in the sentence, that is, errors which would almost certainly result in aremand of the case to the trial court for further action .... The subdivision is notintended to afford the court the opportunity to reconsider the application orinterpretation of the sentencing guidelines or for the court simply to change its mindabout the appropriateness of the sentence. Nor should it be used to reopen issuespreviously resolved at the sentencing hearing through the exercise of the court'sdiscretion with regard to the application of the sentencing guidelines. Furthermore,the Committee did not intend that the rule relax any requirement that the parties stateall objections to a sentence at or before the sentencing hearing.... The subdivisiondoes not provide for any formalized method of bringing the error to the attention ofthe court and recognizes that the court could sua sponte make the correction.

Fed.R.Crim.P. 35, Advisory Comm. Notes, 1991 Amendments. "Thus, under[Rule 35(a) ], the district court may not simply change its mind, and any error to becorrected under that subsection must be obvious." [United States v. Yost, 185 F.3d1178, 1181 (11th Cir.1999)] (holding that the district court had the authority toresentence a defendant under Rule 35(c), which was the former Rule 35(a), where thecourt had committed the "obvious error" of originally sentencing the defendant underthe incorrect guideline).

Id. at ** 2-3.The Eleventh Circuit concluded that "the two counts of Del Castillo's indictment constitute

separate offenses because they each require 'proof of an additional fact which the other does not.' Thedistrict court thus committed clear error in failing to sentence Del Castillo on count two of his

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indictment during the original sentencing. . . .Accordingly, the court properly resentenced DelCastillo pursuant to Rule 35(a) in order to correct the clear error in the original sentence." Id. at **3.

The Eleventh Circuit also rejected Del Castillo's arguments that the government invited andwaived any error that occurred in the original sentence.

The invited error doctrine specifies that, when a party invites or induces the districtcourt into making an error, we will not invoke plain error review and reverse onappeal. United States v. Love, 449 F.3d 1154, 1157 (11th Cir.2006). The invited errordoctrine is not implicated here because the government did not appeal Del Castillo'soriginal sentence, but rather, filed a Rule 35(a) motion to correct the error in thedistrict court. While it appears that the government induced the error in the firstinstance, the invited error doctrine does not require this Court to vacate the "new"sentence and remand where, as explained above, the court properly corrected a clearerror in the original sentence under Rule 35(a). Similarly, the fact that thegovernment did not object to the sentence imposed at the original hearing does notestablish that the government waived any opportunity to move to correct the sentenceunder Rule 35(a). This is especially true where Rule 35(a) provides an avenue tocorrect clear errors in sentencing, which occurred here, and allows the district courtto sua sponte correct such an error. See Fed. R. Crim. P. 35, Advisory Comm. Notes,1991 Amendments.

Id. at **4.

VII. Appeal

A. Arguing on Appeal against Forfeiture of Issues

1. If the issue goes to the jurisdiction or authority of the court to act, it maybe cognizable without objection, or it may just establish plain error.

United States v. Goldin Industries, Inc., 219 F.3d 1268 (11th Cir. 2000) (en banc): Thecourt held that under the RICO statute, 18 U.S.C. § 1962, the RICO "person" prosecuted under thestatute must be separate and distinct from the RICO "enterprise" that has its affairs conductedthrough a pattern of racketeering activity. The court rejected the government's argument that thedefendant waived this claim by failing to raise it in the district court. "[W]hether a statute prohibitsthe charged conduct may be considered de novo even if the issue is raised for the first time onappeal."

United States v. Walker, 59 F.3d 1196 (11th Cir. 1995): The defendant challenged theconstitutionality of the Gun Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A), for the firsttime on appeal. The government argued that he had waived the issue because he failed to attack thestatute's constitutionally in the trial court. The Eleventh Circuit disagreed, noting that as a generalrule, a party must timely object at trial to preserve an issue for appeal. However, issues not preservedbelow are reviewed for plain error pursuant to FED. R. CRIM. P. 52(b). The Supreme Court hadalready ruled that the Congress exceeded its power to regulate interstate commerce when it enacted§ 922(q)(1)(A). Therefore, the Eleventh Circuit said "[w]e can think of no plainer error than to allowa conviction to stand under a statute which Congress was without power to enact. In essence, thestatute was void ab initio, and consequently, the district court below lacked subject matterjurisdiction with respect to that charge." The conviction was reversed, and the sentence vacated.

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2. Argue fundamental fairness and justice.

Singleton v. Wulff, 428 U.S. 106, 121 (1976): "Certainly there are circumstances in whicha federal appellate court is justified in resolving an issue not passed on below, as where the properresolution is beyond any doubt . . . or where 'injustice might otherwise result.' ". Rather thanespousing an all inclusive list of examples, the Supreme Court left the exceptions to the discretionof the appellate courts, to be exercised on the facts of individual cases.

3. Adopt co-defendant's issue on appeal

When one defendant raises an issue, another defendant can adopt that same issue on appealand argue it would be anomalous to reverse some convictions and not others when all defendantssuffer from the same error. See United States v. Rivera Pedin, 861 F.2d 1522, 1526 n.9 (11th Cir.1988); United States v. Miles, 10 F.3d 1135, 1137 n.3 (5th Cir. 1993); United States v. Gray, 626F.2d 494, 497 (5th Cir. 1980).

But see United States v. Bichsel, 156 F.3d 1148 (11th Cir. 1998): During the appeal, thedefendants raised a first amendment claim by attempting to adopt, by reference, briefs filed in theEleventh Circuit in an unrelated case. The defendants in the instant case, however, did not brief thefirst amendment issue in their briefs, nor did they separately move to adopt the briefs from the othercase. The court held that FED. R. APP. P. 28(I) does not permit adoption by reference between casesand unless a separate motion to adopt is made and granted, the appellate court will not considerissues not briefed and adopted by reference without a separate motion.

4. Check to be sure the district court conducted a proper Jones inquiry.

In United States v. Jones, 899 F.2d 1097, 1103 (11th Cir. 1990), the Eleventh Circuit heldthat the district court is required to offer the parties the opportunity to object at the conclusion ofsentencing and if a party is silent or fails to state the grounds for objection, objections to the sentencewill be waived for purposes of appeal. If the district court failed to conduct a proper Jones inquiryat the conclusion of sentencing, you can raise that as an issue on appeal. There are two possibleremedies. One is to remand the case to the district court for resentencing, at which time the districtcourt can conduct a Jones inquiry and all objections can be stated and ruled on, and hopefullyresolved, by the district court, thereby possibly obviating the need for an appeal. The second remedyis to proceed with the appeal but to review the objections/issues de novo.

United States v. Campbell, 473 F.3d 1345 (11th Cir. 2007): After imposing sentence insupervised release revocation proceedings, court failed to elicit fully articulated objections by merelyasking defendant "Is there anything further?"; there was no indication that defense counselunderstood the court to be eliciting objections. Defendant did not waive claim that district courtfailed to consider Sentencing Guidelines and his advisory sentencing range by failing to raiseargument in supervised release revocation proceedings, where district court had failed to elicitobjections after imposing sentence. Because the court concluded that the district court violated Jonesby failing to elicit objections after imposing the sentence, it concluded that Campbell had not waivedhis argument, and it applied the de novo standard of review to the legality of his sentence issue.However, where the record was insufficient to allow meaningful appellate review of issues, remandis necessary.

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5. Argue the purposes of the rule have been satisfied.

United States v. Costales, 5 F.3d 480, 483 n. 3 (11th Cir. 1993): The purpose of the rulerequiring that sentencing objections first be raised in the district court "is simply to allow the districtcourt the first opportunity to correct any error and to provide for a complete record on appeal." InCostales, the government satisfied that purpose by objecting to the downward departure, althoughit failed to object to the sentencing court's findings and conclusions after sentence was imposed.Thus, the government had not waived the issue for appeal.

United States v. Weir, 51 F.3d 1031 (11th Cir. 1995): The government had not waived theissue by its failure to repeat its objection after sentence was imposed. "If the relevant objection israised after the presentation of the report, however, but before the actual imposition of the sentence,Jones is satisfied. The district court clearly understood the Government's position and specificallyrejected it. This satisfied the purpose of Jones to allow the district court to make a studied decisionon the objection." [Citations omitted.]

United States v. Smith, 39 F.3d 1143, 1146 (11th Cir. 1994): "Although the government didnot articulate its argument before the district court in detail, it adequately raised the crux of itsobjection to the district's sentence . . . ."

United States v. Dobbs, 11 F.3d 152, 154 n.4 (11th Cir. 1994): Defense counsel did notdirectly object to a lack of specific findings of perjury, but the Court broadly construed counsel'sconstitutional objection to include the degree of specific findings of perjury.

B. Issues Can be Waived During Appeal Even if Those Issues were Preserved inthe District Court.

To properly raise an issue on appeal, that issue must be presented in the initial brief and mustbe argued. The issue cannot be simply mentioned in passing and not argued or else it will be deemedabandoned. Likewise, the issue cannot be raised in the reply brief. It must be raised and argued inthe initial brief or else it will be waived or abandoned regardless of whether it is preserved below.

Note: It is not necessary to argue all issues properly raised in the initial brief at OralArgument in order to preserve them. In fact, if you raise multiple issues in your initial brief, it isvirtually impossible, and a bad idea, to even try to argue all of the issues during the 15 minutesallotted at Oral Argument.

United States v. Crumpton, 222 Fed. Appx. 914, 2007 WL 879807 (11th Cir. March 26,2007): "At the outset, we note that Crumpton does not specifically argue that the 60-month sentenceimposed for possessing a firearm in furtherance of a drug trafficking crime under 18 U.S.C. §924(c)(1)(A)(I) was unreasonable. Thus, he waives that claim." Id. at **4.

Sepulveda v. U.S. Atty. Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir.2005): "When an appellantfails to offer argument on an issue, that issue is abandoned" and passing references to the issue areinsufficient to prevent abandonment.

Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n. 6 (11th Cir.1989): A partywaives an issue by failing to argue the merits of it in his brief on appeal.

PRESERVATION OF ERROR FOR APPEALS:IT’S NOT THAT HARD BUT IT’S THAT IMPORTANT

Tom MoranSchneider & McKinney, P.C.

440 Louisiana, Suite 800Houston, Texas 77002

(713) [email protected]

TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iiCases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iiStatutes and Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

I. THE CONTEMPORANEOUS OBJECTION RULE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1A. Stated Reasons for the Rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B. Another Reason for Rules on Error Preservation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2C. Don’t Count on a Vindictive Judge/Cowardly Lawyer Exception or

Suck It Up, Buttercup. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

II. SOURCES OF THE RULE ON ERROR PRESERVATION IN FEDERAL COURT. . . . . . 3A. General Rule for Error Preservation: FED. R. CRIM. P. 51. . . . . . . . . . . . . . . . . . . . 3

1. Timeliness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42. Specificity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43. Need for Adverse Ruling. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54. The Ruling Must Be Definitive. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. FED. R. EVID. 103.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61. What Is a “Definitive Ruling?”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72. The Offer of Proof.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

E. Jury Charge Error Preservation: FED. R. CRIM. P. 30. . . . . . . . . . . . . . . . . . . . . . . 81. Requested Jury Charges.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92. Objections to Charges Actually Given. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

D. What Happens When Error Is Not Preserved: FED. R. CRIM. P. 52. . . . . . . . . . . . 10

III. SPECIFIC EXAMPLES OF PROCEDURAL LAND MINES. . . . . . . . . . . . . . . . . . . . . . 11A. Waived Error vs. Forfeited Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11B. Renew That Rule 29 Motion for Judgment of Acquittal. . . . . . . . . . . . . . . . . . . . . . 12C. File Timely Pretrial Motions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14D. Watch Those Local Rules.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

IV. ADVANCE PREPARATION TO PRESERVE ERROR. . . . . . . . . . . . . . . . . . . . . . . . . . 14

V. DON’T MAKE SILLY MISTAKES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

VI. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

i

INDEX OF AUTHORITIES

Cases

Black v. United States, U.S. , 130 S. Ct. 2963 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Chapman v. California, 386 U.S. 18 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Crawford v. Washington, 541 U.S. 36 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Lankston v. State, 827 S.W.2d 907 (Tex. Crim. App. 1992).. . . . . . . . . . . . . . . . . . . . . . . . . . 1

Melendez-Diaz v. Massachusetts, U.S. , 129 S. Ct. 2527 (2009). . . . . . . . . . . . . . . . . . . . 4

United States v. Andino, 627 F.3d 41 (2 Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9nd

United States v. Butler, No. 10-1048 (5 Cir. March 21, 2011) (not yet reported). . . . . . . . . 12th

United States v. Flonnory, 630 F.3d 1280 (10 Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . 13th

United States v. Frazier, 595 F.3d 304 (6 Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13th

United States v. Gari, 572 F.3d 1352 (11 Cir. 2009), cert. denied, U.S. , 130 S. Ct. 1562th

(2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

United States v. Grissom, 525 F3d 691 ( 9 Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4th

United States v. Helmel, 769 F.2d 1306 (8 Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4th

United States v. Hines, F.3d , 2011 U.S. App. LEXIS 393 (4 Cir. January 7, 2011) (not yetth

reported). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Kaba, 480 F.3d 152 (2 Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3nd

