The Do’s
I. How to Get on the List
The Federal Public Defenders, in Texas, unlike their counterparts in the Fifth Circuit in Louisiana and Mississippi, do not administer the CJA panel attorneys list. The method of getting on the list differs not only from district to district in Texas, but between divisions in various districts. In most of the larger populated divisions, the list is voluntary, and is administered by a committee appointed by the Chief Judge of the district. This committee evaluates the written applications and recommendations of an individual attorney who seeks to be on the CJA panel and makes recommendations to the judge assigned by the Chief Judge to oversee that court committee. Typically, prior to approving an individual attorney to take federal court appointments, the committee members will look to the attorney’s past experience in federal court and in most jurisdictions, whether that attorney has been licensed in federal court for at least three years.
The committee will look at indicators other than experience in determining if an individual attorney ought to be on the CJA panel: Does that attorney have prior extensive state criminal law experience? What kind of support system does the attorney have (i.e., is the attorney in a firm or office-sharing arrangement with experienced federal criminal practitioners to be able to advise and work with the attorney)? In the Dallas Division, and in most of the Federal Defender offices, there is a mentoring program for those individuals who desire to be on the panel, but have not had extensive federal criminal law experience. This allows the attorney to be matched up with an Assistant Federal Public Defender and work on a case from interview through trial and even appeal. In some divisions, such as Dallas, there is even a small stipend through the Non-Appropriated Fund Committee for the attorney going through this mentoring process.
In some of the smaller populated divisions, everyone who is on the list to practice in federal court can potentially receive a federal criminal appointment. It has been my experience, however, in those jurisdictions the same individuals will be appointed repeatedly on cases because the judge is aware of their knowledge of federal criminal law.
II. Know Your Resources
The best 24/7 resource for issues involving federal criminal practice is www.fd.org, the website for the Federal Defender Service. This website has an amazing breadth of information categorized in easy-to-find format. Topics and outlines, along with supporting briefs, in deconstructing various guideline sentencing for offenses such as child pornography and armed career criminal, can be found here. Articles on current issues in sentencing prepared by the Federal Defender Sentencing Resource Counsel provide both excellent legal and statistical fodder from the U.S. Sentencing Commission to allow you to prepare memorandums and arguments for either downward departures or variances for your client.
In addition to the main website, there are websites for each federal defender with informative links. For example, our district’s website, www.txn.fd.org, has links to the fabulous article by Henry Bemporad and Lucien Campbell in the 12th Edition of the Introduction to Federal Sentencing, a 33-page document that gets you to the basics of federal sentencing as quickly as anything else I can recommend. There are also links to the 5th Circuit blogs, the Supreme Court blogs, Professor Berman’s Sentencing Policy Blog, and Alex Bunin’s list of every federal criminal case that has ever been reversed and the reasons for reversal. There are also links to all the CJA forms necessary for handling an appointed federal criminal case, along with brief banks, CLE opportunities, and information concerning hot topics on federal sentencings and trials.
For those CJA attorneys who are appointed on complicated or extensive federal criminal cases, there is a litigation support page at http://www.fd.org/odstb_litigationsupport.htm. On this page you can find recommended e-discovery practices for CJA attorneys and a guideline for CJA panel attorneys to obtain litigation support resources.
By far the most, and best, resource is the Federal Public Defender’s Office in each district. The Federal Public Defender’s Office has two missions: one is to provide quality representation for indigents charged with federal criminal cases, and the other is to provide assistance and education to court-appointed attorneys who are assigned federal criminal cases. Every FPD in Texas takes the second part of that mission very seriously, and as long as there are no conflicts, stands ready to assist the CJA panel attorneys. In addition, each district has a CJA panel representative, who is a designated liaison between the Federal Public Defenders and the CJA panel attorneys. These individuals can also assist in finding proper resources.
The Federal Public Defender’s and the CJA panel representatives for each district are shown in the box below.
III. Know Your Courts
The federal criminal practice is a deadline-driven practice. You can go to the U.S. District Court’s website (www.uscourts.gov/districtcourts) and link to your particular district to review the local rules concerning deadlines you must meet. Many of the courts will have standing orders concerning discovery included in the Local Rules, along with incorporating the Federal Rule of Criminal Procedure deadlines for the filing of motions and trial material. Many federal judges will also issue a scheduling order simultaneously with arraignment. Because there is a Speedy Trial Act in federal court (18 U.S.C. §3161), these deadlines are pretty much set in stone unless you take affirmative written action to move them.
