Florida Bar Reference #2205637N
Approval Period: 07/20/2022 - 01/31/2024
Three decades ago, the Supreme Court said that the commentary in the Guidelines Sentencing Manual has “controlling weight unless it is plainly erroneous or inconsistent” with the text of the guideline. A few years ago, in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), the Supreme Court altered the established rule of deference to administrative agencies, holding that courts should defer to agency interpretations only if the regulation is “genuinely ambiguous.” Lawyers around the country are using the argument to challenge the Guidelines’ Commentary, arguing that courts should not rely on the Commentary unless the text of the guideline is “genuinely ambiguous.”
The most immediate example for us in the Eleventh Circuit is the case of United States v. Brandon Dupree, Case No. 19-13776, in which the court heard an en banc oral argument on June 21st. Dupree has argued a conspiracy conviction cannot count as a “controlled substance offense” for the career offender provision. The argument is that the text of the guideline, which speaks in terms of a substantive offense, is unambiguous, so courts cannot rely on the commentary, which expands the definition of “controlled substance offense” to include a conspiracy.
In this month’s video, two lawyers with the National Sentencing Resource Counsel, Shelley Fite and Christina Woehr, will guide you through the Kisor argument and suggest how to succeed with it. You’ll find it has real potential to change sentencing outcomes.
Shelley Fite is a 2006 graduate of the University of Wisconsin Law School. She began her legal career as a law clerk to United States District Court Judge Lynn Adelman and spent 13 years as an assistant federal public defender in Wisconsin. She joined the National Sentencing Resource Counsel in 2021.
Christina Woehr is a 2010 graduate of the Columbia Law School. She clerked for United States District Court Judge J. Antonio Fuste, worked for a private firm in New York City, and spent seven years as an assistant federal public defender. She has been with the National Sentencing Resource Counsel since 2021.
Materials:
Florida Bar Reference #2205071N
Approval Period: 06/23/2022 - 12/31/2023
Though the Supreme Court has said that “[i]n our society liberty is the norm, and detention prior to trial . . . is the carefully limited exception” trial courts are detaining pretrial defendants at an increasing rate. Around the country, it is often being done in violation of the Bail Reform Act.
In this month’s video, Alison Siegler, the Director of the University of Chicago’s Federal Criminal Justice Clinic discusses the results of her study that found many federal judges and prosecutors were seemingly unaware of key provisions of the Act. In her dynamic presentation, she’ll tell you what you need to know about the Act and will suggest strategies to help you gain your client’s release.
Alison Siegler is a 1998 graduate of the Yale Law School. She has testified before the House Judiciary Committee about federal bond reform and spoken to hundreds of federal magistrate judges about pretrial release. Before founding the Law School’s Federal Justice Clinic, she was an Assistant Federal Public Defender in Chicago and a law clerk for U.S. District Judge Robert Gettleman.
Florida Bar Reference #2204079N
Approval Period: 05/25/2022 - 11/30/2023
Erwin Chemerinsky, the Dean of the University of California, Berkely, School of Law, will present his take on this term’s Supreme Court cases and other recent decisions important to those practicing criminal defense.
Dean Chemerinsky is the author of twelve books, including leading casebooks and treatises about constitutional law, criminal procedure, and federal jurisdiction. He is the author of more than 250 law review articles, a contributing writer for the Opinion section of the Los Angeles Times, and writes a regular column for the Sacramento Bee, the ABA Journal, and frequent op-eds in newspapers across the country. He regularly argues cases before the United States Supreme Court.
In 2017, National Jurist magazine named him the most influential person in legal education in the United States.
The presentation is longer than our usual one at an hour and forty-five minutes.
Florida Bar Reference #2202961N
Approval Period: 04/06/2022 - 10/31/2023
Even the most experienced lawyers can struggle to find the path through the rules governing character evidence and impeachment. The Federal Rules of Evidence contain a series of rules. Rules 404(a) and 404(b) allow the use of character testimony in limited circumstances, including the use of prior criminal convictions to impeach. The methods of proving character are set out in Rule 405. Rules 412, 413, and 414 govern the use of character evidence in cases of sexual abuse. In Rules 607, 608, and 609, you’ll find the specifics of impeachment.
In this month’s presentation, Rene Valladares, the Federal Public Defender for the District of Nevada, will guide you through the maze. Rene is an adjunct professor at the University of Nevada, Las Vegas, Boyd School of Law and the University’s Criminal Justice Department. He recently wrote a Defender’s Guide to Federal Evidence: A trial Practice Handbook for Criminal Defense Attorneys, published by the National Association of Criminal Defense Lawyers.
Florida Bar Reference #2202198N
Approval Period: 03/11/2022 - 09/30/2023
Among its many provisions, the First Step Act (FSA) provides opportunities for certain individuals to earn time credits (separate from good time credits) and be released from prison or transferred to prerelease custody based on those credits. In January 2022, the Department of Justice finally issued the regulations governing the Earned Time Credit, and retroactively applied credits, resulting in the early release of thousands. Whether our clients will benefit from this aspect of the FSA depends on whether they are excluded (due to immigration status, conviction, or judicial findings at sentencing), their risk score (as determined by BOP's new risk assessment tool: PATTERN), their participation in programming, and the availability of programming. This session will summarize these custodial provisions of the FSA, identify what we know and don't yet know about BOP's implementation of these provisions, and discuss how to best set our clients up to take advantage of the new potential benefits.
Presenters Liz Daily is an Assistant Federal Public Defender and the Appellate Chief in the District of Oregon. She has worked on numerous district court and appellate court cases involving challenges to Bureau of Prisons policies and procedures, including successful litigation challenging the BOP's failure to properly implement earned time credits in 2021. Before joining the Federal Public Defender in 2014, Liz worked as an appellate defender in Oregon and a trial-level public defender in Brooklyn, NY. She also clerked for the Immigration Courts in Seattle and Portland. Liz is a 2006 graduate of Lewis & Clark Law School.
Patricia Richman is National Sentencing Resource Counsel for the Federal Public and Community Defenders, where she leads legislative work. Previously, Patricia served as an Assistant Federal Public Defender in the District of Maryland and as an associate at Williams & Connolly LLP. Before joining SRC in 2020, Patricia was detailed to Senator Durbin's (D-Ill) Judiciary Committee staff, where she led his criminal justice portfolio and First Step Act oversight efforts.
Florida Bar Reference #2201297N
Approval Period: 02/10/2022 - 08/31/2023
From complex defense theories to sentencing mitigation and compassionate release, Federal Public Defenders and Panel members routinely deal with diverse issues at the intersection of medicine and law. While medical experts are often instrumental to our objectives, failing to properly access and manage experts can cost time, money, and results. By knowing the ground rules and proven strategies for working with medical experts, it's remarkably easy to improve outcomes, navigate contracting, and secure top-tier physicians and surgeons to bolster your case. This webinar will address proven strategies to maximize success with medical experts. During this live 1-hour session, Dr. Burton Bentley II will share actionable insight learned from over 8000 cases, while Assistant Federal Defender Andrea Dechenne Bergman will focus on the challenges lawyers tackle every day and how to most effectively present medical expert evidence, particularly in sentencing.
Dr. Burton Bentley II is a board-certified Emergency Medicine physician and a nationally recognized authority on complex issues at the intersections of medicine, business and law. He earned his M.D. degree at the University of Arizona, completed a residency in Emergency Medicine at the Medical College of Wisconsin, and practiced Emergency Medicine full-time for 21 years before developing a novel medical device that he patented and commercialized. Dr. Bentley now devotes his energy to Elite Medical Experts, a consulting firm that aligns Professors of Medicine and Surgery as experts in complex litigation. In addition to working with over 4000 clients including law firms, governmental entities, and corporations, Dr. Bentley serves as a frontline resource for Federal Public Defenders whose cases require strategic and tactical insight.
Andrea Dechenne Bergman has been an Assistant Federal Public Defender in New Jersey for 24 years. She graduated with a B.A. in English Literature from Skidmore College and a J.D. from Santa Clara University School of Law.
Florida Bar Reference #2200015N
Approval Period: 01/05/2022 - 07/31/2023
Government forensic experts in criminal cases can be full of misleading ideas and opinions that pass for “science” in the courtroom. Colorado defense attorney Collette Tvedt will explain the foundations of effective cross examinations and reveal some of the existing myths and assumptions around GPS, ballistics, DNA, and fingerprint evidence that can be undercut through cross examination.
Ms. Tvedt will teach the guiding principles for using an expert: “Expert i.C.P.R.” These four principles will help you effectively select, prep, and examine experts for litigation. You will also learn techniques to create theme-based cross examinations and story-rich direct examinations.
Ms. Tvedt is a nationally known attorney and lecturer who has been practicing criminal defense for over 20 years. She represents a broad range of clients facing investigation or prosecution from white-collar to violent crimes. She is a 1980 graduate of the Rutgers University School of Law. She is a faculty member of the National Criminal Defense College.
Florida Bar Reference #2109634N
Approval Period: 11/10/2021 - 05/31/2023
In September, the United States Sentencing Commission publicly released the Judiciary Sentencing Information platform, or "JSIN". The Commission describes JSIN as a data tool "specifically developed with the needs of judges in mind." According to the Commission, JSIN provides judges with easier access to sentencing data for "similarly-situated defendants." In this presentation, Sentencing Resource Counsel Jayme Feldman and Tina Woehr explore JSIN's capabilities and limitations and discuss how the tool may affect defense strategies at sentencing (and beyond).
Jayme Feldman leads the Sentencing Resource Counsel’s advocacy before the Sentencing Commission. Before joining the Sentencing Resource counsel, she was an Assistant Federal Public Defender in New York. She earned her J.D. from the University of Buffalo Law School.
Before joining the Sentencing Resource Counsel, Tina Woehr worked as an Assistant Federal Public Defender in both Texas and Arizona and was an associate with a New York law firm. She is a graduate of the Columbia Law School.
Florida Bar Reference #2108974N
Approval Period: 10/20/2021 - 04/30/2023
We regularly see conspiracy cases that ensnare those who are most culpable, but also those on the margins. From the defense standpoint, they are difficult cases. In this month’s presentation, Rene Valladares, the Federal Public Defender for the District of Nevada, will talk about why conspiracy cases pose such a problem for our clients, will cover the basic elements of conspiracy, common defenses, evidentiary issues, and practice tips.
Rene is also an adjunct professor at the University of Nevada’s law school. He regularly lectures on various criminal law and procedure topics including evidence and the defense of conspiracy cases. The National Association of Criminal Defense Attorneys recently published Rene’s book, Guide to Federal Evidence: A Trial Practice Handbook for Criminal Defense Attorneys.
In Borden v. United States, 141 S. Ct. 1817 (2021), the Supreme Court held that a criminal offense that requires only a mens rea of recklessness cannot count as a "violent felony" under the Armed Career Criminal Act's (ACCA's) force clause or elements clause. ACCA enhances the sentence of anyone convicted under 18 U.S.C. SS 922(g) of being a felon in possession of a firearm if she has three or more prior convictions (whether state or federal) for a "violent felony" or a "serious drug offense," or both. The increase in penalty is severe: A 10-year maximum sentence turns into a 15-year minimum. This webinar analyzes the Borden decision and its application to the ACCA and other enhancements in pending and future cases, and cases that are final on direct review, e.g., post-conviction remedies. The webinar will also discuss strategies to challenge application of ACCA's force clause beyond Borden's holding.
The Office of Defender Services presented this webinar last month.
Presenters
Paresh Patel is the Appellate Chief at the Office of the Federal Public Defender for the District of Maryland. He has been at the Federal Public Defender since 2003. Before then, he worked as a staff attorney at the Public Defender Service in Washington, D.C. and the Office of the Appellate Defender in New York, New York. In 1999-2000, he clerked for the Honorable Ancer L. Haggerty of the United States District Court for the District of Oregon in Portland. Paresh earned his J.D. from American University in 1996, and he received his undergraduate degree from the University of Southern California in 1993.
Erin Rust was counsel of record in United States v. Borden, 141 S. Ct. 1817 (2010), and is an Assistant Federal Defender serving in the Appellate Unit at Federal Defender Services of Eastern Tennessee, Inc. She has been with Federal Defender Services since 2014 handling retroactive/post-conviction cases and district court cases in the Trial Unit before transitioning to appeals. Previously she was in private practice. Erin earned her J.D. from Washington University in St. Louis in 2010, and her undergraduate degree from Maryville College in 2006.
Florida Bar Reference #2106541N
Approval Period: 08/01/2021 - 02/28/2023
This month’s webinar, led by two lawyers, one from a federal public defender office and one a member of a Criminal Justice Act panel, focuses on how to deal with a federal criminal appeal from start to finish. The session covers everything from ordering transcripts, communicating with your client, identifying issues, drafting briefs, preparing for oral argument, and navigating post-decision litigation. It will also cover substantive points to address common concerns that arise in appeals and tips on avoiding typical mistakes. It is an ideal session for anyone new to federal appeals and for any experienced practitioners looking for a refresher.
Adeel Bashir is an Assistant Federal Public Defender in the Federal Public Defender's Office in Tampa. Adeel has litigated a wide range of appeals involving federal statutory and constitutional interpretation and the federal sentencing guidelines. His notable cases include Yates v. United States, 135 S. Ct. 1074 (2015), and Rehaif v. United States, 139 S. Ct. 2191 (2019).
Susan Lin is a partner with the firm of Kairys, Rudovsky, Messing, Feinberg & Lin in Philadelphia. She is a criminal defense and civil rights trial attorney who is also experienced in litigating federal appeals and post-conviction claims. She teaches trial advocacy at the Temple Law School and at the University of Pennsylvania Law School. Susan is a 2004 graduate of Yale Law School. She has clerked for a United States District Court Judge and worked as an Assistant Public Defender at the Defender Association of Philadelphia and as an Assistant Federal Public Defender in the trial and appellate units of the Federal Community Defender Office for the Eastern District of Pennsylvania.
Florida Bar Reference #2105365N
Approval Period: 07/01/2021 - 01/31/2023
In this month’s video Stanford Law School professor Jeffrey Fisher provides an update on recent Supreme Court decisions affecting federal criminal practice, issues under consideration by the Court, and issues for the future.
Jeffrey L. Fisher is a professor at Stanford Law School and co-director of its Supreme Court Litigation Clinic. He is also special counsel at O’Melveny & Myers LLP. His academic and Supreme Court work runs the gamut of federal constitutional and statutory matters, with an emphasis on criminal procedure issues.
Professor Fisher has argued over forty cases in the Supreme Court. Among his successes are Riley v. California and Carpenter v. United States, involving the Fourth Amendment’s application to digital information, and Crawford v. Washington and Melendez-Diaz v. Massachusetts, involving the Confrontation Clause. Professor Fisher was also co-counsel for the plaintiffs in Obergefell v. Hodges, in which the Court held that the Fourteenth Amendment guarantees same-sex couples a right to marry. In 2006, the National Law Journal named him one of the 100 most influential lawyers in the country – the youngest person on the list – and he has remained on that list ever since.
Professor Fisher formerly served as a law clerk to Justice John Paul Stevens on the Supreme Court of the United States and to Judge Stephen Reinhardt on the U.S. Court of Appeals for the Ninth Circuit. He also is a recipient of the Heeney Award, the highest honor bestowed by the National Association of Criminal Defense Lawyers.
Florida Bar Reference #2104955N
Approval Period: 06/15/2021 - 12/31/2022
In this month’s webinar, Sentencing Resource Counsel Jayme Feldman and Laura Mate, focus on the fundamentals of federal sentencing law, from the Constitution to the statutes, to the Sentencing Guidelines. They include a tour of the Sentencing Guidelines Manual, with an eye toward understanding its basic structure and its theories. Their goal is to give you the knowledge you need for creative sentencing advocacy—to show where the legal framework is rigid and where it bends, so you can work toward the best outcome for you client.
Jayme Feldman is an attorney with the National Sentencing Resource Counsel Project for the Defender Services Division of the United States Courts. Before joining the Sentencing Resource Counsel, she was an assistant federal public defender in the Western District of New York. She graduated in 2010 from the School of Law at the University of Buffalo.
Laura Mate is the Director of the National Sentencing Resource Counsel Project. In years past, she had been an assistant federal public defender in the Western District of Washington and an associate with Perkins Cole in Seattle. She is a graduate of the University of Michigan Law School.
The Training Divison originally broadcast the webinar in March of this year.
Keeping Your Client’s Sentence as Short as Possible
Florida Bar Reference #2104174N
Approval Period: 05/10/2021 - 11/30/2022
In this month’s recorded webinar, Assistant Federal Public Defenders Liz Daily and Stephen Sady provide you with practical tips to keep your client’s stay in the Bureau of Prisons as short as possible. They discuss the importance of the presentence report in determining your client’s security level and placement in the Bureau of Prisons, pretrial credit, details about the Residential Drug Abuse Program (RDAP), the new earned time credits under the First Step Act, the basics of compassionate release, avoiding unintended consecutive sentences, and habeas corpus relief.
Liz Daily is the Appellate Chief in the District of Oregon. She is a 2006 graduate of the Lewis & Clark Law School and his been with the office since 2014. Before coming to the Federal Public Defender Office, she was an appellate public defender in Oregon, a trial-level public defender in Brooklyn and clerked for immigration courts in Seattle and Portland.
Stephen Sady is the Chief Federal Public Defender for the District of Oregon. He is a 1977 graduate of the Lewis & Clark Law School. He has been with the office since 1981. He has litigated cases involving the Bureau of Prisons, including a case before the Supreme Court regarding good time credit calculations. He writes and teaches on subjects including federal sentencing, pretrial motions, appellate advocacy, representation of Guantanamo prisoners, and post-sentence challenges to the use of prior convictions to enhance sentences.
The Training Division of the Defender Services Division broadcast the webinar on May 5, 2021.