United States v. Knezek, 964 F.2d 394 (5 Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14th

United States v. Leung, 40 F.3d 577 (2 Cir. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3nd

United States v. Lopez, 392 Fed. Appx. 245 (5 Cir.), cert. denied, U.S. , 131 S. Ct. 807th

(2010) (unpublished). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

United States v. Marcus, U.S. , 130 S. Ct. 2159 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . 10

ii

United States v. Nichols, 169 F.3d 1255 (10 Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7th

United States v. Redlightning, 624 F.3d 1090 (9 Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . 5th

United States v. Robinson, 627 F.3d 941 (4 Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10th

United States v. Rodriguez, F.3d , U.S. App. LEXIS 26010 (11 Cir. December 22, 2010)th

(not yet reported). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 16

United States v. Roth, 628 F.3d 827 (6 Cir. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9th

United States v. Taylor, 514 F.3d 1092 (10 Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5th

United States v. Troxler, 390 F. Appx. 363 (5 Cir. 2010) (unpubished). . . . . . . . . . . . . 11, 12th

United States v. Wilson, 605 F.3d 985 (D.C. Cir.), cert. denied, U.S. , 131 S. Ct. 841 (2010.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . )4

Statutes and Rules

FED. R. CRIM. P. 12(b)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

FED. R. CRIM. P. 12(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

FED. R. CRIM. P. 29. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

FED. R. CRIM. P. 30. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

FED. R. CRIM. P. 52. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

FED. R. CRIM. P. 51. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

FED. R. EVID. 103. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 8

FED. R. EVID. 105. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 13

FED. R. EVID. 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

FED. R. EVID. 404(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

FED. R. CRIM. P. 12(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

U.S. CONST. amend. V.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

iii

U.S. CONST. amend. VI. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

U.S. CONST. amend. XIV.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

iv

[A]ll a party has to do to avoid the forfeiture of a complaint on appeal is to let the trialjudge know what he wants, why he thinks himself entitled to it, and to do so clearlyenough for the judge to understand him at a time when the trial court is in a properposition to do something about it.

Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).

Lankston was written by Judge Fortunato P. Benavides before he was appointed to the Fifth

Circuit by President Clinton. However, the rule set out in Lankston is as valid in federal court as it

is in Texas courts.

Proper preservation of error can mean the difference between a summary affirmance or a new trial

or sentencing for a client. It can be the difference between a client serving a long prison term or being

acquitted on appeal. It is as much a trial lawyer’s job as presenting witnesses or showing up in court

for the trial.

This paper is designed to give new practitioners an overview of how error is preserved in federal

court and what can happen when it is not preserved. It is not designed to be a comprehensive look

at all possible types of error and how they can be preserved for appellate review and it is not designed

to be a treatise on how to litigate an appeal.

I. THE CONTEMPORANEOUS OBJECTION RULE

As a general rule, appellate courts only review trial court judgments for legal errors made by the

trial judge. So, most points of error read something like:

The District Court erred in overruling Appellant’s motion to suppress evidence.

Or,

The District Court erred in sustaining the Government’s objection to the admission ofDefendant’s Exhibit 1, a sworn statement by John Doe that he in fact committed the crimefor which Appellant was convicted.

1

Or,

The District Court erred in overruling Appellant’s objection to the admission ofGovernment’s Exhibit 1, a custodial statement of a non-testifying co-defendant.

In each case set out above, a person is complaining on appeal of an adverse ruling by the trial

judge. In all three examples, the issue was preserved for appeal, that is, the trial judged ruled

adversely to the defendant. If there is no request for a ruling, it is impossible to claim on appeal that

the trial judge erred.

A. Stated Reasons for the Rule

The contemporaneous objection rule is based on the theory that parties to litigation must give

notice to the trial judge of errors they believe he is making. This allows the trial judge to correct his

error. It also allows opposing counsel the chance to correct errors.

So, for example, if an attorney does not include all of the necessary proof for admission of a

business record, the opposing attorney must make a specific objection such as, “Objection, there is

no evidence that the entries were made by a personal knowledge of the events recorded therein.”

That informs the court and all parties of the substance of the complaint and allows the lawyer to

correct the omission or error.

B. Another Reason for Rules on Error Preservation

No appellate judge will admit it, but it is a lot easier to write an opinion saying error was not

preserved than it is to deal with a possibly complex legal argument raised on appeal. And, it is a lot

easier to affirm a conviction if important appellate issues are not preserved.

2

C. Don’t Count on a Vindictive Judge/Cowardly Lawyer Exception orSuck It Up, Buttercup

In two cases, United States v. Kaba, 480 F.3d 152 (2 Cir. 2007); and United States v. nd

Leung, 40 F.3d 577 (2 Cir. 1994), the Second Circuit carved an exception to the contemporaneousnd

objection rule to case in which a judge makes an improper statement during a sentencing hearing.

The theory was that if the lawyer objected to a judge’s statement during the sentencing hearing, a

vindictive judge would take it out on the client. The 11 Circuit rejected this exception in Unitedth

States v. Rodriguez, 627 F.3d 1372 (11 Cir. 2010).th

The 11 Circuit’s held the fact that a judge may be unhappy with an objection and retaliate isth

demeaning to both the judge and the cowardly lawyer who does not make the objection. It is likely

that most circuits will agree with the 11 Circuit and reject the 2 Circuit’s exception.th nd

Practice Note: Even in the 2 Circuit, it would be unwise to rely on this exception. Your clientnd

is likely to get a very bad result.

II. SOURCES OF THE RULE ON ERROR PRESERVATION IN FEDERAL COURT

Three provisions of the Federal Rules of Criminal Procedure and one in the Federal Rules of

Evidence govern error preservation. They will be discussed separately.

A. General Rule for Error Preservation: FED. R. CRIM. P. 51

(a) Exceptions Unnecessary. Exceptions to rulings or orders of the court are unnecessary.

(b) Preserving a Claim of Error. A party may preserve a claim of error by informing thecourt – when the court ruling or order is made or sought – of the action the party wishes thecourt to take, or the party’s objection to the court’s actions and the grounds for thatobjection. If a party does not have an opportunity to object to a ruling or order, the absenceof an objection does not later prejudice that party. A ruling or order that admits or excludesevidence is governed by Federal Rule of Evidence 103.

Rule 51(a) simply provides that lawyers need not say, “Note my exception” after the trial judge

3

rules. It once was the rule that “exceptions” were necessary to preserve error. Most states have

abrogated that rule along with the federal courts.

Rule 51(b) has two components: timeliness and specificity.

1. Timeliness

An objection must be timely, that is, it must be made at a time when the judge can do something

about the complaint. If an objection is not lodged in a timely manner, error is not preserved. United

States v. Hines, F.3d , 2011 U.S. App. LEXIS 393 (4 Cir. January 7, 2011) (not yet reported).th

2. Specificity

Specificity is important in preserving error. For example, an objection without stating the

grounds has been found insufficient to preserve error for the prosecution asking questions on redirect

essentially vouching for the credibility of a witness. The appellate court held that nothing in the

context showed that the district court understood the reason for the objection. United States v.

Wilson, 605 F.3d 985, 405 (D.C. Cir.), cert. denied, U.S. , 131 S. Ct. 841 (2010). However,

error is preserved if the specific ground is apparent from the context or if the trial court notes it

understands. United States v. Grissom, 525 U.S. 691, 695 ( 9 Cir. 2007) (government did notth

waive objection to sentence when district court stated it knew the grounds for the general objection).

This can be important when there are multiple possible grounds for objection. One important

example is the relationship between a hearsay objection and one under the Confrontation Clause of

the Sixth Amendment. An objection on hearsay grounds does not necessarily implicate the

Confrontation Clause and therefore does not preserve a confrontation objection for appeal. United

States v. Helmel, 769 F.2d 1306, 1316-17 (8 Cir., 1985). This is especially important in light ofth

Melendez-Diaz v. Massachusetts, U.S. , 129 S. Ct. 2527 (2009), and Crawford v.

4

Washington, 541 U.S. 36 (2004). Evidence which might be admissible under the hearsay rule may

be inadmissible under the Confrontation Clause and vice versa. Therefore, it is incumbent on counsel

to raise both issues.

The same is true for objections to extraneous offenses or other acts the prosecution wishes to

introduce pursuant to FED. R. EVID. 404(b). A Rule 404(b) objection normally should be

accompanied by an objection under FED. R. EVID. 403 that the probative value is substantially

outweighed by the danger of unfair prejudice, confusion of he issues etc.

3. Need for Adverse Ruling

It is axiomatic that a party cannot complain on appeal if the trial judge gives him everything he

asks for. To preserve error for appeal, the lawyer must press the district judge until he makes an

adverse ruling. United States v. Taylor, 514 F.3d 1092, 1096 (10 Cir. 2008) (when objection isth

sustained and trial court gives curative instruction on defendant’s request, defendant has received all

the relief he sought. Mistrial motion required to preserve error).

Remember, appellate counsel starts issues in the brief with: “The District Court erred....”

Therefore, in trial, counsel should object and, if the objection is sustain request a curative instruction

from the trial court. If the court gives the requested instruction, counsel must move for a mistrial.

4. The Ruling Must Be Definitive

The adverse ruling must be a definitive ruling, not a preliminary ruling. For example, in United

States v. Redlightning, 624 F.3d 1090, 1113 (9 Cir. 2010), held that no error was preserved in theth

exclusion of expert testimony when the preliminary order said it was without prejudice to laying a

sufficient predicate at trial. The Redlightning Court also held that to preserve error on pretrial

exclusion of any evidence, failure to reoffer it at the appropriate stage of trial waives error.

5

Practice Note. While pressing the trial court to an adverse ruling is necessary to preserve error,

as a matter of trial strategy, preservation of error may not be a factor. For example, it would be rare

indeed for an appellate court to reverse a conviction for a leading question, regardless of whether the

error is preserved. So, simply getting an objection sustained would be sufficient as a matter of

strategy.

Also, there might be cases where the Government’s case is so weak or some Government

witnesses have cratered to the extent that the defense lawyer is confident of an acquittal. In those

circumstances, as a matter of trial strategy not ask for a mistrial. You don’t want to give the

Government a chance to fix its messes.

B. FED. R. EVID. 103

Rule 103 governs objections and rulings on admission of evidence. Rule 103 provides:

Rule 103. Rulings on Evidence

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling whichadmits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection ormotion to strike appears of record, stating the specific ground of objection, if thespecific ground was not apparent from the context; or

(2) Offer of proof. In case the ruling is one excluding evidence, the substance ofthe evidence was made known to the court by offer or was apparent from thecontext within which questions were asked.

Once the court makes a definitive ruling on the record admitting or excludingevidence, either at or before trial, a party need not renew an objection or offer of proofto preserve a claim of error for appeal.

(b) Record of offer and ruling. The court may add any other or further statementwhich shows the character of the evidence, the form in which it was offered, theobjection made, and the ruling thereon. It may direct the making of an offer inquestion and answer form.

6

(c) Hearing of jury. In jury cases, proceedings shall be conducted, to the extentpracticable, so as to prevent inadmissible evidence from being suggested to the juryby any means, such as making statements or offers of proof or asking questions in thehearing of the jury.

(d) Plain error. Nothing in this rule precludes taking notice of plain errors affectingsubstantial rights although they were not brought to the attention of the court.

1. What Is a “Definitive Ruling?”

The general rule is that pretrial motions in limine do not preserve error because they are not

definitive rulings. United States v. Gari, 572 F.3d 1352, n. 2 at 1356 (11 Cir. 2009), cert. denied, th

U.S. , 130 S. Ct. 1562 (2010). Generally, the objection must be renewed at the time the

evidence is offered or error is not preserved. United States v. Nichols, 169 F.3d 1255, 1264 (10th

Cir. 1999).1

All pretrial orders on admission of evidence are subject to review by the trial court during the

trial. Even motions to suppress evidence may be reconsidered if, for example, a party does something

to open the door to admissibility.2

Practice Note: The bottom line is that a party should not rely on a motion in limine to preserve

error. If the party is attempting to exclude evidence, it should renew its objection at the time it is

offered. If the party is attempting to admit evidence tentatively excluded by a motion in limine, it

should approach the bench and get a definitive ruling at the time the evidence is offered.

The 10 Circuit recognized an exception if 1) the issue was fairly presented to the district1 th

court, it is the type of issue which can be fairly decided in a pretrial hearing and the district court’sruling is without equivocation. Id. Don’t rely on this holding. Object again.

For example, a response from the defendant on cross-examination, “I never possessed drugs2

in my whole life,” could open the door to admission of the cocaine found during the illegal search ofhis car.

7

2. The Offer of Proof

Rule 103(b) requires that to preserve error in exclusion of evidence, the trial judge be informed

of the substance of the evidence. The trial judge has the option of requiring the offer of proof to be

made in question and answer form.

Unless the trial court orders question and answer offers of proof, they can be made orally or in

writing. All offers of proof should be made outside the jury’s presence. The offer of proof is

designed to fairly apprise the trial judge of the evidence. However, it serves another purpose for

preservation of error. The appellate court cannot determine if the evidence was improperly excluded

unless it knows what evidence was excluded and the reasons for its offer. And, it cannot conduct a

harmless error analysis unless it can see how the excluded evidence fit into the trial and the defense

case.