When in doubt, contact the courtroom deputy of the particular district court your case is filed in to get information about what the court expects in terms of deadlines.
IV. Be Aware of the Fee Structure for CJA Cases
It is important to note the case maximums as it relates both to your fees and any investigative or expert witness fees. Prior approval from the court is necessary when it is anticipated that the compensation will exceed the maximum compensation allowed. If you are appointed on a “mega case,” you may be required to prepare a trial budget to submit to the court, ex parte, for approval prior to incurring the expense. The Office of Defender Services in Washington has individuals that will help you prepare a case budget for a complicated case. The courts, in reviewing payment vouchers, typically evaluate it on a 4-to-1 basis—i.e., four hours of out-of-court time for every one hour of in-court time. If the paysheet you submit is skewed dramatically away from this ratio, it is most likely either to be reduced or you will be required to provide further explanation.
In the Northern District of Texas there are now online voucher forms that can be filled out and automatically calculate your compensation request. It is anticipated that all courts will have this system in the next three years.
V. See the Client Early (and Often?)
Another difference from the state practice is that in all likelihood your federal appointed case will be a shut-in, housed at a detention center in a location remote to both your office and the federal courthouse. Federal practice requires more “windshield lawyering” than most state criminal practice. The initial interview is critical to establishing the trust forming the attorney-client bond that will be the basis for the important decisions to be made in the case. In many cases, the client will have experience in the state criminal law system. Explaining the important differences will be imperative at that first meeting, as it sets the tone for the client’s expectations. Always go over the attorney-client privilege, who the client can talk to and know that the conversation is protected, and admonish the client that all phone calls and many other contacts with relatives and outside individuals will be monitored by individuals at the detention center, likely to end up in the hands of the prosecutor.
The client needs to know that the federal system treats certain crimes much differently than the client is used to in state courts. A good example is felon in possession of a weapon. Many of the clients will have gone through the state system and received a negotiated probation for being a felon in possession of a weapon. The harsh reality of the federal system is that there is significant penitentiary time associated with a conviction for this offense. The same is true for drug offenses, child pornography offenses, and immigration offenses. All sentencing in federal courts is done by the judge (unlike the state system) and will have a baseline of the Federal Sentencing Guidelines as a start for the type of sentence that will be imposed.
It will be important that prior to the initial interview you take an initial look at what the guidelines are for the particular offense and offender. Significant inquiry into your client’s past criminal history is necessary to make a determination of whether your client might be eligible for career offender status, armed career offender status, and other statutory enhancements that will greatly increase your client’s sentence.
If the indictment is complicated, or a conspiracy indictment, I have always found it helpful in that initial interview to outline the indictment. There are a number of computer programs that can assist you in this—such as Casemap and Timemap.
In a multi-defendant indictment, a conversation with the Assistant United States Attorney as to where he/she believes your client falls in the indictment and what he/she believes is your client’s liability (i.e., drug amount, weapons enhancement, etc.) will assist in that initial interview. I would not talk plea agreement issues with the client at the initial interview unless the Assistant United States Attorney has indicated that your client’s cooperation, if early enough, could result in a substantial reduction of sentence.
Another difference in federal courts that the client needs to be advised of is that plea negotiations are for ranges of time under counts of the indictment, and not for a specific amount of time to be served in the vast majority of the cases.
VI. Explain the Risk/Reward Options
Because the guidelines reward an individual for not going to trial, there has been a tremendous decline in federal criminal trials (over 25,000 trials in 1986, the year before the guidelines took effect versus only 5,000 in 2007). Your independent analysis of the guideline calculations will assist the client in making this crucial decision. The attorneys in the Federal Public Defender’s Office often run their guideline calculations by other attorneys in the office prior to presenting them to the client to make sure the client is making an informed, intelligent decision. Running your guideline calculations by an AFPD or other experienced federal criminal practitioner may save you a lot of embarrassment in trying to explain to the client why your calculations are so different (and usually much lower) from the calculations of the federal probation officer in the pre-sentence report.
