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Defending Federal Criminal Cases: Attacking the Government's Proof

Diana D. Parker

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“[It] is a comprehensive and insightful treatise of enormous assistance to anyone involved in federal criminal cases.”
Robert G. Morvillo of Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, P.C.

Put the prosecution on the defensive! Defending Federal Criminal Cases: Attacking the Government's Proof equips defense attorneys with the legal arguments and tactics they can and should use to challenge the government's evidence at every stage of a criminal case.

Beginning with the assessment of whether to cooperate with the government, this authoritative guide provides advice on the substance and timing of defense motions, objections and appeals, as well as open questions and splits among the circuits. Coverage includes: bases for motions to dismiss indictments; obtaining and drafting a Bill of Particulars; Fourth and Fifth Amendment grounds for suppressing evidence; Sixth Amendment rights, including the defendant's right to a speedy trial, confrontation of witnesses, and adequate representation; discovery issues, including the prosecution's obligations under Brady; proven methods for cross-examining government witnesses; capitalizing on perjury by government witnesses; objections based on substantive and procedural due process; and more.

Focused on the needs of practitioners, this book examines a wide range of motions to file and how you can assert them effectively. Defending Federal Criminal Cases: Attacking the Government's Proof will greatly increase your chances of winning at trial or creating a record for a successful appeal.

Book #00683; looseleaf, one volume, 774 pages; published in 2006, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-138-5.

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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 774
  • ISBN: 978-1-58852-138-5
  • Pub#/SKU#: 683
  • Volume(s): 1

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  • Diana D. Parker

Diana D. Parker clerked for the United States Court of Appeals for the District of Columbia Circuit after graduating cum laude, Order of the Coif, from New York University School of Law in 1980. She is admitted to practice state and federal courts of New York, in virtually every United States Circuit Court of Appeal, and the Supreme Court of the United States. She has spoken and written on a wide variety of subjects, including as co-author of “Civil and Criminal Forfeitures,” a chapter in White Collar Crime: Business and Regulatory Offenses, edited by Otto G. Obermeier and Robert G. Morvillo. She is the founder of The Law Offices of Diana D. Parker in New York City.


CHAPTER 1
Introduction
A Constitutional Framework and Evolving Issues

§ 1.01 Obligations of a Defense Attorney
[1] Pre-Indictment
[2] After Adversary Proceedings Begin
§ 1.02  Fourth Amendment Regulation of Searches and Seizures
§ 1.03  Fifth Amendment Rights
[1] Introduction
[2] The Grand Jury Process
[3] Insufficient Indictments
[4] The Double Jeopardy Clause
[5] The Right Against Self-Incrimination
[6] Due Process Rights
§ 1.04 The Sixth Amendment
[1] Introduction
[2] Speedy Trial Rights
[3] A Public Trial
[4] An Impartial Jury
[5] Venue
[6] Notice of Charges
[7] Confrontation Rights
[8] Compulsory Process
[9] Assistance of Counsel
§ 1.05  The Eighth Amendment’s Bail Provision
§ 1.06 Pushing the Envelope: Splits in the Circuits, Open Issues and Trends
[1] Pre-Trial and Discovery Issues
[2] Evidentiary and Trial Issues
[3] Post-Trial Issues—Crawford’s Application at Post-Conviction Proceedings
[4] Standards on Appeal

CHAPTER 1A
Representation Prior to Indictment

§ 1A.01 Federal Criminal Investigations
[1] Agencies Responsible for Investigating Federal Crimes
[2] Federal Crime Prosecution
[3] Tools of Federal Investigation
[4] Federal Grand Jury Investigation
§ 1A.02 Issues In Pre-Indictment Defense Representation
[1] Target/Subject Distinction
[2] Meeting with the Government
[3] Defense Investigation
[4] Deciding to Cooperate with the Government
[5] Proffer Sessions
[6] Cooperation Agreements and Nonprosecution Agreements
§ 1A.03 Special Issues Relating to Investigations of Corporations
[1] Corporate Counsel and Individual Employees, Officers and Directors
[2] Risks to the Individual Employee from Interviews with Corporate Counsel
[3] Fee Advancement and Indemnification
[4] Whether to Charge a Corporation
[5] Deferred Prosecution Agreements, Non-Prosecution Agreements and the Use of Corporate Monitors
[6] The Future of Corporate Criminal Liability
§ 1A.04 Pre-Indictment Presentation to The Government