Practice Note. When making offers of proof, counsel must remember FED. R. EVID. 105, the

rule of limited admissibility. For example, if there is a hearsay objection, the proponent of the

evidence may be able to have the evidence admitted if it is offered for a non-hearsay purpose. If the

evidence is offered for a proper non-hearsay purpose and the trial judge excludes it, there would be

error on appeal. However, if it were offered without a limited purpose, exclusion would not be error.

E. Jury Charge Error Preservation: FED. R. CRIM. P. 30

Rule 30 provides:

(a) In General. Any party may request in writing that the court instruct the jury on the law asspecified in the request. The request must be made at the close of the evidence or at anyearlier time that the court reasonably sets. When the request is made, the requesting partymust furnish a copy to every other party.

(b) Ruling on a Request. The court must inform the parties before closing arguments how itintends to rule on the requested instructions.

8

(c) Time for Giving Instructions. The court may instruct the jury before or after the argumentsare completed, or at both times.

(d) Objections to Instructions. A party who objects to any portion of the instructions or toa failure to give a requested instruction must inform the court of the specific objection andthe grounds for the objection before the jury retires to deliberate. An opportunity must begiven to object out of the jury's hearing and, on request, out of the jury's presence. Failure toobject in accordance with this rule precludes appellate review, except as permitted under Rule52(b).

1. Requested Jury Charges

Rule 30 by its own terms requires that requested jury charges be submitted to the trial court

before the jury is charged and that they be in writing and served on all other parties. To preserve

error, the requested instruction must be 1) a correct statement of the law; and 2) represent a theory

of defense with a basis in the record which could lead to an acquittal. United States v. Andino, 627

F.3d. 41 (2 Cir. 2010). Another court of appeals phrases it differently but with substantially thend

same requirements for error preservation. The Sixth Circuit will reverse a trial court for refusing a

requested instruction if 1) the requested instruction is a correct statement of the law; 2) the requested

instruction is not substantially covered by other instructions actually given; and 3) the failure to give

the instruction impairs the defendant’s theory of the case. United States v. Roth, 628 F.3d 827 (6th

Cir. 2011).

Therefore, to preserve error in denial of a jury instruction, counsel must request a charge in

writing which is a correct statement of the law and is raised by evidence in the record. He also must

obtain an adverse ruling on the request.

2. Objections to Charges Actually Given

Rule 30(d) requires a specific objection. All that is required is the objection, stating the specific

reason to the proposed instruction. An objection is required even of settled law at the time of the trial

9

is contrary to the defendant’s position. United States v. Robinson, 627 F.3d 941 (4 Cir. 2010)th

(objection required to charge applying settled law even though a Supreme Court case after trial

reversed the settled law). An objection to the charge preserves error and it is unnecessary to agree

to a compromise such as special verdict forms for the jury. Black v. United States, U.S. , 130

S. Ct. 2963 (2010).

Practice Note. There is nothing to lose by objecting before deliberations to the trial court’s

failure to give an instruction even though the judge already ruled against a Rule 30(a) request for the

instruction. So, do it.

D. What Happens When Error Is Not Preserved: FED. R. CRIM. P. 52

Rule 52 sets two levels of how error is reviewed on appeal, harmless error if the error is preserved

for appeal and plain error if it is not. Rule 52 provides:

(a) Harmless Error. Any error, defect, irregularity, or variance that does not affectsubstantial rights must be disregarded.

(b) Plain Error. A plain error that affects substantial rights may be considered even thoughit is not brought to the court’s attention.

An appellate court may reverse based on plain error, that is error that is not preserved in the trial

court, only if

1) there is error;

2) the error is clear and obvious rather than subject to reasonable dispute;

3) the error affected the defendant’s substantial rights, which normally means that it affected the

outcome of the proceedings in district court;

4) and, the error affects the fairness, integrity or public reputation of judicial proceedings.

United States v. Marcus, U.S. , 130 S. Ct. 2159, 2164 (2010).

10

This is a very high hurdle to jump. As rare as reversals of convictions have become, reversals

based on plain error are much rarer.

The distinction is most important for the appellate lawyer but should not be lost on the trial

lawyer. For the trial lawyer, the difference is simple. If error is preserved, the defendant has a chance

of obtaining a reversal on appeal. If it is not, he has very little chance of prevailing.

Practice Note: If possible base objections in constitutional grounds as well as other grounds such

as the Rules of Evidence. Non-constitutional error is harmless unless it affects a party’s substantial

rights. However, when the objection is based on constitutional grounds, the Government must prove

beyond a reasonable doubt that the error did not contribute to the conviction. Chapman v.

California, 386 U.S. 18, 24 (1967).

III. SPECIFIC EXAMPLES OF PROCEDURAL LAND MINES

This section is not meant to be a catalogue or listing of all possible error preservation traps. It

just points out a few examples of how the appellate courts have adopted rules that can cause clients

to lose the chance for meaningful appellate review.

A. Waived Error vs. Forfeited Error

Appellate courts often are sloppy and imprecise in describing the difference between a

“waiver”and a “forfeiture” of error. Some courts use the terms interchangeably or simply talk about

waiver. However, the distinction can make the difference between having an issue on appeal and a

loss on appeal.

In United States v. Troxler, 390 Fed. Appx. 363 (5 Cir. 2010) (unpublished), and Unitedth

States v. Lopez, 392 Fed. Appx. 245 (5 Cir. 2010) (unpublished), the court explained theth

difference. When error is “waived,” the party intentionally relinquishes or abandons a known right.

11

Error is forfeited if there is no objection.

The difference is crucial. Waiving error for purposes of Troxler and Lopez, there can be no

appellate review (other than ineffective assistance of counsel). For example, the Fifth Circuit in

United States v. Butler, No. 10-1048 (5 Cir. March 21, 2011) (not yet reported), held that theth

defendant “voided” his objections to the presentence report by saying he had no objections at the

sentencing hearing. Slip op., n. 1 at 3.

Forfeited error, that is unobjected to error, is subject to plain error review. While plain error

review does not give the defendant much of a chance of prevailing on appeal, it is much greater than

the zero chance if error is waived.

Practice Note. Don’t give the government the chance to argue waiver. So, for example, if a

pretrial motion to suppress evidence is overruled, when the prosecution moves to admit the evidence

at trial, do not say, “No objection.” Instead, say, “Other than the objections we have already made,

we have no further objections,” or “Your Honor, we renew the objections previously made.”

B. Renew That Rule 29 Motion for Judgment of Acquittal

Unlike the practice in some state courts, the federal courts require a motion for judgment of

acquittal pursuant to FED. R. CRIM. P. 29 at the close of the government’s case in order to have

review for sufficiency of the evidence. That would seem to preserve error for appellate review as to

whether the government presented sufficient evidence to sustain a conviction.

And, that would be wrong.

In reviewing sufficiency of the evidence, appellate courts look to all of the evidence, not just that

presented by the government. So, if a defendant (or a co-defendant) presents evidence that plugs a

hole in the government’s case, the appellate court will consider that when reviewing sufficiency.

12

Courts of appeals have held in innumerable cases that it is necessary to renew the Rule 29 motion

at the close of all the evidence. See e.g. United States v. Flonnory, 630 F.3d 1280 (10 Cir. 2011);th

United States v. Frazier, 595 F.3d 304 (6 Cir. 2010). If the motion is not renewed at the close ofth

all of the evidence, sufficiency is reviewed only for plain error. That means, the client probably will

lose.

Practice Note. Make the Rule 29 motion as specific as possible while not telling the government

what it missed. That way, it can’t move to re-open and fill the gap. Don’t forget to renew the

motion.

If a co-defendant is about to introduce evidence that will plug a hole in the government’s case

against your client, approach the bench and pursuant to Rule 105, move that the evidence not be

admitted against your client. If the trial court rules against you, there is an argument which can be

made on appeal that there should be full review of insufficiency, not plain error, and the review should

be limited to the evidence against your client. Also object that admission of the evidence against

your client by a co-defendant deprives your client’s right to effective assistance of counsel by having

another defendant’s lawyer admit the evidence making the case against your client legally sufficient.

And, if the evidence still is coming in, move to sever your client out. Keep giving the trial judge ways

he can protect your client’s rights. He just might pick one. An appellate argument can be made that

your client was deprived of his right to effective assistance of counsel by the co-defendant’s lawyer.

Neither argument likely will be successful but it beats having a co-defendant’s lawyer torpedo your

client’s case while you sit on your hands.

13

C. File Timely Pretrial Motions

Certain motions must be made pretrial or they are waived. They include motions alleging defects

in the charging instrument or the institution of the prosecution; motions to suppress; motions to sever;

and motions for discovery. FED. R. CRIM. P. 12(b)(3). They are waived if not made within the time

set by the trial court. FED. R. CRIM. P. 12(e). So, for example, a defendant was found to have

waived his motion to suppress evidence because no timely motion was filed. United States v.

Knezek, 964 F.2d 394 (5 Cir. 1992).th

Practice Note. Statements of adverse witnesses must be produced at hearings on motions to

suppress. And, law enforcement officers are considered to be government witnesses. FED. R. CRIM.

P. 12(h). So, you are entitled to agents’ statements even if you call them at a hearing on a motion

so suppress evidence. Don’t let the government or the trial judge convince you that the Jenks Act

allows the statements to be withheld until the agents are passed for cross-examination at trial.

D. Watch Those Local Rules

District courts can adopt local rules which may relate to preservation of error. For example, in

the Southern District of Texas, Local Rule CrLR 55.2(B) requires objections to documents be filed

within seven days before trial. Miss that date and you’ve waived objections.

IV. ADVANCE PREPARATION TO PRESERVE ERROR

When an attorney is preparing for trial, he or she should recognize legal issues which likely will

arise in trial. Each of those issues is a potential issue resulting in reversible error in case of a

conviction.

Prepare for those issues. Read and copy cases. Highlight the parts you want the judge to read.

Prepare memoranda of law and drop them in your trial file. Nothing makes a judge more nervous

14

than having a lawyer pull out a written memo during a bench conference. And, it increases the3

chances the judge will rule in your favor.

Many issues come up in trial after trial, so it is easy to recycle memoranda with only a few

changes to make them fit the current trial. And, it is hard for the government to argue lack of error

preservation when the appellate brief looks almost exactly like a memorandum of law handed to the

trial judge. Also, you can frame issues much more easily and more completely in your office before

trial than you will in a rushed bench conference.

If you believe that a trial judge likely will exclude some of your evidence, prepare a written offer

of proof. Include in the offer different theories for admission of the evidence and different purposes

for its admission.

The best of all possible worlds is to have an appellate specialist help you prepare and sit second

with you at trial. But, that will rarely be possible in cases involving indigents. But all trial lawyers

can prepare pretrial to meet legal issues raised by the government.

V. DON’T MAKE SILLY MISTAKES

Make sure you cite the correct rule, statute or constitutional provision. If you don’t, at a

minimum you will look silly. At worst, an appellate court might find that your objection or motion

was insufficient to preserve error.

A classic example is mixing the Due Process and Equal Protection Clauses of the Fourteenth

Amendment with the Due Process Clause and Equal Protection component of the Fifth Amendment.

The Fourteenth Amendment applies to the states, not the federal government. The Fifth Amendment

Due Process Clause and Equal Protection component apply to the federal government.

Of course, make sure you get a file marked copy of any memoranda you give to the judge.3

15

The Bill of Rights originally did not apply to the states. Barron v. Baltimore, 32 U.S. (7 Pet.)

243 (1833). Most (but not all) of the provisions of the Bill of Rights apply to the states through the

Due Process Clause of the Fourteenth Amendment.

VI. CONCLUSION

Preserving error for appellate review is as much the job of the trial lawyer as is presenting

evidence, cross-examining the government’s witnesses and making final argument. It cannot and

should not be ignored or given short shrift.

It may be justifiable to ignore erroneous rulings that are unlikely to result in reversible error but

it is not an excuse to ignore error in general. When in doubt, object. And, keep pressing until there

is an adverse ruling.

File written motions and memoranda. Give the trial judges highlighted copies of cases. Object,

object and keep objecting. If the trial judge gives you something, keep asking for more until the

judge says, “No.”

Some attorneys say they are reluctant to make objections for fear of making the judge angry or

giving the jury the impression that they are trying to hide something. These concerns should have

little affect on the decision on whether to object.

Ask yourself, who would you rather be standing between you and the penitentiary, the shrinking

violet, cowardly lawyer from Rodriguez or a lawyer who rips opposing counsel’s heart out just to

watch him die? Most of us probably would want the nice guy lawyer if we plan to plead guilty but

we would want the aggressive, prepared lawyer if we go to trial.4

Of course, the best of all possible worlds is to have a lawyer who is a genuinely nice guy who4

knows when to get along and when to turn into Attilla the Hun.

16

The key is showing both the trial judge and the jury that you have respect for the court. Make

your record but always be polite and respectful of the judge and the prosecutor.

