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1. Steps in the Federal Criminal Process
a. Pre-Arrest Investigation (leads to arrest or grand jury)
i. Reactive Investigations (govt/police/prosecutor arrests D in reaction)
1. Complaint is charging document
2. Must follow procedure outlined below
ii. Proactive Investigations (prosecutor/govt gathering info)
1. Prosecutor can choose whether to bring the case to court by arresting the D or by
grand jury
iii. Prosecutorial Investigations (subpoenas, grand jury investigations, and so on)
b. Arrest
i. Warrant?
ii. Booking
iii. Lockup
c. Post-Arrest Investigation
i. Lineups, Interviews, and so on
d. Decision to Charge
e. Filing the Complaint
i. Must be filed prior to initial appearance
f. Magistrate Review of the Warrantless Arrest (Probable Cause ―hearing‖)
i. Gerstein v Pugh probable cause review (for warrantless arrests)—judge determines
whether, on the basis of the complaint, the govt had PC to arrest the D
1. Takes place ex parte, on basis of complaint, soon after arrest
2. Must take place within a ―reasonable time‖ from the arrest (Gerstein)
3. Must occur within 48 hours of warrantless arrest (McLaughlin) (?)
g. Initial Appearance
i. Hold a hearing to determine whether any condition or combination of conditions will
reasonably assure the appearance of such person as required and the safety of any other
person and the community:
ii. To keep D detained and to get a detention hearing, the prosecutor must move for
detention/continuance and demonstrate one of section 3142’s seven (f) factors.
1. Crime of violence (f)(1)(A)
(i) + Terrorism offense, sex trafficking of minors by force, fraud, or coercion
2. Crime with maximum punishment of life or death (f)(1)(B)
3. Federal drug offense punishable by stat max >/= 10 years from 21 USC § 801 et
seq (Controlled Substances Act of 1970), 21 USC § 951 et seq, 46 USC § 70501
(trafficking with vessel) (f)(1)(C)
4. Felony case + client has 2 priors that are especially serious (crime of violence,
crime punishable by life or death, or drug case with 10 year maximum) 
(i) Prior convictions can be in state or local offenses if they would have been
offenses described above if there had been federal jurisdiction.
5. A non-violent crime that involves a minor victim, possession of a firearm or
destructive device, or failure to register as a sex offender  (f)(1)(E)
6. Serious risk of person’s flight  (f)(2)(A)
(i) Risk must be serious
(ii) Judge can motion for hearing if prosecutor fails to motion under
7. Serious risk that person will or attempt to obstruct justice or threaten a witness or
juror  (f)(2)(B)
(i) Risk must be serious
(ii) Judge can motion for hearing if prosecutor fails to motion under
iii. Dangerousness
1. Dangerousness alone will not grant detention hearing---in addition, prosecutor
must show one of the seven (f) factors
iv. Judge has discretion to motion for detention hearing in some circumstances:
1. No detention hearing if prosecutor fails to motion under numbers (1) through (5)
above ((f)(1)(A)–(E)).
2. Judge can motion for hearing if prosecutor fails to motion under (6) or (7) above
v. Outcome
1. If (f) factor the hearing will take place 3 (govt) to 5 (defense) days after the IA
(i) Does not include weekends/holidays
(ii) No remedy if rule is violated
2. No (f) factor judge will deny govt’s motion for a hearing and release the person
h. Bail Hearing/Detention Hearing
i. Under the Bail Reform Act, there is a presumption of release.
ii. The judge shall order release UNLESS the prosecution demonstrates that
1. The D is flight risk such that no condition or combination of conditions will
―reasonably assure‖ the defendant’s appearance in court as required (e)(1) OR
(i) Must prove appearance by POE
(ii) Opportunity (funds) alone insufficient
2. The D is a danger to the community such that no condition or combination of
conditions will ―reasonably assure‖ the safety of the community (any other
person) (e)(1)
(i) Must prove dangerousness by clear and convincing evidence (see (f)(2))
iii. Does D’s crime trigger a rebuttable presumption of flight/danger?
1. (e)(2) Rebuttable presumption of dangerousness attaches when
(i) Rebuttable presumption: that no condition or combination of conditions
will reasonably assure the safety of any other person and the community
(ii) D’s alleged crime is: a
1. Crime of violence (f)(1)(A),
2. Crime with maximum punishment of life or death (f)(1)(B),
3. Federal drug offense punishable by stat max >/= 10 years
(f)(1)(C), or
4. Felony case + client has 2 priors that are especially serious (crime
of violence, crime punishable by life or death, or drug case with
10 year maximum)  (f)(1)(D) AND
(iii)AND Judicial officer finds that in the last five years D was convicted of a
prior (f)(1) crime (+ non-violent crime involving minor victim,
firearm/DD possession, or fail to register as sex offender) that the D
committed while on release pending trial
2. RP of dangerousness and flight attaches for ( Presume no condition will
reasonably assure the appearance of person/safety of the community if probable
cause that committed:)
(i) offense is drug offense with stat max of at least 10 years, or
(ii) offense is for carrying or using gun during a felony, or
(iii)offense involving terrorism, or
(iv) offense involving conspiracy to kill, kidnap, maim, or injury outside of
US, or
(v) offense of holding person in position of peonage; or
(vi) offense involving a minor victim is one of various listed offenses
3. If RB, of dangerousness/fight attaches, D must rebut the presumption of
dangerousness/flight by producing evidence he will not flee or endanger
community if released. Dominguez.
(i) The rebutted presumption is weighed along with other (g) factors
(ii) Burden of production is not heavy—D can produce anything that would
militate against presumption of flight or dangerousness (anything in
(iii)Burden of persuasion always rests with the govt
iv. Factors judge will consider under section (g) to see if no condition or combination of
conditions will reasonably assure the appearance of the person as required AND the
safety of any other person and the community, such judicial officer shall order the
detention of the person before trial.
1. Concerning present offense
(i) Nature of offense
(ii) Weight of evidence (least important b/c not much info)
(iii)Whether person was on parole, probation, or release at time of offense,
2. D’s own characteristics/history
(i) Character
(ii) Physical and mental condition
(iii)Family ties
(iv) Employment,
(v) Financial resources,
(vi) Length of residence in community
(vii) Community ties
(viii) Past conduct
(ix) Drug or alcohol history
(x) Criminal history (arrests insufficient: Dominguez)
(xi) Record concerning appearance at prior proceedings),
3. Nature and seriousness of the danger to any person or the community that would
be posed by the person’s release
v. Limits (D would argue)
1. The finding cannot be based on evidence that he has been a danger in the past,
except to the extent that his past conduct suggests the likelihood of future
misconduct.‖ (U.S. v. Dominguez)
2. Every bail determination must be made on the particular facts of the case and
defendant (Stack v Boyle)
(i) Suggests that bail schedules unconstitutional
3. Cannot impose a financial condition that results in detention
(i) Bandy: unconstitutional to fix excessive bail to assure D does not gain
i. Preliminary Hearing
i. Purpose: 1) allows a neutral judge to screen the case, and 2) ensures the wrongfully
charged are released promptly
1. Screening function dubious in federal system b/c Govt can bring indictment
anyway (but see Sutter: PH mattered)
ii. Right to the Preliminary Hearing (statutory right under fed rules)
1. Under FRCP 5.1(a), a preliminary hearing is required unless
(i) D waives the right to PH
(ii) Prosecutor indicts D (goes to Grand Jury)
1. ABA Standard says prosecutor shouldn't obtain a continuance
solely for the purpose of mooting the preliminary hearing by
taking the case to the grand jury for an indictment.
2. Prosecutors do sometimes try to take a case to the Grand Jury
very quickly in order to avoid a preliminary hearing, but they
don't often ask for continuances to sneak stuff to the Grand Jury
(iii)D agrees to proceed by information (if felony)
1. D gives up right to both PH and indictment
2. I.e. D basically acknowledges govt has PC (rare)
(iv) For misdemeanor, Prosecutor brings information
1. PH are not required for misdemeanors
2. There is no constitutional right to a preliminary hearing under the 4
, 5
, or DPC
(i) 4th Am does require judicial review of PC to detain, but that
determination does not require a full-blown adversarial or evidentiary
1. Can be done either ex parte or by reviewing the complaint
(Gerstein review)
iii. If preliminary hearing held,
1. Timing
(i) If D is in custody, w/in 14 days of arrest
(ii) IF D is out on bond, w/in 21 days of arrest
2. Right to Counsel
(i) D has a 6
Am right to appointed counsel to assist D at all critical stages
of the prosecution (Coleman)
1. Critical stage – a stage where the presence of counsel is necessary
to preserve the D’s basic right in a fair trial (cross witness and
have assistance of counsel at trial)
(ii) In Coleman, the Supreme Court held the preliminary hearing is a ―critical
stage‖  once a jurisdiction grants the right to a preliminary hearing (by
statute, etc.), the right to council is constitutionally required
1. I.e. 6th Am requires indigent defendants to have appointed
counsel to assist them at preliminary hearings.
2. BUT Lower courts have held violations of the right to counsel is
reversible error only where D can point to specific aspects of the
trial where he was adversely impacted by his lack of counsel at
the preliminary hearing
3. Procedures / requirements
(i) 5.1 (e) D can cross-examine witnesses and introduce evidence (to defeat
finding of PC)
(ii) Rules of evidence do not apply
1. D cannot argue evidence was unlawfully obtained to defeat a
finding of PC
2. I.e. finding of PC can be based entirely on hearsay
(iii)5.1(g) proceeding but be recorded, and parties can request transcripts
(iv) Rule 26.2 applies
1. Govt must turn over to D statements made by testifying witnesses
4. Objectives of the parties
(i) PC Standard: (tie all questions to PC)
1. Under FRCP 5.1(e), the judge must ensure the prosecution has
a. PC on each element of crime to show that crime has been
committed and
b. PC that defendant has committed the crime
2. PC is easy to meet/mushy/loose
a. See E.g. Sutter PH: 2 Ws ID = PC
3. If no PC found (rare)—doesn’t matter, really
a. Under 5.1(f) if magistrate finds no probable cause to
believe offense was committed or D committed it, must
dismiss complaint and release
i. BUT government can still later prosecute D for
same offense (via indictment) (second bite at
apple) (usually happens in federal cases)
(ii) Govt: establish PC (primary)
1. Note: in practice, govt does not want a PH (b/c must turn over
statements of Ws, locks Ws in for impeachment)
2. In practice, pro will exchange early discovery for a waiver of PH
(iii)Defenses’ objectives during the PH (from Coleman)
1. Primary objective: negating PC
a. Can make motion challenging judges’ PC determination
b. I.e. D will want to expose weaknesses in Govt’s case
through cross-examination
2. Discover the Gov’t’s case (under the table reason)
a. Courts often object that this is an illegitimate objective
b. Can make motions (from both parties) to object due to
trying to get improper discovery
i. Response: question is relevant to PC
determination (goes to W’s credibility, etc)
ii. Response 2: PC is just a pretext for discovery
c. Naked discovery forbidden: Courts sometimes cut off
questioning that seems more about discovery than about
negating PC
i. I.e. it is obvious D is gathering evidence through
cross, e.g. asking for names of Ws or types of
police investigating methods (which would help
with later suppression arguments)
ii. Admissibility of evidence is not relevant except as
it relates to PC
iii. D will need to link all questions to ultimate PC
question (or improper)
3. Create impeachment for trial by locking witnesses in (or can
preserve the testimony of a witness who later becomes
a. Defense can even lock in witnesses who aren’t present by
getting case agent to tell Court what Witness X said.