Court Web: New Developments in Federal Criminal Law and Procedure
Florida Bar Reference #2102929N
Approval Period: 04/01/2021 - 10/31/2022
This month’s video is from the Federal Judicial Network. Host Brenda Baldwin-White talks with Laurie Levenson, Professor of Law at Loyola Law School, Los Angeles, about new developments in federal criminal law and procedure. Their discussion will focus on recent cases before the Supreme Court on issues regarding the standard for seizures under the Fourth Amendment, the meaning of the "use of force" clause of the Armed Career Criminal Act, the Eighth Amendment as it applies to juvenile sentencing, the scope of the Computer Fraud and Abuse Act, retroactivity of new Sixth Amendment decisions, the applicability of the hot pursuit doctrine in misdemeanor cases, and the scope of the "community caretaking" exception to the Fourth Amendment warrant requirement. Professor Levenson will also address new federal discovery practices, the impact of COVID-19 on speedy trial rights, federal felony murder law, and the future of qualified immunity in excessive force cases.
Ms. Levenson teaches evidence, criminal law and procedure, and trial advocacy. She is the author of a number of publications, including Federal Criminal Rules Book (2018 ed. Thomson West); Roadmap on Criminal Law (4th edition); Criminal Procedure (Aspen Publishers 2018); Glannon guide to Criminal Law (4th ed. 2014).
The Judicial Network broadcast the presentation live on March 31, 2021.
The Problem with Concurrent State Sentences
Florida Bar Reference #2102179N
Approval Period: 03/15/2021 - 09/30/2022
Time and time again, defendants are sentenced in federal court, go back to state court, and receive concurrent sentences only to find out later the state sentence isn’t running concurrently. Despite what you might have thought, it’s not a problem spawned by the Bureau of Prisons. Rather, it’s a matter of comity between two sovereigns, the state and federal governments. It can lead to your client serving a sentence far longer than either the state or the federal judge intended.
This month’s recorded webinar explains the mystery of it all and will help you save your clients from a sentence far longer than anyone intended.
The Training Division of the Defender Services office originally broadcast the webinar in January of 2021.
One of These Things is Not Like the Other: Challenging Drug Predicates
Florida Bar Reference #2100897N
Approval Period: 02/15/2021 - 08/31/2022
Prior drug convictions can mean longer sentences under the Armed Career Criminal Act and the Sentencing Guidelines. They can require deportation. Richie Summa of our office took a stab at prior Florida drug convictions in his Supreme Court case, Shular v. United States, 140 S. Ct. 779 (2020). While we didn’t prevail, Richie is still at it and has some new theories.
But he’s not the only one challenging prior drug convictions. In this month’s video, Sentencing Resource Counsel Davina Chen explains that some prior drug convictions are based on substances not prohibited by the federal drug statute and, therefore, don’t qualify as predicate offenses. She shares some of the favorable court decisions and provides a step-by-step process that, in the right case, will allow you to argue your client’s prior drug conviction doesn’t qualify as a predicate offense.
Davina Chen became the Sentencing Resource Counsel upon the retirement of Amy Baron-Evans last year. Davina is a graduate of the New York University School of Law where she was a member of the Order of the Coif. Before joining the Training Division of Defender Services, she clerked for a judge of the Ninth Circuit Court of Appeals, worked as an Assistant Federal Public Defender, and maintained a practice specializing in appellate and post-conviction work.
This video is a recording of a webinar broadcast this past November by the Defender Training Division of the Office of Defender Services.
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Recent Developments in Federal Sentencing
Florida Bar Reference #2100186N
Approval Period: 01/15/2021 - 07/31/2022
In this month’s video, host Brenda Baldwin-White, Senior Judicial Education Attorney, talks with Raquel Wilson, the Director of the Office of Education and Sentencing Practice at the U.S. Sentencing Commission, and Alan Dorhoffer, Deputy Director of the Office of Education and Sentencing Practice at the U.S. Sentencing Commission, about recent developments in federal sentencing. The conversation includes a discussion of recent Commission reports, sentencing issues involving the First Step Act, and recent Supreme Court and appellate cases involving sentencing issues. Ms. Wilson and Mr. Dorhoffer will also explain how to find relevant sentencing information on the Sentencing Commission’s website.
This video was originally broadcast by the Federal Judicial Center this past December. It runs for an hour and 45 minutes.
Digital Forensics in Child Exploitation Cases
Florida Bar Reference #1908808N
Approval Period: 11/01/2020 - 05/31/2022
Digital evidence almost always plays a critical role in child exploitation cases. Larry Daniel, a private forensic consultant, explains how law enforcement agencies perform online investigations for child pornography and child solicitation cases. He covers the underlying technology with particular emphasis on peer-to-peer file sharing. He uses examples to illustrate the complexity and will show you how to challenge the digital evidence by working through actual case examples.
Larry has over 30 years’ experience in software development and data recovery. He began preforming digital forensics in 2001 and has thousands of hours of experience. He has qualified and testified as a computer and a cellular technology expert over 50 times in state and federal courts.
Digital Evidence Made Easy (Mobile Devices)
Florida Bar Reference #2007909N
Approval Period: 10/01/2020 - 04/30/2022
Mobile devices play a role in more and more of our cases. This month’s recorded webinar gives you the basic information about gathering, understanding, and applying the digital evidence that is retrievable from mobile devices. It will help you understand what can be a complicated process and allow you to verify the processes used by the Government. You’ll discover the options the Government has in providing digital evidence discovery and how to read and use what it provides.
Troy Schnack, the Computer Systems Administrator for the Federal Public Defender for the Western District of Kansas, is the speaker. He specializes in digital forensics and has been performing digital forensic exams since 2000. His multiple forensic certifications include, EnCase Certified Examiner, AccessData Certified Computer and Mobile Examiner, and Certified Oxygen Mobile Forensics Examiner, and a Professional Certificate from Oregon State University in Computer Forensics. He has given a number of presentations on technology to Federal Public Defenders across the country.
This is webinar presented by the Training Division of the Training Division of the Office of Defender Services and is available only on the Division’s website.
Trials in a Pandemic
Florida Bar Reference #2006309N
Approval Period: 09/01/2020 - 03/31/2022
We’ve already had several trials here in North Florida in recent weeks. The general approach seems that of requiring jurors and the parties to wear masks and attempting physical distancing. In this month’s video, several assistant federal public defenders from Dallas discuss their experience and the issues in what seems to have been the first federal trial during the pandemic. The topics include the logistics of it all, safety measures, jury selection, the presentation of evidence, communication with the client, and an effort to raise a claim that, in jury selection, they could not get a fair cross section of the community.
The presenters, Michael Kawi, Stephanie Inman, and Joel Page all work in the office of the Federal Public Defender for the Northern District of Texas. Joel supervises the appellate section of the office.
The webinar was presented in June by the Training Division of the Office of Defender Services.
Florida Bar Reference PENDING
For decades now, legal writing instructors have been encouraging lawyers to write in plain concise language. The goal remains elusive.
In July and August, we’ll work toward getting closer to it. We’ll be presenting two Zoom sessions with Wayne Schiess, a Senior Lecturer at the University of Texas Law School’s David J. Beck Center for Legal Research, and Appellate Advocacy. In the session, he will cover everything from the best fonts to use, whether you need an extra space after a sentence, the en dash, when to use “which” instead of “that,” ending sentences with prepositions, and the best way to organize a pleading.
As we get closer, we’ll provide instructions on how to participate.
Mr. Schiess teaches legal writing, legal drafting, and plain English and speaks frequently on those subjects. He writes a monthly column on legal writing for the Austin Lawyer Magazine and has written five books on practical legal-writing skills, including Legal Writing Nerd: Be One and Plain Legal Writing: Do It. He graduated from Cornell Law School, practiced at the mega-firm of Baker Botts and joined the Texas Law Faculty in 1992. His blog, LEGIBLE, has been named to the Texas Bar Today weekly top ten blog posts 48 times.
Power Point presentation available upon request. Please email richard_bellew@fd.org.
Florida Bar Reference #2003969N
Approval Period: 07/23/2020 - 01/31/2022
For decades now, legal writing instructors have been encouraging lawyers to write in plain concise language. The goal remains elusive.
In July and August, we’ll work toward getting closer to it. We’ll be presenting two Zoom sessions with Wayne Schiess, a Senior Lecturer at the University of Texas Law School’s David J. Beck Center for Legal Research, and Appellate Advocacy. In the session, he will cover everything from the best fonts to use, whether you need an extra space after a sentence, the en dash, when to use “which” instead of “that,” ending sentences with prepositions, and the best way to organize a pleading.
As we get closer, we’ll provide instructions on how to participate.
Mr. Schiess teaches legal writing, legal drafting, and plain English and speaks frequently on those subjects. He writes a monthly column on legal writing for the Austin Lawyer Magazine and has written five books on practical legal-writing skills, including Legal Writing Nerd: Be One and Plain Legal Writing: Do It. He graduated from Cornell Law School, practiced at the mega-firm of Baker Botts and joined the Texas Law Faculty in 1992. His blog, LEGIBLE, has been named to the Texas Bar Today weekly top ten blog posts 48 times.
Power Point presentation available upon request. Please email richard_bellew@fd.org.
Florida Bar Reference #2003555N
Approval Period: 06/01/2020 - 12/31/2021
Some of the longest sentences imposed on our clients are based on either the Armed Career Criminal Act or the Career Offender provision of the Sentencing Guidelines. In recent years, defense lawyers have raised challenges to both with mixed results. The outcome did convince the Sentencing Commission to modify the career offender guideline.
In this month’s video, Randy Murrell will review the litigation, the changes in the Career Offender guideline, and discuss the issues that remain.
Randy Murrell is a graduate of the Florida State University College of Law. He has been the Federal Public Defender for the Northern District of Florida since 1998. He is Board Certified in Criminal Trials by The Florida Bar.
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Managing and Reviewing Electronic Discovery for CJA Panel Attorneys
Florida Bar Reference #2004228N
Approval Period: 05/01/2020 - 11/30/2021
This webinar addresses common problems CJA Panel Attorneys face with managing and reviewing electronic discovery and the strategies Panel Attorneys are using to solve them. Besides discussing litigation support technology, this session will describe the resources available to Panel Attorneys to help alleviate the daunting feeling when told that gigabytes of information will soon arrive. Whether the challenge involves volume, format or the need to collaborate with others, the information in this webinar will help you determine strategies and solutions for these demanding cases.
The National Litigation Support Team of the Office of Defender Services produces the webinar. It consists of Sean Broderick, Kelly Scribner, Alex Roberts, and Kalei Achiu, all with extensive experience in litigation support.
This is a recording of the live webinar presented at the end of April by the Defender Training Division of the Defender Services Office.
Florida Bar Reference #2002010N
Approval Period: 04/29/2020 - 10/31/2021
Part 1
As most know, the First Step Act applies to many sentenced for crack cocaine before the enactment of the Fair Sentencing Act on August 3, 2010. It also creates a meaningful avenue of release for any prisoner who is old or sick, something that has taken on added relevance with the pandemic. This month we have two videos. In the first, Federal Public Defender Randy Murrell will tell you what North Florida defendants are being released and discuss the unresolved issues pending before the courts. The second is a practical guide to filing a First Step Act motion. It is meant primarily for the lawyers in the Federal Public Defender Office, but is there for anyone who is interested.
Randy Murrell has been the Federal Public Defender for the Northern District of Florida since 1998. He is Board Certified in Criminal Trials by The Florida Bar. Since the advent of the First Step Act, he has represented dozens of prisoners seeking relief.
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Part 2
In Part One of this two-part series, Randy Murrell gives a current account of the status of the First Step Act in the Northern District of Florida and discusses the unresolved issues. In Part Two, he provides a practical guide to filing a First Step Act motion.
Randy Murrell has been the Federal Public Defender for the Northern District of Florida since 1998. He is Board Certified in Criminal Trials by The Florida Bar. Since the advent of the First Step Act, he has represented dozens of prisoners seeking relief.
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The Nuts & Bolts of Working Up a Fraud Case for Trial
Florida Bar Reference #2000478N
Approval Period: 02/19/2020 - 08/31/2021
Two assistant federal public defenders, Amrutha Jindal and Sara Peloquin, will walk you through the basics of preparing a fraud case for trial. They address a long list of topics: dealing with a parallel civil case; reviewing discovery and getting help to do so; organizing defense documents; pretrial motions – challenges to the indictment, seeking a bill of particulars, and severance; investigation and using 17(c) subpoenas; challenges to evidence; possible defenses; and developing trial strategy.
Amrutha Jindal is a 2008 graduate of the Georgetown University Law Center and has worked for the Federal Defenders of San Diego since 2012. Sara Peloquin is a 2007 graduate of the City University of the New York School of Law. She has worked for the Federal Defenders of San Diego since 2007.
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Litigation Ethics Issues
Florida Bar Reference #2000318N
Approval Period: 01/22/2020 - 07/31/2021
Federal Judicial Center host Brenda Baldwin-White talks with litigator Tom Spahn about several litigation ethics topics, including the frequently changing, often state-specific and sometimes counter-intuitive ethics rules governing lawyers’ communications about their cases and about judges; discovery through arguably deceptive means, paying and preparing fact witnesses, ghostwriting pleadings, and lawyers’ duties to disclose unfavorable facts and law to tribunals.
Thomas Spahn is a commercial litigator with the law firm of McGuire Woods. He has spoken at over 1,800 CLE programs throughout the United States and in several foreign countries. He has served on the ABA Standing Committee on Ethics and Professional Responsibility. As Chairman of the Virginia Bar Association on Professionalism, he acted as principal drafter of Principles of Professionalism that have been endorsed by the Virginia Supreme Court and commended by both of Virginia’s federal district courts. In 2013, the Virginia Law Foundation published the latest version of his book on the attorney-client privilege and the work product doctrine – a two-volume 1,500 page book discussing those topics on a national level.
Materials:
Mens Rea for Drug Type and Quantity Elements: Instructions for Conspiracy Limits on “Jointly Undertaken” Relevant Conduct
Florida Bar Reference #1908808N
Approval Period: 11/20/2019 - 05/31/2020
In this month’s video, Sentencing Resource Counsel Amy Baron-Evans offers theories you can use to challenge two long-standing rules that affect drug prosecutions. While the Government is required to prove actual threshold drug quantities, it need only prove the defendant knew he had a controlled substance. Courts have held the Government has no obligation to prove the defendant knew either the type or the quantity of the controlled substance. In conspiracy cases, the Government, in proving the drug quantity, need only prove the actions of the co-conspirators was “reasonably foreseeable.”
Ms. Baron-Evans cites the new emphasis on mens rea in cases such as Rehaif v. United States, 193 S. Ct. 914 (2019), and explains why the Government should be required to prove the defendant knew the kind of drug and the quantity. In conspiracy cases, she argues that, rather than the defendant being held accountable for the activity of the co-conspirators that was reasonably foreseeable, the defendant’s liability should be limited to the quantity within the scope of his activity.
Since 2005 Amy Baron-Evans has been the Sentencing Resource Counsel for the Federal Public Defender’s National Sentencing Resource Counsel Project. She is a 1991 graduate of the Harvard Law School.
The Real World Categorical Approach: A Scenario-Based Reality Check
Florida Bar Reference #1908807N
Approval Period: 10/30/2019 - 04/30/2021
The government routinely uses evidence – call logs, text, pictures, GPS data – found on a client’s cell phone. Litigating and asserting Fourth Amendment limits on the use of it has become important in many of our cases. In this month’s video, two assistant federal public defenders, Whitney Bernstein and Caitlin Howard, explore creative litigation strategies. They include suggestions about challenging a client’s consent to search and contesting the validity of search warrants and border searches. They explain, too, how an expert can help.
Whitney Bernstein and Caitlin Howard are trial lawyers with The Federal Defenders of San Diego. Ms. Bernstein is a 2012 graduate of the University of Pennsylvania Law School. Ms. Howard is a 2010 graduate of the McGeorge School of Law of the University of the Pacific.
Materials:
New Developments in the Law of Incarceration
Florida Bar Reference #1907055N
Approval Period: 09/25/2019 - 03/31/2021
This month we’ll be showing a video from the Federal Judicial Network. Host Brenda-Baldwin White talks with Professor David Shapiro, Northwestern Pritzker School of Law, about the latest developments in the law of prisoners’ rights. They will discuss the interpretation of the Supreme Court’s decision in Ross v. Blake and its requirement of administrative exhaustion. Other topics include solitary confinement, questions regarding the validity of certain prisoner forms after the Supreme Court’s decision in Jones v. Beck, developments in constitutional standards for the treatment of jail detainees, and growing concerns about the doctrine of qualified immunity.
It’s a topic that is admittedly not directly related to CJA representation. Still, the presentation will give you a better understanding of the remedies available to prisoners and help you counsel clients about their rights.
David Shapiro is the Director of the Supreme Court and Appellate Program of the Roderick and Solange MacArthur Justice Center, a group of five appellate attorneys in Chicago and Washington, D.C. dedicated to strategic representation in high-stakes civil rights appeals throughout the nation. Prior to joining the faculty at Northwestern, Shapiro was a staff attorney at the ACLU National Prison Project. He’s a graduate of the Yale Law School.
Materials:
Expanding Advocacy for Pretrial Release
Florida Bar Reference #1906468N
Approval Period: 08/28/2019 - 02/28/2021
There is room for improvement in the federal pretrial detention system. In some areas, the detention numbers exceed those of the state courts that typically rely on monetary bail. Effective advocacy can make the difference. This month’s video draws on a project, which involved the observation of detention hearings in the federal courts of Chicago. The observers found prosecutors and judges routinely misinterpreted and overlooked key provisions of the Bail Reform Act. In this month’s video, Alison Siegler discusses these misconceptions and will give you the tools you need to ensure adherence to due process, overcome the Act’s presumptions, file written motions, and gain your client’s pretrial release.
Alison Siegler is the Director of the Federal Criminal Justice Clinic at the University of Chicago Law School. She is a 1998 graduate of the Yale Law School. She worked as an Assistant Federal Public Defender in Chicago and clerked for a United States District Court Judge before joining the Law School’s clinic.
Opportunities and Knotty Problems in Sections 401-403 of the First Step Act
Florida Bar Reference #1905716N
Approval Period: 07/31/2019 - 01/31/2021
This month we’ll be presenting the last of our series of videos on the First Step Act. In it, Sentencing Resource Counsel Amy Baron-Evans discusses in detail some of the more complicated issues regarding §§ 401-403 of the First Step Act. The topics include Safety-Valve questions about the definition of “violent offense,” whether status point’s count for criminal history, the possibility of using the defendant’s required statement to increase penalties, and the absence of a corresponding provision in the Sentencing Guidelines.