A smart (or even a not very smart) judge will have respect for lawyers who make good objections

and preserve error. Not only will the judge be on notice that he could be reversed but he will see the

lawyer as a knowledgeable professional.

If you have any time to voir dire the jury, you can innoculate the jury against bias by simply telling

them that at times there will be difference interpretations of the rules of evidence between you and

the prosecutor. Tell them it is your job to bring those to the attention of the judge and for the judge

to decide. Then, ask the jury panel if anyone has a problem with that law.

17

PRESERVING ERROR IN FEDERAL COURT:Making Sure You Get Your Second Chance on Appeal

Timothy CrooksAsst. Federal Public Defender440 Louisiana St., Suite 310Houston, TX 77002(713) 718-4600

TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Pretrial Motions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Proffer, Proffer, Proffer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

The Contemporaneous Objection Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Jury Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Other Trial Problems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Guilty Pleas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Consequences of Failure to Preserve Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

-i-

FED. R. CRIM. P. 12(b)(3)(A). 1

FED. R. CRIM. P. 12(b)(3)(B). 2

FED. R. CRIM. P. 12(b)(3)(C) 3

FED. R. CRIM. P. 12(b)(3)(D). 4

FED. R. CRIM. P. 12(b)(3)(E). 5

1

Introduction

As an attorney who now works exclusively on appeals, I am frustrated when good points of

error have not been properly preserved below. Yet, having also been a trial attorney, I realize that,

in the rush to judgment in criminal cases, it is all too easy to slip up!

Many times I have heard attorneys speak dismissively of seminars on preservation of error

for appeal – for example: “All they’re going to do is tell us that we need to object at trial, and I

already know that.” But the truth is that, in today’s increasingly complex federal criminal practice,

often much more than just a simple objection is needed. This paper is designed to give some basic

information on preserving error to make sure that your clients get the full benefit of their “second

chance” on appeal.

Pretrial Motions

The first “gotcha” with respect to pretrial motions in federal court is Federal Rule of Criminal

Procedure 12(b)(3), which requires that certain motions must be raised prior to trial:

(1) Motions alleging defects in the institution of the prosecution; 1

(2) Motions alleging a defect in the indictment or information (other than that it fails to

invoke the court’s jurisdiction or to state an offense;2

(3) Motions to suppress evidence; 3

(4) Motions to sever charges or defendants under Fed. R. Crim. P. 14.4

(5) Motions for discovery under Fed. R. Crim. P. 16.5

FED. R. CRIM. P. 12(c).6

FED. R. CRIM. P. 12(e). The failure to file a motion of the type described in Rule 12(b)(3)7

by the deadline results in a complete extinguishment of the claim that could have been raised therein;thus, if it is raised for the first time on appeal, the Fifth Circuit will not even conduct plain errorreview of the claim. See United States v. Chavez-Valencia, 116 F.3d 127, 129-33 (5th Cir.)(suppression issue), cert. denied, 522 U.S. 926 (1997).

FED. R. CRIM. P. 12(e). 8

United States v. Cathey, 591 F.2d 268, 271 n.1 (5th Cir. 1979) (addressing previous9

version of rule that required “cause shown” rather than “good cause”).

I recognize that trial attorneys will often want to file as “bare-bones” a motion as possible,10

to avoid tipping their hand in advance of the evidentiary hearing. There is certainly merit in thisapproach, because it can prevent adverse witnesses from tailoring their testimony to defeat theparticular allegations in the motion. The problem is that, if you do not allege a claim with sufficientspecificity, you may never get an evidentiary hearing. How much detail to put in suppressionmotions is thus a judgment call that depends in large measure on the predilections of the judge beforewhom you are appearing. If that judge is going to give you an evidentiary hearing regardless of theparticularity of your motion, then you have little to lose and everything to gain by filing only a “bare-bones” motion.

2

Additionally, the district court “may, at the arraignment or as soon afterward as practicable, set a

deadline for the parties to make pretrial motions and also schedule a motion hearing.” If the6

motions specified in Rule 12(b)(3) are not filed before the motions date set by the court

(including any extension the court provides) or (where no motions date is set) before trial, this

failure constitutes a waiver of the defenses, objections, and requests you would have made in

those motions. However, “[f]or good cause, the court may grant relief from the waiver.” What7 8

constitutes “good cause” will, of course, vary from case to case. In one case for example, the Fifth

Circuit found that there was “cause shown” for failure to move to dismiss an indictment prior to trial

where the defendant did not receive the critical grand jury transcript until after the trial started, and

he filed his motion at the earliest possible time.9

Also, you should make sure to include as many specific facts (or factual allegations) as

possible in your pretrial motions because, if you do not, you cannot count on getting an evidentiary

hearing to flesh out your record. An evidentiary hearing is required – and hence a district court10

perforce abuses its discretion in denying a hearing – only where “‘the defendant alleges sufficient

United States v. Mergist, 738 F.2d 645, 648 (5th Cir. 1984) (quoting United States v.11

Harrelson, 705 F.2d 733, 737 (5th Cir. 1983)).

Harrelson, 705 F.3d at 733.12

Id.13

See, e.g., United States v. Smith-Bowman, 76 F.3d 634, 637-38 (5th Cir.) (district court14

did not abuse its discretion in denying motion to transfer venue for excessive pretrial publicitywithout an evidentiary hearing, where, among other things, defendant did not allege with specificitythat the community had been saturated with negative media coverage of the charges against her, nordid she include with her motion any copies of, or excerpts from, specific newspaper stories ortelevision reports that focused on her, the charges against her, or the pending trial), cert. denied,518U.S. 1011 (1996).

See, e.g., United States v. Maldonado, 42 F.3d 906, 909-13 (5th Cir. 1995) .15

FED. R. EVID.103(a). 16

3

facts which, if proven, would justify relief.’” The motion will allege sufficient facts to justify an11

evidentiary hearing only when it is “sufficiently definite, specific, detailed, and nonconjectural, to

enable the court to conclude that a substantial claim is presented.” “General or conclusory12

assertions, founded upon mere suspicion or conjecture will not suffice.” Thus, if your motion is13

not sufficiently detailed, your motion may be summarily denied without ever having an evidentiary

hearing, and, in the absence of a sufficiently detailed record, it will be virtually impossible to get any

appellate relief. Additionally, especially with motions to suppress, you should be careful to allege14

all possible grounds for suppression: a motion to suppress evidence based on one theory will not

preserve for an appeal the claim that the same evidence should be suppressed on another theory.15

The next pitfall for the unwary with respect to pretrial motions is the motion in limine.

Motions in limine are excellent devices to try to get pretrial rulings on the admissibility vel non of

certain evidence. Furthermore, in 2000, the Federal Rules of Evidence were amended to provide that

“[o]nce the court makes a definitive ruling on the record admitting or excluding evidence, either at

or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for

appeal.” However, at least in the Fifth Circuit, a pretrial motion in limine as to which the judge16

has not made a definitive ruling will not, by itself, preserve error for appeal: “to preserve error for

United States v. Graves, 5 F.3d 1546, 1552 n.6 (5th Cir. 1993) (bolded emphasis added),17

cert. denied, 511 U.S. 1081 (1994); see also id. at 1551-52.

See Luce v. United States, 469 U.S. 38, 43 (1984) (“We hold that to raise and preserve18

for review a claim of improper impeachment with a prior conviction, a defendant must testify.”).

See Ohler v. United States, 529 U.S. 753, 760 (2000) (“a defendant who preemptively19

introduces evidence of a prior conviction on direct examination may not on appeal claim that theadmission of such evidence was error”).

FED. R. EVID. 103(a) & (2) (emphasis added); see, e.g., United States v. Scott, 48 F.3d20

1389, 1397 (5th Cir.) (holding that defendant did not preserve for appeal the issue of improperrestriction on cross-examination/impeachment of government witness, where defendant failed tomake an offer of proof to the district court as to which portions of the criminal record of the

4

appeal, an objection or offer of proof as to the subject presented by a motion in limine must be made

at trial.” It is probably a good idea to apply the same principle to unsuccessful motions to suppress:17

i.e., you should renew your objection to the allegedly suppressible evidence at trial.

Special considerations arise when the government proposes, under Federal Rule of Evidence

609, to use prior convictions to impeach your client if he or she testifies. Where the district court

rules that these prior convictions will be admissible under Rule 609 to impeach your client, and your

client decides not to testify in light of that ruling, any error in the Rule 609 ruling is extinguished;

in other words, in order to preserve any Rule 609 error for appeal, your client must “run the gauntlet”

by testifying and then being impeached by the prior convictions. In a similar vein, if a defendant,18

faced with an unfavorable pretrial Rule 609 ruling from the district court, decides to try to “remove

the sting” of the prior convictions by preemptively bringing them out herself during her direct

testimony, she also loses the right to contest the propriety of the Rule 609 ruling on appeal. 19

Proffer, Proffer, Proffer

“Error may not be predicated upon a ruling which . . . excludes evidence unless a substantial

right of the party is affected, and . . . [, i]n case the ruling is one excluding evidence, the substance

of the evidence was made known to the court by offer or was apparent from the context within which

questions were asked.” The Fifth Circuit appears to have added a gloss to Rule 103(a)(2), requiring20

government’s witness should have entered into evidence), cert. denied, 516 U.S. 902 (1995).

United States v. Clements, 73 F.3d 1330, 1336 (5th Cir. 1996) (emphasis in original)21

(quoting United States v. Ballis, 28 F.3d 1399, 1406 (5th Cir. 1994)). In Clements, the Fifth Circuitapplied this rule to hold that the district court did not abuse its discretion in excluding evidence ofdefendant’s poor CheckFax credit rating as hearsay, where “[d]efense counsel . . . made no attemptto inform the district court that [defendant’s] testimony about his CheckFax rating was being soughtto prove something other than the truth of his rating.” Clements, id.

See Ballis, 28 F.3d at 1406-07.22

Id. 23

5

that, not only the substance of the evidence, but also the relevancy of the evidence to the defense

and the ground(s) for admissibility of the evidence, have been made known to the court:

“Although a formal offer of proof is not required to preserve error, the party must at least inform

the trial court ‘what counsel intends to show by the evidence and why it should be admitted.’”21

Thus, in making a proffer, the prudent practitioner in the Fifth Circuit is well-advised to give (1) a

detailed summary of the substance of the excluded evidence; (2) all the things you expect to show

or prove by that evidence; and (3) all the grounds on which the evidence should be admitted.

While a general description of the excluded evidence, or a global proffer of mass prior

testimony or evidence, is generally not sufficient to preserve error, it may be sufficient where the trial

court chills or restricts the party’s ability to make a more detailed proffer. Thus, in Ballis, the Fifth22

Circuit found that a global proffer of the entire record of a previous motion to dismiss hearing was

adequate to preserve error where the trial judge warned that he did not need to be “spoon fed” about

every possible nuance of the question, and where the judge expressed an intimate familiarity with

the testimony offered and in fact accepted the global proffer as sufficient.23

The same principles apply where the error complained of is not one pertaining to the

exclusion of evidence per se, but is one pertaining to the trial process leading to the discovery,

production, and introduction of evidence. For example, where a defendant moves for continuance

on the basis of the unavailability of a witness, it is incumbent upon the defendant to show the court

that “due diligence has been exercised to obtain the attendance of the witness, that substantial

Scott, 48 F.3d at 1394 (internal quotation marks and citations omitted). In Scott, the Fifth24

Circuit rejected the defendant’s claim that a continuance was necessary in order to secure theservices of a voice expert for analysis of evidentiary tapes, on the basis that the defendant had notdemonstrated due diligence in obtaining such an expert, availability and willingness of such anexpert to testify, or that the testimony would be favorable if secured. See id.

See, e.g., United States v. Wright, 86 F.3d 64, 65 (5th Cir. 1996) (denial of surrebuttal25

was not an abuse of discretion “because Wright ‘failed to proffer to the district court the substanceof his surrebuttal testimony’”; quoting and citing United States v. Alford, 999 F.2d 818, 821 (5th Cir.1993)).

See United States v. Gadison, 8 F.3d 186, 191 (5th Cir. 1993). 26

6

favorable evidence would be tendered by the witness, that the witness is available and willing to

testify, and that the denial of the continuance would materially prejudice the defendant.” Likewise,24

if the district court denies you the opportunity to present surrebuttal at trial, you must proffer the

substance of your surrebuttal; failure to do so will doom your chances on appeal.25

The Fifth Circuit has upheld a district court’s denial of a defense request for appointment of

an investigator under the Criminal Justice Act (18 U.S.C. § 3006A(e)(1)) where the request (1)

lacked the requisite specificity as to the prospective witnesses the defense wished to contact and their

relevance; (2) did not specify other investigative leads which the defense wished to pursue; and (3)

did not recite that defense counsel had ferreted out information through his own efforts which was

likely to lead to the discovery of relevant evidence. On the same principle, where the judge refuses26

to issue a subpoena, you should proffer, as specifically as you can, what you expect the witness’s

testimony will be in order to nail down your record on appeal.