4. Evidence can aid counsel in bail arguments.
a. E.g. counsel can use information that D did not flee when
approached by police, which goes to risk of flight
j. Grand Jury Review
i. Mandatory only when jurisdiction requires indictment
ii. Sword and Shield
1. Shield of screening mechanism
(i) Shield against arbitrary prosecution: GJ Stands between accuser and
accused; prevents gov’t from unfounded allegations.
(ii) S Ct has unrealistic idea of the shield role (see Costello, Williams)
2. But…
(i) Ex parte (so not much shield function)
(ii) Prosecutor works with GJ, explains law, brings witnesses in
(iii)Little constitutional protections (5th double jeopardy/6
right to counsel)
(iv) Lack of rights and structure of GJGJ refuses to indict in only ~2% of
3. Sword for gov’t because of investigatory function
iii. PC standard for indictment: To indict, the GJ must find the govt has enough PC to show a
all the elements of a crime committed and that this D committed the crime
1. Indictment is necessary for the case to move forward
(i) D can try to get indictment dismissed for lack of PC
(ii) So here, D is trying to get the indictment dismissed via any evidentiary
challenges/misconduct (limited)
2. If GJ finds no PC, govt can bring indictment over and over
iv. FRCP 6
v. To make a showing of PC (any evidentiary challenges at GJ stage?)
1. GJ decision is unreviewable on the merits: D cannot challenge the
quality/sufficiency of the evidence (Costello)
(i) Otherwise, ―mini-merits trials‖ before the actual trial (ex parte;
(ii) GJ is a separate entity from the courts (accusatory, not adjudicative)
1. Courts don’t have supervisory powers to proscribe the standards
of prosecutorial conduct.
2. No 6
Am right to counsel at this stage
3. Exculpatory evidence: not required to present to GJ
(i) Prosecutors are not required to present exculpatory evidence to the grand
jury (Williams)
1. So D cannot ask the Dis court to dismiss an otherwise valid
indictment because the government failed to disclose exculpatory
evidence to the grand jury.
a. But see:
i. USAM: prosecutors have to present significant
exculpatory evidence to GJ.
ii. Stevens dissent: failure to produce EE is
prosecutorial misconduct—advocates for USAM
iii. -----Pro has duty not to do anything that would
bring about a wrongful conviction, and by
extension, also a duty not to do anything that
would lead to a wrongful prosecution.
2. Williams: pro did not present exculpatory evidence that negated
the D’s intent to defraud (loan)
4. It is permissible for the govt to bring to the GJ:
(i) Evidence obtained in violation of D’s 4
Am rights (i.e. D cannot invoke
the exclusionary rule to forbid the GJ from hearing evidence/no 4
challenges) (Calandra)
1. Calandra: Costello rationale also bars a challenge to an indictment
issued on the basis of unconstitutionally obtained evidence; grand
jury can question a witness about suppressed evidence (obtained
via unconstitutional search)
a. GJ is allowed to question a witness about evidence that
has been suppressed because of a 4th Am violation
b. See outline for reasons why Calandra is wrong
2. BUT see USAM: prosecutors can use hearsay but can’t use
evidence that was obtained in violation of constitutional rights
(manual is not binding)
(ii) Statements obtained in violation of 5th Am are admissible (see Williams)
(iii)Hearsay evidence (Costello)
1. Permissible under the USAM also
2. Costello: Sustained a conviction where a defendant was indicted
only on the basis of hearsay evidence presented to the grand jury.
(iv) Inadequate and incompetent evidence (Costello citing Hold v United
States: indictment can’t be quashed because evidence is incompetent)
1. Alternative rule: Burton concurrence in Costello:
a. Majority rule is too broad
b. Need to allow indictment to be challenged when there is
no persuasive evidence for indictment, otherwise the 5th
Am GJ clause isn’t serving its protecting purpose.
(v) Previously suppressed evidence in order to obtain a superseding
indictment (Puglia)
(vi) (not read) Bracey  an indictment need not be dismissed b/c a witness
admittedly committed perjury before the grand jury
(vii) Govt: Because the grand jury does not finally adjudicate guilt or
innocence, it has traditionally been allowed to pursue its investigative
and accusatorial functions unimpeded by the evidentiary and procedural
restrictions applicable to a criminal trial. (U.S. v. Calandra)
5. Potential limits on the GJ (for the D to assert to defeat PC)
(i) 5
Am right to silence: govt cannot force a W with a valid 5
Am right to
testify at the GJ
1. In this vein, govt cannot force W to turn over incriminating
2. BUT if govt offers immunitycan force W to testify
3. The grand jury may not itself violate a valid privilege (even
though it can consider incompetent evidence)—the grand jury
may not force a witness to answer questions in violation of 5

amendment, can override only if witness is granted immunity co-
extensive with the privilege against self-incrimination. (U.S. v.
(ii) GJ itself (as opposed to the police) cannot violate const (dicta in
Calandra/Puglia (7
1. Subpoenas: GJ cannot issue a subpoena that invades a legitimate
privacy interest under the 4
Am or otherwise violates a property
interest under the 4th Am. (See Silverthorne)
2. But GJ are not themselves violating witness's rights when they use
evidence that was obtained by someone else in violation of the 4th
1. Held: 4
Am prevents use of illegally seized evidence at GJ stage
(opposite from Calandra) (GJ can’t issue subpoena based on
evidence obtained illegally under 4th Am)
2. key facts Calandra used to distinguish
a. Silverthorne: Ds were already charged (indicted), while
Calandra was only a witness (immunity), so C does not
have standing
b. In S, govt sought evidence for ongoing trial (not for pre-
indictment investigation); C: pre-indictment
3. BUT Alison: there was no difference b/w the facts of Puglia and
Silverthorne, yet the GJ heard the evidence in Puglia anyway (so
Silverthorne wont help Ds)
a. Also distinctions in Calandra do not make a difference, so
Calandra really overruling Silverthorne (if Silverthorne’s
facts repeated, result would be GJ heard evidence)
1. Prosecutorial Discretion
a. Prosecutorial Discretion: prosecutor decides whether there is enough evidence to file charges. If
so, the prosecutor prepares complaint.
i. Justifications for Prosecutorial Discretion
1. Legislative overcriminalization
2. Limitations in available enforcement resources
3. Need to individualize justice
(i) Discretion makes it more likely that the crime will be charged based on
specific offense conduct and specific offender characteristics.
(ii) But discretion creates a risk of discrimination and arbitrary unfairness.
ii. General Rule: Huge Amount of Discretion
1. Discretion in whether to bring charges, what charges to bring, when to drop
charges, what investigations to bring, etc.
2. Some offices restrict discretion of line prosecutors.
iii. Model Rules of Professional Conduct limit pro’s actions
1. Prosecutor cannot bring charges he knows is unsupported by PC
2. Prosecutor should make timely disclosure of all exculpatory or mitigating
3. Prosecutor cannot seek unrepresented waiver of pretrial rights (e.g. PH)
4. Prosecutor should refrain from extrajudicial statements
iv. Prosecutor’s overall duty: to do justice
1. ABA: Emphasis on prosecutor's responsibility to be a minister of justice, not just
an advocate.
2. Conflict in goals: At odds w/ responsibility to win the case in an adversarial
3. Means: obey rules, reduce disparities by treating similarly situated Ds the same
and different Ds differently; give accused fair process; (at sentencing: advocate
for sentence in proportion to crime)
v. What may the prosecutor charge (which charge does the pro bring to the GJ?)
1. General rule: huge amount of discretion, but less discretion than the decision to
charge initially
(i) A presumption of regularity attaches to pro’s charging decisions, so
courts presume pro is acting properly when charging (Armstrong)
2. Limits on the pro’s decision of what to charge
(i) Prosecutorial guidelines
1. Most readily provable offense:
a. USAM 27.300: The prosecutor must charge the most
serious, readily provable offense (the highest sentence
under the guidelines)
b. But there is still flexibility in the USAM: pro can select
charges based on an individualized assessment
2. Individualized assessment:
a. Holder Memo: deciding what to charge should be govern
by an individualized assessment
b. Versus Ashcroft Memo: eliminated this message
3. Enhancement?
a. If seeking enhancement, decision to seek enhancement
must be based on an IA
4. Low-level case? (Federal priority?)
a. Holder 2013 Memo: federal pro should focus their energy
on fewer, most significant cases (shift policy on drug
cases, leave lower-level offenders to the state)
(ii) Guidelines, however, expressly note they do not create any ―rights‖ for
the defendant
b. When the government obtains a conviction through the knowing use of false testimony, it
violates a defendant’s due process rights. (U.S. v. Freeman)
i. Government’s star witness placed defendant in penthouse in 2003 when defendant was
in prison from 2002-2005.
ii. To obtain a new trial:
1. There was false testimony (not conclusive proof that testimony was
false/perjury—includes half-truths and vague statements that give false
impressions to the jury—―it is enough that the jury was likely to understand the
witness to have said something that was, as the prosecution knew, false‖)
2. The government knew or should have known was false
3. Reasonable likelihood that false testimony affected the judgment of the jury
(i) (low standard for materiality, friendly to defendants—did P try to stifle
D’s impeachment? Is evidence so overwhelming that it’s superfluous?).
c. Cannot simply ignore evidence that its witness is lying. (U.S. v. Freeman) Government has duty
to assure the accuracy of its representation, to investigate when it learns part of its case may be
2. When the government has intimidated and improperly influenced witnesses critical to defense,
cumulative effect of misconduct distorts the truth-finding process and compromises the integrity of the
trial. (U.S. v. Ruehle)
a. Prosecutor caused one witness to lose job, told her that she had to plead to a felony, and
subjected her to grueling interrogation, telling her she had to testify differently than she had
earlier in order to receive benefits of cooperation. Promised another witness to not prosecute as
hard if he incriminated defendant. Caused last witness to lose job, plea agreement for crime he
did not commit to admit guilt and incriminate D or to destroy his credibility. (U.S. v. Ruehle)
b. D was acquitted. No fair trial, insufficient evidence.
c. ―The United States attorney is the representative, not of an ordinary party to a controversy, but
of a sovereignty whose obligation to govern impartially is as compelling as its obligation to
govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a
case, but that justice shall be done.‖
i. Prosecute with earnestness and vigor. While he may strike hard blows, he is not at
liberty to strike foul ones. It is much his duty to refrain from improper methods
calculated to produce a wrongful conviction as it is to use every legitimate means to
bring about a just one.