CHAPTER 2
Bills of Particular

§ 2.01 Introduction
§ 2.02 The Role of a Bill of Particulars in Obtaining a Fair Trial
[1] History and Requirements of the Rule Providing for a Bill of Particulars
[2] The Purposes of a Bill of Particulars
§ 2.03  Disputing Standard Prosecution Arguments Against Bills of Particulars
[1] When Defendants Have a Right to Evidentiary Detail
[2] When Defendants Have a Right to Specification of Details Provided in Other Discovery
[3] When an Indictment Provides Insufficient Detail
[4] Defendants’ Need for Evidence of Uncharged Crimes
§ 2.04  Timing of Requests
[1] Informal Requests for Particulars
[2] Motions for Particulars
§ 2.05  Necessity and Authority for Specific Particulars
[1] All Cases: Specification of Date and Time of Alleged Activity
[2] Fraud Cases: Specification of False Statements
[3] Conspiracy Cases: Identification of Co-conspirators
[4] RICO Cases: Specification of Enterprise and Racketeering Acts
§ 2.06  Affirmative Uses of Particulars
[1] Preventing the Government from Switching Theories During Trial
[2] Use of Amended Bills of Particulars
§ 2.07  Standard on Appeal

CHAPTER 3
Motions: Bail, Dismissal, Venue, Suppression, and Severance

§ 3.01 Introduction
§ 3.02 The Eighth Amendment’s Limits on Bail, Related Statutes and Rules
[1] Pretrial Bail
[2] Post Conviction Bail
§ 3.03 Pretrial Motion to Dismiss
[1] Standards for Dismissal
[2] Dismissal for Insufficient Evidence
[3] Dismissal for Delay
§ 3.04 Improper Venue
[1] Dismissal for Improper Venue Under Rule 18
[2] Motions for Change of Venue
§ 3.05  Motion to Suppress
[1] Procedure
[2] Substantive Grounds
[3] Burden of Proof
§ 3.06  Motions to Sever
[1] Standards for Severance
[2] Burden of Proof
§ 3.07  Motions for Judgment of Acquittal
[1] Motions Before Submission to the Jury
[2] Motions After Jury Verdict or Discharge
§ 3.08 Conditional Ruling on a Motion for a New Trial

CHAPTER 4
Government Disclosure Pursuant To Rule 16 and 18 U.S.C. § 3500

§ 4.01 Introduction: Constitutional Underpinnings
§ 4.02 Federal Rule of Criminal Procedure 16
[1] Scope of Discovery
[2] Disclosure Requirements at Sentencing, Forfeiture, Restitution and Other Hearings
[3] Continuing Disclosure Obligations
[4] Obtaining Discovery of Materials That Are Not Discoverable Under Rule 16
[5] Obtaining Discovery
[6] Judicial Review of Nondisclosure Pursuant to Rule 16
§ 4.03 The Jencks Act, 18 U.S.C. § 3500 and Federal Rule of Criminal Procedure 26.2
[1] Generally
[2] “Statements” Subject to Disclosure
[3] Relevance
[4] “In the Possession of the United States”
[5] Timing of Disclosure
[6] Obtaining Statements
[7] Judicial Review of Nondisclosure Pursuant to 18 U.S.C. § 3500
§ 4.04 Related Government Obligations
[1] Electronic Surveillance
[2] Voluminous Documents
[3] Electronic Materials

CHAPTER 5
Disclosure Pursuant to Brady v. Maryland

§ 5.01 Introduction
§ 5.02 Requesting Brady Material
[1]  By Letter
[2]  By Motion
§ 5.03 The Elements of a Brady Violation: Evidence Favorable to the Accused
[1]  Exculpatory Evidence
[2]  Impeachment Evidence
[3]  Information Related to the Defense Theory of the Case
[4]  Evidence the Prosecution Does Not Intend to Use at Trial
[5]  Inadmissible Evidence
§ 5.04 Elements of a Brady Violation: Evidence That Was Undisclosed
§ 5.05 Elements of a Brady Violation: Materiality
[1]  The Elements of Materiality
[2]  Materiality Not Found
§ 5.06 Materiality From Other Perspectives
[1]  Materiality as Reviewed on Appeal
[2]  Problems with the Materiality Standard
[3]  Materiality in Other Contexts
[4]  Proposed New Materiality Inquiry
§ 5.07 When Information Must Be Disclosed
[1]  Prior to Testimony or Cross-Examination
[2]  Prior to Sentencing
[3]  Prior to a Plea
[4]  Ex Parte Disclosure Proceedings
[5]  Delayed Disclosure
§ 5.08 Local Rules and Department of Justice Policy
§ 5.09 The Government’s Duty to Preserve Potential Brady Material
[1]  Exculpatory Value
[2]  Comparable Evidence
[3]  Bad Faith
[4]  Remedies
§ 5.10 The Burden of Proof
§ 5.11 Brady and Rule 33
[1]  Timing
[2]  Standards
§ 5.12 Brady on Collateral Review
[1]  The § 2254 Heightened Standard for Collateral Review
[2]  The § 2255 Limitations Period
§ 5.13 Civil Litigation Insights Into Brady Rights
[1]  Absolute Immunity
[2]  Qualified Immunity
[3]  Municipal Liability