The rule is simple: whenever the judge keeps out evidence that you need for your case, you

should state on the record (or file a written submission into the record, if the judge will not let you

make an oral proffer) (1) a detailed summary of the evidence; (2) why the evidence is necessary to

your case; and (3) why it is admissible. Doing this in every case will ensure that the appellate court

will review your claims of erroneous exclusion on the merits rather than “punting” by finding that

there was an insufficient proffer to permit appellate review.

An excellent compendium of some of the most common trial objections is found in the27

following law review article: Craig Lee Montz, Trial Objections from Beginning to End: TheHandbook for Civil and Criminal Trials, 29 Pepp. L. Rev. 243 (2002). The article is a “must-read,”particularly if you have a trial coming up.

FED. R. EVID. 103(a) & (1) (emphasis supplied).28

FED. R. EVID. 605. Rule 605 provides that “[t]he judge presiding at the trial may not29

testify in that trial as a witness. No objection need be made in order to preserve the point.”

FED. R. EVID. 614(c). Note, however, that an objection is required in order to preserve30

this type of error on appeal, as opposed to the “automatic objection” rule contained in Rule 605. SeeAdvisory Committee Notes to Rule 614(c). Failure to object either contemporaneously or at the firstopportunity when the jury is not present will subject your claims of excessive questioning by thecourt to review only for plain error. See, e.g., United States v. Wright, 86 F.3d 64, 65 (5th Cir.1996).

Graves, 5 F.3d at 1552 n.6; see also id. at 1551-52. 31

7

The Contemporaneous Objection Rule27

The contemporaneous objection rule is codified at Federal Rule of Evidence 103(a)(1) which

provides that “[e]rror may not be predicated upon a ruling which ... excludes evidence unless a

substantial right of the party is affected, and . . . [, i]n case the ruling is one admitting evidence, a

timely objection or motion to strike appears of record, stating the specific ground of objection, if the

specific ground was not apparent from the context.” There are two notable exceptions to the28

contemporaneous objection rule: first, no objection is required where the judge presiding at the trial

testifies in the trial as a witness. Second, where the judge calls or interrogates witnesses, the29

objection may be deferred until “the next available opportunity when the jury is not present.”30

It bears repeating that, unless the judge renders a definitive pretrial ruling on the motion, as

allowed under Fed. R. Evid. 103(a), a pretrial motion in limine will not obviate the need for a

contemporaneous objection at trial. Rather, “to preserve error for appeal, an objection or offer of

proof as to the subject presented by a motion in limine must be made at trial.” This does not mean,31

however, that pretrial motions in limine are utterly useless. First of all, you may actually win them,

get what you asked for, and never need to appeal. But second, even if you do not prevail on the

merits of your motions in limine before trial, they often provide a convenient shorthand for making

FED. R. CRIM. P. 30(d) (emphasis added).32

See id.33

United States v. Davis, 583 F.2d 190, 195 (5th Cir. 1978) (internal quotation marks and34

citation omitted); see also United States v. Edwards, 968 F.2d 1148, 1153 (11th Cir. 1992) (applyingFifth Circuit cases [including Davis] as binding precedent of its predecessor court, Eleventh Circuitheld that "[o]verly technical application of Rule 30 in this case would not serve the purposes of theRule nor meet the ends of justice"), cert. denied, 506 U.S. 1064 (1993).

Henderson v. United States, 425 F.2d 134, 144 (5th Cir. 1970).35

8

an objection during trial: for example, “Objection, Your Honor, for all the reasons, and on all the

grounds, stated in defendant’s motion in limine.” An objection of this type is quickly made and

quickly disposed of, preserving error and preserving the good will of the judge at the same time.

Jury Instructions

Any objections to the jury instructions the district court proposes to give, as well as any

objections to the district court’s failure to give requested instructions, “must inform the court of the

specific objection and the grounds for the objection before the jury retires to deliberate.” Failure32

to comply with this requirement will mean that instructional errors will be reviewed only for plain

error. 33

In assessing compliance with the objection requirement of Rule 30, the Fifth Circuit has

cautioned against exalting form over substance:

The procedure for requesting charges, and for objections, should not be employedwoodenly, but should be applied where its application will serve the ends for whichit was designed. If it be applied blindly and without the benefit of analysis ofparticular fact situations before individual courts in specific cases it will betransformed from a sound principle of judicial administration into a trap for theunwary . . . .34

Under this pragmatic, commonsense approach to Rule 30, an objection will be deemed sufficiently

specific so long as the district court “perceive[d] the basis of [the defendant’s] objection,” and had35

United States v. Eiland, 741 F.2d 738, 742 (5th Cir. 1984) (citing Henderson).36

United States v. Williams, 985 F.2d 749, 755 (5th Cir.), cert. denied, 510 U.S. 850 (1993).37

FED. R. CRIM. P. 30(a).38

See, e.g., Eiland, 741 F.2d at 741 (“[Defendant’s] objection to the omission of this charge39

had the same effect as a valid request for the instruction.”) (footnote omitted); United States v.English, 409 F.2d 200, 201 (3rd Cir. 1969) (“counsel's exception to the charge, although no requestsfor charge were submitted, was sufficient to preserve the error for assignment on appeal”).

See United States v. Martinez-Salazar, 528 U.S. 304, 307 & 315-17 (2000). 40

Id. at 307; see also id. at 314-15. 41

9

“a full understanding of its nature”; or, put another way, the objection will be considered sufficient36

if it was “adequate to alert the court of [the defendant's] position . . . .” 37

A party “may [and is well-advised to] request in writing that the court instruct the jury on the

law as specified in the request. The request must be made at the close of the evidence or at any

earlier time that the court reasonably sets.” However, a defendant need not submit a requested jury38

instruction in order to preserve instructional error for appeal; rather, under Rule 30, all that is

required is a timely (i.e., before the jury retires to deliberate) and sufficiently specific objection to

the charge actually given by the trial court. 39

Other Trial Problems

In 2000, the United States Supreme Court held that any error in a district court’s refusal to

strike a juror for cause is extinguished if the defendant uses a peremptory challenge to remove the

objectionable juror. (The Court “reject[ed] the Government’s contention that under federal law,40

a defendant is obliged to use a peremptory challenge to cure the judge’s error.” ) After Martinez-41

Salazar, therefore, it appears that a defendant may have to elect between letting an objectionable

The Court in Martinez-Salazar left open the possibility that reversal might be required42

where “the trial court deliberately misapplied the law in order to force the defendants to use aperemptory challenge to correct the court’s error.” Id. at 316 (citation omitted). The Court alsonoted that reversal would be required if a juror who should have been dismissed for cause actuallysat on the jury. See id.

In a concurring opinion, Justice Souter also suggested that reversible error might be shownwhen a defendant “use[s] a peremptory challenge to cure an erroneous denial of a challenge for causeand when he shows that he would otherwise use his full complement of peremptory challenges forthe noncurative purposes that are the focus of the peremptory right,” i.e., by showing that he wouldhave used the peremptory used for the for-cause juror on another juror, and requesting another,“make-up” peremptory. See id. at 317-18 (Souter, J., dissenting). This type of claim was recognizedin the Fifth Circuit before Martinez-Salazar. See, e.g., United States v. Muñoz, 15 F.3d 395, 396-98(5th Cir.), cert. denied, 511 U.S. 1134 (1994); United States v. Bryant, 991 F.2d 171, 174 & n.3 (5thCir. 1993); United States v. Nell, 526 F.2d 1223, 1229 (5th Cir. 1976). Justice Souter’s concurrencenotwithstanding, however, it seems doubtful whether this type of claim has survived Martinez-Salazar.

476 U.S. 79 (1986).43

The Supreme Court has held that, under the reasoning of Batson, it likewise violates the44

Equal Protection Clause to exclude potential jurors solely on the basis of their gender. See J.E.B.v. Alabama ex rel. T.B., 511 U.S. 127, 146 (1994).

See United States v. Maseratti, 1 F.3d 330, 335 (5th Cir. 1993) (citation omitted) (Batson45

claim waived because not made prior to dismissal of the venire), cert. denied, 510 U.S. 1129 (1994)& 511 U.S. 1036 (1994) & 513 U.S. 910 (1994).

See Batson, 476 U.S. at 93-97. 46

See id. at 97-98.47

10

juror sit, thereby preserving the ruling for appeal, or using a peremptory to remove that juror from

the jury. 42

Another possible problem is a party’s use of peremptory challenges on the impermissible

basis of race or gender, in violation of Batson v. Kentucky and its progeny. First of all, in order43 44

to be timely, a Batson challenge must be made before the venire is dismissed and before the trial

commences; it is not sufficient that challenge be made prior to the jury’s being sworn. Second,45

in order even to require the opposing party to explain its strikes, the challenging party must make

out a prima facie case that the strikes were exercised for an impermissible reason. At this point,46

the burden shifts to the striking party to explain its strikes. Then, however, in order to preserve the47

See United States v. Arce, 997 F.2d 1123, 1127 (5th Cir. 1993) (where defense did not48

dispute or contest the prosecutor's explanation for exercise of peremptory challenge against Hispanicvenireman, Batson challenge to peremptory challenge was waived).

See FED. R. CRIM. P. 29(a). 49

E.g., United States v. Shaw, 920 F.2d 1225, 1230 (5th Cir.), cert. denied, 500 U.S. 92650

(1991). This writer and other federal public defenders in the Western District of Texas havechallenged this reduced standard as violative of due process, equal protection, and Federal Rule ofCriminal Procedure 29. Although the Fifth Circuit has recognized that there is some force to thesearguments, see, e.g., United States v. Paniagua, No. 93-8722 (5th Cir. Dec. 16, 1994) (unpublished)(citing United States v. Pennington, 20 F.3d 593, 597 & n.2 (5th Cir. 1994) and United States v. Sias,No. 93-5475, at 4 n.1 (5th Cir. Sept. 30, 1994), cert. denied, 514 U.S. 1009 (1995)), the Fifth Circuithas avoided deciding the issue on the merits in every case it which is raised, either by finding anexception to the waiver rule (e.g., Pennington) or by finding that the result would be the sameirrespective of the standard applied (e.g., Paniagua). The Fifth Circuit has also suggested that thetwo standards might, in fact, be indistinguishable; but has likewise declined to decide this issue. See,e.g., Pennington, 20 F.3d at 597 n.2 (5th Cir. 1994); see also United States v. Davis, 583 F.2d 190,199 (5th Cir. 1978) (Clark, J., concurring).

E.g., United States v. Ruiz, 860 F.2d 615, 617 (5th Cir. 1988).51

See, e.g., United States v. Jaras, 86 F.3d 383, 388 n.5 (5th Cir. 1996) (citing United States52

v. Resio-Trejo, 45 F.3d 907, 910 n.6 (5th Cir. 1995)).

11

Batson issue for appeal, the challenging party must object to/dispute the explanations, explain why

those explanations are a pretext for impermissible discrimination on the basis of race or gender, and

request the court to make a ruling; otherwise the claim is waived. 48

It is incumbent upon every trial practitioner to move for judgment of acquittal (1) at

the close of the government’s evidence; and (2) at the close of all the evidence. Failure to do49

so will forfeit the usual standard of review for claims of insufficiency of the evidence, and any such

claims will be reviewed only for a “manifest miscarriage of justice.” Such a miscarriage exists only50

if the record lacks any evidence pointing to guilt or if the evidence was so tenuous that a conviction

would be “shocking.” A narrow exception to this rule exists where the defendant moves for51

judgment of acquittal after the government’s case, and then immediately rests without putting on any

evidence; in such a case, the sufficiency of the evidence is reviewed under the usual standard of

review. Likewise, the failure to move for judgment of acquittal does not constitute waiver where52

E.g., Pennington, 20 F.3d at 597 n.2 (citing United States v. Gonzalez, 700 F.2d 196, 20453

n.6 (5th Cir. 1983)).

See, e.g., United States v. Villarreal, 324 F.3d 319, 322 (5th Cir. 2003) (where defendant54

moved for judgment of acquittal at close of government’s case-in-chief, but did not renew motionat the close of all the evidence, question of the sufficiency of the evidence was neverthelesspreserved by defendant’s timely post-verdict motion for judgment of acquittal); United States v.Allison, 616 F.2d 779, 784 (5th Cir.) (even though defendant did not move for judgment of acquittaleither at the close of the government’s case-in-chief or at the conclusion of her case, question of thesufficiency of the evidence was nevertheless preserved by defendant’s timely post-verdict motionfor judgment of acquittal), cert. denied, 449 U.S. 857 (1980); see also FED. R. CRIM. P. 29(c)(3).

FED. R. CRIM. P. 29(c)(1).55

See, e.g., Huff v. United States, 273 F.2d 56, 60 (5th Cir. 1959). 56

United States v. Herrera, 313 F.3d 882, 884 (5th Cir. 2002) (en banc) (emphasis in57

original; citations omitted), cert. denied, 537 U.S. 1242 (2003).