She also addresses the new limitations on predicate offenses for purposes of § 851 enhancements – the differences between the new “serious drug felony” and the old “felony drug offense,” the definition of “serious violent felony” and the possibility of an ex post facto defense. She talks, too, about who will and who won’t be eligible for earned good time credit.
Amy Baron-Evans is a 1991 graduate of the Harvard Law School. She has been the National Sentencing Resource Counsel since 2005.
Recent Developments in Federal Sentencing
Florida Bar Reference #1904360N
Approval Period: 05/29/2019 - 11/30/2020
This month’s presentation is from the Federal Judicial Center. Senior Judicial Education Attorney Brenda Baldwin-White talks with Alan Dorhoffer, Deputy Director of the Office of Education and Sentencing Practice at the U.S. Sentencing Commission. Mr. Dorhoffer covers recent sentencing issues including the First Step Act, Supreme Court cases involving sentencing, and the Sentencing Commission’s 2018 Guideline amendments.
Mr. Dorhoffer is a graduate of the George Washington School of Law. He has conducted hundreds of training programs for judges, attorneys, law clerks, probation officers, and federal bar associations on federal sentencing.
Supreme Court Review
Florida Bar Reference #1904572N
Approval Period: 05/29/2019 - 11/30/2020
This month’s presentation is from the Federal Judicial Center. Senior Judicial Education Attorney Brenda Baldwin-White talks with Alan Dorhoffer, Deputy Director of the Office of Education and Sentencing Practice at the U.S. Sentencing Commission. Mr. Dorhoffer covers recent sentencing issues including the First Step Act, Supreme Court cases involving sentencing, and the Sentencing Commission’s 2018 Guideline amendments.
Mr. Dorhoffer is a graduate of the George Washington School of Law. He has conducted hundreds of training programs for judges, attorneys, law clerks, probation officers, and federal bar associations on federal sentencing.
First Step Act - Part Two
Florida Bar Reference #1902776N
Approval Period: 03/27/2019 - 09/30/2020
The First Step Act became law this past December. There is a lot to it. No longer does just any prior felony drug conviction support harsher penalties for drug offenses, though certain violent felonies will. Many sentenced for crack cocaine prior to August of 2010 are already receiving the benefit of the reduced penalties that came with the Fair Sentencing Act. More of our clients qualify for the safety valve. Compassionate release is a real possibility. Increased good time credit is on the way.
The Training Division of the Defender Services Office has produced a series of twenty-minute webinars. This month we’ll be showing three more of them: the new restriction on stacking sentences of 924(c) convictions, expansion of good time and earned time credit, and the relaxed safety valve standards.
Each 20-minute segment has a different presenter. Ubon Akpan is an Attorney Advisor with the Defender Services Training Division. She was a formerly an assistant public defender in New Jersey and an Assistant Federal Public Defender in Pennsylvania. Craig Crawford is also an Attorney Advisor with the Training Division. He is a former Assistant Federal Public Defender, here, in the Northern District of Florida and in Florida’s Middle District. Joan Politeo has been a Deputy Federal Public Defender in Central California since 1990.
First Step Act
Florida Bar Reference #1903012N
Approval Period: 03/27/2019 - 09/30/2020
The First Step Act became law this past December. There is a lot to it. No longer does just any prior felony drug conviction support harsher penalties for drug offenses, though certain violent felonies will. Many sentenced for crack cocaine prior to August of 2010 are already receiving the benefit of the reduced penalties that came with the Fair Sentencing Act. More of our clients qualify for the safety valve. Compassionate release is a real possibility. Increased good time credit is on the way.
The Training Division of the Defender Services Office has produced a series of twenty-minute webinars. This month we’ll be showing three of them dealing with the offenses used to increase penalties for drug offenses, the retroactive application of the Fair Sentencing Act, and compassionate release.
Each 20 minute segment has a different presenter. Kyana Givens is an Assistant Federal Public Defender from the Western District of Washington who is on loan to the Training Division. George Couture is a lawyer with the Training division. He is a former law clerk to Eleventh Circuit Judge Beverly Martin. For 20 years before that he worked in Federal Public Defender offices in California and Florida and also represented capital defendants in Florida. Frank Draper is an attorney advisor with the Training Division. He is a veteran Federal Public Defender and has extensive experience in state public defender offices in South Carolina and Maryland.
Writing Well
Florida Bar Reference #1901163N
Approval Period: 01/30/2019 - 07/31/2019
The Federal Judicial Center’s Brenda Baldwin-White talks with Thomas Spahn who gives practical guidance for those trying to improve their legal writing. The program covers words (including which words to use and which to avoid, and specific rules for verbs and nouns); sentences (using three tricks to improve sentence structure); and paragraphs (emphasizing opening sentences). The program also offers technical tips to make legal writing more persuasive and explains how writers can objectively measure their progress.
Thomas Spahn is partner in the firm of McGuireWoods. He is a commercial litigator who regularly advises Fortune 500 companies on a variety of legal issues, including attorney-client privilege and other ethic issues. He frequently lectures on legal writing and is the author of the book Writing Well.
Materials:
Past Crimes and Prejudice: Strategies for Successful 404(b)/403 Arguments
Florida Bar Reference #1808285N
Approval Period: 11/14/2018 - 05/14/2020
The Eleventh Circuit as well as many other Circuits have traditionally been generous in admitting the government’s collateral crime evidence on the basis of Rules 404(b) and 403 of the Federal Rules of Evidence. Those familiar with the Williams rule standard in Florida know just how generous it is. Some Circuits, though, have taken a fresh look at the rule and have adopted a more restrictive approach, one that recognizes that propensity – a consideration prohibited by the 404(b) - underlies much of what passes for justification. The United States Courts Advisory Committee on Evidence Rules is also in the process of reviewing 404(b).
In this month’s presentation, Assistant Federal Public Defender Edie Cunnigham reviews the current status of the law and offers suggestions about challenging it.
Ms. Cunningham is a lawyer with the Federal Public Defender Office in Tucson, Arizona. She is a 1993 graduate of the Yale Law School.
Materials:
Game of Phones: Fourth Amendment Defenses Against Cell Phone Evidence
Florida Bar Reference #1807484N
Approval Period: 10/25/2018 - 04/25/2020
The government routinely uses evidence – call logs, text, pictures, GPS data – found on a client’s cell phone. Litigating and asserting Fourth Amendment limits on the use of it has become important in many of our cases. In this month’s video, two assistant federal public defenders, Whitney Bernstein and Caitlin Howard, explore creative litigation strategies. They include suggestions about challenging a client’s consent to search and contesting the validity of search warrants and border searches. They explain, too, how an expert can help.
Whitney Bernstein and Caitlin Howard are trial lawyers with The Federal Defenders of San Diego. Ms. Bernstein is a 2012 graduate of the University of Pennsylvania Law School. Ms. Howard is a 2010 graduate of the McGeorge School of Law of the University of the Pacific.
Materials:
- 48.8 MB10_Game_of_Phones_Final_PP.pptx
- 569 KB10_Yale_Law_Journal_First_Amendment_Article.pdf
- 172 KB10_Case_List_Outline_Draft.pdf
- 1.56 MB10_Motion_to_Suppress_Cell_Phone_Evidence_in_Violation_of_Miranda_and_as_Involuntary_Redacted.pdf
- 8.84 MB10_Sample_Motion_in_Limine_to_Preclude_Agent_from_Testifying_as_Cell_Expert.pdf
- 204 KB10_Sample_Motion_to_Suppress_Cell_Phone_Evidence_on_Fourth_and_Fifth_Amendment_Grounds.pdf
Making the Most of the Panel Attorney's Toolkit
Florida Bar Reference #1806673N
Approval Period: 09/25/2018 - 03/25/2020
Advocating for the resources needed to successfully represent the client is an essential part of CJA practice. The CJA Guidelines specify how panel attorneys obtain funding for experts and other service providers to assist counsel. This recorded webinar will help you make sense of it all. The speaker, Sharon Samek, presents ideas and tips on how to obtain technical and litigation support funding and the best ways to use those funds. She also explores potential roles of investigators, paralegals, mitigation specialists and other service providers, as well as resources available through www.fd.org and the Defender Services Office Training Division.
Sharon Samek is an Attorney Advisor with the Legal and Policy Division of the Defender Services Office. She has been in private practice and was a member of the CJA Panel for the Middle District of Florida for more than 20 years. She has represented hundreds of CJA clients in district and appellate courts and argued before the United States Supreme Court. She regularly consults with panel attorneys, defender offices, and court staff about CJA resource issues and serves as faculty for the Defender Services Office training division conferences. She is a graduate of the University of California at Berkeley and holds a J.D. from Stanford Law School.
Using Social Science and Statistics at Sentencing
Florida Bar Reference #1805796N
Approval Period: 08/23/2018 - 02/23/2020
Aristotle’s Rhetoric dating from the 4th century BC, addressed the art of persuasion. He emphasized logical argument based upon empirical evidence. It’s an approach we’re still using today at sentencing. In this month’s video, Denise Barrett, a member of the National Sentencing Resource Counsel Project, reviews empirical research relevant to the purposes of sentencing, shows where to find it, and provides ideas on how to use it to obtain lower sentences for our clients.
Denise Barrett is a 1989 graduate of the University of Baltimore School of Law. She was an assistant federal public defender for 17 years before joining the National Sentencing Resource Counsel Project in 2008.
Materials:
Investigating, Preparing, and Executing Your Cross Examination of Cooperators
In Federal Court, many an individual who goes to trial bears the brunt of a cooperating witness who testifies for the government. In this month’s video, two assistant federal public defenders, Kasha Castillo and Shereen Charlick, present strategies for cross examination, review the government’s discovery obligations, suggest areas of investigation including social media, and discuss the use of subpoenas duces tecum.
Kasha Castillo is a 1999 graduate of the University of San Diego Law School and a supervising attorney in the Federal Defender Office in San Diego. Shereen Charlick is a 1989 graduate of the University of California Berkeley Law School and is the Chief Trial Attorney for the Federal Defender Office in San Diego.
We filmed the presentation this past May at the National Seminar for Federal Defenders that was held in Kansas City, Missouri.
Materials:
Digital Evidence and the Fourth Amendment
Florida Bar Reference #1804389N
Approval Period: 06/20/2018 - 12/20/2019
Earlier this month, we recorded Professor Jeffrey Fisher’s presentation at the Federal Defender Conference in Kansas City. In his presentation, he begins with a discussion of the makeup of the Supreme Court and the future of Fourth Amendment jurisprudence. He continues with his insight into the yet-to-be-decided case of Carpenter v. United States, which addresses the warrantless seizure of cell tower records that reveal the location and movements of a cellphone user.
Professor Fisher is among the brightest stars of those who argue criminal cases before the Supreme Court. The 1997 graduate of the University of Michigan Law School has argued 34 cases before the Court. They include Crawford v. Washington, Melendez-Diaz v. Massachusetts, and Riley v. California. He is a former law clerk to Justice John Paul Stevens and is the co-director of the Supreme Court Litigation Clinic at the Stanford Law School.
Guns and Guidelines
Florida Bar Reference #1804002N
Approval Period: 05/22/2018 - 11/22/2019
In this month’s video, Assistant Federal Public Defender Lisa Call discusses the intricacies of federal firearm offenses and punishments. The firearm guidelines are often difficult to navigate and can easily result in a sentence near the statutory maximum. This presentation will focus on deconstructing those guidelines to get your client the best sentence possible.
Lisa Call is a 1991 graduate of the University of Florida. She is the branch chief of the Federal Public Defender’s Office in Jacksonville, having worked there for nearly 20 years. She successfully argued in the United States Supreme Court the case that struck down the residual clause of the Armed Career Criminal Act, Johnson v. United States, 135 S. Ct. 2551 (2015).
Materials:
The Great Divides: Identifying Federal Criminal Defense Issues Currently Splitting the Circuits
Florida Bar Reference #1802903N
Approval Period: 04/24/2018 - 10/24/2019
Ever Identify a circuit split only to find it has been resolved? Or wish you had preserved a split long after your case had closed?
In this month’s video, George Couture and Jayme Felman will review many of the federal criminal issues that are currently dividing the courts and discuss the preservation of these issues for potential appeal. The issues will include searches and seizures, defendant statements, immigration, standards of review, the Sentencing Guidelines, and more.
The video is a recording of a webinar presented by the Defender Services Training Division at the end of February.
George Couture joined the Training Division in September of 2017 after serving six years as a career law clerk for Eleventh Circuit Court of Appeals Judge Beverly Martin. Before his clerkship, he spent nearly 20 years as an Assistant Federal Public Defender in the Eastern District of California and the Middle District of Florida.
Jayme Felman has, since 2012, worked in the appellate division of the Federal Public Defender’s Office in the Western District of New York. She is currently a visiting attorney advisor for the Training Division. She is a 2010 graduate of the University of Buffalo Law School.
Anatomy of an Appellate Brief
Florida Bar Reference #1802162N
Approval Period: 03/20/2018 - 09/20/2019
A compelling brief can make all the difference. Each part of it should serve its individual purpose, while interacting with the other parts to make the case. It should be free of distractions that undermine its effectiveness. Assistant Federal Public Defender Dan Kaplan offers his suggestions for producing the best possible brief.
Dan was a law clerk to Judge Patricia Wald of the D.C. Circuit, worked in the civil division of the Department of Justice in Washington, D.C., and was as associate in a Phoenix law firm before joining the Federal Public Defender’s Office in Arizona in 2007. He is a 1996 graduate of the Harvard Law School.
Materials:
Supreme Court’s October 2017 Term
Florida Bar Reference #1800904N
Approval Period: 02/20/2018 - 08/20/2019
In this presentation from the Federal Judicial Center, host Brenda-Baldwin-White talks with Erwin Chemerinsky, the Dean of the University of California Berkeley School of Law, about the stunning number of potential blockbuster cases on the Supreme Court’s docket involving such areas as voting, First Amendment, Fourth Amendment, immigration law, and others.
While Mr. Chemerinsky’s topic is broader than we typically present, the insight of Mr. Chemerinsky is invaluable and will make for a presentation you’ll surely want to see.
Mr. Chemerinsky became the Dean of Berkeley Law School in July of last year. From 2008 to 2017, he was the founding Dean of the University of California, Irvine School of Law. He teaches Constitutional Law, First Amendment Law, Federal Courts, Criminal Procedure, and Appellate Litigation. In January 2017, National Jurist magazine named him the most influential person in legal education in the United States. He’s a 1978 graduate of Harvard Law School.
Materials:
New Strategies for Pretrial Release, Sentencing, and Supervised Release Conditions in Sex Offense Cases
Florida Bar Reference #1709286N
Approval Period: 01/23/2018 - 07/23/2019
In this month’s video, Assistant Federal Public Defender Shereen Charlick focuses on strategies for obtaining reasonable pretrial and supervised release conditions for clients before the court on sex offenses. She discusses, too, strategies for securing the best possible sentences.
Shereen Charlick has been the Chief Trial Attorney for the Federal Public Defender’s Office in San Diego since 2005. She had since the early 1990's been an Assistant Federal Public Defender in Southern District of Florida and is a 1989 graduate of the University of Berkeley School of Law.
Materials:
Federal Rules of Evidence Update
Florida Bar Reference #1707557N
Approval Period: 11/28/2017 - 05/28/2019
One of the most complicated tasks you’ll face as a defense lawyer is that of reviewing the legality of court-ordered electronic surveillance. In this month’s video, Senior United States District Court Judge James G. Carr (N.D. Ohio) explains the process, including the “necessity” showing in the application, violation of the Franks doctrine, minimization, and delayed sealing of the recordings.
Judge Carr was a law school professor at the Toledo College of Law after graduating from Harvard Law School. He served as a United States Magistrate Judge from 1979 to 1994. The Senate confirmed him in 1994 as a United States District Judge for the Northern District of Ohio, and he assumed senior status in 2010. He is the principal co-author of the treatise The Law of Electronic Surveillance (Thompson/West).
Materials:
The Times Are A Changin’: The Supreme Court’s Changing Personnel and Renewed Focus on Race
Florida Bar Reference #1707186N
Approval Period: 10/24/2017 - 04/24/2019
Jeffrey Fisher is a professor at the Stanford Law School and co-director of the school’s Supreme Court Litigation Clinic. He is one of the nation’s foremost Supreme Court litigators. Among the 32 cases he has argued are Crawford v. Washington and Melendez v. Massachusetts, where he persuaded the Court to adopt a new approach to the Constitution’s Confrontation Clause; Riley v. California, in which the Court, for the first time, applied the Fourth Amendment’s protections against unreasonable searches and seizures to digital information on smart phones; Blakely v. Washington, which ultimately led to the demise of the federal mandatory guideline scheme; and Kennedy v. Louisiana, in which the Court held that the Eighth Amendment prohibits states from imposing capital punishment for crimes against individuals that do not result in death. He was cocounsel in Obergefell v. Hodges, in which the Court held that the Fourteenth Amendment guaranteessame-sex couples a right to marry.
In this month’s video, he will give you his insight into the changes likely to arise from the appointment of Justice Gorsuch and his optimistic view of the Court’s approach to issues of race.
Managing Electronic Evidence
Florida Bar Reference #1706762N
Approval Period: 09/21/2017 - 03/21/2019
Several years ago, the American Bar Association ethics competency rule changed to include competency to work with electronic evidence and technology in our practices. The Florida Bar now requires its members to have specific training in the field. In this month’s presentation, Donna Elm, the Federal Defender for the Middle District of Florida, reviews the new competency rule and what it means in practical settings. She also reviews available technology and computer applications. She discusses, too, how to access and use electronic evidence, focusing on the Electronically Stored Information Protocol (for distributing electronic evidence), the Department of Justice’s Box.com and USAfx discovery downloading.
Donna Elm is a 1988 graduate of the Arizona State University Law School. She began working as an assistant federal public defender in 2002 in the Arizona office. In 2008, she became the Federal Public Defender for the Middle District of Florida. She is a member of the Joint Electronic and Technology Working Group (which produced the federal criminal discovery ESI Protocol) and is Chair of the Federal Defender Automation Working Group.