3. Charging discretion. Prosecutor should charge most serious readily provable offense, must be made in
individualized assessment of factors. (Holder memo, U.S. Attorney’s manual).
a. Most serious offense = highest sentence. Mandatory minimums favored.
b. Fewer but more significant cases. Avoid creating disparities—everyone charged by same
standard. General criminal deterrence. Prosecutorial discretion pared in. Incentives to plead
2) Selective Prosecution
1. Overview:
a. Judicial Review of the decision to prosecute: General rule: courts are extremely reluctant to
review pro’s decision to prosecute. Thus, judicial review of the decision is highly proscribed.
See Armstrong (calling decision to charge a ―core executive constitutional function‖)
i. Indeed, a presumption of regularity attaches to all of a pro’s charging decisions, so court
will assume the pro has acted properly (Armstrong)
1. Rationale: chill law enforcement, separation of powers, competence: courts not
equipped to analyze things like strength of case or law enforcement priorities
b. SP and VP are exceptions the general rule of no judicial review: D can attack the charging
decision by alleging
2. Selective Prosecution:
a. Decision to prosecute may not be based on an unjustifiable standard such as race, religion,
or other arbitrary classification. (U.S. v. Armstrong)
i. Suspect class and ―quasi suspect‖---religion, ethnicity, race, gender  legit
ii. Other categories---might mention, but not suspect class
iii. So long as prosecutor has probable cause to believe that accused committed offense
defined by statute, decision whether to prosecute and what charge to file/bring before a
grand jury generally rests entirely in his discretion. (U.S. v. Armstrong)
iv. Sounds in equal protection violation—argue the way the prosecutor is implementing the
statute violates EP
b. Standard for what D need to show to prevail on a selective prosecution claim differs based on
the stage of the prosecution
i. Discovery: If D trying to get discovery to prove a SP claim D must show ―some
evidence‖ tending to show the existence of both prongs (dis effect and dis purpose) to
obtain discovery (Armstrong)
1. ―Some evidence tending to show the existence of the discriminatory effect
element‖ means ―credible showing of different treatment of similarly situated
persons.‖ (U.S. v. Armstrong)
(i) Armstrong court: High/rigorous standard, b/c forcing a prosecutor to
disclose discovery is similar to (and runs similar risks as) forcing a
prosecutor to justify a prosecution.
(ii) McAdams: suggest discovery rule should be a showing of disparate
impact (large disparity) (not adopted in Armstrong)
2. Exceptions for discovery (D would argue falls under one of these)
(i) If govt in some way can ―choose‖ who will become a D in a given case
(sting)D need only show some evidence of DE (first prong) to get
discovery (not need to show DP) (see Abraham Brown, class discussion)
1. Discovery granted when overwhelming majority of defendants
black in phone stash house rip off cases—because in sting
operations, defendants were being selected and targeted. Crime
truly being created by prosecutors, and they get to select who
becomes the defendant. They decided quantity of fake drugs in
stash houses that don’t exist—make sure enough fake drugs to
trigger higher statutory penalties. (U.S. v. Abraham Brown)
(ii) If govt conduct is outrageous/obviously showing prosecution propelled
by racial animusD need only show second prong, discriminatory
purpose, to obtain discovery (see Jones)
ii. MTD: If D files a MTD for SPD must make out a prima facie case of SP by showing
―clear evidence‖ of both prongs (Armstrong)
1. Overcome presumption that a prosecutor has not violated equal protection with
clear evidence to the contrary. (U.S. v. Armstrong)
2. Higher evidentiary standard than ―some evidence‖ (see Jones: D passed discovery
standard but not prima facie standard)
3. Exceptions for PF selective prosecution claim (MTD)
(i) DP onlyIf pro directly admits to discriminatory purpose, D could meet
selective prosecution claim without showing discriminatory effect
(suggested in Armstrong, FN 3)
(ii) BUT would need actual admission, not just egregious behavior in Jones
(―smoking gun‖) (e.g. emails, individual AUSA saying race is a factor to
iii. Armstrong Claim for Selective Prosecution: To obtain discovery/PF on SP claim, D
must demonstrate both:
1. 1
Discriminatory effect: To show discriminatory effect, the D must demonstrate
different treatment of similarly situated persons. different treatment of similarly
situated persons—―similarly situated individuals of a different race were not
prosecuted.‖ (U.S. v. Armstrong)
(i) How to show DE if Def:
1. Other people are similarly situated (they have committed roughly
the same crime) (note: how broad is SS? Crack---heroine?  govt
will want to argue facts that distinguish this offense from other
offenses, thus not SS)
2. Those people who committed the same crime did not have the
trait at issue (e.g. are not black, not Muslim, etc)
3. Those people who committed the same crime are either1) not
being prosecuted OR 2) not being prosecuted to the same degree
as that people w D’s trait are being prosecuted (blacks,
Episcopalians, etc)
(ii) 2 ways to prove that similarly situated Ds are treated differently
(McAdams: virtually impossible, so most cases do not advance beyond
1. Find SS (crack) people (white) who are being pro in state court
and not federal court AND that those people are known to federal
law enforcement
2. Find SS people who are not being prosecuted at all (e.g. find who
was arrested but never charged: Alison: really hard to find this
3. Abraham Brown: judge granted discovery b/c the government was
in the unusual position of being able to proactively choose
potential Ds (sting operation)---no need to show discriminatory
2. 2
Discriminatory purpose: D needs to show the government intentionally
singled out Ds of that particular class for prosecution (e.g. black Ds), i.e. that the
prosecutor was motivated by racial/etc animus
(i) Hard to prove: typically need to rely on inferences b/c govt will rarely
openly admit discriminatory motivation
1. Statistic evidence of disparate impact is insufficient
(ii) Typically needs showing of outrageous govt conduct (see Jones: DP
found b/c police did discriminatory acts to black D but not white D (T-
3. If D meets the Armstrong standard, (unclear exactly what happens)
(i) On a motion for Discovery: burden shift? (Unclear)
1. (1) The burden shifts back to the govt to show: Pro’s decision was
rationally related to a legitimate govt purpose (rational basis
review) (see Castillo)
a. Alison: Unclear what would carry burden, but probably
govt would need to show the different treatment among
classes overall was rationally related to a legitimate govt
purpose (e.g. increased deterrence)
b. E.g. young speeder singled out b/c more dangerous than
older speeders, injury to black crack users greater (b/c
more are customers) of black dealers
2. (2) No burden shift, and court grants discovery automatically (see
(ii) MTD: burden shift?
1. 6
Cir Rule: once D makes a prima facie case of both Armstrong
prongs, D has proven his claim for selective prosecution----No
burden shift to govt (hard enough already for D to meet both
prongs, so D has shown enough)
4. Remedy? (unclear, SCOTUS has never decided)
(i) McAdams: absence of statutory remedy explains why there is not much
of a legal right in the first place
(ii) Dismissal?
1. McAdams/Alison think dismissal is appropriate
a. But strange b/c gives guilty windfall (but other rules work
like this too, e.g. suppression of evidence)
2. Alternatives to dismissal: Force pro of similarly situated others
(not realistic), civil damages, sanctioning pro (but no help to D)
3) Vindictive Prosecution
1. VP happens when pro brings more serious charges against D for the same conduct in violation of due
process, i.e., after the D exercised a legal right
a. Defense: argue pro bringing higher charges
b. Pro: argue this is a new crime, not higher charges (see Smith: no VP b/c judge felt pro brought
entirely new crime, not higher charges)
2. Likelihood of D prevailing on VP claim is largely affected by the timing of the more serious charge: are
we in the post or pretrial context? (i.e. is the case pending?)
a. Because actual vindictiveness is nearly impossible to prove, the issue of presumption is key
b. In cases in which action detrimental to a defendant has been taken after the exercise of a legal
right, the presumption of an improper motive where a reasonable likelihood of vindictiveness
existed. (U.S. v. Goodwin)
i. Defense: argue we are in the post-trial context Blackledge appliesPOV
1. Not give-and-take plea bargaining, which would suggest pre-trial, but post-trial
2. Right at issue is not a right exercised in a pending case, but one post-trial
3. ―Central figure is not the judge or the jury, but the prosecutor.‖ (Blackledge)
4. Blackledge: Perry convicted of misdemeanor and exercised right to obtain trial de
novo. Before appearance in superior court, prosecutor obtained an indictment,
based on the same conduct for which Perry had been tried, charging him with
the felony of assault with a deadly weapon with intent to kill.
ii. Pro: argue we are in the pre-trial context  Goodwin/ Bordenkircher appliesno POV
(need actual V)
1. Pro has right to file new charges when law violated
2. Pro merely engaging in legitimate pre-trial bargaining for the new case (pre-trial
(i) In the ―give and take‖ of plea bargaining, there is no such element of
punishment or retaliation so long as the accused is free to accept or
reject the prosecution’s offer. (Bordenkircher v. Hayes)
1. E.g.: Prosecutor told D that if did not plead guilty, would seek an
indictment for mandatory life imprisonment (Bordenkircher v.