12

the trial court’s action renders the motion for acquittal “an empty ritual.”53

Also, even if you have forgotten to move for judgment of acquittal at the close of the

government’s case-in-chief and/or at the close of all the evidence, you may still preserve a claim of

insufficient evidence by filing a post-verdict motion under Federal Rule of Criminal Procedure

29(c). Under this rule, “[a] defendant may move for a judgment of acquittal, or renew such a54

motion, within 7 days after a guilty verdict or after the court discharges the jury, whichever is later,

or within any other time the court sets during the 7-day period.”55

It has long been the law in the Fifth Circuit that a general motion for judgment of acquittal

(i.e., a general assertion that the evidence was insufficient to sustain a conviction) is sufficient to

preserve a claim of insufficient evidence, and it is not necessary that the grounds of such a motion

be more specifically stated. However, in 2002, the en banc Fifth Circuit held that “[w]here . . . a56

defendant asserts specific grounds for a specific element of a specific count for a Rule 29 motion,

he waives all others for that specific count.” This means that, whenever you assert specific57

grounds for acquittal, you may be waiving the right to assert on appeal any other grounds for finding

the evidence insufficient. If you are going to assert specific grounds for acquittal, therefore, you

should make sure to include all the possible grounds for acquittal. If you fear that you may miss

You might, for example, say, “Mr. Defendant hereby moves for judgment of acquittal on58

each and every count, on the ground that the government has failed to carry its burden of provingeach and every element of those counts. Furthermore, without waiving our general claim ofinsufficiency, we would particularly point out that the government has failed to prove that the banksallegedly robbed had their deposits insured by the FDIC.”

267 F.3d 381, 392-93 (5th Cir. 2001).59

295 F.3d 494, 496-97 (5th Cir. 2002), cert. denied, 537 U.S. 1173 (2003). 60

Cf. FED. R. CRIM. P. 12(b)(2) (“A party may raise by pretrial motion any defense,61

objection, or request that the court can determine without a trial of the general issue.”).

13

some of these grounds, you may be able to avoid this waiver rule by first making a general motion

for judgment of acquittal, and then adding your particular arguments. If you have little or no hope58

that the judge will grant the motion, it may be best just to stick with a general motion for judgment

of acquittal.

Challenging venue issues presents special considerations in the Fifth Circuit. In United

States v. Carreon-Palacio, the Fifth Circuit held that

[a] defendant indicted by an instrument which lacks sufficient allegations to establishvenue waives any future challenge by failing to object before trial. In situationswhere adequate allegations are made but the impropriety of venue only becomesapparent at the close of the government’s case, a defendant may address the error byobjecting at that time, and thus preserve the issue for appellate review.59

And, in United States v . Delgado-Nuñez, the Fifth Circuit held that a venue issue was waived when

it was not specifically raised either before or during trial, and the defendant was on notice of a defect

in venue. 60

In light of these authorities, it seems that the safest course is to attack improper venue in a

pretrial motion either when (1) the indictment on its face establishes that venue is lacking or (2) the

defense is on notice of a possible defect in venue. Also, even where venue is a trial (as opposed61

to a pretrial) issue, it is an exception to the rule that a general motion for judgment of acquittal

preserves all grounds for claiming insufficiency of the evidence. In other words, a general motion

for judgment of acquittal will not preserve for appeal defects in venue; you must specifically point

out to the court in a timely fashion why venue is improper.

See United States v. Vonn, 535 U.S. 55, 59 (2002). Note, however, that even where there62

is not a contemporaneous objection to the Rule 11 error at the plea colloquy, error may be preservedby a subsequent motion to withdraw the guilty plea on the basis of the Rule 11 error. See, e.g.,United States v. Powell, 354 F.3d 362, 367 (5th Cir. 2003) (reviewing defendant’s claim of Rule 11error for harmful error, not plain error, where, although defendant made no contemporaneousobjection to the district court’s noncompliance with Rule 11 at the guilty plea proceeding, defendantraised the issue in a timely pre-sentencing motion to withdraw her guilty plea).

Id.63

See id. at 74-75.64

United States v. Dominguez Benitez, 124 S.Ct. 2333, 2340 (2004). 65

See, e.g., United States v. Lopez, 923 F.2d 47, 50 (5th Cir.), cert. denied, 500 U.S. 92466

(1991) United States v. Young, 981 F.2d 180, 188 (5th Cir. 1992), cert. denied, 508 U.S. 955 & 980(1993); United States v. Guerrero, 5 F.3d 868, 871 (5th Cir. 1993), cert. denied, 510 U.S. 1134(1994); United States v. McCaskey, 9 F.3d 368, 376 (5th Cir. 1993), cert. denied, 511 U.S. 1042

14

Guilty Pleas

A claim that a district court failed to comply with Federal Rule of Criminal Procedure 11

(dealing with the conduct of guilty plea proceedings in federal court) will be subject to plain error

review if the Rule 11 error was not objected to in the district court. Furthermore, “a reviewing62

court may consult the whole record when considering the effect of any error on substantial rights,”63

and is not limited merely to the transcript of the plea colloquy. In order to prevail on an64

unpreserved Rule 11 claim on appeal, a defendant “must show a reasonable probability that, but for

the error, he would not have entered the plea.” 65

Sentencing

The key to preserving error at sentencing is to make comprehensive written objections to the

presentence report (PSR) and any addenda thereto, and to renew those objections orally at the

sentencing hearing (assuming, of course, that they are not resolved in your favor prior to sentencing).

This is especially true with respect to the factual determinations underlying the selection of the

Guidelines offense level – e.g., drug quantity, amount of loss, role in the offense, etc.– since a

considerable body of Fifth Circuit law has held that questions of fact capable of resolution by the

district court upon proper objection at sentencing can never constitute plain error. 66

(1994); United States v. Fierro, 38 F.3d 761, 774 (5th Cir. 1994), cert. denied, 514 U.S. 1030 (1994)& 514 U.S. 1051 (1995); United States v. Dean, 59 F.3d 1479, 1494 (5th Cir. 1995), cert. denied,516 U.S. 1064 (1996) & 516 U.S. 1082 (1996); United States v. Vital, 68 F.3d 114, 119 (5th Cir.1995).

United States v. Medina-Anicacio, 325 F.3d 638, 642 (5th Cir. 2003) (citing Bender v.67

Brumley, 1 F.3d 271, 277 (5th Cir. 1993)), cert. denied, 159 L.Ed.2d 280 (2004).

Medina-Anicacio, 325 F.3d at 642 (“When a defendant objects to his sentence on grounds68

different from those raised on appeal, we review the new argument raised on appeal for plain erroronly.”) (citing United States v. Cabral-Castillo, 35 F.3d 182, 188-89 (5th Cir. 1994)).

United States v. Krout, 66 F.3d 1420, 1434 (5th Cir. 1995) (quoting United States v.69

Bullard,13 F.3d 154, 156 (5th Cir. 1994); internal quotation marks omitted), cert. denied, 516 U.S.1136 (1996) (two cases).

See, e.g., Krout, 66 F.3d at 1433-34. Note that appellate courts may sometimes find less-70

than-perfect sentencing objections sufficient under the circumstances of those cases to preserve errorfor appeal. See, e.g., United States v. Ocana, 204 F.3d 585, 589 (5th Cir.) (issues of relevant conductand role in the offense sufficiently preserved for appeal where, although defendant did not citespecific Guidelines provisions, “she did make a general objection that notified the court of herdisagreement with the use of the November 1997 offense in her sentencing, and gave the districtcourt the opportunity to address the relevance of the unadjudicated conduct”), cert. denied, 531 U.S.880 (2000). It is best not to count on such appellate forgiveness, however.

See, e.g., United States v. Alfaro, 919 F.2d 962, 965 & n.10 (5th Cir. 1990) (citations in71

footnote omitted).

15

A written objection is particularly important because “once a party raises an objection in

writing, if he subsequently fails to lodge an oral on-the-record objection, the error is nevertheless

preserved for appeal.” The objection must raise all the grounds for challenging a particular67

Sentencing Guidelines application or other proposed aspect of sentencing; new grounds will be

subject only to plain error review on appeal. Furthermore, “a party must raise a claim of error with68

the district court in such a manner so that the district court may correct itself and thus, obviate the

need for [appellate review].” An imprecise, unexplained, or pro forma objection will not pass69

muster. 70

It is important to remember that the defense carries the burden of proving mitigating factors

by a preponderance of relevant and sufficiently reliable evidence. Moreover, a party does not carry71

its burden at sentencing merely by the unsworn assertions of counsel, as these do not constitute a

See, e.g., United States v. Patterson, 962 F.2d 409, 415 (5th Cir. 1992) (citing United72

States v. Johnson, 823 F.2d 840, 842 (5th Cir. 1987)).

United States v. Mitchell, 166 F.3d 748, 754 (5th Cir. 1999) (footnote with citation73

omitted). But see United States v. Dabeit, 231 F.3d 979, 983 (5th Cir. 2000) (although a PSR isgenerally considered to have sufficient indicia of reliability for it to serve as the evidentiary basis forsentencing determinations, “[t]he PSR, however, cannot just include statements in the hope ofconverting such statements into reliable evidence, without providing any information for the basisof the statements”) (citing United States v. Elwood, 999 F.2d 814, 817-18 (5th Cir. 1993)), cert.denied, 531 U.S. 1202 (2001).

United States v. Parker, 133 F.3d 322, 329 (5th Cir.) (citation omitted), cert. denied, 52374

U.S. 1142 (1998) (two cases).

Compare, e.g., United States v. Khawaja, 118 F.3d 1454, 1460 (11th Cir. 1997) (“The75

mere adoption of the PSR however cannot suffice for the district court’s obligation to rule onunresolved objections specifically brought to the attention of the court at sentencing.”); United Statesv. Farnsworth, 92 F.3d 1001, 1011 (10th Cir.) (“We have repeatedly held that a district court maynot satisfy its obligation [to resolve disputed sentencing facts] by simply adopting the presentencereport as its finding.”) (collecting cases), cert. denied,519 U.S.1034 (1996); United States v. Burke,80 F.3d 314, 316-17 (8th Cir. 1996). See also United States v. Van, 87 F.3d 1, 3 (1st Cir. 1996)(“Fed. R. Crim. P. 32 allows the court to adopt the facts set forth in the presentence report ‘[e]xceptfor any unresolved objection’ noted in the addendum submitted by the probation officer as requiredby the rule.”) (citations omitted); United States v. Yusufu, 63 F.3d 505, 515 n.2 (7th Cir.) (“TheFederal Rules of Criminal Procedure allow the court to accept the PSR as its findings of fact, exceptfor unresolved objections.”) (citation omitted), cert. denied, 516 U.S. 1015 (1995).

____ U.S. ____, 72 U.S.L.W. 4546 (June 24, 2004).76

16

sufficiently reliable basis for sentencing. Furthermore, even as to sentencing factors on which the72

government has the burden of proof, a mere objection to the PSR may do little or nothing to preserve

an issue for appellate review, as the rule in the Fifth Circuit is that “[i]f the defendant does not

submit affidavits or other evidence to rebut the information in the PSR, the district court may adopt

its findings without further inquiry or explanation,” and “[m]ere objections do not suffice as73

competent rebuttal evidence.” While this rule is the subject of a circuit split, and while it may74 75

ultimately be consigned to the dust-heap as a result of the United States Supreme Court’s decision

in Blakely v. Washington, for now it is imperative, if you intend to controvert a Guidelines76

application or fact in the PSR, to present some rebuttal evidence.

Downward departures are often requested but seldom granted. Moreover, unless you are very

careful to lay the record correctly, the district court’s denial of a downward departure will not be

United States v. DiMarco, 46 F.3d 476, 477-78 (5th Cir. 1995). 77

United States v. Burleson, 22 F.3d 93, 95 (5th Cir.) (citation omitted), cert. denied, 51378

U.S. 911 (1994); see also, DiMarco, 46 F.3d at 478.

See, e.g., United States v. Gaudet, 81 F.3d 585, 592 (5th Cir. 1996) (citing United States79

v. Segler, 37 F.3d 1131, 1136-37 (5th Cir. 1994)).

17

reviewable on appeal. Generally speaking, an appellate court has no jurisdiction under 18 U.S.C.

§ 3742 to hear an appeal of a lawful Guidelines sentence where the district court has exercised its

discretion not to depart downward; in such cases, the appeal must be dismissed for lack of

jurisdiction. However, where a district court’s refusal to depart downward is not discretionary, but77

rather is based upon the court's mistaken belief that it legally does not possess the authority to depart,

the resulting sentencing is “in violation of law,” and appellate jurisdiction does therefore lie, under

18 U.S.C. § 3742(a) (1). The moral is that, if possible, you should get the sentencing judge to78

expressly articulate on the record that s/he would depart if s/he thought s/he had the authority to do

so.