Materials:
Can You Hear Me Now? Cell Phones and the Fourth Amendment
Florida Bar Reference #1706004N
Approval Period: 08/23/2017 - 02/23/2019
Courts are recognizing more privacy rights regarding cell phones. Forty-year-old Fourth Amendment doctrines that had eroded privacy seem to be teetering on the edge of collapse. But the modern surveillance state is still trying to learn every last detail about our clients from their cell phone usage.
In this month’s video, Meghan Skelton, an Assistant Federal Public Defender from Maryland will bring you up to date on the status of the law. She is a 1995 graduate of the William and Mary Law School. She has clerked for the Virginia Supreme Court, worked for the Tax Division of the Department of Justice, been an associate in a Washington, D.C. law firm, and, since 2005, been an Assistant Federal Public Defender.
Materials:
Post Johnson World
Florida Bar Reference PENDING
Approval Period: 07/25/2017 - 01/25/2019
We’ve already had several training sessions that have addressed Johnson v. United States, 135 S. Ct. 2551 (2015). The landscape, however, continues to change, and the intersection between Johnson and the question of “divisibility” discussed in Mathis v. United States, 136 S. Ct. 2243 (2016), and Descamps v. United States, 133 S. Ct. 2276 (2013), is complicated. Then, too, unlike many other courts dealing with similar statutes, the Eleventh Circuit Court of Appeals has rejected arguments about Florida’s aggravated assault and robbery statutes, and concluded offenses such as Florida’s battery on a law enforcement officer are divisible, though lawyers are continuing to contest the decisions. Johnson’s application to the old mandatory guidelines also remains a live issue.
This month’s video features Paresh Patel a lawyer with Federal Public Defender in Maryland. It is an updated version of his presentation that we showed in June of 2016. Mr. Patel is a 1996 graduate of American University’s Washington College of Law and has been with the office in Maryland since 2003.
We recorded the presentation this past June in New Orleans at the National Seminar for Federal Defenders.
Materials:
Sentencing - Where We Have Been and Where We Are Going
Florida Bar Reference #1704607N
Approval Period: 06/20/2017 - 12/20/2018
Four lawyers of the National Sentencing Resource Counsel Project (NSRCP), Amy Baron-Evans, Denise Barrett, Jennifer Coffin, and Laura Mate recently gave an overview of federal sentencing. They covered everything from changes in the Sentencing Guidelines to the possibility of new legislation and Attorney General Sessions’s new directives to the United States Attorneys.
We filmed the presentation last month at the Federal Defender Conference in New Orleans.
Amy Baron Evans, a 1991 graduate of the Harvard Law School, has been a member of the NSRCP since 2005. Denise Barrett is a 1989 graduate of the University of Baltimore School of Law and has been with NSRCP since 2008. Jennifer Coffin graduated from the University of Tennessee in 2000 and has been with NSRCP since 2006. Laura Mate, a 1998 graduate of the University of Michigan Law School, has been with NSRCP since 2010.
Materials:
Supreme Court and Eleventh Circuit Update
Florida Bar Reference #1703862N
Approval Period: 05/15/2017 - 11/15/2018
Both the Supreme Court and the Eleventh Circuit have issued significant opinions over the past year in federal criminal cases. In this recording from last month’s CJA Panel Training presented in Orlando by the Federal Public Defender for the Middle District of Florida, Conrad Kahn analyzes the decisions and discusses their impact on our clients.
Conrad Kahn is a 2012 graduate of the St. Thomas University School of law. He is a lawyer in the appellate division in Middle District’s Public Defender Office. Before joining the office, he had worked with a law firm in Miami focusing on civil litigation and criminal defense.
Materials:
High Times and Low Sentences: Successful Sentencing Strategies for Synthetic and Analogue Drugs
Florida Bar Reference #1702390N
Approval Period: 04/13/2017 - 10/13/2018
Clandestine chemists are regularly changing their formulas to create new recreational drugs. The sentencing guidelines fail to address these emerging substances and instead instruct courts to use the marijuana equivalency of the “most closely related” listed drug. In this month’s presentation, Chase Scolnick, focuses on the chemistry, toxicology, and creativity necessary to secure the most favorable guideline range.
Chase Scolnick is a 2003 graduate of the University of San Diego School of Law and works as an assistant federal public defender in the Southern District of California. In years past, he has worked for federal defender offices in the Central District of California and the Eastern District of New York. He has tried more than 45 federal cases and regularly lectures on criminal defense topics at law schools and Criminal Justice Act seminars.
We filmed the presentation last June in Pittsburgh at the National Seminar for Federal Defenders.
Materials:
Criminal Procedure Update - Drones, Dogs, and Delay
Florida Bar Reference #1608704N
Approval Period: 03/22/2017 - 09/22/2018
In this broadcast by the Federal Judicial Network, Brenda Baldwin-White, Senior Judicial Education Attorney, talks with Professor Laurie Levenson of the Loyola Law School, about the latest in criminal procedure. Professor Levenson addresses the most recent cases before the U.S. Supreme Court and developments in investigative practices, including the use of drug-sniffing dogs, as well as drones and other high-technology devices. She also examines recent cases involving Batson challenges, trial and sentencing delays, and sentencing errors.
It was initially broadcast this past July.
Materials:
Winning the Evidentiary Battles at Bond, Sentencing, and Revocation Hearings
Florida Bar Reference #1608704N
Approval Period: 02/21/2017 - 08/21/2018
Even when the rules of evidence aren’t in play, there are limits on what information the court can consider at a hearing. In this month’s video, Juval Scott, a lawyer with the Training Division of the Defender Services Office discusses strategies for excluding prejudicial and unreliable evidence at bond, sentencing, and supervised release or probation revocation hearings. She makes suggestions, too, about getting the evidence you need into the record.
Ms. Scott is a 2002 graduate of the Indiana University School of Law. She was an Assistant Federal Public Defender in Milwaukee and Indianapolis before joining the Training Branch in 2015. She teaches regularly at local panel trainings and programs sponsored by the Defender Services Office.
Federal Sentencing Update
Florida Bar Reference #1608965N
Approval Period: 01/24/2017 - 07/24/2018
This month’s video, from the Federal Judicial Center, features Professor David Sonenshein of the Temple University School of Law. He discusses Rule 404 (Character Evidence). His discussion includes reasons for impeachment, including prior convictions, prior acts of dishonesty, and prior inconsistent statements; character witnesses; and impeaching the hearsay declarant. He also covers rehabilitation of witnesses on redirect examination.
It was originally broadcast on September 28, 2016.
Materials:
Plain Error from Top to Bottom
Florida Bar Reference #1508599N
Approval Period: 09/15/2016 - 03/15/2018
“Plain error,” as all good federal practitioner’s know, is what you are left to argue on appeal when there is no objection in the trial court. This month’s presentation by Assistant Federal Public Defenders Tim Crooks and Judy Madewell, covers all aspects of dealing with unpreserved error on appeal. In addition to strategies for arguing against plain-error review, Tim and Judy provide tips for litigating all four prongs of plain-error review, with special emphasis on the third and fourth prongs - “effect on substantial rights” and “serious effect on fairness integrity, and public reputation of judicial proceedings.”
The presentation is intended for those handling appeals, but will give those who only handle trials invaluable insight into the challenge presented in the absence of an objection.
Tim and Judy appeared in the video we presented in August on statutory construction. As they did in that one, they have made an entertaining presentation out of what could be a deadly boring topic.
Tim Crooks is a 1986 graduate of the Tulane Law School. He is currently the Chief of the Appellate Section in Houston for the Federal Public Defender for the Southern District of Texas. Earlier this year, he argued and won the case of Molina-Martinez v. United States, 136 S. Ct. 1338 (2016), an important Sentencing Guidelines case. Judy Madewell is a 1994 graduate of the University of Texas. She’s an Assistant Federal Public Defender in San Antonio, Texas. She has been an adjunct professor at the St. Mary’s School of Law in San Antonio since 2005.
Materials:
Improper Prosecutorial Argument
Florida Bar Reference #1507424N
Approval Period: 10/18/2016 - 04/18/2018
In this month’s video presentation, Assistant Federal Public Defender Keith Hilzendeger, explores the improper closing arguments sometimes advanced by prosecutors, tactical considerations in addressing the arguments, and appropriate ways for preserving the issue for appeal. He includes concrete examples from circuits around the country.
Keith has been a lawyer with the Arizona Federal Public Defender since 2008. He is a 2004 graduate of the Arizona State University College of Law.
We recorded the presentation last June in Pittsburgh at the National Seminar for Federal Defenders.
Materials:
Character Evidence and Impeachment
Florida Bar Reference #1606930N
Approval Period: 09/20/2016 - 03/20/2018
This month’s video, from the Federal Judicial Center, features Professor David Sonenshein of the Temple University School of Law. He discusses Rule 404 (Character Evidence). His discussion includes reasons for impeachment, including prior convictions, prior acts of dishonesty, and prior inconsistent statements; character witnesses; and impeaching the hearsay declarant. He also covers rehabilitation of witnesses on redirect examination.
Professor Sonenshein is co-author with the late Irving Younger and Professor Michael Goldsmith of the case book Principles of Evidence. He teaches Evidence to Federal Judges at the Federal Judicial Center and to some of the premier law firms in the country.
Materials:
But What Does it Mean? A Basic Guide to Statutory Construction
Florida Bar Reference #1606074N
Approval Period: 08/23/2016 - 02/23/2018
The dramatic change in the law brought about by the efforts to determine the meaning of the Armed Career Criminal Act is just the most recent example how critical statutory construction can be. In this month’s video, Tim Crooks and Judy Madewell have made what can be a terribly dry topic into an entertaining and useful presentation. They cover basic principles for both trial and appellate lawyers, including: textual-versus-nontextual approach; use of dictionaries; commonly used canons of statutory construction; finding and using legislative history; interpreting statutes in light of federalism and other policy concerns; and the rule of lenity.
Tim Crooks is a 1986 graduate of the Tulane Law School. He is currently the Chief of the Appellate Section in Houston for the Federal Public Defender for the Southern District of Texas. Earlier this year, he argued and won the case of Molina-Martinez, 136 S. Ct. 1338 (2016), an important Sentencing Guidelines case. Judy Madewell is a 1994 graduate of the University of Texas. She’s an Assistant Federal Public Defender in San Antonio, Texas. She has been an adjunct professor at the St. Mary’s School of Law in San Antonio since 2005.
Taking the Best Advantage of the Sentencing Guidelines’ New Definition of “Crime of Violence”
Florida Bar Reference #1605420N
Approval Period: 07/20/2016 - 01/20/2018
Next month, on August 1st, the United States Sentencing Guidelines breaks out its new definition of “crime of violence.” Burglary is gone. There is no longer a residual clause. The Commentary has lost its list of offenses and added a new definition of “forcible sex offense.” The changes mean that many who in years past have been sentenced as career offenders will no longer be. Many sentenced for firearm and immigration offenses will be eligible for shorter sentences.
In this month’s video Amy Baron-Evans and Jennifer Coffin, both of the Sentencing Resource Counsel project, talk about the issues that the amendments raise and how you can take advantage of and develop them. Amy is a 1991 graduate of Harvard Law School, a former law clerk for the First Circuit Court of Appeals, and has been the National Sentencing Resource Counsel since 2005. Jennifer is a 2000 graduate of the University of Tennessee College of Law, a former law clerk for the Sixth Circuit Court of Appeals, and a staff attorney with the Sentencing Resource Counsel Project since 2006.
Materials:
The Residual Clause and Crimes of Violence
Florida Bar Reference #1604761N
Approval Period: 06/22/2016 - 12/22/2017
In its decision in United States v. Johnson, 135 S. Ct. 2551 (2015), the Supreme Court gave us a tool to dramatically reduce sentences for many of our clients. Significant numbers of those who were once eligible for long sentences under the Armed Career Criminal Act will no longer have the requisite number of convictions. Some of those who had been eligible for the mandatory consecutive sentences based on the use of a firearm in a crime of violence will no longer be. There is a real likelihood, too, that Johnson will similarly affect the Sentencing Guideline definition of “crime of violence,” which would mean far fewer would be eligible for sentencing as career offenders and that some of those sentenced under the provision applicable to firearms immigration will benefit.
You cannot, though, count on the probation officer who prepares the presentence report to lead you through this. Under existing law such common predicate offenses as burglary and robbery still count. Then, too, though it is the only circuit to have reached the conclusion, the Eleventh Circuit Court of Appeals has held that Johnson is inapplicable to the Sentencing Guidelines. It all means that if your client is to benefit from the developing litigation, you will need to raise the issue.
This month’s video that we recorded in Pittsburgh earlier this month at the National Seminar for Federal Defenders will help you do just that. The speakers are Jennifer Coffin and Paresh Patel. Jennifer is a 2000 graduate of the University of Tennessee College of Law, a former law clerk for the Sixth Circuit Court of Appeals, and has been a staff attorney with the sentencing Resource Counsel Project since 2006. Paresh is a 1996 graduate of the American University Washington College of Law. He is a former law clerk to a United States District Court Judge and has served as a research and writing specialist for the Federal Defender in Maryland since 2003.
This one is important. All of our lawyers have been required to watch it.
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Practical Tips for Your Client Facing Federal Incarceration - Part One
Florida Bar Reference #1602851N
Approval Period: 05/18/2016 - 11/18/2017
Despite the best efforts of lawyers around the county, most of those charged in federal court with criminal offenses go to prison. This month we have Part two of a two part video series in which David Merchant, an Assistant Federal Public Defender from Montana, talks about what you can do before sentencing to maximize the client’s chances for a favorable placement and to reduce the percentage of time he or she serves.
David Merchant is a 1996 graduate of the College of Law at Michigan State University. Before joining the Federal Defender’s Office in Montana in 2005, he worked for the Bureau of Prisons, was in private practice in Lansing, Michigan, and was on the CJA Panel for the Western District of Michigan. Dave serves as the Montana Membership Chair for the National Association of Criminal Defense Lawyers and has lectured throughout the United States on Bureau of Prison issues.
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Practical Tips for Your Client Facing Federal Incarceration - Part One
Florida Bar Reference #1602852N
Approval Period: 04/20/2016 - 10/20/2017
Despite the best efforts of lawyers around the county, most of those charged in federal court with criminal offenses go to prison. This month we have Part One of a two part video series in which David Merchant, an Assistant Federal Public Defender from Montana, talks about what you can do before sentencing to maximize the client’s chances for a favorable placement and to reduce the percentage of time he or she serves.
David Merchant is a 1996 graduate of the College of Law at Michigan State University. Before joining the Federal Defender’s Office in Montana in 2005, he worked for the Bureau of Prisons, was in private practice in Lansing, Michigan, and was on the CJA Panel for the Western District of Michigan. Dave serves as the Montana Membership Chair for the National Association of Criminal Defense Lawyers and has lectured throughout the United States on Bureau of Prison issues.
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Writing Motions - With Style
Florida Bar Reference #1602852N
Approval Period: 04/20/2016 - 10/20/2017
Good lawyering depends on good communicating, and good communicating depends on good writing. The goal for this session is to give you several easy-to-implement tips that will immediately improve your writing, which will lead to better communicating, which will result in better lawyering.
Jay McEntire is a trial lawyer with the Federal Public Defender for the Eastern District of Washington. He is a 2007 graduate of the Seattle University School of Law. Before joining Federal Defender Office, he was a law clerk for a United States District Court judge in the Eastern District of Washington and practiced with a firm in Spokane. He is an adjunct professor at the Gonzaga University School of Law.
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Proposed Amendments to the United States Sentencing Guidelines
Florida Bar Reference #1601511N
Approval Period: 02/23/2016 - 08/23/2017
The U.S. Sentencing Guidelines contain several enhancements for defendants who have prior convictions for a “crime of violence.” Those guidelines contain language virtually identical to the Armed Career Criminal Act’s “violent felony” definition. Both definitions have a “residual clause” that includes felony offenses that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”
Though the Supreme Court found the residual clause of the Armed Career Criminal Act to be unconstitutionally vague in Johnson v. United States, 135 S. Ct. 2251 (2015), the Eleventh Circuit Court of Appeals, in United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), held Johnson to be inapplicable to the guidelines.
In response to the decision in Johnson and decisions by other courts of appeal that have concluded that Johnson applies to the residual clause of the guidelines, the United States Sentencing Commission recently promulgated a guideline amendment that eliminates the residual clause from the guideline’s definition of crime of violence. The amendment also lists specific offenses that qualify as a crime of violence. The amendment is expected to take effect in August 2016.
In this month’s video, we’ll be presenting a discussion by Assistant Federal Public Defenders Jim Skuthan and Rosemary Cakmis of Florida’s Middle District. They discuss the nuances of the guideline amendment and offers suggestions about using the amendment in sentencings between now and the effective date of the amendment. They also address the other proposed amendments to the guidelines applicable to immigration, compassionate release, and child pornography.
Rosemary Cakmis is the Appellate Chief for the Federal Public Defender Office in Florida’s Middle District. She is a 1981 graduate of the University of Florida and is board certified by The Florida Bar in the field of criminal appellate law. Jim Skuthan is the First Assistant in the same office. He is a 1985 graduate of the Florida State University School of Law and is board certified by The Florida Bar in both criminal appellate law and criminal trial law.
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Court-Ordered Electronic Surveillance
Florida Bar Reference #1600136N
Approval Period: 01/21/2016 - 07/21/2017
One of the most complicated tasks you’ll face as a defense lawyer is that of reviewing the legality of court-ordered electronic surveillance. In this month’s video, Senior United States District Court Judge James G. Carr (N.D. Ohio) explains the process, including the “necessity” showing in the application, violation of the Franks doctrine, minimization, and delayed sealing of the recordings.
Judge Carr was a law school professor at the Toledo College of Law after graduating from Harvard Law School. He served as a United States Magistrate Judge from 1979 to 1994. The Senate confirmed him in 1994 as a United States District Judge for the Northern District of Ohio, and he assumed senior status in 2010. He is the principal co-author of the treatise The Law of Electronic Surveillance (Thompson/West).