(ii) Each party wants to avoid trial for different reasons. Defendant’s desire
to accept the certainty or probability of a lesser penalty rather than face a
wider range of possibilities—mutuality of exchange (Bordenkircher)
(iii)Openly presented the defendant with the unpleasant alternatives of
foregoing trial or facing charges on which he was plainly subject to
prosecution----Not a situation where prosecutor without notice brought
an additional and more serious charge after plea negotiations when
defendant insisted on pleading not guilty. (Bordenkircher v. Hayes)
(iv) Charging decision was result of prosecutor’s normal assessment of the
societal interest in prosecution. (U.S. v. Goodwin)
3. Bordenkircher allows the prosecutor to threaten additional charges against a D
who asserts his constitutional rightsit is equally alright to add charges as it is to
drop in exchange for guilty plea
4. Guilty pleas encouraged by death penalty are not involuntary or invalid. A guilty
plea entered by one fully aware of direct consequences, including actual value of
any commitments made to him by the court/prosecutor/counsel must stand unless
induced by threats, misrepresentation (unfulfilled/unfulfillable promises), or
improper promises (bribes). (Brady v. U.S.)
c. Analyze both the post and pre-trial contexts (in the alternative)
i. Defense: even if we are in pre-trial context, we can show actual vindictiveness
ii. Pro: even if we are in the post-trial context, we can rebut the presumption
3. Post-Trial (Blackledge presumption of V applies)
a. Presumption of V attachesIf the prosecutor brings more serious charges after D exercises a
constitutional right (seek new trial), the court will automatically presume the prosecutor brought
the charges out of vindictiveness based on timing alone (Blackledge)
i. Thus, due to this presumption, D does not need to demonstrate the prosecutor acted with
actual vindictiveness (i.e. animus or bad faith)
ii. Due process violation requires dismissal
b. Rebutting the presumption: unclear what the standard is (circuit split)
i. Blackledge FN 7: Gov’t has to show that it was impossible to proceed with the more
serious charge at the outset. (e.g. only got enough NEW evidence after the trial/appeal)
1. Not vindictive if State had shown it was impossible to proceed on the more
serious charge at the outset. (crime of homicide not complete until victim’s death)
2. ―Objective evidence to show that the increased charges could not have been
brought before the defendant exercised his right.‖ (U.S. v. Goodwin)
3. New information which arose later.
4. ―At the outset‖ is unsettled, D will want to place it before the exercise of the right.
ii. Goodwin could have expanded the ―impossibility‖ standard, making it easier for the
govt to rebut the presumptionStandard for rebutting the presumption in Goodwin FN8
is "objective evidence justifying the prosecutor's action." Ct then quotes the
"impossibility" language from Blackledge SO reading the standard in context, still
appears timing is the key issue (so pro cannot rebut presumption with evidence of legit
iii. But circuit splite.g. 5
Circuit: has held that prosecutor just needs a legitimate or
non-vindictive reason for his action.
4. Pre-Trial (Goodwinno presumption)
a. To prevail in the pretrial context, D needs to produce evidence of actual vindictiveness
i. Actual vindictiveness: D must show that the only reason the prosecution is bringing the
charges is to punish D.
1. Evidence needed: a ―smoking gun,‖ i.e. admission that pro brought new charge to
punish D for exercising right
2. D could point to the TOC (if previous trial)
3. It's almost impossible to show.
ii. Pro only needs a legitimate reason to believe the defendant committed the crime

1. Right to counsel (if lack of counsel at a critical stage)
a. Right to appointed counsel (for indigent Ds)
i. D has a right to counsel/have counsel appointed to him when: (2)
1. Right to counsel has attached: when criminal prosecution has commenced against
a. Adversarial judicial criminal proceedings commenced through formal
hearing, charge, prelim hearing, indictment, information, or arraignment
b. Initial appearance = first judicial proceeding (Rothgery)
i. IA: before a judicial officer, where D learns the charge against
him and his liberty is subject to restriction marks the start of
adversary judicial proceedings that trigger attachment of 6

Amendment right to counsel. Rothgery
2. D is at a critical stage in the criminal proceeding
a. Bail determination: critical stage (unclear in Rothgery, did not hold that
specifically)see answer on page
b. Prelim hearing: Coleman
c. IA? See Em p 325 see answer on page
d. Pretrial lineup, police questioning, plea, arraignment, indictment (if GJ)—
not probable cause hearing and photographic identification procedures.
e. Fed: initial appearance and bond hearing, state: nope.
ii. Appointment of counsel is required (to imprison D) when:
1. D is charged with a felony (Powell/Gideon: states)
2. D is charged with a misdemeanor and: (Argersinger)
a. (Judge intends to impose) D sentenced to any amount of imprisonment
i. Otherwise, the state is not required to apt counsel for him
1. E.g. if defendant faces potential sentence of imprisonment
but is fined instead, not entitled to counsel. (Scott v. IL)
2. Thus, a defendant could be tried without counsel for a
misdemeanor that authorized imprisonment as long as the
court did not subject that individual to actual incarceration.
ii. Requires judge to
1. Determine, prior to trial, whether the D might be sentenced
to incarceration (weird/hard: Scottt con)if yes, judge
must appoint counsel
a. Judge will have measure of the seriousness/gravity
of offense
b. Defendant: might prejudice b/c needs to argue
offense is serious enough
2. If not appointedD cannot be sentenced to jail
iii. Other rules (dissenters in Scott)
1. Bright line: counsel whenever possible imprisonment of
more than 6 months (Blackmun)
2. Stigma is also important: we are just as concerned about
other collateral consequences (see Brennan con): stigma,
fines, opps
b. D is sentenced to a suspended or conditional sentence. (Alabama v.
i. Suspended sentence: A prison term that is imposed to punish an
underlying offense
1. E.g.: time is hung over D, and D gets probation; if violates,
hit with sentence time
ii. D must have been provided counsel for the underlying conviction
(even if D not facing incarceration at time of conviction)
c. Whether D’s determination of guilt that corresponds to the sentence is
sufficiently reliable to permit incarceration (Shelton): not reliable if not
subjected to meaningful adversarial testing
iii. If required, judge must appoint within a reasonable time after attachment to allow for
adequate representation at any critical stage. (Remedy—show prejudice—more likely to
plead guilty?)
2. Ineffective assistance of counsel
a. Criminal proceeding commenced + critical stage? = right to counsel
b. The right to counsel is the right to the effective assistance of counsel. (Strickland v.
i. Ineffectiveness: whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.
1. “Purpose is simply to ensure that criminal defendants receive a fair trial,”
not improve quality of legal representation.
2. Fell below an objective standard of reasonableness—prevailing professional
norms—no particular set of detailed rules—would otherwise interfere with
constitutionally protected independence of counsel and restrict the latitude
counsel must have in making tactical decisions
3. Look to practices/expectations of professional community: Assist the defendant,
loyalty, no conflicts of interest, advocate the cause, consult with defendant on
important decisions, keep defendant informed of important developments in the
course of the prosecution, skill and knowledge that will make trial a reliable
adversarial testing process
c. If D claims IAC, does Strickland or Chronic apply?
i. Arguments:
1. Defense will first want to argue case falls under Chronic, so there is no need to
show prejudice.
a. But argue alternatively why meet the Strickland test
2. Govt will want to argue falls under Strickland (but also argue why Chronic does
not apply)
ii. Does Chronic presumption of prejudice apply?
1. Rule: (Chronic v Strickland land)
a. Under Chronic, courts will presume prejudice in certain circumstances
when counsel’s conduct amounts to a denial of counsel: e.g.:
i. Cat 1: Actual complete denial of counsel at critical stage of trial
1. E.g. counsel missed a critical stage of the proceeding
2. Hard to argue asleep attorneys is denial (see Bell: lead
counsel asleep but co-counsel awake: not complete denial,
so Strickland applies)
ii. Cat 2: Constructive denial of counsel: Complete failure to
subject the prosecution’s case to meaningful adversarial testing
1. If not complete failure, then Strickland, not Cronic’s
iii. Insufficient time to prepare defense’s case?
1. Powell: apt moments before trial—lack of time: both
prongs presumed
2. Chronic: 25 days v 4 years not enough to get presumption
iv. Counsel has actual conflict of interest (counsel actively represented
conflicting interests and that an actual conflict of interest adversely
affected his lawyer’s performance)
2. Defense:
a. Counsel’s errors amount to a denial of counsel, (more than constructive
denial), so no need for D to show prejudice (Chronic)
i. No meaningful adversarial testing of prosecutor’s case (lower
ii. Failure to oppose/object to pro
3. Govt:
a. Chronic does not apply—Strickland governs (cite to Bell v Cone)
i. B/c no total complete failure Chronic and Bell requires (counsel
still subjected the pro’s case to meaningful adversarial testing)
ii. Courts have held drunk or mentally ill or asleep counsel is
analyzed under Strickland
4. Judge:
a. Note Bell compels that Chronic applies only in rare circumstanc3s
iii. Strickland: D must show
1. Performance prong: Counsel’s performance was deficient, i.e., unreasonable
under the circumstances
a. Objective standard
i. Fact finder’s idiosyncrasies are irrelevant (judge known to be
harsh) but could go to whether counsel had reasonable trial
b. Applies at all critical stages, including guilty pleas and plea negotiation
c. Defense:
i. Counsel’s conduct fell below an objective standard of
reasonableness, as determined by prevailing professional standards
under the TOC
1. Identify acts/omissions alleged not to have been result of
reasonable professional judgment
a. Viewed at the time of counsel’s conduct
b. Whether determined or sub influenced by D’s own
statements or actions
2. Argue: (implied from Strickland)
a. Action was not tactical b/c [facts showing not
tactical, other reasons for error] (b/c virtually
i. Moreover, a tactical judgment can only be
reasonable if preceded by enough
investigation to make it reasonable (see
Porter; dissent in Cullen)
b. D did not sub substantially influence counsel’s
actions by his statements/actions
3. Cite to Porter, showing, despite the presumption of
competence, courts are willing to do a searching review of
counsel’s actions
a. Porter: holding counsel must perform a thorough
investigation into mitigating evidence for
sentencing hearing
b. Deficient conduct where counsel did not expand on
investigation of mitigating facts beyond the
presentence investigation report, one set of records
they obtained, no first step of interviewing
witnesses or requesting records,
4. Con: Viewed this way, counsel’s errors were serious
enough such that counsel was not functioning as the
counsel guaranteed by the 6
Am (Strickland)
5. Guilty plea and IAC Performance prong: Performance
deficient when:
a. When statute is clear, duty to give correct advice
b. Counsel failed to advise D that guilty plea made
him subject to automatic deportation (and clear
from statute). (Padilla v. KY)
c. Counsel has duty to communicate formal offers
from the prosecution to accept a plea on terms and
conditions that may be favorable to accused (Frye)
i. Counsel failed to communicate with D
written plea offers from prosecutor which
would have allowed for lesser sentence or
guilty to misdemeanor. (Missouri v. Frye)
d. Govt:
i. D must overcome the strong presumption of competence, including
the presumption
1. that counsel’s challenged action might be considered
sound trial strategy (see Cullen)
a. Here, counsel’s action was tactical in nature (b/c –
[facts] i.e. frame the error in terms of a possible
tactic (make D seem more honest, etc))
b. Cullen: tactical shift to present mother (but no real
research into mitigating evidence))
2. that counsel acted reasonably under the totality of the
a. Here counsel acted reasonably: b/c ---- [facts]
i. E.g. counsel was substantially influenced by
D’s statements/conduct
ii. Other’s conduct (like the judge) allowed
counsel to make reasonable assumptions
b. Can only evaluate the conduct from counsel’s
perspective at the time (D is not allowed to bring
IAC claim based on hindsight in the decision) (see
c. If looks bad for govtnote Strickland does not
guarantee perfect representation, only a
―reasonably competent attorney.‖ (Harrington v.