You should be especially careful to object to any objectionable noncustodial aspects of the

sentence – e.g., punitive fines, costs of incarceration, restitution, etc. In these cases, there is, of

course, the usual consequence that your failure to do so will invoke the plain error standard on

appeal. However, there is also the additional consequence that your failure to make these claims will

not later be cognizable as ineffective assistance of counsel in a subsequent motion to vacate or set

aside under 28 U.S.C. § 2255, because, the Fifth Circuit has held, (1) a challenge to a cash fine or

restitution order does not meet the “in custody” requirement of § 2255 because (2) Congress

intended to limit the types of claims cognizable under § 2255 to claims relating to unlawful

custody. In the cited Gaudet case, for example, defense counsel raised, for the first time on appeal,79

a substantial sentencing question with respect to a question relating to a restitution order, but the

Fifth Circuit declined to review it on the merits on the defendant’s direct appeal because it had not

been raised in the district court. Then, when the defendant tried to assert on § 2255 that counsel had

been ineffective for failing to raise it, the Fifth Circuit declined to reach it because defendant was

The word “generally” is used, because some errors may simply not be remediable on80

appeal without a timely objection. For example, as discussed above, suppression issues and otherissues that must be raised by pretrial motion under Fed. R. Crim. P. 12(b)(3) are completelyextinguished if not filed by the relevant deadline. See supra text, at 2 & n.7. Furthermore, as alsodiscussed above, a number of Fifth Circuit cases have held that questions of fact capable ofresolution by the district court upon proper objection at sentencing can never constitute plain error.See supra text, at 17 & n.66.

FED. R. CRIM. P. 52(b).81

United States v. Olano, 507 U.S. 725, 732-33 (1993); see also United States v. Calverley,82

37 F.3d 160, 162 (5th Cir. 1994) (en banc), cert. denied, 513 U.S. 1196 (1995).

Olano, 507 U.S. at 734 (citations omitted); see also Calverley, 37 F.3d at 162-64.83

18

not “in custody” as to that portion of the sentence! The Gaudet case illustrates the enhanced

importance of making proper objections to, and preserving plenary appellate review of, the

objectionable noncustodial portions of a defendant’s sentence.

Finally, make sure you object to illegal/improper conditions of probation and supervised

release so that they can be appealed at the time the original judgment is entered. If you do not, it will

be extremely difficult, if not impossible, to challenge them later when the defendant’s

probation/supervised release is being revoked for failure to comply with those conditions.

Consequences of Failure to Preserve Error

Failure to preserve error generally results in the application of the stringent “plain error”

test. The plain error test derives from Federal Rule of Criminal Procedure 52(b), which provides80

that “[p]lain errors or defects affecting substantial rights my be noticed although they were not

brought to the attention of the court.” In order for there to be “plain error” warranting reversal, four81

elements must be satisfied:

(1) There must be an “error.” “Deviation from a legal rule is ‘error’ unless the rule has been

waived.”82

(2) The error must be “plain.” “‘Plain’ is synonymous with ‘clear’ or, equivalently,

‘obvious.’” The Supreme Court in Olano declined to decide whether the error had to be plain at83

Olano, 507 U.S. at 734 (“We need not consider the special case where the error was84

unclear at the time of trial but becomes clear on appeal because the applicable law has been clarified.At a minimum, the Court of Appeals cannot correct an error pursuant to Rule 52(b) unless the erroris clear under current law.”)

Johnson v. United States, 520 U.S. 461, 468 (1997).85

Olano, 507 U.S. at 734-35; Calverley, 37 F.3d at 164. In Olano, the Court suggested that86

“[t]here may be a special category of forfeited errors that can be corrected regardless of their effecton the outcome, but this issue need not be addressed. Nor need we address those errors that shouldbe presumed prejudicial if the defendant cannot make a specific showing of prejudice.” Olano, 507U.S. at 735. In United States v. Reyna, 358 F.3d 344, 350-52 (5th Cir.) (en banc), cert. denied, 124S.Ct. 2390 (2004), the Fifth Circuit followed the suggestion of Olano and held that the violation ofa defendant’s right to allocute before sentence should be presumed prejudicial when the defendantshows both a violation of the right and an opportunity for such violation to have played a role in thedistrict court’s sentencing decision.

See Olano, 507 U.S. at 734; Calverley, 37 F.3d at 164.87

Olano, 507 U.S. at 735; see also Calverley, 37 F.3d at 164.88

Olano, 507 U.S. at 736 (citation omitted); see also Calverley, 37 F.3d at 164.89

19

the time of trial/sentencing, or merely at the time of appeal. However, in a later case, the Supreme84

Court held that “in a case . . . where the law at the time of trial was settled and clearly contrary to the

law at the time of appeal[,] it is enough that an error be ‘plain’ at the time of appellate

consideration.”85

(3) The plain error must “affect substantial rights,” which normally, although not necessarily

always, means that the error prejudiced the defendant. The defendant bears the burden of proving86

that his substantial rights were affected by the plain error.87

(4) Finally, even if all of the first three factors are satisfied, “the Court of Appeals has

authority to order correction but is not required to do so.” It should exercise its discretion to correct88

the plain forfeited error if failure to correct the error would result in a “miscarriage of justice” or, put

another way, “if the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.’” 89

20

The plain error standard is quite difficult to meet. Even more alarmingly, it can preclude

relief in a number of cases where reversal would result had the error in question been properly

preserved. Proper preservation of errors is, therefore, key to effective representation of our clients.

Conclusion

Since we can’t win all our cases, appeals are unfortunately necessary. We stand a much

better chance on appeal when the error in question is preserved, thus avoiding the handicap of plain

error review. Hopefully, the above tips and pointers will help you to preserve errors for appellate

review.


The Modern Lawyer: An Introduction to Computer

Forensics

Juan J. Rodriguez, Esq. Monday, May 04, 2015


Computer Crimes

Denial of Service Attacks

Substitution or Redirection of a

Website Use of Misleading

Domain Name Extortion Internet Fraud

Credit Card Fraud Password Fraud Child Pornography Obscenity Sale of Prescription Drugs & Controlled

Substances

Sale of Firearms Gambling Sale of Alcohol Securities Fraud Piracy &

Intellectual Property Theft

Trade Secrets / Economic Espionage

Electronic Threats Electronic Harassment

Interception of Electronic

Communications Cyber stalking

Espionage Hate Crimes Disclosure of Private Information Spam Spoofing Email

Addresses


SOURCE: Department of Justice, Computer Crime and Intellectual Property Section (CCIPS)


Forensic Analysis

Who/What • Who or what application created, edited, modified, sent, received, or caused the

file to be? • Who is this item linked to and identified with?

Where • Where was it found? • Where did it come from? • Does it show where relevant events took place?

When

• When was it created, accessed, modified, received, sent, viewed, deleted, and launched?

• Does it show when relevant events took place? • Time Analysis: What else happened on the system at same time? • Were registry keys modified?

How • How did it originate on the media? • How was it created, transmitted, modified and used? • Does it show how relevant events occurred?

Associated Artifacts and Metadata

• Registry entries • Application/system logs

Other Connections • Do the above artifacts and metadata suggest links to any other items or events? • What other correlating or corroborating information is there about the item? • What did the user do with the item?


What is Computer Forensics? Obtaining and analyzing digital information for use as evidence in

civil, criminal, or administrative cases.

Isolate Computer, Media or Network

Create Digital Copy

Secure Original

Electronically Deconstruct Computer


Hash Values

Generates a unique fingerprint for each electronic drive file

Used to verify the results of the forensic imaging process

Hash Functions:

• Algorithm that takes an arbitrary string of binary data and produces a number (digest) in a predefined range

• Chances that two data sets will produce the same digest is extremely small • We can assume that data is

identical • Message-Digest algorithm 5

(MD5) • Secure Hash Algorithm (SHA-1

& SHA-2)


Types of Data

Active Data: • Data that is visible on

computer and available to applications

• Includes system data within the recycle bin, history files, temporary Internet directory, system registry files and other obscure but oft-revealing data caches

Latent Data: • Deleted files and other data • Includes memory dumps,

swap files, temporary files, printer spool files, meta data, and shadow data

• Resides on the hard drive (media) unallocated space and marked for storage but has not yet overwritten


Logical vs. Physical Drive Logical Drives give users a “logical” visual location to their files which relate specifically to the files’ location on the Physical Drive

Logical Drive C:\My Documents\Cat

Pictures

User Related

“High Level Format”

Physical Drive Sectors, Clusters, &

Tracks

Physically where/how data is stored

“Low Level Format”


Sectors and Clusters

• Sectors are microscopic bands of information containing 512 bytes of information – Smallest unit of storage

on Computer • Clusters are groups of 2 or

more sectors – Determined by Operating

System – Smallest unit of memory

used by Operating System


How Windows Deletes Files

User Deletes File on Computer

Operating System marks the deleted file (clusters) by adding a tag to it

indicating file has been deleted and available for overwriting

Old files stay on computer until overwritten by new data

• Example: – Client has file “ATM.txt”

containing ATM numbers and PINs

– Client deletes “ATM.txt” file and Empties Recycle Bin

– Windows OS converts file name to “E5hTM.txt”

– Prefix E5h signals file has been deleted


Slack

New Smaller File Overwrites Deleted Data

File Slack Deleted Data not Overwritten

Deleted File

End of Cluster

New Smaller File Overwrites Deleted Data File Slack RAM

Slack

End of Sector


WHAT FORENSIC ANALYSIS LOOKS AT

Swap/Page Files System Logs Windows Registry Temporary Files Cookies Thumbs.db Files Printer Spool Files Metadata Native Files Hidden/Encrypted Files Backup Files


Swap/Page Files, System Log & the Windows Registry

Swap/Page Files

• Extension of RAM Capacity

• .SYS files • Saved in binary

form • Tedious to

examine

System Log

• $LogFile • Records events

that happen when a Software or Operating System runs

Windows Registry

• Central database of everything: • Identity of

Users • Usage History • Program

Installation Data • Hardware

information • File Types • Serial Numbers • Passwords


Temporary Files and Cookies Temporary Files • Files that save work-in-

progress, webpages visited, downloaded files, etc. in real time

• Computer uses these files to protect users from inadvertent system/program failures

• Often times they are abandoned by software/OS

Cookies • Small files containing

information to personalize/speed up access to websites

• May contain: – Username / Password – Log of Prior Visits – Record of last website visited – Customized website settings


Thumbs.db Files

• Started with WindowsME (2000) – Graphical Operating System

• Thumbnails – Small database files that are

generated inside the folder structure where the corresponding image exist

• Forensic software create list of all known thumbnails and gives investigators snapshots of what may be contained in the files


Printer Spool Files

Computer creates 3 new files

Spool File (SPL)

Copy of Original File

Content

EMF File Graphic image of each printed

page

Shadow File (SHD)

Logs username, filename and

file type

User sends file to printer • Purpose: – Preserves print jobs – File remains intact in

case something goes wrong during print process

– By default, all files are deleted after print job is completed


Metadata

• Means of creation of the data • Purpose of the data • Time and date of creation • Creator or author of the data • Location on a computer

network where the data were created

Data about Data:


Other Issues

Native File Format

• File format that programs are designed to create and read

• Users might attempt to change file types extensions to avoid detection • .pdf to .mp3

Hidden / Encrypted Information

• Hidden files are active data not visible to users

• Modern forensic tools account for these variances and provide tools for their detection

Backup Files

• Save only Active Data • Do not save

anything that is in unallocated space

• May contain files that were deleted after backup was created


Passwords Modern software used by computer forensic analyst contain tools necessary to

discover commonly used passwords

Human Error

Password Reset

Decryption

Dictionary

Brute Force

Rank Password 1 123456 2 password 3 12345 4 12345678 5 qwerty 6 123456789 7 1234 8 baseball 9 dragon 10 football 11 1234567 12 monkey 13 letmein 14 abc123 15 111111 16 mustang 17 access 18 shadow 19 master 20 michael 21 superman 22 696969 23 123123 24 batman 25 trustno1


QUESTIONS [email protected]

mailto:[email protected]

Identifying & Working with Mentally Ill Clients

Sean Bolser, Esq.Federal Capital Appellate Resource [email protected]

Jennifer Merrigan, Esq. Phillips Black [email protected]

What is mental illness?

Psychiatric and neurologic disorders

Acquired and developmental disorders

Cognitive and intellectual impairment

Trauma and violence exposures

Social functioning consequences – typically associated with significant distress or disability regardless of insight

Intersections

Community Incident Arrest Custody Assignment of Counsel/Initial Meeting Arraignment/Bail Pretrial Detention Pretrial Legal Visits/Calls/Emails: Investigation, Litigation, Settlement Court Dates: Administrative, Hearings Trial: Jury Selection, Witnesses, Testimony, Verdict Post-Verdict Detention Post-Verdict Legal Visits/Calls/Emails Sentencing Prison Assignment of New Lawyer(s) Appellate Legal Visits/Letters/Calls/Emails: Record collection, Issue-Spotting, Drafts Appeal: AOB, Govt Opp, Reply, Oral Argument Opinion Cert Post-Conviction (Pro Se) Release

Bureau of Justice Statistics 2006 report

“Mental Health Problems of Prison and Jail Inmates”

At midyear 2005, more than half of all prison and jail inmates had a mental health problem: 56 percent of state prisoners 45 percent of federal prisoners 64 percent of jail inmates

Interviewing for mental health symptoms

Pay attention to:

The substance of the interview (content of the speech) Ie. Delusional, paranoid, hypervigilant, hyperfocused,

Your sensory observations Ie. Clanging, racing, tangential

Common symptoms

Positive symptoms: hallucinations, delusions, thought intrusion

Negative symptoms: social withdrawal, loss of interest, avolition

Speech and language: poverty of content, aphasia, encoding

Physical symptoms: altered gait, lack of coordination, sleep disturbances, dysmophia, seizures/absences

Cognitive impairment: Distractibility, disinhibition, judgment, planning, gullible

Anosognosia: lack of insight into condition

Mood and affect: sadness, lability, anxiety, loss of interest, mania

Memory: PTSD, working memory, encoding and retrieval

Stigma, fear, shame: cloak of competence

Observe how your client:(non-exhaustive list)

Looks (physical appearance and presentation) Taps foot, facial ticks, shaking extremities, lack of eye contact,

clicking sounds, wipes down the room before he picks up the phone,

thinks writes follows along with the conversation puts things together returns to same subject hopeless and dejected angry and frustrated heightened senses, such as smell or hearing patterns and triggers over time

Interviewing and working with clients

Rapport, rapport, rapport Visits, calls, helping on small stuff Preparation

Know the records, know about prior interviews, know the scope of what the person can tell you, know the theory of your case

Open questioning Don’t use judgmental terms

If they don’t call it abuse, neither should you Resistance to disclosure

Shame, re-experiencing, fear of the abuser Fragmented memory (neurobiological)

Don’t normalize You can’t medicate your problem away

Reframing challenging clients

My client is angry Hard time understating information? Paranoid?