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Recent Developments in Federal Sentencing
Florida Bar Reference #1508599N
Approval Period: 11/12/2015 - 05/12/2017
In this month’s video, Alan Dorhoffer, the Deputy Director of the Office of Education of the United States Sentencing Commission, discusses the decision in United States v. Johnson, the 2015 amendments to the United States Sentencing Guidelines, and the retroactivity of the 2014 drug amendment.
Mr. Dorhoffer has conducted hundreds of training sessions for judges, attorneys, law clerks, and probation officers. He is a graduate of the George Washington School of Law.
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Johnson v. United States - It’s Impact and Implications
Florida Bar Reference #1507424N
Approval Period: 10/22/2015 - 04/22/2017
The United States Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015) dramatically reduced the scope of the Armed Career Criminal Act. Though the Eleventh Circuit Court of Appeals, in United States v. Matchett, Case No. 14-10396 (11th Cir. Sept. 21, 2015), has declined to extend the Johnson holding to the career offender guideline, it is an issue that remains very much alive as a number of courts have held to the contrary. Johnson, too, will provide relief to many who were sentenced in the past under the Armed Career Criminal Act.
This month’s video is a recording of a webinar presented in September to the Federal Defenders. Paresh Patel, an appellate lawyer with the Federal Defender in Maryland and Joshua Carpenter, the Appellate Chief of the Federal Defenders of Western North Carolina, outline the decision and go on to argue that, now, almost nothing qualifies as a violent felony.
Paresh Patel has been with the Maryland Office since 2003. He earned his J.D. from American University in 1996. Joshua Carpenter joined the Western North Carolina Office in 2012. Prior to joining the office he had been a law clerk for Judge M. Blane Michael of the United States Fourth Circuit Court of Appeals. He is a graduate of the Georgetown University Law Center.
Don’t miss this presentation about a revolutionary change in the law!
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Hearsay
Florida Bar Reference #1506915N
Approval Period: 09/23/2015 - 03/23/2017
In this month’s video, Temple University Law School Professor David Sonenshein reviews and discusses some of the most important elements of hearsay and hearsay exceptions, including what is and isn’t hearsay, party admissions, business records and official records, the residual hearsay exception, and impeaching the hearsay declarant.
Professor Sonenshein is co-author with the late Irving Younger and Professor Michael Goldsmith of the case book Principles of Evidence. He teaches Evidence to Federal Judges at the Federal Judicial Center and to some of the premier law firms in the country.
The presentation was broadcast this past June by the Federal Judicial Center.
Understanding new Surveillance Tools - Cell Phone Tracking, Stingrays, Hemisphere and More
Florida Bar Reference #1504930N
Approval Period: 06/23/2015 - 12/23/2016
Technological advances have given law enforcement powerful new tools to conduct surveillance. While techniques like cell site tracking are widely known to the defense community, newer technologies like IMSI catchers or “stingrays” and databases like Hemisphere and the DEA’s bulk call records collection program have only recently come to light after being shrouded in government secrecy. This month’s video presentation by Hanni Fakhoury will review these technologies , steps investigators and attorneys can use to discover whether they’ve been used in their cases and legal challenges that can be made.
Hanni Fakhoury is a Senior Staff Attorney with the Electronic Frontier Foundation in San Francisco, California. He is a 2007 graduate of the University of California. He was an Assistant Federal Public Defender in San Diego from 2007 to 2011, and has been with the Electronic Frontier Foundation since then. Mr. Fakhoury is a frequent speaker at domestic and international conferences on law enforcement surveillance techniques and a member of the Northern District of California’s CJA Panel.
Materials:
- 4.3 MB15-07 Handout - Understanding New Surveillance Tools_0.pptx
- 19.4 MB15-07 Handout - Hemisphere Powerpoint.pdf
- 495 KB15-07 Handout - Diaz-Rivera Amicus Brief.pdf
- 172 KB15-07 Handout - Electronic Frontier Foundation Amicus Brief in Davis.pdf
- 61 KB15-07 Handout - Electronic Frontier Foundation Singray Discovery Request.pdf
- 55 KB15-07 Handout - Judge Lefkow's Order in Evans Re Cell Towers.pdf
- 14.1 MB15-07 Handout - MuckRock Hemisphere Slides.pdf
- 1.3 MB15-07 Handout - Stingray Guide.pdf
Key Issues in Digital Search Cases Post-Riley and Confrontation Clause Cases
Florida Bar Reference #1504263N
Approval Period: 06/24/2015 - 12/24/2016
This month’s video is a presentation by Stanford Law School Professor Jeffrey Fisher. In it, Professor Fisher discusses what he sees as the litigation likely to follow the Supreme Court’s decision in Riley v. California, 134 S. Ct. 2473 (2014), the case involving the search of a cell phone incident to arrest. His discussion includes the question of whether Riley extends to other digital devices and what the decision means for other privacy concerns such as GPS and cell phone tracking and cell cite location. Professor Fisher includes a review of recent confrontation clause cases and discusses his case, Ohio v. Clark, which he argued this term before the Supreme Court and asks whether admission of a statement of a young child about alleged abuse to a teacher violates the Confrontation Clause. If there was ever a star in the field of criminal defense, it is Jeffrey Fisher. He graduated from the University of Michigan Law School in 1997 and since then has argued 27 cases before the Supreme Court, including Riley, Crawford v. Washington (landmark Confrontation Clause decision), Blakely v. Washington (sentencing guidelines), and Kennedy v. Louisiana (Eight Amendment prohibits states from imposing death sentence for crimes that don’t result in death). Before joining the faculty at the Stanford Law School, Professor Fisher clerked for U.S. Supreme Court Justice John Paul Stevens.
Don’t miss this opportunity to share in the insights of one of the country’s best lawyers.
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Addiction and Professionalism
Florida Bar Reference #1503697N
Approval Period: 05/21/2015 - 11/21/2016
We recorded this month’s presentation this past March at the Middle District’s Panel Training Seminar. It features Michael Cohen the Executive Director of Florida Lawyers Assistance, the program created by the Florida Supreme Court to help lawyers impaired because of drugs, alcohol, or psychological conditions.
While this isn’t our usual presentation about federal criminal practice, Mr. Cohen talks about the role of addiction in the lives of our clients and about just how difficult it is to overcome. He works in, too, a discussion about the stresses faced by lawyers and the services provided by Florida Lawyers Assistance.
Mr. Cohen is a 1980 graduate of the Suffolk University Law School. Much of his practice prior taking his current position was criminal defense.
Litigating Synthetic Drug Cases
Florida Bar Reference #1503362N
Approval Period: 04/22/2015 - 10/22/2016
The Synthetic Drug Abuse Prevention Act of 2012 permanently placed 26 types of synthetic cabbanbinoids and cathinones into Schedule I of the Controlled Substances Act. It also expanded DEA’s authority to administratively schedule substances under its emergency scheduling authority. As a result of the legislation and a rise in prosecutions, the likelihood of representing a client charged with a synthetic drug offense has increased. This month’s recording will provide you with an understanding of how scientists determine the nature of synthetic drugs and some of the legal challenges available in such cases. The speakers are James Felman and Gregory Dudley. Mr. Felman is a partner in the Tampa law firm of Kynes, Markman, & Felman, P.A. He is a 1987 graduate of the Duke University School of Law. He frequently writes and speaks on criminal justice policy issues, He serves as the Chair-Elect of the Criminal Justice Section of the American Bar Association and is the ABA’s liaison to the United States Sentencing Commission. Dr. Dudley is an associate professor and chair of the Department of Chemistry and Biochemistry at Florida State University. He earned his doctorate in 2000 at the Massachusetts Institute of Technology.
We hope you can join us. You decide whether to bring your old chemistry book.
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Computer Crimes
Florida Bar Reference #1503362N
Approval Period: 03/17/2015 - 09/17/2016
Computers are gifts that seem to keep on giving when it comes to federal prosecutions. With desktops, laptops, iPads, smartphones, etc., our clients now have any number of ways to get indicted. In addition to child pornography cases, there have been increases in prosecutions for other computer-related crimes such as hacking, identity theft, cyber-stalking, unauthorized password use, and fraud, This month’s video will provide an overview of recent trends in defending both child pornography cases and these other areas of computer related crimes.
We filmed the presentation last May at the national Seminar for Federal Defenders in Cleveland.
The presentation is made by Ken Hawk, an Assistant Federal Public Defender, from the Eastern District of Texas. He is a 1989 graduate of the Texas Tech University School of Law.
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Forfeiture
Florida Bar Reference #1501147N
Approval Period: 02/19/2015 - 08/19/2016
Though most of our clients rarely have any assets worthy of forfeiture, the topic does come up. Most of us know little about it and run the risk of failing to protect the interests of our client. This month’s presentation by Baltimore lawyer Robert Biddle will help. It will give you an overview of the various types of asset forfeiture proceedings (civil, criminal, and administrative), and the possible defenses.
Mr. Biddle is a 1987 graduate of the Univesity of Pennsylvania Law School. He’s been a law clerk for a United States District Court Judge, and an Assistant United States Attorney. He is a partner in the Baltimore firm of Nathans & Biddle.
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Criminal Procedure Update
Florida Bar Reference #15002027N
Approval Period: 01/02/2015 - 07/02/2016
This month’s video features Professor Laurie Levenson of the Loyola Law School. She addresses topics in criminal procedure, including recent Supreme Court decisions on search and seizure, interrogations, self-incrimination, right to counsel, and sentencing. She will also discuss the impact of new technology on police investigations.
Professor Levenson has been a faculty member of the Loyola Law School since 1989 and teaches a variety of courses in criminal law, criminal procedure, and evidence. She’s authored a long list of articles over the years and currently leads the Capital Habeas Litigation Clinic and the Project for the Innocent at the law school.
The presentation was broadcast this past November by the Federal Judicial Center.
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Significant and Recurring Evidence Issues at Trial
This month we will be bringing to you a video presentation by Temple University Law Professor David Sonnenshein. In it, he gives a wonderfully clear and thoughtful discussion of some of the more challenging evidence issues: expert testimony as governed by Rules 701, 702, and 703 of the Federal Rules of Evidence and character evidence as governed by Rules 404(a) and (b). He covers, too, the business records exception and the introduction of electronic evidence.
Professor Sonenshein is co-author with the late Irving Younger and Professor Michael Goldsmith of the case book Principles of Evidence. He teaches Evidence to Federal Judges at the Federal Judicial Center and to some of the premier law firms in the country.
The presentation was broadcast this past September by the Federal Judicial Center.
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Pursuing an Appeal in Federal Court
For those of us who don’t regularly file an appeal with the Eleventh Circuit Court of Appeals, it is always a challenge to try and fulfill the requirements established by the Court. The rule governing the appendix has changed several times over the last couple of years and those changes have only added to the task. Then, too, there is the matter of putting together a compelling argument for the client.
This month’s training seminar is designed to address those concerns. Chet Kaufman and Margaret Clemons of our office will be making a live presentation in Pensacola and Tallahassee, and we’ll be showing a video of their presentation in Gainesville and Panama City.
Please plan to bring your legal assistant as both you and your assistant will benefit from the presentation.
Chet is a 1989 graduate of the Florida State University School of Law, a former law clerk for, then, Florida Supreme Court Justice Rosemary Barkett, and has been an appellate lawyer with our office since 2002. Margaret Clemons is the secretary to the Federal Public Defender and has been preparing and submitting our appeals since 1994.
Representing Veterans in Federal Case
In Porter v. McCollum, 130 S. Ct. 447 (2009), the Supreme Court recognized our nation’s long tradition of affording leniency to veterans in recognition of their service, especially for those who fought on the front lines. In this month’s video, two Assistant Federal Public Defenders, Jim Skuthan and Joseph Wilhelm, will discuss how to handle a case involving a veteran and how to use the resources available to investigate, develop, and present mitigation evidence. The session will also cover recurrent mental health issues defense counsel should be aware of when defending veterans, such as post-traumatic stress disorder and traumatic brain injury.
Jim Skuthan is the First Assistant Federal Public Defender in the Middle District of Florida. He regularly lectures on topics in federal criminal defense and has appeared in a number of our past video recordings. He is a 1985 graduate of the Florida State University School of Law. Joseph Wilhelm is an Assistant Federal Public Defender in the Northern District of Ohio. He is a 1991 graduate of the University of Cincinnati College of Law.
We recorded the presentation this past May at the national Seminar for Federal Defenders that was held in Cleveland, Ohio.
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Getting the Most Out of Cooperation, Navigating the Dangers of a Proffer, and Protection Once the Cooperation is Complete
Many of our clients decide cooperation is in their best interest. Sometimes proffer sessions can devolve into train wrecks with the client getting no benefit and all the added risk. This month’s video explores common benefits and dangers associated with cooperation while addressing the many land mines waiting for your client in the proffer room. The speaker, Patrick Ehlers makes suggestions for protecting the cooperating defendant, including such things as sealing, sentencing letters, and other avenues of protection.
Patrick Ehlers is a 1993 graduate of the University of Oklahoma College of law. He has worked as a state public defender and as an assistant federal public defender since 1999 in both Oklahoma and Oregon.
Use of the Smarter Sentencing Act, The Justice Safety Act, Holder Memos, and Other Recent Developments to Obtain Variances and Challenge the Constitutionality of Mandatory Minimum Sentences
This month’s video features two lawyers from the National Sentencing Resource Counsel, Amy Baron-Evans and Jennifer Coffin. They discuss the recent bipartisan legislation introduced in Congress, directives from the Attorney General, reports from the Sentencing Commission, district court opinions, reports from well-respected policy research organizations, and other influential sources that they argue reflect a growing consensus that sentences recommended by the sentencing guidelines and required by mandatory minimum statutes serve no purpose of sentencing. They explain how to use these materials to obtain variances from the guideline range, and, for the bold, to prove that many of the mandatory minimums violate the Eight Amendment and the Due Process Clause.
Both Amy Baron-Evans and Jennifer Coffin are part of a group of lawyers that form the National Sentencing Resource Counsel that is funded by the Defender Services Office. They regularly lecture on sentencing issues and provide support to the Federal Public Defender system. Ms. Baron-Evans is a 1991 graduate of the Harvard Law School. Ms. Coffin is a 2000 graduate of the Tennessee College of Law.
Materials:
- 329 KBAmendments to the Sentencing Guidelines.pdf
- 245 KBJustice Safety Valve Act of 2013.pdf
- 366 KBLetter from United States Sentencing Commission to Senate Judiciary Committeed re Mandatory Minimums.pdf
- 122 KBLinks to Research Reports.pdf
- 418 KBMaximum Penalties for Drug Offenses in States with Life Without Parole Sentences
- 704 KBMemorandum from Attorney General Eric Holder re Department Policy on Charging and Sentencing
- 1.4 MBMemorandum from Attorney General Eric Holder re Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases
- 1.3 MBMemorandum from Attorney General Eric Holder re Retroactive Application of Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases
- 598 KBSmart on Crime - - Reforming the Criminal Justice System for the 21st Century
- 300 KBSmarter Sentencing Act of 2013
- 3.0 MBU.S. Department of Justice Letter re Proposed Amendments to Federal Sentencing Guidelines
- 165 KBUnited States v. Bartholomew, Order Granting Continuance
- 1.7 MBUnited States v. Douglas Young (N.D. Iowa, Aug. 16, 2013)
- 124 KBUnited States v. Jones, Order on Motion to Strike
- 802 KBUnited States v. Lulzim Kupa (E.D.N.Y., Oct. 9, 2013)
- 420 KBUnited States v. Ross, Order on 2255
Financial Documents - They’re Not Just For Money Flow Anymore
Financial transactions provide a wealth of information above and beyond the general movement of funds. This webinar will show you how to use these documents in many different types of cases. The presentation will first detail the anatomy of a financial transaction, as well as currency reporting documents required by the Bank Secrecy Act. Suggestions for obtaining, organizing and analyzing financial documents will also be illustrated. The session will then cover the alternative uses for financial transactions, such as potential witness leads, determination of lifestyle, alibi, and corroboration of witness statements. Lastly, using an actual case scenario, the presenter will show how a financial analysis can be used to mitigate the impact of Sentencing Guidelines calculations regarding loss amounts.
Pam Bishop, a former assistant federal public defender, works for Commonwealth Litigation Support Services in Ashland, Virginia. While working in the defender office, she specialized in large scale fraud and financial cases. She has lectured frequently in the areas of financial investigations, document analysis, and e-discovery.
Criminal History in Sentencing - Descamps, Its Changes, and Where the Supreme Court May Go Next
The determination of what sort of prior convictions can serve as predicate offenses for the armed career criminal statute and the career offender and other provisions of the Guidelines has become increasingly complicated. Just, though, when the dust was starting to settle, the Supreme Court decided Descamps v. United States, 133 S. Ct. 2276 (2013), and provided an altogether new analysis. In this month’s presentation, Paresh Patel surveys this ever changing jurisprudence, and provides practice tips to maximize the benefits to our clients.
This presentation is a webinar presented by the Training Division of the Defender Services Office. Paresh Patel is an Assistant Federal Public Defender in Maryland where he has worked as an appellate lawyer since 2003. He is a 1996 graduate of the American University Washington College of Law and a former clerk for United States District Court Judge Ancer Haggerty of the District of Oregon.
Admission of Expert in Opinion - Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)
The Federal Courts abandoned the Frye test years ago in favor of the principles established in Daubert that are now part of Federal Rule of Evidence 702. Now that Florida courts have adopted those principles, there is a new found interest among defense lawyers in better understanding the Daubert decision. In July, the Florida Public Defender Association and Nancy Daniels, the Public Defender for Florida’s Second Judicial Circuit, presented a lecture that featured Florida State University Law Professor Emeritus Charles Ehrhardt. Professor Ehrhardt, whose presentation was broadcast live over the web, gave a memorably clear and enthusiastic explanation of the Daubert principles. Ms. Daniels and the Public Defender Association have graciously allowed us to use the presentation.
Charles W. Ehrhardt, Ladd Professor Emeritus, Florida State University College of Law, has been on the faculty of the Florida State University of Law since 1967. He has taught state trial judges at the National Judicial College in Reno, Nevada, and United States District Judges for the Federal Judicial Center in Washington, D.C. He has been published widely in law reviews and is the author of the respected Ehrhardt’s Florida Evidence.