3. thus, any Judicial scrutiny of counsel’s performance
must be highly deferential (citing to Cullen, noting the
huge amount of deference courts give to deference counsel)
e. Judge:
i. The precise amount of deference the judge should give to counsel’s
performance is unclear b/c it is hard to reconcile the Court’s
treatment of deference in Porter and Cullen.
ii. After Cullen, standard for performance is very much in the eye of
the beholder
iii. But strong presumption of competence favors govt, and IAC
claims are notoriously hard to win
2. Prejudice prong:
a. Rule: D must show there is a reasonable probability that, but-for counsel’s
errors, the result of the trial/sentencing would have been different (under
the TOCs)
i. Contexts for prejudice:
1. Trial verdict: the jury would have had a reasonable doubt as
to D’s guilt
2. Sentencing: D would not have been sentenced to death; D
would have received a lower sentence [amount of months if
3. Counsel’s claimed ineffectiveness led to D reject offer and
prejudice is having to stand trial: D must show that but for
the advice, RP plea offer:
a. D would have plead guilty
b. Court would have accepted terms of the plea
c. Sentence/conviction would have been less severe
than actual result at trial (Lafler)
d. Note: the untainted guilty verdict does not cure the
bad advice (Lafler)
4. Plea offer lapse/rejected due to error and D accepts another,
worse deal: D must how that but for error, there is a RP that
a. D would have taken the plea offer (if offered)
b. Judge would have accepted and entered it
c. Prosecution would not have canceled it
d. Remedy? See notes (Lafler)
ii. Standard of proof: somewhere between POE and more-likely-than
iii. The weaker the evidence of D’s guilt overall, the easier it is for D
to show prejudice
b. Defense:
i. Argue: there is a RP that but-for the errors, the result would have
been diff
1. Emphasize the weakness of the guilt against D (making the
impact of counsel’s errors bigger), to show prejudice
2. Porter: found prejudice when no mitigating evidence (RP
sentence would not have been death)
ii. thus, RP that result different
1. See list above for how to phrase “RP that ---“
c. Govt:
i. Argue: D has failed to show RP that outcome would have been diff
1. After Harrington, likelihood must be more than
conceivable---it must be substantial
2. Emphasize the strength of the case against D (b/c easier to
say errors caused the outcome)
3. Prejudice only asks if the errors were serious enough to
deprive D of a fair trial, meaning a reliable result
a. Here, result is reliable
4. Court has moved away from Porter (see Harrington: where
held attorney in case not required to present counter-
ii. thus, D failed to show RP diff
d. Judge
i. Note that the TOC requirement makes it hard to show prejudice
(the stronger evidence of guilt, harder to show D was prejudiced
ii. Maybe decide result based on the strength of the evidence?

Pre-Trial Litigation: (subject to pre-trial motions)

1. The Charging Instrument
a. Pleading requirements for the charging instrument:
i. D must allege deficiency in the charging instrument before trial (12b)
ii. Types: Complaint (on scene arrest), indictment (every case, federal, unless waived),
information (waive right to indictment)
1. Factual specificity (7c): can be bare bones
a. Provide accused with a sufficient description of the acts to enable him to
defend himself adequately.
2. Essential elements:
a. Rule: The pleading/indictment must allege the presence of each of the
basic elements needed to establish the offense: (4 required)
i. Mens rea
ii. D’s prohibited conduct
iii. Harm D caused
iv. Apprendi elements: federal cases: any fact other than a prior
conviction that operates to increase the maximum punishment
for an offense is an element of the offense, and must be found by a
jury beyond a reasonable doubt.
1. Increases in statutorily authorized max sentence under
enhancement, aggravating circumstance statutorily
designated for death penalty eligibility, factor that is a
prerequisite for imposing a sentence in excess of the
standard guideline range.
2. Many states think Apprendi-elements are not true elements
of the crime and so do not have to be in charging
b. Dismissed if fail to allege essential element.
c. Purpose: Avoid double jeopardy, give defendant notice of essential
elements, formal basis for the judgment of the conviction
3. No duplicity in charges
a. Context: when pro charges two or more different crimes in single
indictment/count. D can challenge indictment on grounds that these
charges are duplicitous
b. Duplicity: government cannot charge two or more offenses in a single
count. (Does not include the commission of a single offense by different
means, or separate violations of a single statute that form a continuing
course of conduct)
i. Prevents jury from deciding guilt or innocence on each offense
separately. Unanimous verdicts.
c. Process/Remedy
i. Defense files pre-trial motion to dismiss indictment on duplicity
ii. If judge agrees duplicitous, govt must either:
1. Choose which offense to proceed on
2. If want both, file superseding indictment to correct
duplicity problem
iii. If jeopardy has already attached (an no SI filed), then could cure
problem by instructing jury they must unanimously agreed which
of the two transactions they are finding the D guilty of
4. No multiplicity in charges
a. Rule: each separate crime/offense needs to be charged in own count –so
pleading cannot charge a single crime/offense in several counts/charges
i. Prevents double punishment for same offense/transaction
b. Context: govt charges D with the same crime in two different counts
(maybe one act/transaction violates two separate statutes)
c. Where an act violates two distinct statutes, the test is ―whether each
provision requires proof of an additional fact which the other does not.‖
i. Compare the elements of both offenses charged: if one requires
proof of an element that the other does not, then no multiplicity
ii. E.g. Unit of allowable prosecution was possession (not being a
felon or a drug dealer under the two different statutes)
d. Remedy: Choose one count, consolidate, or advise jury that only one
2. (Mis)Joinder / Severance of Offenses
a. Rules
i. FRCP: Joinder Rule 8(a), for charges to be properly joined, they must fall under one of
three circumstances (based on the face of the indictment):
1. Offenses are of the same or similar character
a. 7th circuit: categorical similarities, fine if in different places; 9
: common
scheme or plan, act, transaction.
b. E.g., joinder of two bank robberies committed by same person at different
time, or two drug charges committed by the same person.
c. E.g., selling heroin is similar enough to selling cocaine.
d. Categorical approach (Coleman; 7
Cir): joinder permitted if the counts
refer to the same type of offenses occurring over a relatively short period
of time, and the evidence as to each count overlaps. (U.S. v. Coleman)
i. Here, charged with 4 counts of possession of firearm but happened
at diff times. Court said all mattered that they were the same or
similar character
e. Holistic approach: Unrelated in nature and purpose, temporal scope,
physical location, modes of operation, likelihood of evidentiary overlap
(U.S. v. Jawara)—beyond the face of the indictment (but not supposed to)
2. Offenses are based on the same act or transaction
a. Interrelated parts of same episode, or close together in time.
b. E.g., same sequence of events: steals car & harms someone in course of
c. E.g,, joinder of conspiracy to distribute cocaine with distribution of
cocaine in the same indictment
3. Offenses are part of a common scheme or plan.
a. Allows joinder of offenses that are actually very far apart in time
b. E.g. fraud scheme might have different sub-offenses that take place very
far apart.
c. See Velasquez: cocaine and retaliation arose under common scheme b/c
the retaliation was in reaction to the cocaine events
4. If none of these prongs is met, joinder is improper as a matter of law, and must
be severed.
ii. FRCP Rule 14: discretionary severance
1. If joinder of offenses (though proper) for trial appears to prejudice a defendant
or the government, the court may order separate trials of counts, sever the
defendants’ trials, or provide any other relief
a. No proof at trial of factual connection b/w one offense and the other =
prejudice, severance proper (although on face of indictment, fine)
2. Defense can bring 14 claim at any time (i.e. when during the trial, new evidence
shows that the offenses are not connected)
b. Defense: (bring challenges under both 8(a) and 14
i. Context: govt charges two separate crimes/offenses in the same indictment, so they are
both part of the same trial (not charges, counts, but offense: actual crime)
ii. Defense will want to bring challenge under both 8(a) and 14
iii. Rule 8(a) challenge: first
1. Argue: offense misjoined under Rule 8(a). On the face of the indictment, offenses
do not meet one of the three circumstances outlines in 8(a) to make them
sufficiently connected.
a. Offenses not the same or similar in character b/c ---(e.g. crimes distinct)
i. If categorical could be argued (Coleman), argue for a holistic
approach under Jawara
b. Offenses not part of same act or transaction b/c---(e.g. crimes occurred at
diff times, no sequence)
c. Offenses not part of common scheme/plan b/c----only one D involved,
separate conduct from other offense, not related, no causation
i. See Velasquez: cocaine and retaliation arose under common
scheme b/c the retaliation was in reaction to the cocaine events
2. Thus, under 8(a), joinder improper as a matter of law, and judge must sever the
offenses. Need two separate trials (dismissal is not remedy)
iv. Rule 14:
1. Even if joinder under Rule 8a proper, D will move for relief from prejudicial
joinder under Rule 14.