VII. Be Diligent on Discovery
The bottom line on preparation of your client for either trial or a plea is the extent and the quality of the information in the government’s case. Most courts have a standard discovery order as part of their initial pretrial order or their Local Rules, which require the defense attorney and the prosecutor to work out discovery issues prior to burdening the court. This is not an issue that favors the procrastinator. You need to make your demands for discovery immediately after arraignment (remember, the prosecutor under the Speedy Trial Act is going to be required to bring the defendant to trial within 70 days from the date of arraignment or arrest, so he/she should already have their ducks in a row and be aware of the issues and documents in the case prior to indictment). Document your discovery request, whether by letter or email, as these documents can be attached to a motion to compel to get the discovery you believe you are entitled to. Sit down with another attorney and discuss what you have received in discovery, and what you think the government should have if they had researched their case properly, and ask for that additional material.
If your district does not have a standing discovery order, do not file a form discovery motion. The judges are going to want laser-like requests for material you believe you are entitled to. It doesn’t do much good to ask for autopsy reports in an immigration case.
VIII. Scrutinize the Plea Agreement and Factual Résumé
It is extremely important that you review carefully the language in the plea agreement and the factual résumé, and make sure you have explained to the client the ramifications of each document. The Rule 11 plea colloloquy by the judge is likely to reflect if your client has a real understanding of the documents that he/she has signed. Admissions in the factual résumé to facts not included in the indictment may result in sentencing guideline enhancements. Paragraphs in the plea agreement, such as waiver of appeal, need to be fully understood by the client.
IX. Always, Always, Always Go to the Presentence Report Interview with the Client
The preparation of a presentence report by a federal probation officer is mandatory in most cases where there has been a conviction after trial or plea of guilty to an indictment or information. Unchallenged assertions in the presentence report have the effect of setting in stone the basis for guideline calculations and enhancements. Get a copy of the Form-1 probation interview in advance and go over it with your client. Prepare a written statement of the client’s case ahead of time to give to the probation officer. Go over all of the financial and background information with the client to identify those areas that might be used for a guideline enhancement (i.e., drug use, work history in the United States in an immigration case, etc.). Remember, in the presentence interview, you are a lawyer, not a facilitator, and act accordingly on your client’s behalf.
X. Objections to the Presentence Report and Sentencing Memorandums
There are certain things you are going to be required to do in evaluating any presentence report prepared by the Federal Probation Office. If your client has a prior criminal history, you will need to pull the documents to determine if any sentencing enhancements relative to criminal history are supported by the prior indictment and guilty plea. Remember, the assertions in the presentence report become a factual basis to support sentencing enhancements if not challenged.
Look to the cutting edge of sentencing objections, most of which are based upon cases pending before the Supreme Court that could result in a favorable ruling on behalf of your client (i.e., fast track, Apprendi issues, 924(c) issues, etc.). Most of these current issues can be found at www.fd.org on their sentencing-page link.
Objections to the presentence report go to guideline calculations, and any recommended sentencing enhancements or departures (either upward or downward). The sentencing memorandum serves a different purpose. This allows you to argue outside the guidelines about why a different sentence than one recommended by the guidelines is appropriate for your client. The sentencing memorandum usually addresses variances, which are related to the seven factors under 18 U.S.C. §3553(a), of which the guideline calculation is but one factor.
If you are going to make an objection to the PSR, and you believe you have a solid ground, it is always good practice to inform the probation officer prior to make the objection in writing to see if they would like to amend their report prior to your making the objection.
Since Booker, Kimbrough, Rita, and Spears (among others), the court is aware that it is not bound solely by the guidelines. However, sentencing statistics for Texas districts reflect that in over 85 percent of the cases, the courts tether their sentence to the guidelines. It is the use of the sentencing memorandum and intelligent arguments for variances that allow the court to untether themselves and formulate a sentence for both the offense and the offender that is reasonable and not more than necessary to achieve the goals of 18 U.S.C. §3553(a).
The Don’ts
I.
Do Not Take the AUSA’s Guideline Calculations as the Gospel
II.
Do Not Fail to Close the Discovery/Brady Loop Before Advising Your Client on the Advisability of Either Taking a Case to Trial or Entering into a Plea
III.
Don’t Ever Be Afraid to Ask an Assistant Federal Public Defender or an Experienced Federal Criminal Practitioner for Help