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Sentencing and the Sentencing Memorandum
Sentencing in some respects has always been a plea for mercy or leniency. The approach in federal court, though, is based on something more concrete, the goals of Congress set out in 18 U.S.C. § 3553. It is a setting in which a sentencing memorandum can be an invaluable tool.
This month we’ll be having one of our rare live presentations. Randy Murrell will be talking about the federal sentencing scheme and will offer some suggestions about preparing an effective sentencing memo.
Randy Murrell has been the Federal Public Defender for the Northern District of Florida since 1998. He is a 1976 graduate of the Florida State University College of Law.
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The Basics of Computer Forensics
Evidence in many of our cases is routinely found on computers. It may be that it most commonly occurs in child pornography cases, but it almost always happens, too, in all kinds of fraud and identity theft cases. Many times we are faced with the decision of whether to hire an expert who can examine the electronic evidence and explain its significance to us.
Rick Lavaty, the Supervisory Computer Systems Administrator for the Federal Public Defender’s Office in Arizona, gives you some of the basics of computer forensics and tells you what you can expect from a computer forensic expert.
Mr. Lavaty has been in the computer business for nearly 20 years and with the Federal Public Defender since 1999. He is trained in computer forensic analysis and regularly conducts forensic analysis on computer hard drives, CDs, flash drives and memory cards. He has testified as an expert in computer forensics and is a frequent speaker on the topic at conferences throughout the country.
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Themes and Trends in the First and Fourth Amendments Jurisprudence
Erwin Chemerinsky, the Dean of the Irvine Law School at the University of California has frequently argued cases before the Supreme Court. His clear and insightful explanation of the law has made him a regular commentator on legal issues for national and local media. His casebook, Constitutional Law, is one of the most widely read law textbooks in the country.
In this month’s video he talks about recent First and Fourth Amendment cases from the Supreme Court. From the case involving “animal crush” videos to the “Bongs for Jesus” case, he covers First Amendment trends. In his analysis of both civil and criminal Fourth Amendment cases, he sees the survival of the exclusionary rule hanging by the thin thread of Justice Kennedy’s vote.
Mr. Chemerinsky holds a law degree from the Harvard Law School and has taught as a law professor at the University of Southern California and Duke. His authored seven books and nearly 200 articles in top law reviews. His most recent book is The Conservative Assault on the Constitution (Oct. 2010, Simon & Schuster).
Electronic Surveillance - Jones and Beyond
In United States v. Jones, 132 S. Ct. 945 (2012), the Supreme Court held that, under the circumstances of the case, the Fourth Amendment required the police to obtain a warrant before attaching a GPS tracking device to a car belonging to a Washington, D.C., resident. The decision was the Court’s first effort at addressing new technology, ranging from cell phones to drones, that has the potential to expand the ability of law enforcement agencies to monitor and track citizens.
In this month’s video presentation, Lisa Hay, an Assistant Federal Public Defender from Oregon, discusses the use of available technology by law enforcement agencies and the protection the Fourth Amendment affords against its use for unwarranted intrusions into privacy.
We recorded Ms. Hay in April of 2012 at the Panel Training Seminar presented by the Federal Public Defender for the Middle District of Florida.
Lisa Hay is a 1991 graduate of the Harvard Law School. She is a former law clerk to United States District Court Judges Robert Keeton and Patti Saris and a former associate in a prominent Boston law firm. She has been an Assistant Federal Public Defender in the District of Oregon since 1998.
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Mining the Guideline Manual - Using Recent Amendments for New Types of Departures & Variances
We’ve made some progress in reducing the length of sentences, here, in the Northern District of Florida. There, however, remains much work to be done. In this month’s video presentation, Laura Mate, a lawyer with the Sentencing Resource Counsel, of the Office of Defender Services reviews some of the recent amendments to the Sentencing Guidelines and discusses how they can be used to argue for below-Guideline sentences.
Ms. Mate is a 1998 graduate of the University of Michigan Law School. She worked in private practice and spent nine years as an Assistant Federal Public Defender in the Western District of Washington before joining the National Resource Counsel Project in 2010.
We recorded Ms. Mate in April of 2012 at the Panel Training Seminar presented by the Federal Public Defender for the Middle District of Florida.
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Creative Uses of the Rules of Evidence
Over the years, we’ve shown you a number of presentations by University of New Mexico Law School Professor Barbara Bergman. This month, we’ll be showing her updated and most recent version of her lecture about the innovative use of the Rules of Evidence. She will tell you how to use Rule 806 to impeach out-of-court statements that are not hearsay or are an exception to the hearsay rule. She’ll warn you about the possibility of the Government impeaching your client even though he doesn’t testify. Need help getting evidence before the jury during the Government’s direct examination - she has answer for that, too. She’ll also show you how to get damaging Government statements in as admissions. She’ll talk about all of this and present a host of angles that most of us rarely considered.
For those of you who have seen her before, you’ll find her presentation to be a wonderful refresher. If you haven’t seen her before, you’ll come away with new ideas that will make you a better prepared lawyer.
The video runs an hour an ten minutes.
Ms. Bergman is a 1976 graduate of the Stanford Law School. She clerked for a Ninth Circuit Court of Appeals Judge, has been in private practice, and worked as a public defender. She was on the defense team representing Terry Nichols who was charged with the 1995 Oklahoma City bombing. She is a past president of the National Association of Criminal Defense Lawyers. She is the co-author of Wharton’s Criminal Evidence, 15th Edition, and has been on the University of New Mexico law faculty since 1987.
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Recurring Practice Issues in Federal Court
Fritz Scheller is the Criminal Justice Act Panel Representation for the Middle District of Florida. He is a graduate of the University of California’s Berkeley Law School. After serving 6 years as a an Assistant Federal Public Defender in the Middle District of Florida, he opened his own practice in Winter Park where he specializes in federal criminal defense.
In his entertaining and lively presentation, Mr. Schiller takes some shots at probation officers and north Florida lawyers, but devotes most of his time to addressing issues that regularly arise at detention hearings and in Sentencing Guideline calculations. His discussion includes examples of errors found in presentence reports he has reviewed.
We recorded Mr. Schiller at the Criminal Justice Act panel training presented in April by the Federal Public Defender for the Middle District of Florida.
New Developments in the Right to Confrontation
Since the revolutionary decision in Crawford v. Washington, 541 U.S. 36 (2004), the right of confrontation has taken on a new meaning and has been subject to continued interpretation by the Supreme Court. In this month’s video presentation, Stanford University Law Professor Jeffrey Fisher, who won the victory in Crawford provides his analysis of the Court’s ongoing interpretation of one of the Constitution’s most basic rights.
Among those practicing law today, few have had the impact in the United States Supreme Court that Jeffrey Fisher has had. Since 2003, he has argued more than 20 cases before the Court. Among them: Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), where the Court concluded the testimony of a lab analyst who did not perform the blood alcohol testing violated the confrontation clause; United States v. O’Brien, 130 S. Ct. 2169 (2010), where the Court held proof that the firearm was a machine gun was a necessary element of 18 U.S.C. § 924(c)(1)(B)(ii); Melendez-Diaz v. Masssachusetts, 557 U.S. 305 (2008), where the Court found the introduction of certificates signed by state lab analysts violated the Confrontation Clause; Kennedy v. Louisiana, 554 U.S. 407 (2008), upholding the ban on capital punishment for child rape; Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008), the case involving the punitive damage claim in the Exon Valdez oil spill; Blakely v. Washington, 542 U.S. 296 (2004) and, of course, Crawford v. Washington. His talent and insight into the Court make him a uniquely qualified to discuss the Confrontation Clause.
We filmed this presentation in June at the Federal Public Defender Conference in Atlanta. The presentation lasts 75 minutes.
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Enticers and Travelers
Here in North Florida, we’ve had a series of sting operations where law enforcement officers, posing as either young adolescents or the parent of a young adolescent, post an ad, usually on Craig’s list, offering sexual relations with the adolescent. The cases, as many of us have found, are, challenging, to say the least. In this month’s video presentation, two Assistant Federal Public Defenders, Jonathan Jeffress and Rosanna Taormina, will discuss strategy and the best options for defending these cases.
Ms. Taormina and Mr. Jeffress both work for the Federal Public Defender in the District of Columbia. She is a 2004 graduate of the University of Pennsylvania Law School and a former law clerk to Judge Rendell of the Third Circuit Court of Appeals. He is a 1998 graduate of the University of Virginia.
We filmed this presentation this past June at the Federal Public Defender Conference in Atlanta. The presentation is 75 minutes long.
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Sentencing Guidelines (Part Three) – Recent Case Law
This month we’ll be showing the third and final installment of our three-part series featuring the presentation made by the United States Sentencing Commission this past April in Pensacola. In it, Alan Dorhoffer covers what practitioners need most – up-to-date case law. He reviews Supreme Court and Eleventh Circuit decisions regarding the Sentencing Guidelines issues of (1) what amounts to a "crime of violence" and "violent felony" as those terms are used in the Career Offender Guideline and the Armed Career Criminal Act, (2) appellate review for "reasonableness," (3) departures and variances, (4) child pornography, and (5) restitution in mortgage fraud cases.
Alan Dorhoffer is the Deputy Director of the Sentencing Commission’s Office of Education and Sentencing Practice. He has conducted hundreds of training programs for judges, attorneys, law clerks, and probation officers on federal sentencing issues. He is a graduate of the George Washington University School of Law.
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Sentencing Guidelines (Part Two) – Proposed 2012 Amendments, the 2011 Amendments, and the Definition of “Crime of Violence”
This month we’ll be showing Part Two of the three-part series featuring the presentation made by the United States Sentencing Commission this past April in Pensacola. It features the Commission’s principal trainer, Rusty Burress, and Alan Dorhoffer who serves as the Commission’s Deputy Director of its Office of Education and Sentencing Practice.
Mr. Burress reviews the proposed amendments to the Sentencing Guidelines that are scheduled to take effect in November of this year and the most recent amendments that took effect in November of 2011. It is a broad landscape covering everything from mortgage fraud to supervised release, illegal reentry, firearms, mitigating role, and crack cocaine. Mr. Dorhoffer addresses Guideline amendment retroactivty, the Fair Sentencing Act, and begins a discussion of what is surely the fastest-changing feature of the Guidelines – the definition of "crime of violence" and "violent felony" as those terms are used in the Career Offender Guideline and the Armed Career Criminal Act.
Rusty Burress is the Principal Training Advisor in the Sentencing Commission’s Office of Education and Sentencing Practice and has been on the staff of the Commission since its inception in 1985. He worked as a U.S. Probation Officer in South Carolina prior to joining the Sentencing Commission. He is a graduate of the University of South Carolina and earned a Master’s Degree from Fordham University.
Alan Dorhoffer has conducted hundreds of training programs for judges, attorneys, law clerks, and probation officers on federal sentencing issues. He is a graduate of the George Washington University School of Law.
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Sentencing Guidelines (Part One) – Overview The Sentencing Guideline Commission and Relevant Statistics
This month we begin a three-part series featuring the presentation made by the United States Sentencing Guideline Commission this past April in Pensacola. Part One, which you will see this month, features United States Sentencing Guideline Commissioner Dabney Friedrich and the Commission’s principal trainer, Rusty Burress.
Ms. Friedrich talks about the make-up of the Commission, describes the process used by the Commission to promulgate the Guidelines, and reviews the recent research conducted by the Sentencing Commission regarding mandatory minimum sentences and the ongoing research into the child pornography guideline and the impact of the Booker decision on sentencing. Mr. Burress gives you the comparison between the kinds of cases being prosecuted nation-wide and the kind of cases being prosecuted in North Florida. He examines, too, the rates at which sentences are imposed within and outside the Sentencing Guidelines.
Ms. Friedrich who is from Pensacola served as associate counsel at the White House from 2003 until her appointment to the Sentencing Commission in December of 2006. Prior to that she was counsel to Chairman Orrin Hatch of the U.S. Senate Judiciary Committee, worked as an Assistant State Attorney, as an associate in a San Diego law firm, and as a clerk to a United States District Judge. She is a graduate fo the Yale Law School.
Rusty Burress is the Principal Training Advisor in the Sentencing Commission’s Office of Education and Sentencing Practice and has been on the staff of the Commission since its inception in 1985. He worked as a U.S. Probation Officer in South Carolina prior to joining the Sentencing Commission. He is a graduate of the University of South Carolina and earned a Master’s Degree from Fordham University.
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Supreme Court Review
This month we’ll be presenting our video tape of the annual Supreme Court Review from this year’s Federal Defender Conference that was held earlier this month in Atlanta. The video will feature Professors Susan Herman and Erwin Chemerinsky along with Assistant Federal Public Defender Paul Rashkind. The trio will be reviewing the essential criminal law cases from the Court that have been issued over the last year. Their thoughtful and entertaining analysis was, as always, one of the high points of the conference.
This is one of our longer presentations. It runs for just over one hour and forty minutes.
Susan Herman has been a professor at the Brooklyn Law School since 1980. She’s appeared before the United States Supreme Court on a number of occasions and is often sought out by one media source or another for her insights into criminal law. Edwin Chemerinsky is the founding dean of the Donald Bren School of Law at UC-Irvine. He appears regularly before the United States Supreme Court and is a frequent commentator for the media. Paul Rashkind heads the appellate section of the Federal Public Defender’s office for the Southern District of Florida. He is a 1975 graduate of the University of Miami.
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Preparing Your Client for the Bureau of Prisons
The truth of the matter is that nearly all of our clients end up serving a sentence in the Federal Bureau of Prisons. In this month’s video presentation, John Badalamenti, an Assistant Federal Public Defender from the Middle District of Florida, will familiarize you with the structure of the Bureau of Prisons and will discuss such topics as the Program Statements that set out the rules applicable to the Bureau, the administrative process which prisoners must use to challenge the actions of the Bureau, the designation process, the Bureau’s reliance upon the presentence report, and admission into the Bureau’s popular residential drug treatment program.
John graduated from the University of Florida Law School in 1999. Upon graduation, he entered the United States Attorney General’s Honors Program, where he spent a year as an Attorney-Advisor for the Bureau of Prisons in Atlanta. He has been in private practice with Carlton Fields, P.A., and has served as a law clerk to Eleventh Circuit Court of Appeals Judges Paul H. Roney and Frank M. Hull. He is currently an Assistant Federal Public Defender in Tampa.
We recorded Mr. Badalamenti this April at the Criminal Justice Act panel training presented by the Federal Public Defender for the Middle District of Florida.
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Searching Cell Phones
It has become something we see more and more often. The police arrest someone and then proceed to search the individual’s cell phone. Many, but not all courts, have upheld the search of cell phones if made incident to the arrest. The Florida Supreme Court, however, has pending before it the decision of Florida’s First District Court of Appeal in Smallwood v. State, 61 So. 3d 448 (1stDCA 2011) and it is still an evolving area of the law.
Florida State University of Law Professor Wayne Logan reviewed the issue in a presentation he gave in January to the Tallahassee FACDL Chapter. Professor Logan is a past Chair of the Criminal Justice Section of the Association of American Law Schools. He is a dynamic lecturer who has published on a wide variety of issues, including capital punishment, police search and seizure, sex offender registration and community notification, and the interplay among, state, federal and local criminal justice systems.
Special Considerations in Representing Non-Citizens After Padilla
In Padilla v. Kentucky, 130 S. Ct. 1473, 1482 (2010), the Supreme Court placed upon defense counsel the responsibility of accurately advising the non-citizen about the immigration consequences of a guilty plea. That means, of course, that all of us must have some basic information about immigration law. In this month’s presentation, Eleni Wolfe-Roubatis of the National Immigration Justice Center offers some help. In her presentation that we recorded last June at the National Seminar for Federal Defenders, she discusses some of the key facts to consider when representing a non-citizen, what amounts to a conviction under immigration law, the major consequences of convictions for immigrants, crimes of “moral turpitude,” “aggravated felonies,” and eligibility for relief under immigration law.
The National Immigrant Justice Center is located in Chicago. The organization provides legal services to immigrants and advocates for immigrants through policy reform, impact litigation, and public education. Ms. Wolfe-Roubatis is the Detention Project Supervising Attorney for the Center and has been with the Center since 2007. She is a 2007 graduate of the DePaul University College of Law.
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Defending Those Who Defend Us - Considerations in Defending Veterans
Particularly with the long wars in Iraq and Afghanistan, we sometimes have clients who are veterans. This month’s video will help you identify key considerations in representing them, particularly those who suffer from service-connected Post Traumatic Stress Disorder and Traumatic Brain Injury. The speaker, Assistant Federal Public Defender, Christian Capece, will also provide tips on how to maximize the impact of a client’s honorable military service and offer assistance in understanding the client’s service record and its potential for securing a better sentence.
Christian Capece served as Judge Advocate in the United States Marines in Okinawa, Japan, and Quantico, Virginia from 2000-2004. He has also been a law clerk for a United States District Judge in New York, worked for a New York law firm, and has been an assistant federal public defender in Charleston, West Virginia, since 2007.
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Ten Lessons Learned From the Supreme Court
In a time when so many Supreme Court decisions favor the Government, Stanford Law Professor Jeffrey Fisher remains convinced that there are victories to be won and that good lawyering can still make a difference. Mr. Fisher is, himself, proof of his conviction, having regularly come away with victories from the Court.
In this month’s video presentation, Mr. Fisher talks about what he thinks makes for good lawyering. Some of what he says applies directly to Supreme Court practice, but much of his presentation carries over to appellate work in general and to making compelling arguments in the trial court.
It would be hard to find someone who is better qualified to discuss a successful approach to arguing criminal cases. Mr. Fisher. This term before the Supreme Court, Mr. Fisher argued the Confrontation Clause case of Bullcominng v. New Mexico, and the speedy trial case of United States v. Tinklenberg, 131 S. Ct. 2007 (2011). Since 2003, he has argued 20 cases in the Supreme Court. Among them: United States v. O’Brien, 130 S. Ct. 2169 (2010), where the Court held proof that the firearm was a machine gun was a necessary element of 18 U.S.C. § 924(c)(1)(B)(ii); Melendez-Diaz v. Masssachusetts, 129 S. Ct.2527 (2008), where the Court found the introduction of certificates signed by state lab analysts violated the Confrontation Clause; Kennedy v. Louisiana, 128 S. Ct. 2641 (2008), upholding the ban on capital punishment for child rape; Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008), the case involving the punitive damage claim in the Exon Valdez oil spill; Blakely v. Washington, 542 U.S. 296 (2004) and, of course, Crawford v. Washington. 541 U.S. 36 (2004).