a. Judge not limited to face of the indictment, but all evidence o prejudice
(like at trial)
b. Note motion can be raised at any time, (if need to be raised at time of trial
once prejudice apparat)
2. Argue: the joinder of offenses prejudiced D:
a. No proof at trial of factual connection b/w one offense and the other =
prejudice, severance proper (although on face of indictment, fine)
b. Hard to build to both defenses (confusing/could contradict goals)
c. Jury will falsely aggregate evidence (rather than consider the evidence
against the defendant for each individual crime lump the lesser evidence
of each crime together and convict on all counts)
d. Bad man inference: The jury might infer from evidence of one crime that
he is guilty of another; proof in the minds of the jury for one crime will
raise the likelihood in their minds that he is guilty of the other
i. E.g. if one crime is way worse, will prejudice jury as to lesser one
c. Govt:
i. 8a response: all 8a requires is that the offenses are connected to one another
1. Offenses fall w/in one of the 8a categories
a. If same/similar and could be categorical: cite to Coleman
i. Cannot use holistic approach in Jawara b/c each prong is separately
satisfied, as Congress intended
2. Note: Cannot go beyond face of the indictment for 8a---so cannot point to
evidence at trial showing unconnected
3. Common scheme? Offenses can occur if far apart in time
a. See Velasquez: cocaine and retaliation arose under common scheme b/c
the retaliation was in reaction to the cocaine events
4. Refer to text in indictment to show sufficient basis for joinder (and phrases/words
used to link the two crimes together)
ii. 14 responses:
1. Jury is capable of following jury instructions, and abiding by the verdict form
2. Offenses are clearly distinct and not likely to be confused by the jury
3. If defendant gets concurrent time then the appellant has no beef
4. Any prejudice is nil if there is overwhelming evidence of guilt
5. Compromises efficiency/resources (far along in the trial)
d. Judge
i. If decide not to sever, could the prejudice be cured by jury instruction?
3. (Mis)Joinder/Severance of Defendants
a. Rules governing:
i. Rule 8b Misjoinder of Defs: govt can only join two or more Ds in the same indictment
if they participated in the ―same act or transaction‖ or ―same series of acts or
transactions‖ constituting an offense or offenses (stricter than 8a for offenses)
1. Scope:
a. Both Ds’ offenses must be related to same transaction or part of same
b. Acts or transactions pursuant to a common plan or scheme, parts of a
single conspiracy (Velasquez)
2. Typical situations
a. Common Scheme: Two defendants charged as part of an underlying joint
crime (even if there is no conspiracy charge), like a joint trial for drug
b. Common Transaction: events connected by time and place, even if no
common scheme.
i. E.g. drive of bus and car both strike another motorist and kill him.
Both can be charged with negligent homicide in the same
ii. Rule 14 Severance of Defs: Can bring at any time (during trial, when evidence begins to
show that not same act or transaction) 3 main severance arguments:
1. One of co-D’s statements exculpates another co-D (Echeles)
a. E.g. joint trial prevents D from calling co-D as a witness (b/c co-D is
exercising his 5
Am right not to testify) (must have 5
Am right e.g.
cannot yet be acquitted or convicted)
b. Test: 1) whether co-D would be exculpatory, 2) whether co-D would in
fact testify, 3) whether testimony would bear on Ds case.
i. Whenever co-D has exculpatory testimony to provide, Rule 14
severance motion. Echeles
ii. Corollaries:
1. Evidentiary requirement (D needs to show ―some support‖
(like affidavit) to show co-D would actually testify in a way
that is exculpatory for all three prongs)
2. Judge not allowed to deny motion because of co-D’s
credibility as a witness or what weight the jury will give the
3. D has better chance of winning motion if only 2 Ds
2. One of D’s statements prejudices a co-Def (Gray)
a. Strongest b/c constitutional argument
3. Two Ds have conflicting and irreconcilable differences
b. Defense
i. Rule 8b: Misjoinder of Ds
1. Argue: Ds did not participate in the same act or transaction or series of acts or
a. Conspiracy: Mere fact that two conspiracies have overlapping
memberships will not authorize a single indictment if conspiracies cannot
be tied together into one conspiracy, plan, or scheme. (U.S. v. Velasquez)
2. Emphasize: mere similarities b/w the offenses are insufficient to join D as another
defendant (see Velasquez)
a. Cannot be similar: Selling heroin is not the same as selling cocaine (8b).
(U.S. v. Velasquez) (7
3. thus, joinder of Ds improper under 8b and should be severed as a matter of law
(D gets two separate trials, defendants get two separate trials)
ii. Govt: not misjoined b/c participated in same T or same series of Ts
1. Point out rule allows govt to charge Ds ―in one or more counts together or
separately‖ and that ―all Ds need not be charged in each count‖
2. Same series--Under Velazquez, defendants tried together do not need to know
every detail of each other’s criminal activity, as long as they are aware of the
essential facts and have a common goal.
3. Distinct from Velasquez b/c part of ongoing crime
4. Note: Cannot go beyond face of the indictment for 8b---so cannot point to
evidence at trial showing unconnected
iii. Rule 14: motion to sever Ds:
1. Even if joinder under Rule 8b proper, D will move for relief from prejudicial
joinder under Rule 14.
a. Judge not limited to face of the indictment, but all evidence o prejudice
(like at trial)
2. Prejudice arguments:
a. Prejudice from guilt by association—(e.g. if other D is charged with
additional, worse crimes that you are not)
i. Govt: Ct will use jury instruction
b. Prejudice from confusion of evidence—
i. Govt: Ct will use jury instruction
c. Co-D has exculpatory evidence for other D?
i. Whenever co-D has exculpatory testimony to provide, Rule 14
severance motion (Echeles)
ii. Argue all three prongs of Echeles is met:
1. Co-D would be exculpatory
a. Affidavit: lay out co-D’s testimony and need to
explain how testimony creates a reasonable doubt
on D’s guilt
2. Co-D would in fact testify
a. Affidavit: relates that 1) co-D intends to use 5
right at joint trial and 2) once co-D no longer has 5

Am right, will testify on behalf of D
3. Testimony would bear on D’s case
a. Affidavit and motion together exculpate the person:
that the person is not guilty
iii. Ask judge to hold co-D’s trial first (get co-D’s 5
Am right out of
the way (double jeopardy)
iv. Emphasize corollaries of the Echeles test that helps defense or the
1. Motion supported by some evidence on each of the three
prongs? (like prior testimony, affidavit)
a. See requirements above
2. Judge cannot consider W credibility/weight
3. Only 2 co-Ds in case? Courts more willing to find prejudice
d. Govt:
i. Efficiency: evidence b/w Ds overlaps
ii. Weight of the evidence is overwhelming, so no prejudice
4. Discovery: Rule 16 (statutory rules)
a. Statutory pre-trial disclosures: Rule 16: D is entitled to
1. Defendant’s statements (oral, written, and recorded)
2. Co-defendant statements
3. Defendant’s criminal record
4. Scientific reports
5. Certain documents and tangible evidence
a. If item is material to preparing the defense, or
b. Gov’t intends to use the item in its case-in-chief, or
c. Item was obtained from or belongs to the defendant.
6. Written summary of expert witness testimony
ii. Defense is NOT entitled to:
1. Gov’t memos or internal reports
2. Work product
3. Grand jury transcripts
4. Information about witnesses and witnesses prior statements
a. Concern about witness intimidation
b. Only time you have a right to witness statements is under FRCrP 26.2,
under the Jencks Act:
i. Prosecutor must turn over the statement after testimony on direct
ii. Judges often require statements to be turned over a couple weeks
before trial, so that there's no delay while defense prepares for his
c. Difference in State Rules
i. Illinois requires gov't to turn over names and addresses of all the
witnesses they intend to call at trial, the statements of those
witnesses, grand jury transcripts of those witnesses, and witness's
criminal histories.
iii. Defense must make discovery request
1. General letter asking for anything that fits under FRCrP 16
a. Once letter is out there, gov’t has a continuing duty to disclose
2. Govt has to give notice of all evidence it intends to use at trial.
iv. Prosecutors only have to turn over items in their “control of possession”
1. But they are considered to have constructive possession over items at federal
investigative agencies.
5. Discovery: Duty to Disclose/Preserve Exculpatory Evidence
a. Brady rule: the prosecutor has a duty to disclose to the defense material, exculpatory evidence
within the prosecution’s control
b. Defense:
i. Argue govt violated D’s 5
Am rights under Brady b/c:
1. Govt failed to turn over some evidence in its control
a. Govt: prosecution, police, pro office (knowledge imputed to whole office)
b. Control (broad): prosecutor has a duty to know of the EE; must turn over
evidence in hands of police, prosecutor’s agents/office (Kyles: no excuse
that only police knew of evidence)
2. Evidence is favorable to D (tends to exculpate or reduce penalty of guilty or
punishment) (Brady)
3. Evidence is material
a. Note good faith or prosecutor is irrelevant (Brady)
b. TOC (Kyles): note court must consider all undisclosed favorable evidence
collectively (ask if taken together, RP outcome different) (so fact that each
item by itself is unlikely to change result is irrelevant if RP that
collectively there is a RP outcome diff)
c. Three contexts, different materiality standard applies
i. Perjured testimony:
1. Argue prosecutor knowingly used perjured testimony, so
harmless error review applies
2. HE: Material if any reasonable likelihood that the false
testimony could have affected the judgment of the jury.
a. Govt bears burden to show not material
b. post-trial, conviction must be overturned unless the
non-disclosure was harmless beyond a reasonable
doubt. Pre- trial, the judge will have to predict
whether non-disclosure will be harmless, with the
burden on the govt. (Mooney)
c. Argue why non-disclosure of statement not
harmless b/c [facts] (relatively easy burden to meet)
ii. Impeachment evidence withheld
1. Bad argument: Try to argue this non-disclosure amounts to
a direct restriction on cross at trial, so no need to show
materiality (CC problem) not going to work
a. Rule: if judge directly limits scope of cross
examination 6
Am CC problem (no need to
show materiality and auto reversal is proper)
b. See Ritchie dissent: pretrial denial of access makes
effective cross-examination impossible? Infringed
by events occurring outside the trial itself.