Traumatized? Isolated? Anxious? Rapid mood shifts? When does he get angry?

He doesn’t answer the questions I ask. IDD issues? Verbal but poverty of detail? Poor memory?

My client is only wants to talk about ____ Fixed thinking? Neurological issues?

Pay attention to body language, handwriting, language use, time of year, week, or day, changes in medication, etc.

Schizophrenia/Psychotic Disorder Delusions (bizarre and non-bizarre)

Hallucinations (in any sensory modality)

Negative symptoms Affective flattening Alogia Avolition

Disorganized speech Circumstantiality Tangentiality Derailment Loose associations Word salad

Bipolar Disorder: Manic Episode

Periods of elevated, expansive or irritable mood

Inflated self-esteem or grandiosity

Decreased need for sleep

Distractibility

Increase in goal directed activity (occupational/social)

More talkative than usual, pressure to keep talking (pressure of speech)

Flight of ideas, subjective experience that thoughts are racing (pressure of thoughts)

Trauma – PTSD or Complex

Recurrent distressing recollection of the traumatic event

Recurrent distressing dreams of the event

Acting or feeling as if the traumatic event were recurring

Intense psychological distress at exposure to cues that resemble the traumatic event

Psychological reactivity to exposure that resemble the trauma

Trauma – Persistent avoidance of traumatic stimuli, emotional numbing

Efforts to avoid thoughts, feelings or conversations associated with the trauma

Efforts to avoid activities, people, places associated with the trauma

Inability to recall aspects of the trauma Markedly diminished interest or Participation in significant

activities Feeling of detachment or estrangement from others Restricted range of affect Sense of foreshortened future

Complex trauma – childhood abuse

Dissociation

Shame/guilt

Emotional constriction (numbing) and dysregulation

Impact on schemas

Persistent Symptoms of increased arousal – chronic perception of danger

Difficulty falling asleep or staying asleep

Irritability or outbursts of anger

Difficulty concentrating

Hypervigilance

Exaggerated startle response

Major Depressive Disorder

Depressed or irritable mood

Markedly diminished interest or pleasure

Significant weight loss or gain

Insomnia or hyper insomnia

Psychomotor retardation or agitation

Fatigue or loss of energy

Feelings of worthlessness, excessive or inappropriate guilt

Diminished capacity to think or concentrate, indecisiveness

Recurrent thoughts of death, suicidal ideation

Traumatic Brain Injury

One of the highest priorities in public health and medicine because of its magnitude, cost and consequences

An estimated 1.7 million civilians sustain a TBI each year

1.3 million treated and released from emergency departments

275,000 hospitalized

52,000 die

Many cases are unreported

50% of juveniles enter NYC custody are estimated to have TBI

80-90% of people with TBI have MTBI

Symptoms of Brain Dysfunction-(general and non-inclusive)

Impulsive, doesn’t take time to think

Has trouble focusing on important details, gets distracted by irrelevant things

Has trouble keeping track of ideas, gets lost in conversations

“Scatterbrained, ” disorganized

Can’t remember the rules when playing games

Has trouble coming up with plans (e.g. for getting dressed in the morning, doing chores)

Has trouble following through with plans, following directions

When meets an obstacle, does nothing or gets easily frustrated

Symptoms of Brain Dysfunction(general and non-inclusive)(cont’d)

Repeats the same thing/does the same thing over and over, even if it doesn’t work/help

Is distractible, restless

Overly friendly with strangers

Acts immature

Socially inappropriate, talks too loud, interrupts

Is suspicious, paranoid

Won’t take no, pushes the limits, has to be told the same thing over and over again

Social history investigation

It’s a multigenerational investigation of what runs in the family

It uncovers the trauma that is present in virtually all cases (family and/or community)

It discloses clues: head injuries, toxic exposures, poor academic performance, etc.

It helps to identify what kind of expert(s) will be needed, and what role they will play

Social history investigationis multigenerational

Uncovers genetic predispositions, mental and emotional disorders than run in families

Uncovers data about the social environments which shaped each generation, the models which defined aspirations and behaviors

Types of Records

Medical – all hospitals from birth to present, free clinics whether client reports having gone

Educational – headstart, alternative schools, GED

Mental Health – same searches as medical

Rehabilitation – Drug Treatment

Prison – current case, ALL previous cases, ALL previous arrests

Probation – adult or juvenile, community service, parole, required classes (i.e. anger management, etc.)

Court records – civil, criminal, domestic, juvenile (delinquency and care and custody), probate

Naturalization records

Types of Records (contd.) Military

Financial – Any bank information, property

Welfare/social services – including WIC, CPS, Food stamps, homeless/domestic violence shelters, Medicaid, etc. (TANF, SSI, SSDI)

Social Security

Public Housing

Employment - Job Corps, pay stubs, applications

Church or youth groups

Birth certificate/death

Dental records

Correspondence courses in prisons

Types of experts

Psychiatrist, Neuropsychiatrist Psychologist (clinical, developmental, forensic, social), Neuropsychologist Neurologist Social workers Pediatric specialties Psychopharmacologists Developmental disorder specialists (ID, Learning disability) Speech pathologist Specialists in substance abuse and treatment Specialists in complex trauma, sexual abuse

Psychiatrist vs. psychologist

M.D.

Relies on clinical judgment

Skilled in assessing medical and/or neurological influences

Ph.D.

Trained in administering tests

Skills will depend on specific clinical expertise & training

Numerous subspecialties

How do you find the right expert?

Identify the expertise based on your case facts and client Subject matter v. forensic experts What is the strength of facts supporting diagnosis? Whom are you trying to convince? Are there prior evaluations which must be considered? Read – not just abstracts Talking to them and what to listen for Prior testimony and writings Talk to other defense counsel

Basic References

Kaplan & Sadock, Comprehensive Textbook of Psychiatry, 9th ed.

Muriel Lezak et al., Neuropsychological Assessment, 5th ed.

American Association on Intellectual and Developmental Disability, Definition Manual, 11th ed.

Working a Case for Successful Outcomes

Preservation Decisions:

Indictment or

Information

Plea Agreement

No Agreement

Charge

Sentence

Cooperate

ConditionalPlea

Waivers

Sentence

Waivers

Trial on Stipulated Facts Sentence

Preservation of Rights for Review

“Contemporaneous Objection” Rule:An appellate court generally will review an issue only if the appellant made a specific, timely objection at or before trial or sentencing. -without objection may forfeit issue or waivefuture reconsideration

Preserving Pre-Trial Issues:

Fed. R. Crim. P. 12(b)(3)(B)A motion that the court lacks jurisdiction or fails to state an offense may be made

at any time while the case is pending.

Pre-Trial Issues to Preserve ►Indictment Challenge which goes to the power of the

federal government to prosecute►Charge failed to state a prohibited offense►Proper exercise of Congress’ commerce power►Void for Vagueness or Overbroad “As applied” to the facts of the case Facially overbroad –

►Territorial Jurisdiction

Predicate convictions do not qualify►Not crime of violence, violent felony, aggravated felony►Foreign conviction

More Defects Not Waived

►Prior Conviction: Information not filed 21 USC sec. 851

►Lack of Factual Basis for the Plea (limited)

►Double Jeopardy (limited)

►Unknowing and Involuntary Plea

►Ineffective Assistance of Counsel

Pre-Trial Issues: Waived or Forfeited by Plea unless decided on motion or preserved in plea agreement

Fed. R. Crim. P. 12(b)(2) MotionsDefenses, objections and requests may be raised by pre-trial motion if the basis for the motion can be determined without a trial on the general issue.

Non-Jurisdictional Issues Subject to Waiver or Forfeiture

►Discovery Violations► Severance►Grand Jury Challenges► Suppression► Indictment Defects Fails to state facts

► Selective Prosecution► Plea Agreement Breach► Speedy Trial► Statute of Limitations►Double Jeopardy►Venue when defect apparent

from indictment

SentencingPre-SentenceInterview

Draft PSR

FactualObjections

PSR

Addendum

Hearing

Sentencing

Sentencing Memo:Unresolved Factual Objections

Guideline ObjectionsAdjustments/Departures

3553(a) Arguments

PSR►Interview Offense Conduct Statement Prior or Uncharged Criminal Conduct

►Draft PSR

►Objections in Writing & Filed CM-ECF Factual Scoring of Guidelines

►Probation Response Addendum Revision of PSR

Sentence Memorandum►Factual Issues Accuracy Reliability : minimum due process requirement

►Guideline Application Issues Base Offense Levels Specific Offense Characteristics Adjustments and Departures

►18 U.S.C. §3553(a) Factors & Info.

Sentencing Proceeding►Factual Issues in Contention (F.R.Crim.P. 32) Hearing or No Hearing Ruling or Indicate Will not Consider

►Guidelines Issues Application Legal and Factual Support

► including Conditions of Supervision and Restitution Amounts

►Section 3553(a) Factors

►Statements of the Court Reason for Sentence; Resolve Contended Factual Issues Terms and Conditions of Supervision

Factual Issues►Rule 32 Maintain objections to specific facts even if PSR adopted

► Fatico Hearing What is the Guideline Calculation Based Upon?

►Reasonable or Unreasonable Estimate vs. Actual►Level of Reliability for the Basis of the Factual Finding

►Court Says Will Consider Contended Facts Not Abuse of Discretion but Procedural Error Pay Attention to statements of the court

Application of Guidelines► Base Offense Level & Specific Offense Characteristics

Relevant Conduct Quantity/Composition of Drugs Loss Amounts Number, content of and act related to images

► Criminal History

► Predicate Convictions Prior Crimes of Violence, Aggravated Felony, Sexual Abuse or Sexual

Exploitation► Taylor/Shepherd/Begay/Descamps► Johnson

► Portrayal of Substantial Assistance

► Affirmative Reductions - Adjustments Minor role, no distribution, not pecuniary gain, sporting purposes Acceptance of Responsibility

Procedural Error: ►Misapplication of the Guidelines Legal or Factual

►Erroneous Finding of Fact Not in Record, Unsupported by Record or Used

Facts Court Said it would not consider

►Statement at Sentencing Insufficient

►Inappropriate Weight Given to the Guidelines

►Court Believed it was without Discretion

18 USC §3553(a) Factors►Need for the Sentence Imposed Policy departures

► Deconstruction of Guidelines Lack of Commission study and empirical support Child Porn., Career Offender, MDMA, Agg. Re-Entry

►Unwarranted Disparity in sentencing Fast Track, Child Porn.

► Sufficient but not greater than necessary to comply with the purposes for the sentence.

►Court does not have to address specifically but should in general in relation to length of sentence

Objections Needed to Preserve Procedural Error

►Did Court State its Reasons For the Sentence ? Need for Imprisonment, Supervision, Recidivism, Rehabilitation

►Ruling on Facts Providing Basis for Sentence Illegal application Erroneous or lacking factual basis Use of facts court said it would not consider

►Rebut the Presumption that District Court “Faithfully Discharged” its Duty to Consider §3553(a) Factors Restate Arguments for Departures/Adjustments Present significant mitigation information Establish Differences from other Similarly Situated Offenders of Offenses Sentence is greater than needed to fulfill purposes of sentencing.

Substantive Error: ►Length of Sentence Imprisonment, Term of Supervision “Shocks the Conscience”, other more egregious offenses

with lesser sentence

►Statement of Reasons does not support sentence Length of Sentence with respect to mitigation and relative

culpability

► Disparity Same Offense Conduct Among Similarly Situated Offenders

(Similar Criminal Records)

Judgment andStatement of Reasons

►18 U.S.C. §3553(c)

► Judgment of Conviction Oral Pronouncement vs. Written Reasons

►Statement of Reasons Non-Guidelines sentence Conditions of Supervision Restitution

►Letter of Objection once Judgment received

Resources

► http://sentencing.typepad.com/sentencing_law_and_policy/

► http://www.fd.org/

► http://www.nynd-fpd.org/

http://sentencing.typepad.com/sentencing_law_and_policy/

http://www.fd.org/

http://www.nynd-fpd.org/