Advanced Guideline Issues: Multiple Counts
For most of us, one of the most complicated Sentencing Guideline issues is that of dealing with multiple counts. The"grouping rules" exist for providing incremental punishment for significant additional criminal conduct, but also serve to limit the significance of charging decisions by the Government so as to prevent multiple punishment for essentially the same conduct. Any lawyer who hopes to accurately gauge the potential punishment his or her client is facing, needs to have a good understanding of the applicable sections, USSG §§3D1.1-3D1.4.
This month’s video is designed to give you that working knowledge. It features Rachel Pierce and Krista Rubin, both of whom are with the U.S. Sentencing Commission’s Office of Education and Sentencing Practice. They develop training curriculum, conduct training programs for judges, probation officers, and lawyers on the federal sentencing guidelines. Ms. Pierce has been with the Sentencing Commission since 1998; Ms. Rubin since 1996. Their presentation was broadcast this past August on The Federal Judicial Televison Network.
Kealin Culbreath is a Senior Education and Sentencing Practice Specialist for the United States Sentencing Commission where he began working in 2002. He analyzes appellate court decisions and conducts training programs for judges, probation officers, and attorneys. Prior to joining the staff of the Sentencing Commission, Mr. Culbreath was a Staff Attorney for the Governor's Office in Atlanta. He is a 1999 graduate of the University of Georgia Law School.
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Handling an Appeal in Federal Court
For those of us who don’t regularly file appeals with the Eleventh Circuit Court of Appeals, one of the most challenging things we do is to try and fulfill all the requirements established by the Court. The new rule requiring expanded record excerpts has only added to the task. Then, too, there is the matter of putting together a compelling argument for the client.
This month’s training seminar is designed to address those concerns. Gwen Spivey and Margaret Clemons of our office will be making a live presentation in Pensacola and Tallahassee, and we’ll be showing a video of their presentation in Gainesville and Panama City.
Gwen is a 1970 graduate of the Harvard Law School and has been handling criminal appeals since 1984. She has been an appellate lawyer with our office for12 years. Margaret Clemons is a senior legal secretary with our office, having handled our appeals since 1994.
Margaret and Gwen will both address the nuts and bolts of criminal appeals. Gwen will also present some of her insights into how to make the best argument for your client.
Educating Courts about Invisible Punishments - Collateral Consequences of Conviction and Imprisonment as Mitigating Factors
In this month’s video recorded presentation, Denise Barrett and Sara Silva explore the effects of imprisonment on defendants, families, and communities - such things as disqualification from public housing, residency requirements for sex-offenders, limited employment opportunities, loss of welfare or food stamps, and deportation. They discuss, too, using these factors to mitigate the length of the sentence or conditions of probation and supervised release.
Denise Barrett is a 1989 graduate of the University of Baltimore School of Law. Sara Silva is graduate of the Boston University School of Law. Both work with the Office of Defender Services Sentencing Resource Counsel.
We recorded them this past June at the Federal Defender Conference in Seattle.
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Supreme Court Review (Part Two)
This month we’ll being showing a video of the rest of the presentation made by Susan Herman and Paul Rashkin that we recorded the first of June at the Federal Defender Conference in Maryland. We have added, though, a review of the Supreme Court decisions that have issued since the first of June. Gwen Spivey and Chet Kaufman who make up our appellate division will provide the update.
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Supreme Court Review
This June we’ll be presenting our video tape of the annual Supreme Court Review from this year’s Federal Defender Conference that will be held in June in Baltimore, Maryland. The video will feature Professors Susan Herman and Erwin Chemerinsky along with Assistant Federal Public Defender Paul Rashkind. The trio will be reviewing the essential criminal law cases from the Court that have been issued over the last year. Their thoughtful and entertaining analysis will, as always, surely be one of the high points of the conference.
Susan Herman has been a professor at the Brooklyn Law School since 1980. She’s appeared before the United States Supreme Court on a number of occasions and is often sought out by one media source or another for her insights into criminal law. Edwin Chemerinsky was a professor at the Duke University School of Law and is now the founding dean of the Donald Bren School of Law at UC-Irvine. He appears regularly before the United States Supreme Court and is a frequent commentator for the media. Paul Rashkind heads the appellate section of the Federal Public Defender’s office for the Southern District of Florida. He is a 1975 graduate of the University of Miami.
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Forfeiture
If there was ever a topic in federal criminal defense that most of us know little about, it is forfeiture. The Government, though, routinely files a forfeiture count in many indictments, and a forfeiture action can cost our clients thousands of dollars. The Government routinely takes cars, trucks, an firearms for forfeiture. It has taken homes and real property, too.
This month’s speaker is Assistant United States Attorney Bobby Stinson. He’ll cover the basics of criminal forfeiture and provide some valuable insight as to how it all works.
Bobby Stinson is the Financial Litigation Unit Chief for the United States Attorney for the Northern District of Florida. He is a graduate of the Cumberland School of law and joined the United States Attorney’s Office twenty-two years ago. He has spoken at numerous seminars and conferences on asset forfeiture.
He will be making a live presentation in Tallahassee. We’ll be showing a recording of that presentation in Gainesville, Panama City and Pensacola.
Advanced Guideline Issues: Multiple Counts
For most of us, one of the most complicated Sentencing Guideline issues is that of dealing with multiple counts. The"grouping rules" exist for providing incremental punishment for significant additional criminal conduct, but also serve to limit the significance of charging decisions by the Government so as to prevent multiple punishment for essentially the same conduct. Any lawyer who hopes to accurately gauge the potential punishment his or her client is facing, needs to have a good understanding of the applicable sections, USSG §§3D1.1-3D1.4.
This month’s video is designed to give you that working knowledge. It features Rachel Pierce and Krista Rubin, both of whom are with the U.S. Sentencing Commission’s Office of Education and Sentencing Practice. They develop training curriculum, conduct training programs for judges, probation officers, and lawyers on the federal sentencing guidelines. Ms. Pierce has been with the Sentencing Commission since 1998; Ms. Rubin since 1996. Their presentation was broadcast this past August on The Federal Judicial Televison Network.
Kealin Culbreath is a Senior Education and Sentencing Practice Specialist for the United States Sentencing Commission where he began working in 2002. He analyzes appellate court decisions and conducts training programs for judges, probation officers, and attorneys. Prior to joining the staff of the Sentencing Commission, Mr. Culbreath was a Staff Attorney for the Governor's Office in Atlanta. He is a 1999 graduate of the University of Georgia Law School.
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Handling an Appeal in Federal Court
For those of us who don’t regularly file appeals with the Eleventh Circuit Court of Appeals, one of the most challenging things we do is to try and fulfill all the requirements established by the Court. The new rule requiring expanded record excerpts has only added to the task. Then, too, there is the matter of putting together a compelling argument for the client.
This month’s training seminar is designed to address those concerns. Gwen Spivey and Margaret Clemons of our office will be making a live presentation in Pensacola and Tallahassee, and we’ll be showing a video of their presentation in Gainesville and Panama City.
Gwen is a 1970 graduate of the Harvard Law School and has been handling criminal appeals since 1984. She has been an appellate lawyer with our office for12 years. Margaret Clemons is a senior legal secretary with our office, having handled our appeals since 1994.
Margaret and Gwen will both address the nuts and bolts of criminal appeals. Gwen will also present some of her insights into how to make the best argument for your client.
Educating Courts about Invisible Punishments - Collateral Consequences of Conviction and Imprisonment as Mitigating Factors
In this month’s video recorded presentation, Denise Barrett and Sara Silva explore the effects of imprisonment on defendants, families, and communities - such things as disqualification from public housing, residency requirements for sex-offenders, limited employment opportunities, loss of welfare or food stamps, and deportation. They discuss, too, using these factors to mitigate the length of the sentence or conditions of probation and supervised release.
Denise Barrett is a 1989 graduate of the University of Baltimore School of Law. Sara Silva is graduate of the Boston University School of Law. Both work with the Office of Defender Services Sentencing Resource Counsel.
We recorded them this past June at the Federal Defender Conference in Seattle.
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The Incredible Shrinking Crime of Violence
Some of the longest sentences are given to those who qualify as armed career criminals and career offenders. In many, if not most, instances those classifications are based on "crimes of violence." Beginning with United States v. Begay, 553 US. 137 (2008), though, courts have been reconsidering what amounts to a crime of violence. In June, for example, the Eleventh Circuit Court of Appeals in United States v. Harris, 2010 WL 2382401 (June 16, 2010), concluded that under the circumstances of the case, the defendant’s Florida conviction for lewd and lascivious assault could not be considered a crime of violence.
This month’s video will give you an excellent review of where the issue stands and the analysis you can use in considering whether your client’s conviction qualifies as a crime of violence.
The presentation is made by three assistant public defenders, Michael Caruso who is the Chief Assistant Federal Defender in the Southern District of Florida, Shereen Charlick who is the Chief Assistant Federal Defender in the Southern Distirct of California, and Donna Coltharp who is an assistant federal public defender in the Western District of Texas. We recorded their presentation this past June at the Federal Defender Conference in Seattle.
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Computer and Internet Crimes
In the last decade, criminal activity involving the internet has become common place - child pornography offenses, unauthorized access into even the most secure networks, identity theft, and all kinds of fraud. In this month’s video presentation, Assistant Federal Public Defender Ken Hawk covers the terrain and shares his insights into defending these computer based crimes.
Ken is a 1989 graduate of Texas Tech University School of Law. He was a prosecutor and criminal defense lawyer in Lubbock, Texas from 1989-2006. He has been an Assistant Federal Public Defender in the Eastern District of Texas since 2006.
We recorded Ken in June at National Seminar for Federal Defenders in Seattle. Ken’s humor and analysis made his one of the best presentations at the Seminar.
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Supreme Court Review
This June we’ll be presenting our video tape of the annual Supreme Court Review from this year’s Federal Defender Conference that will be held in June in Seattle. The video will feature Professors Susan Herman and Erwin Chemerinsky along with Assistant Federal Public Defender Paul Rashkind. The trio will be reviewing the essential criminal law cases from the Court that have been issued over the last year. Their thoughtful and entertaining analysis will, as always, surely be one of the high points of the conference.
Susan Herman has been a professor at the Brooklyn Law School since 1980. She’s appeared before the United States Supreme Court on a number of occasions and is often sought out by one media source or another for her insights into criminal law. Edwin Chemerinsky was a professor at the Duke University School of Law and is now the founding dean of the Donald Bren School of Law at UC-Irvine. He appears regularly before the United States Supreme Court and is a frequent commentator for the media. Paul Rashkind heads the appellate section of the Federal Public Defender’s office for the Southern District of Florida. He is a 1975 graduate of the University of Miami.
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Federal Drug Sentencing
Drug cases account for the largest percentage of cases filed in many districts including the Northern District of Florida. This month Federal Public Defender Randy Murrell reviews the essentials of sentencing for federal drug offenses. In addition to reviewing the general sentencing scheme, he will discuss (a) the determination of the drug quantity for the purpose of establishing the mandatory minimums; (b) the notice requirement of 21 U.S.C. § 851; (c) the determination of separate acts for purposes of the §851 enhancement; (d) the safety valve; (e) substantial assistance; (f) relevant conduct; and (g) the status of proposed changes to the crack cocaine law. This is a live presentation so there will be an opportunity for discussion.
Randy Murrell has been the Federal Public Defender since 1998. Prior to his appointment, he spent 20 years as an assistant state public defender. Between the two jobs, he has tried over 300 felony cases including 19 first degree murder cases. He is Board Certified in criminal trials by The Florida Bar and is a 1976 graduate of the Florida State University School of Law.
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Defending a Mortgage Fraud Case in Federal Court - From Pretrial Through Sentencing
The financial crisis that led to the collapse of the economy was in large part precipitated by home-lending practices. That has, in turn, led to an increase in mortgage fraud prosecutions in federal court. While we have not yet seen many of them in the Northern District of Florida, they have been filed in many districts around the country and we will surely see some in the Northern District of Florida in the months to come.
In this month’s video, Kevin Tate, an Assistant Federal Public Defender from Charlotte, North Carolina, walks you through the essentials of defending a mortgage fraud case. Along the way he discusses the roots of the mortgage crisis, argues for an aggressive pretrial motion practice, discusses defenses including an innovative materiality defense, and talks about sentencing strategy with considerable emphasis on arriving at an accurate loss calculation.
We recorded the presentation last June in Orlando at the CJA Panel Seminar hosted by the Federal Public Defender’s Office for the Middle District of Florida and the Central Florida Association of Criminal Defense Lawyers.
Mr. Tate has been with the Defenders Office in the Western District of North Carolina since 2005. Before joining that office, he had been with the Federal Defender’s Office in Las Vegas for five years and had spent 10 years as an investigator with Federal Defender offices in Wisconsin and Indiana. He is a 1999 graduate of the Indiana University School of Law.
Sentencing Guidelines - Firearms
Firearms figure prominently in many federal cases. Accordingly, most who practice federal criminal defense have some familiarity with the applicable sentencing guidelines. Still, there are many fine points that can make all the difference: the adjustments that apply if the gun is stolen or the serial number obliterated, the question of what amounts to trafficking in firearms, the definition of possessing a firearm "in connection" with another felony offense and the cross-referencing provision that can apply if the firearm is possessed "in connection with" another felony, the impact of a conviction pursuant to 18 U.S.C. 924(c), and the grouping rules as they apply to those cases that inclNew Developments in the Right to Confrontationude both firearm and drug offenses.
In this month's video presentation, Kealin Culbreath and Rusty Burress, members of the United States Sentencing Commission's staff, address these issues and work through a number of scenarios to help you better understand the firearm provisions of the United States Sentencing Guidelines. We recorded them last September in Pensacola.
Rusty Burress is the Principal Training Advisor for the United States Sentencing Commission. He has been on the Sentencing Commission's staff since its inception in 1985. He is the Commission's principal trainer of judges probations officers, and attorneys. Before joining the Sentencing Commission he was a United States Probation officer for the District of South Carolina. Mr. Burress holds degrees from the University of South Carolina and Fordham University.
Kealin Culbreath is a Senior Education and Sentencing Practice Specialist for the United States Sentencing Commission where he began working in 2002. He analyzes appellate court decisions and conducts training programs for judges, probation officers, and attorneys. Prior to joining the staff of the Sentencing Commission, Mr. Culbreath was a Staff Attorney for the Governor's Office in Atlanta. He is a 1999 graduate of the University of Georgia Law School.
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Sentencing Guidelines - Multiple Counts
One of the most difficult sections of the United States Sentencing Guidelines Manual contains the rules governing multiple counts. The object, of course, is to determine when and when not to "group" different counts of an indictment. If the offenses are not "grouped," then the task is to arrive at the correct calculation.
In this month's video, Rusty Burress who is a member of the staff of the United States Sentencing Commission, will walk you through this complicated process. We recorded him in September of last year in a presentation made in Pensacola.
Rusty Burress is the Principal Training Advisor for the United States Sentencing Commission. He has been on the Sentencing Commission's staff since its inception in 1985. He is the Commission's principal trainer of judges probations officers, and attorneys. Before joining the Sentencing Commission he was a United States Probation officer for the District of South Carolina. Mr. Burress holds degrees from the University of South Carolina and Fordham University.
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Sentencing Guidelines - Relevant Conduct
Section 1B1.3 of the United States Sentencing Guidelines describes "relevant conduct." It is a concept that includes in the guideline calculations conduct other than that involved in the offense of conviction. It can include conduct for which the defendant was never charged, conduct addressed in counts of the indictment that have been dismissed, and even conduct for which the defendant was acquitted. It is a concept that is both vexing and difficult to understand.
In this month's video presentation, Rusty Burress and Kealin Culbreath of the United States Sentencing Commission will provide you with a better understanding of this provision that, for some defendants, can produce especially harsh results. The presentation includes the application of relevant conduct to scenarios involving a drug conspiracy, a social security offense, a firearms offense, and a child pornography offense. We recorded it on September 26th of last year in Pensacola.
Rusty Burress is the Principal Training Advisor for the United States Sentencing Commission. He has been on the Sentencing Commission's staff since its inception in 1985. He is the Commission's principal trainer of judges probations officers, and attorneys. Before joining the Sentencing Commission he was a United States Probation officer for the District of South Carolina. Mr. Burress holds degrees from the University of South Carolina and Fordham University.
Kealin Culbreath is a Senior Education and Sentencing Practice Specialist for the United States Sentencing Commission where he began working in 2002. He analyzes appellate court decisions and conducts training programs for judges, probation officers, and attorneys. Prior to joining the staff of the Sentencing Commission, Mr. Culbreath was a Staff Attorney for the Governor's Office in Atlanta. He is a 1999 graduate of the University of Georgia Law School.
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Discretionary Sentencing in Federal Court
Since the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005), sentencing in federal court continues to change. In this month's video presentation, Kealin Culbreath of the United States Sentencing Commission reviews what has happened since Booker. In doing so, he discusses the key decisions from the United States Supreme Court, a list of recent decisions from the Eleventh Circuit Court of Appeals, and those issues that are currently among the most contentious: the child pornography guidelines, the fast-track disparity, and the definition of crimes of violence.
This presentation is for both those who want an overview of the changes brought about by Booker and for those who are looking for the most up to date information about the status of the law. We recorded this presentation on September 16th of this year at the presentation made by the Sentencing Commission in Pensacola.
Kealin Culbreath is a Senior Education and Sentencing Practice Specialist for the United States Sentencing Commission where he began working in 2002. He analyzes appellate court decisions and conducts training programs for judges, probation officers, and attorneys. Prior to joining the staff of the Sentencing Commission, Mr. Culbreath was a Staff Attorney for the Governor's Office in Atlanta. He is a 1999 graduate of the University of Georgia Law School.