2. Rule: If govt withholds impeachment evidence same as
above (Bagley/Brady world) b/c it does not involve any
direct restriction on the scope of cross examination
(Defense can still cross examine on bias at trial, even
though not as effective)
iii. Request, no request (Agurs), general request for EE:
1. Material if there is a RP that the evidence will affect the
outcome of trial (Bagley)
a. Note this does not require D to show he would have
been acquitted if statements were disclosed—
statement need only undermine the confidence in
the outcome (Kyles) (and it does)
b. Did D make a specific request (and govt falsely said
no ev): courts more willing to find material (b/c
counsel misled) (Kyles)
c. Argue that other evidence of guilt is not strong (so
more likely material under the TOC)
i. See Tavera: Totality. Only other direct
evidence of D’s intent was a person with
credibility issues.
ii. Undisclosed statements prove or negate
an element of the crime. When the
suppressed evidence tends to prove that the
defendant did not willingly assist in a drug
deal, and when the only evidence showing
otherwise is the testimony of an indicted co-
D, cannot say with any confidence that
outcome of the trial would have been the
same. (U.S. v. Tavera)
d. Impeachment? Entitled to know of prosecutor’s
deals with key govt witnesses b/c very relevant to
credibility (see Giglio)
c. Govt:
i. Perjured w/held: non-disclosure harmless error
1. E.g. argue there is no way that the non-disclosed evidence could have affected the
outcome (e.g. if the evidence would have actually hurt D’s case if disclosed)
ii. If no specific request:
1. point out that prosecution only required to turn over evidence that is obviously
exculpatory (Agurs)
a. Here, evidence is not obviously exculpatory b/c ---
2. Argue (bad) that defense did not request EE (but loser under Bagley, noting that
the standards for no request and request are the same)
iii. Argue other evidence of guilt overwhelming, so not material under the TOC (Kyles)
1. E.g. Smith v Cain: Evidence impeaching an eyewitness’ testimony may not be
material of the other evidence is strong enough to sustain confidence in the
verdict. (Smith v. Cain)
a. Argue case is not like Smith: When eyewitness’ testimony was only
evidence linking Smith to the crime, and eyewitnesses’ undisclosed
statements contradicted his testimony, they were material and failure to
disclose violated Brady. (Detective notes said witness could not ID anyone
because couldn’t see faces.)
iv. If impeachment evidence w/held is a deal w the prosecution---point out it is non-binding
v. Cite to Agurs: Prosecutor does not violate constitutional duty of disclosure unless his
omission is of sufficient significance to result in the denial of D’s right to fair trial.
(U.S. v. Agurs)
1. Not any information that might affect jury’s verdict—that would require complete
discovery of P’s files. Constitution does not demand that.
a. The mere possibility that an item of undisclosed information might have
helped the defense/affected the outcome of the trial does not establish
―materiality‖ in the constitutional sense.
d. Judge:
i. Request: Need to look prospectively to see if RP evidence will affect the outcome
1. Lots of discretion under Kyles (failure to disclose undermine confidence)
2. Materiality is very fact dependent (see Tavera)
ii. Perjured: Pre- trial, the judge will have to predict whether non-disclosure will be
Trial Issues
6. Confrontation Clause Issue
a. Context: Declarant has made a prior statement and govt wants to introduce it at trial and
declarant is not going to testify at trial (no cross at trial)
i. Steps: CC issue when:
1. Prosecution seeks to offer a statement of a declarant-witness who is unavailable to
a. Defense: will argue that [the statement in facts] should not be admitted at
trial b/c it is testimonial under Crawford.
2. Statement is hearsay, i.e., an OOC statement offered to prove the truth of the
matter asserted
a. Defense: will argue statement is hearsay (OOC statement offered to prove
the truth of the matter asserted)
b. Govt: argue statement is not hearsay (not offered to prove truth of matter
asserted) so no CC problem, and statement admissible (Crawford FN9)
i. Point out that 7
Cir has broad interpretation of what is does not
count as hearsay (here, showing context for D’s admissions)
c. Judge: If not hearsay, Judge should give limiting instruction to jury
(telling them not about truth asserted)
3. Statement is testimonial
a. Crawford: Testimonial if statement made under cir which would lead a
reasonable person to think they would be available for use at trial
i. the following are testimonial: when W testifies at PH (answer on
next page), prior trial, gave statement during formal police
stationhouse/interrogation, affidavit or deposition
b. Rule: Real inquiry is whether the primary purpose of the interrogation was
to collect info for a possible prosecution or to deal with the ongoing
i. Def: argue purpose was to collect info, not respond to an ongoing
emergency, so testimonial and CC problem
ii. Govt: statements are non-testimonial b/c police responding to an
ongoing emergency (Davis)
iii. Evaluated on objective standpoint.
iv. Doesn’t matter if statement made in response to questioning
(volunteered statements apply)  also both oral and written
v. Based on circumstances known to the parties at the time
vi. To determine if testimonial: ask
1. Was there an OE or did the parties reasonably perceive
there to be an OE? The reasonable perception of both
parties, the interrogator and the victim (seems subjective)
a. Overall: unknowns favor the govt: court more
willing to find OE
i. So defense: argue not unknown
ii. Govt: emphasize what police did not know
b. Circumstances surrounding interrogation
c. Situation poses a threat to just victim/assailant or
police and public?
i. Govt: emphasize public/police threat
ii. Def: limited to parties in crime, not public
iii. Police behavior: did they act like they
perceived a threat to themselves or public?
(Scalia in Bryant: no)
d. Gun involved?
i. Govt: emphasize if true (citing Bryant: large
scope for gun crimes)
ii. Def: Scalia worry creating broad exception
for gun cases that rolls Crawford back too
e. Duration of threat?
i. Def: short
ii. govt: threat appears ongoing/long
f. Assailant’s motive
i. Govt: police were not sure of motive. Courts
are more willing to find an OE when police
cannot be sure threat over/motive
2. Primary purpose of questioning to meet the OE or collect
info for prosecution? Look to
a. Perspective of reasonable person in victim’s
situation: did they see this as an OE when speak?
i. Medical emergency (bleeding): govt: argue
under Bryant this shows v believed
emergency ongoing/def: argue cuts other
way, v only saying it to find person who did
the act (Scalia in Bryant)
b. Perspective of police: asking question to meet the
OE (protect themselves and public)? (and thus non-
i. Unknowns: location, motive (most impt in
Bryant) help govt argue non-testimonial b/c
PP to respond to OE. Others: timing of
crime, cir of assault, gun v less dangerous
weapon, victim conveys emergency over
ii. Def: point out what police knew at the time
iii. Should not create broad exception for gun
crimes (Scalia)
c. Formality/informality b/w victim and police in the
i. Def: argue the exchange is more formal (not
like a 911 call in Davis), e.g. more like a
stationhouse interview or 911 call in
Hammon (versus Davis)so testimonial
ii. Govt: argue exchange is informal: like
3. [Me]: ask if the statement started off as OE and morphed
into a testimonial statement (for prosecution) (see Davis)
a. E.g. 911 call to seek help as crime happeningnon-
testimonial bc OE/after danger over, and talking to
b. Def: note that the danger was over
c. Defense: will argue statement is testimonial
d. Govt: argue statement is non-testimonial, thus there is no confrontation
clause problem (Davis)
4. There was no prior opportunity to cross examine the declarant
a. When W under oath and could be crossed (e.g. took stand at PH, maybe
deposition in some Js)
b. Defense: argue there was no prior opportunity to cross, so the statement
violates the confrontation clause
c. Govt: 2 alternative responses:
i. Argue there was a prior opportunity to cross, thus no confrontation
clause issue
ii. Even if CC violated, an exception applies
1. D caused the witness’s unavailability (narrow) (Giles)
a. Thus, D forfeited CC right
2. Testimonial dying declarations (see Crawford/ Bryant)
a. Historical reasons compel result (versus def: only
7. Jury Selection
a. Rule: prosecutors are forbidden from striking jurors on the basis of race (Batson) or gender
(JEB) or religion? (circuit split--Second Circuit has suggested it does)
i. Also applies to defense: def is not allowed to strike based on race (govt can also bring a
Batson claim for jury discrimination) (McCollum)
b. Steps of analysis (from Hooper v Ryan)
i. (1) Defense must make out a prima facie case for discriminatory selection
1. Defense: argue [facts and relevant cir] under the TOC give rise to an inference
that the prosecutor used preemptories to exclude jurors based on race
a. Can point to all relevant circumstances in TOC to find inference of dis:
i. Pattern of strikes against black jurors? (statistics high % struck v
low enough to make PF case)
ii. Prosecutors questions/statements to potential jurors in voir dire
iii. If prosecutor struck all members of a particular race from voir
direD has made out PF case of discrimination (Hooper)
1. Even striking 91% of all meets PF prong (Miller-El)
b. Note: Race does not have to match (Powers) (i.e., part of same class)
c. entitled to rely on fact that peremptory challenges constitute a jury
selection practice that permits those to discriminate who are of a mind to
ii. (2) After prima facie showing, burden shifts to govt with neutral explanation for
challenging black jurors.
1. Govt: argue/articulate a neutral explanation related to the particular case or juror
to be tried.
a. Almost anything will survive (e.g. juror’s body language, juror’s
profession, juror unemployed)
b. Facial hair (when only blacks had facial hair): sufficient (Perkect)
2. Def: likely no good argument against this considering the neutral explanation
does not even need to be minimally persuasive
iii. (3) Burden shifts back to D to show that race neutral explanation was pre-textual
(and judge will assess the credibility of the neutral reason)
1. Def: argue prosecutor’s reason is not credible based on a comparative analysis of
stricken/non-stricken jurors, so has proven purposeful discrimination
a. Court will assess
i. Credibility of parties
ii. Comparative analysis: comparison of the prosecutor’s
actions/explanations with respect to stricken jurors and jurors that
are not struck
1. Stricken black jurors vs. white jurors that remain
2. Something that applies equally to a juror of a different race
that was not struck?