CHAPTER 6
The Right to Cross-Examine Government Witnesses: Crawford and Beyond

§ 6.01 Sixth Amendment Confrontation Clause
[1] What It Is
[2] Purpose
[3] Application
§ 6.02 Pre-Crawford Tests for Admissibility of Out-of-Court Statements
[1] Ohio v. Roberts: Indicia of Trustworthiness
[2] Tests Governing Statements Inculpating Defendant
§ 6.03 Crawford v. Washington
[1] Factual Background
[2] Abrogation of Pre-Crawford Tests for Testimonial Statements
[3] Application of Crawford to Laboratory Reports
[4] The Crawford Approach: Testimonial vs. Non-Testimonial
§ 6.04 Admissibility of Testimonial vs. Non-Testimonial Statements: The Death of Ohio v. Roberts?
§ 6.05 Application of Crawford on Direct Appeal
[1] Retroactive Application on Direct Appeal
[2] Standard of Review
§ 6.06 Applicability of Crawford in Other Proceedings
[1] Habeas Corpus Proceedings
[2] Sentencing Hearings
[3] Parole and Probation Revocation Hearings
[4] Probable Cause Hearings
[5] Batson Hearings

CHAPTER 7
Tools for Attacking Typical Government Witnesses

§ 7.01 Introduction
§ 7.02  Obtaining Information From Third Parties
[1] Fact Investigations, Investigators and Defense Experts
[2] Subpoenas
[3] Depositions
§ 7.03 Limitations on the Testimony of Government Witnesses
[1] Limitations on Opinion Testimony
[2] Cross-Examination with Documents
§ 7.04 Jury Instructions
[1] Informants, Accomplices, Immunized Witnesses, Cooperators and Defendants
[2] Law Enforcement Agents
[3] Experts
[4] Summary Witnesses

CHAPTER 8
False Testimony by Government Witnesses

§ 8.01 Introduction
§ 8.02 Elements of a Due Process Violation
[1] False Testimony
[2] Materiality
§ 8.03 Government Knowledge of the Falsity
§ 8.04 Pretrial Motions Based on Perjury
[1] Dismissal of the Indictment Based on Perjury Before the Grand Jury
[2] Suppression Based on Pretrial Affidavits and Hearings
§ 8.05 Trial Strategies to Deal with Perjury
§ 8.06 New Trial Motions
[1] Requirements for Grant of New Trial
[2] When the Government Knew or Should Have Known of Perjury
[3] When the Government Was Unaware of Perjury
§ 8.07 Standard on Appeal
§ 8.08 Standard for Habeas Review

CHAPTER 9
The Fifth Amendment Right to Due Process

§ 9.01 Introduction: The Scope of the Fifth Amendment Due Process Clause
[1] Substantive Due Process
[2] Procedural Due Process
[3] The Equal Protection Component of the Due Process Clause
§ 9.02 Pretrial Due Process Rights and Related Motions
[1] Preindictment Delay
[2] Vindictive Prosecution
[3] Selective Prosecution
[4] Outrageous or Otherwise Improper Government Conduct
[5] Grand Jury Abuse
[6] Unduly Suggestive Identification Procedures
[7] Incarceration Without Charges
[8] Extraterritoriality of the Offense
[9] Prolonged Incarceration Without Bail
[10] Competency Hearings and Forcible Medication of the Defendant
§ 9.03 Due Process Rights to a Fair Trial and Related Issues
[1] Discrimination in the Selection of Petit Jurors
[2] The Right to be Present
[3] Ex Parte Submissions
[4] Government Interference with Witnesses
[5] The Presumption of Innocence and the Right to Proof Beyond a Reasonable Doubt
[6] The Right to Fair Notice
[7] Improper Advocacy at Trial
§ 9.04 Due Process Rights Involving Plea Agreements
[1] Breaches of Plea Agreements by the Government
[2] The Government’s Burden to Prove Breaches of Plea Agreements by Defendants
§ 9.05 The Right to a Speedy Appeal
[1] Length of the Delay
[2] Reason for the Delay
[3] Assertion of a Speedy Appeal Right
[4] Actual Prejudice to the Defendant

Index