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Criminal Law Cases From the U.S. Supreme Court 2008-2009 Term
During its 2008-2009 term, the United States Supreme Court addressed a number of issues that significantly impact those accused of crimes. This year, in Arizona v. Gant, 129 S.Ct. 1710 (2009), the Court significantly changed the rules regarding the search motor vehicles incident to an arrest. In Herring v. United States, 129 S.Ct. 695 (2009), the Court addressed the question of whether negligent police record keeping rendered an arrest unlawful. In Kansas v. Ventris, 129 S.Ct. 1841, the Court was concerned with whether statements taken in violation of the Sixth Amendment could be used for impeachment. Finally, in Montejo v. Louisiana, 129 S.Ct. 2079 (2009), the Court expanded the rights of law enforcement officers to question defendants after a lawyer had been appointed at the initial appearance.
Earlier this summer, Florida State University College of Law Emeritus Professor John Yetter reviewed the cases for the Tallahassee Chapter of the Florida Association of Criminal Defense Lawyers, and we caught him on video. This month we will be presenting that 1 ½ hour presentation. **
Professor Yetter taught criminal law for decades at Florida State University and has been a frequent lecturer for The Florida Bar and judicial education programs. In 1998, he was awarded the Selig I. Goldin Award, the highest honor given by The Florida Bar criminal law section. In years past, Professor Yetter has chaired The Florida Bar’s executive counsel of the criminal law section and the Florida Criminal Procedure Rules Committee. He is a summa cum laude graduate of the Duquesne University Law School.
**This is a video of The Florida Bar Course Title: New Law of Search Incident to Arrest; Course Number: 57609. CLER credit of 1.5
Criminal Justice Trends in the Supreme Court
On April 29th, speaking on behalf of the Department of Justice and before the United States Senate Judiciary Committee’s Subcommittee on Crimes and Drugs, Assistant Attorney General Lanny Breuer testified that "The Administration believes Congress’s goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine." Where, though, does this leave us now? The Guidelines remain unchanged as does the threshold for the statutorily required mandatory minimum sentences. Will any of this change? What is the best strategy to follow to take advantage of this new stance taken by the Attorney General? What can we expect from the United States Attorney’s Office, here, in the Northern District of Florida? If the Guidelines eventually change or the mandatory minimum thresholds change, will the changes apply retroactively?
This month Federal Public Defender Randy Murrell will provide an update on the world of crack cocaine sentencing and explore the answers to these and other crack-related questions. This will be another live presentation so there will be an opportunity for discussion.
Randy Murrell is a 1976 graduate of the Florida State University of Law. He is serving his third term as the Federal Public Defender, having first been appointed in 1998. Prior to his appointment he served as an assistant state public defender for more than 20 years. He has represented clients in more than 250 felony trials, including 19 first degree murder trials and 33 federal trials. He is Board Certified in Criminal Trials by The Florida Bar.
Begay and Chambers: What Crime of Violence Means Today and How to Use the New Definition to Shorten Sentences
Those sentenced as career offenders and armed career criminals often receive the longest sentences. In Begay v. United States, 128 S. Ct. 1581 (2008) and Chambers v. United States, 129 S. Ct. 687 (2009), the Supreme Court narrowed the definition of the sort of violent offense that serves as a predicate for both of these two harsh provisions. The decisions affect, as well, the guideline scoring in firearm and immigration cases where a conviction for a violent offense produces a higher offense level. Gwen Spivey, one of our two appellate specialists, will review Begay and Chambers and the decisions that have followed. She will talk, too, about how to take advantage of these decisions and will discuss the possibility of extending the rational of Begay and Chambers beyond the exact holding of those decisions. This is a live presentation so there will be an opportunity for discussion and for questions.
Gwen Spivey has been an Assistant Federal Public Defender in the Northern District of Florida for 11 years. She graduated from FSU in 1976 and Harvard Law School in 1979. She handled appeals for the local state public defender, managed her own practice focusing on state and federal appellate and post-conviction cases for 11 years, and worked briefly with Aurell, Radey, Hinkle, Thomas & Beranek, PA, She came to our office after 3 years with the Judicial Education program of the Office of State Courts Administrator.
Policies and Procedures of the United States Attorney for the Northen District of Florida
The policies and procedures of the United States Attorney’s Office play a significant and often the most critical role in the outcome of any criminal case. Whether it be the grand jury procedures, the decision making structure of the office, the policies of the office regarding plea negotiations or substantial assistance, or the decisions each Assistant United States Attorney makes regarding discovery, the more you know about these matters, the better able you will be to advise your client and prepare your case.
This month we will be showing a video-recorded interview of Thomas Kirwin, the United States Attorney for the Northern District of Florida. In a relaxed discussion with Federal Public Defender Randy Murrell, Mr. Kirwin will give you an insight into the policies of his office and the way his office works.
Mr. Kirwin is the United States Attorney for the Northern District of Florida. He was appointed to the position in January by the Attorney General after serving as the interim United States Attorney following Gregory Miller’s resignation and entry into private practice. Mr. Kirwin has been a mainstay of the Office, having begun working there in 1992. In 2000, he became the First Assistant. He served earlier as the interim United States Attorney, holding that position for over a year, beginning in June of 2001. He served as an assistant state attorney in Florida’s Second Judicial Circuit for nine years before joining the United States Attorney’s Office. He was also a JAG officer for the United States Army where he served in Germany for several years. Mr. Kirwin is a 1979 graduate of the Florida State University College of Law.
Best Practices
In this video-taped presentation, Randy Murrell, the Federal Public Defender, reviews what he sees as the best practices in federal criminal defense. He starts with the initial appearance, works through the process of developing rapport with the client, addresses motion practice, use of experts, discovery, guilty pleas, trial, and sentencing. In discussing the existing practices, he relies on some random sampling done with respect to the practices of the lawyers in the Federal Defender office. That sampling showed many instances of waived detention hearings, little in the way of documentation in the lawyer’s file, little use of experts, limited motion practice, pleadings without much in the way of a supporting memorandum, and almost no sentencing memoranda. In his presentation, Randy addresses these shortcomings and makes suggestions for providing a better quality of representation.
Randy Murrell is a 1976 graduate of the Florida State University of Law. He is serving his third term as the Federal Public Defender, having first been appointed in 1998. Prior to his appointment he served as an assistant state public defender for more than 20 years. He has represented clients in more than 250 felony trials, including 19 first degree murder trials and 33 federal trials. He is Board Certified in Criminal Trials by The Florida Bar.
Federal Rule of Evidence Rule 806
Rule 806 of the Federal Ruled of Evidence provides for the impeachment of hearsay declarants. Barbara Bergman, who is a professor at the University of New Mexico Law School and a former president of the National Association of Criminal Defense Lawyers, has lectured for years about the little-used rule. In this most recent version of her lecture, she gives a tour through the possibilities: impeachment by prior convictions, inconsistent statements, bias and prejudice, and even reputation. Along the way, she shows how to keep the government from introducing damaging hearsay under the guise of explaining the course of the police investigation, the importance of Rule 403 (weighing the unfair prejudice against the probative value), and how to use Rule 806 to expand discovery and even secure a severance from a co-defendant. She includes a warning about prosecutors using the rule against unwary defense counsel.
Professor Bergman has been teaching at the University of New Mexico Law School since 1987, after having practiced as a public defender in Washington, D.C. She teaches criminal law, evidence, and trial practice. She lectures and publishes extensively and is the co-author of Wharton's Criminal Evidence, 15th Edition. We filmed her last June at the Federal Defender Conference in New Orleans.
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Using a Mental Health Expert at Sentencing in Child Pornography Cases
In most child pornography cases, the issue is not guilt or innocence, but the length of the sentence. To make matters worse, penalties have increased dramatically over the last five years. In an effort to limit the length of these sentences, many lawyers have begun retaining psychologists who can provide the court with a realistic assessment of the risk the defendant might present to children.
Ted Shaw a Gainesville psychologist, has been providing treatment to and assessing sex offenders for 25 years. Much of his work has been that of providing assessments in Jimmy Ryce cases. Over the last few years, though, he has begun working with defense counsel to assess the risk of clients charged with child pornography.
We recorded Dr. Shaw at the Sentencing Showcase presented this past November by the Florida Association of Criminal Defense Lawyers. He reviews the literature that shows that most of those charged with child pornography present only a small risk of committing further criminal acts, provides insights into those that are attracted to child pornography, and talks about the sort of assistance that an expert can provide in child pornography cases.
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Armed Career Criminal and Career Offender: Challenging the Predicate Offenses
For those clients designated as career offenders or armed career criminals, the sentences are brutal and usually much longer that what have been imposed absent the designation. With the decision several years ago of the United States Supreme Court in United States v. Shepard, 544 U.S. 13 (2005), and more recently, Begay v. United States, 128 S. Ct. 1581 (2008), and this summer's 11th Circuit decision in United States v. Archer, 531 F.3d 1347 (11th Cir. 2008), we have strategies that can be used to try and save some from those long sentences.
In this month's video, Jim Skuthan, the Chief Assistant Federal Public Defender in Florida's Middle District outlines the possibilities of Shepard, Begay, and Archer. We filmed him this past November at the Sentencing Showcase presented in Tampa by the Florida Association of Criminal Defense Lawyers. Jim is a 1985 graduate of the FSU Law School. He’s been an assistant federal public defender in the Middle District for 16 years. He organizes the Middle District’s CJA training and is a frequent lecturer on topics of federal criminal defense.
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How to Effectively Use an Interpreter in Defending a Criminal Case
With an ever increasing number of foreign nationals being prosecuted in federal court, we are having to rely more and more on interpreters. Accordingly, lawyers need to recognize the obstacles faced by interpreters and how to use them effectively. In this month’s video, Jeanette Alvarado, an assistant federal public defender from Arizona, and Catherine Betancourt, who works as a staff interpreter for the Federal Public Defender in Arizona, discuss some common misconceptions about using interpreters and offer suggestions about the best way to communicate with clients through an interpreter. Along the way they discuss some of the cultural differences that can complicate communication.
Jeanette Alvarado is a 1994 graduate of the University of Chicago Law School. She has been an assistant federal public defender since 1998. Catherine Betancourt earned a masters degree from the University of Charleston in 2000. She has been a staff interpreter for the Federal Public Defender since 2006.
We filmed the presentation in May of this year at the Federal Defender Conference in New Orleans.
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Criminal Justice Trends in the Supreme Court
Among those practicing law today, few have had the impact in the United States Supreme Court as the young Stanford University law professor, Jeffrey Fisher. This past term, he argued and won the case involving the death penalty for child rape, Kennedy v. Louisiana, 128 S. Ct. 2641 (2008), and argued the punitive damages case involving the Exxon Valdez oil spill in Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008). He changed the course of criminal law as much as anyone in the last couple of decades by winning decisions in Blakely v. Washington, 542 U.S. 296 (2004) and Crawford v. Washington, 541 U.S. 36 (2004). His talent and insight into the Court make him uniquely qualified to discuss criminal justice trends in the Court.
We recorded Professor Fisher this past summer at the Federal Defender Conference in New Orleans. In his presentation, he discusses areas he thinks provide fertile ground for advancing the cause of criminal defendants: the rule of lenity; the validity of searches incident to an arrest when the individual no longer has access to the area of the arrest; whether the 6th Amendment right to a jury trial means the jury should be advised of the potential penalties; and the continuing debate over the interpretation of the Confrontation Clause as it has been revitalized by Crawford.
Jeffrey Fisher is a 1997 graduate of the University of Michigan Law School and a former law clerk to United States Supreme Court Justice John Paul Stevens.
Bureau of Prisons Overview
Today there are 110 prisons and detention centers run by the Bureau of Prisons. There are nearly 200,000 prisoners. The Bureau’s Program Statements regulate much of what goes on within the prisons. Prisoners who wish to challenge their treatment must follow a particular administrative procedure. In the last few years, the designation process has been moved out of the regional offices and centralized in Grand Prairie, Texas. As early as the sentencing, what the sentencing judge does or does not do, can greatly impact the conditions of imprisonment.
In this months video, John Badalamenti, a Assistant Federal Public Defender from the Middle District of Florida, who spent a year as an Attorney-Advisor with the Bureau of Prisons, provides a tour through the methods and regulations of the Bureau. His presentation includes practical advice about what you can do and who to call to help your client navigate the hazards of a prison sentence.
We filmed John’s presentation at the panel training presented this past May in Orlando by the Federal Public Defender for the Middle District of Florida.
John graduated from the University of Florida Law School in 1999. Upon graduation he entered the United States Attorney General’s Honors Program, where he spent a year as an Attorney-Advisor for the Bureau of Prisons in Atlanta. He has been in private practice with Carlton Fields, P.A., and has served as a law clerk to Eleventh Circuit Court of Appeals Judges Paul H. Roney and Frank M. Hull.
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Rita, Gall, and Kimbrough: A Chance for Real Sentencing Improvements
Last month we presented a video that discussed the Supreme Court decisions in Rita v. United States, Gall v. United States, and Kimbrough v. United States. It was one we recorded at the Middle District of Florida’s recent panel training. We think these decisions are so critical to federal sentencing, that this month we have even more on Rita, Gall, and Kimbrough.
We recorded Amy Baron-Evans and Paul Hofer in June at the Federal Public Defender Conference. In their presentation they give an overview of how the decisions clarify that 18 U.S.C. §3553(a) really is the controlling law and that the guidelines are merely advisory; give the procedural nuts and bolts argument for improving sentencing procedural safeguards; and describe how the influence of a particular guideline on a particular sentence depends on whether or not it is based on sound policy in light of empirical evidence.
Amy Baron-Evans has, since 2005, been the Federal Public Defender National Sentencing Resource Counsel. She is a 1991 graduate of the Harvard Law School and a former law clerk to the Honorable Hugh H. Bownes of the First Circuit Court of Appeals.
Paul Hofer is a 1986 graduate of the University of Maryland Law School. He was the Senior Research Associate at the United States Sentencing Commission from 1995 to 2007. He has, since 1986, also been an adjunct professor in the psychology department at John Hopkins University.
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Sentencing After Booker, Kimbrough, and Gall
This past January, we showed you a presentation by Assistant Federal Public Defender Tracy Dreispul that reviewed the developments in sentencing that ensued following the decision in United States v. Booker, 543 U.S. 220 (2005). Not long after Tracy made that presentation, the Supreme Court continued the sentencing revolution in its decisions in Kimbrough v. United States, 128 S. Ct. 558 (2007), and Gall v. United States, 128 S. Ct. 586 (2007). In this month’s video presentation, Tracy reviews those cases and discusses how they affect the day-to-day sentencing decisions faced by district court judges.
Susan Herman has been a professor at the Brooklyn Law School since 1980. She’s appeared before the United States Supreme Court on a number of occasions and is often sought out by one media source or another for her insights into criminal law. Edwin Chemerinsky has been a professor at the Duke University School of Law, and will soon be the founding dean of the Donald Bren School of Law at UC-Irvine. He appears regularly before the United States Supreme Court and is a frequent commentator for the media. Paul Rashkind heads the appellate section of the Federal Public Defender’s office for the Southern District of Florida. He is a 1975 graduate of the University of Miami.
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Supreme Court Review
This June we’ll be presenting our video tape of the annual Supreme Court Review from this year’s Federal Defender Conference that will be held in May in New Orleans. The video will feature Professors Susan Herman and Erwin Chemerinsky along with Assistant Federal Public Defender Paul Rashkind. The trio will be reviewing the essential criminal law cases from the Court that have been issued over the last year. Their thoughtful and entertaining analysis will, as always, surely be one of the high points of the conference.
Susan Herman has been a professor at the Brooklyn Law School since 1980. She’s appeared before the United States Supreme Court on a number of occasions and is often sought out by one media source or another for her insights into criminal law. Edwin Chemerinsky has been a professor at the Duke University School of Law, and will soon be the founding dean of the Donald Bren School of Law at UC-Irvine. He appears regularly before the United States Supreme Court and is a frequent commentator for the media. Paul Rashkind heads the appellate section of the Federal Public Defender’s office for the Southern District of Florida. He is a 1975 graduate of the University of Miami.
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Identity Theft
Identity theft has become the crime du jour. The federal government has responded by insuring that those convicted of the offense will serve significant prison sentences. As of 2004 there has been a mandatory minimum two year sentence that runs consecutively to the related offense.
In this month’s training video, Martin Richer, an assistant federal public defender from Boston, reviews the statute and the applicable sentencing guidelines. He includes a discussion of some of the loss calculations that drive the sentencing guideline score.
Martin is a 1991 graduate of the Northeastern University School of Law. He is a former law clerk and has been an assistant federal public defender since 1997. We recorded him last year in Miami at the National Seminar for Federal Defenders.
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Kimbrough, Gall, the Adam Walsh Act, and the Sex Offender Registration and Notification Act (SORNA)
This past January, at the Federal Defender Conference in Seattle, Federal Defender Resource Counsel Amy Baron-Evans and Anne Blanchard, reviewed the decisions in Kimbrough v. United States, 128 S. Ct. 558 (2007) and Gall v. United States, 128 S. Ct. 586 (2007), recent developments in the Government's implementation of its civil commitment of sex offenders under the Adam Walsh Act, and the status of the challenges made to the Sex Offender Registration and Notification Act (SORNA). In discussing Gall and Kimbrough, Ms. Baron-Evans covers a number of important topics: the reduced significance of the need for uniformity in sentencing, the highly deferential standard of review, Justice Scalia's continued interest in 6th Amendment challenges, the Guideline's failure to rely on past practices or empirical research and a strategy for challenging the advisory sentencing range on that basis, and efforts underway to develop an "anti-Guidelines" manual. In Ms. Blanchard's discussion of the Adam Walsh Act, she lists the districts where those commitment proceedings are being held and details some of the successful challenges that have been made to the commitments. Ms. Baron-Evans concludes the one hour presentation with her review of SORNA, which includes successful challenges to the law and recent legislation that may limit the reach of the Act.
Ms. Blanchard is a 1989 graduate of the Rutgers University Law School. She was an assistant federal public defender in New Jersey from 1990-2005 when she became one of the Federal Defender’s National Resource Counsel. Ms. Baron-Evans has been a National Sentencing Resource Counsel since 2005, having been in private practice in Boston and a clerk for a First Circuit Court of Appeals judge. She is a graduate of the Harvard Law School.