3. Questions being asked differently to jurors of different
races? (Graphic description of death penalty)
2. Def: 3 ways to show pretext (hard to show)
a. Reason for strike applies equally to a juror who was not stricken
b. Are questions being asked differently to jurors of different race/gender?
i. E.g. graphic description of death only made to black jurors (Miller-
c. Reason prosecution put forward is really just a proxy for race (harder to
i. See Hernandez: court said striking for speaking Spanish is not a
proxy for race---fine for prosecutor to strike even if disparate
3. Govt: neutral explanation is credible b/c
a. Struck other jurors (non-black) for the same reason given
b. Other jurors left---did not have the quality govt claims is the reason for
striking others
c. Questions not asked differently
iv. Judge: assess strengths of def/govt at each of the three steps (see answer)

Guilty Pleas and Sentencing
8. Guilty pleas
a. Requirements
i. Must be knowing and voluntary
1. Defendant has to understand the charges, has to understand the consequences; Has
to plead voluntarily with no coercion.
ii. Must be factual basis for any plea
iii. Colloquy for Judge in FRCrP 11(b)(1) explains all of the rights that are waived
b. Three Kinds of FRCrP 11 Pleas
i. 11(c)(1)(A): Charges get dismissed
1. Not very common
ii. 11(c)(1)(B): Plea in which there is a sentencing recommendation made by the parties, but
the recommendation is not binding on the court
1. Most common type of plea
2. Judge must inform the defendant that he has no right to withdraw the plea if the
judge does not follow the sentencing recommendation
iii. 11(c)(1)(C): Plea with sentence recommendation that binds the court
1. Judge can accept or reject the recommendation.
a. Judge not supposed to get involved in plea negotiations so can’t give too
much feedback.
2. Plea is good for defendant b/c judge can't go above the recommended sentence,
but not good for defendant if there are more arguments that he can't make after
binding plea is accepted.
c. Bordenkircher v Hayes (1978) (p 1281)
i. Facts:
1. Defendant indicted for forging a check. Prosecutor offered a sentencing
recommendation of 5 years if he would plead guilty, but said he would seek an
indictment under the Kentucky Habitual Criminal Act.
ii. Question: Whether bringing the additional charge, because the plaintiff refused to plead
guilty, violates substantive DP for vindictive prosecution?
iii. Holding:
1. Not a violation of substantive DP.
iv. Reasoning:
1. Any system of plea bargaining has to allow a prosecutor to bring additional
charges for refusal to plead guilty.
a. Plea bargaining has big benefits for prosecutors, defendants, and the
2. No distinguishing between adding charge for refusing to plead guilty and
dropping charge for commitment to plead guilty.
3. Distinguishing Blackledge:
a. Unilateral imposition of a penalty upon a defendant who has chosen to
exercise a legal right to attack his original conviction is very different
from ―give-and-take negotiation‖ of plea bargaining.
b. Harm is not from deterring the exercise of the legal right, Pearce & Perry,
but the danger that the State might be retaliating.
i. Of course, plea bargains are designed to deter the defendant from
exercising his right to a jury trial. That’s constitutionally
4. Give and take in plea bargaining has relatively even bargaining power. ―mutuality
of advantage‖
v. Dissent by Blackmun:
1. Blackledge should be controlling.
a. There should be a presumption of vindictiveness.
2. Much better for prosecutor to charge everything initially, and drop charges in
exchange for a plea.
vi. Dissent by Powell:
1. It may not always be vindictive to add charges, but in this case the prosecutor
admitted he was being vindictive.
vii. Notes from Bill Stuntz:
1. Bordenkircher leads to rise of mandatory minimum statutes.
2. Legislatures look tough on crime, and prosecutors can use them to force plea
d. State v Federal Pleas
i. State Plea Negotiations
1. Charge brought
2. Number of charges brought
3. Promise not to bring additional charges or recidivist enhancement
4. Sentencing recommendation
ii. Federal Plea deals more restricted
1. Prosecutor has to charge the most serious, readily provable offense.
a. USAM 27.400 (basic policy is that charges aren't to be bargained away or
dropped, unless prosecutor has a doubt about proving charge for legal or
evidentiary reasons)
2. Sentences are based on "real offense conduct" rather than the charged conduct
9. Real Offense Conduct
a. D is sentenced/punished based on his ―real offense conduct‖
i. D accountable for:
1. USSG § 1B1.3: defendant responsible for all acts and omissions, including those
that were aided and abetted by the defendant.
2. All reasonably foreseeable acts of others if those acts were taken in furtherance of
a jointly undertaken crime (not conspiracy, but about 2 D committing same crime
(e.g. bank robbery and getaway car guy)
b. Brady applies at trial and sentencing (D can show materiality of evidence to the sentence)
c. Govt only need to prove real offense conduct by a POE, not by jury BRD
i. Prosecutor can decide to charge the stronger charge in indictment, and enhance with
relevant conduct from weaker claim (b/c only POE)
d. Plea bargaining and real offense conduct
i. D will be sentenced based on full extent of ROC, even if pro has agreed to drop certain
ii. Sentencing guidelines causing this result: cannot bargain away from ROC
1. If prosecutor agrees to dismiss a charge or not to bring an additional charge
a. Pro cannot hide facts of dropped charge from the judge
i. USSG § 6B1.4(A): if prosecutor agrees to dismiss a charge, or not
to bring a charge, the conduct that would support that charge can
be considered by the judge as relevant conduct.
1. Defendant gets benefit of stat max cap, but should be
subject to the same Guideline range.
b. Pro cannot stipulate away facts of relevant conduct (cannot bargain around
i. Prosecutor must fully disclose the facts of the crime: USSG
§ 6B1.4 requires full disclosure of the facts of the offense to the
judge, even if the parties have agreed to stipulate to the facts in the
c. Pro cannot mislead judge about D’s RC
i. Prosecutor not supposed to mislead the judge about the offender's
conduct; not supposed to make agreements with defendant not to
tell the judge about that conduct
iii. Thus, prosecutor can only walk away from charged conduct if:
1. Not readily provable
2. Exaggerates the seriousness of the offense
3. In practice, sometimes
iv. SO only benefit to pleading guilty in federal court is AOR reductions
10. Breach of plea agreement
i. Santebello
1. What happens when one party violates agreement?
2. Two diff pro: second does not uphold agreement
3. Court: this was a violation of plea agreement
a. PA is a contract/treated like k
4. Remedy?
a. Majority: leave to lower courts to decide form of relief
i. SP: plea stands but D gets resentencing in front of another judge
ii. D opp to w/draw plea and start from scratch to renegotiate or go to
1. Dissent: court should have said D has this right, not to
lower courts
11. Potential adjustments
a. Trial: Obstruction of Justice (for perjury)
i. Contexts: where obstruction related to perjury
1. If D goes to trial, testifies at own trial, losespossible obstruction of justice
2. D makes statements in affidavit even if no trial (e.g. at suppression hearing)
ii. Rule: Level 2 enhancement for OOJ (perjury)
1. Penalty for going to trial high (plea 40% lower)
2. Criticism: might chill D’s con rights to jury trial and 5
right to testify
b. Acceptance of responsibility (D pleads guilty)
i. Overview: can get up to a 3-level reduction if plead guilty (2 auto, govt moves for 3
1. B/w 20-30% lower typical
2. Only benefit from the govt from pleading guilty (judge can still lower on own)
a. No charge bargaining
b. No fact bargaining
c. Compare: pre-indictment, prosecutor can bargain
ii. Guilty plea:
1. 2 level reduction is fairly automatic (from the judge). BUT:
a. Maintain AOR adjustment b/w time of guilty plea and sentencing
i. Context: danger that D will do something to imply no AOR; b/w
the time of the plea and sentencing, D needs to keep showing AOR
1. D’s counsel must properly prepare D for this at sentencing
(b/c could unintentionally hurt AOR ―I made a mistake‖)
2. Discretionary 3
point from govt
a. Govt must move for third point to apply
b. Common factors determining when 3
point appropriate (varies by Js)
i. Resources expended on trial already (most common)
1. If D pleads guilty on eve of trial (so puts govt through cost
of preparing for trial)no point
2. Chicago: if plea timely3
point almost automatic
ii. D refuses to waive right to appeal—can pro withhold 3
1. Circuit split over whether this is appropriate
a. 7
: ok
b. Others: not ok to withhold if D refuses to waive
c. Substantial assistance (Cooperation) 5k1.1
i. Possible if plea entered under 11c1c: binds D to certain minimum sentence
ii. Can help D in two ways:
1. Reduce w/in guideline: Reduction amount varies a lot by J
2. Below mandatory minimum

12. Apprendi problem
a. Rule: If the existence of a particular fact increases the D’s maximum punishment to which D is
subjected, the existence of that fact will be treated as an element of the offense, and the jury must
find that fact beyond a reasonable doubt
b. Judge cannot imposed a sentence beyond the statutory max (the one laid out in the statute) if the
fact that pushes the sentence beyond the maximum was not found by a jury beyond a RD
i. I.e. judge cannot find by POE to go past the stat max (Apprendi)
ii. Thusany fact must be charged in the indictment, and found by a jury BARD
1. Exceptions:
a. fact of D’s prior conviction can raise beyond stat max (Torres)
b. Facts D has admitted
iii. Cases
1. Booker: held fed sentencing guidelines as written unconstitutional (denied jury
trial) b/c allowed for upward departures based on facts found by judge rather than
jury (expanding Blakely to fed)
13. Steps a sentencing judge must do (Gall)
a. Judge must
i. From Gall:
1. Calculate guideline range (even though advisory, Booker)
a. Look at chart
b. Cannot presume range is appropriate/reasonable
c. Steps
i. Look to correct guideline chapter
ii. Determine base offense level (for that particular crime)
iii. Add specific offense characteristics (as noted in particular GL)
1. E.g. use of threat, firearm
iv. Apply adjustments
1. Obstruction of justice
2. Acceptance of responsibility
3. Cooperation
v. Multiple counts
vi. Calculate criminal history (every prior conviction counted)
1. Does not have to be proven by jury BRD if goes beyond
statutory max (no Apprendi problem, see Torres)
vii. Apply any departures (less impt now that advisory)
2. Apply sentencing statute 18 USC 3553a
a. Allows judge to give sentence above/below guideline range based on the
principles in the statute (called a variance)
i. I.e. not limited by narrow departures
b. Statute:
i. Requires sentence to be sufficient but not greater than necessary to
fulfill the purposes of sentencing (Note: very open-ended, so up to
the creativity of lawyers to argue sentence is sufficient/not
sufficient). Purposes:
1. Retribution (seriousness of the offense)
2. General deterrence
3. Specific deterrence (protect public from future crimes D
might commit)
4. Rehabilitation (provide D with needed correctional
treatment, e.g. education, vocational, medical or otherwise)
ii. Requires/allows judge to consider the nature and circumstances of
the offense and the