PRESERVING ERROR, PSR OBJECTIONS, & APPELLATE PROCEDURE Federal Criminal Law Update Webinar Federal Public Defender’s Office for the Western District of Texas Kristin Kimmelman, AFPD August 20, 2020
PRESERVING ERROR
Why does it matter? – avoid plain error review ■ To prevail on plain err plain error, must show: – 1. Error (deviation from legal rule that was not waived) – 2. Plain (clear or obvious; not subject to reasonable dispute; based on law at time of appeal) – 3. Affects substantial rights (prejudices defendant; reasonable probability outcome would have been different) – 4. Seriously affects the fairness, integrity or public reputation of judicial proceedings (discretionary) ■ In contrast, to prevail on harml harmless ss err error, must show: – 1. Error – 2. Affects substantial rights – See Fed. R. Crim. P. 52
Pretrial Motions – Rule 12(b) ■ Motions that must be made before trial (“if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits”) – Rule 12(b)(3) – Defect in instituting the prosecution ■ improper venue, preindictment delay, violation of constitutional right to a speedy trial, selective or vindictive prosecution, error in grand-jury proceeding or preliminary hearing – Defect in indictment or information ■ Duplicity, multiplicity, lack of specificity, improper joinder (Rule 8), failure to state an offense – Suppression of evidence – Severance of charges or defendants (Rule 14) – Discovery (Rule 16) ■ Motion that court lacks jurisdiction can be made at any time while case is pending
Pretrial Motions – Rule 12(b) ■ Motions that must be filed pretrial must be filed timely – Rule 12(c): court can set pretrial motions deadline; otherwise, deadline is start of trial – Local Rule CR-12(a) (W.D. Tex.): unless otherwise ordered by court, pretrial motions deadline is 14 days after arraignment; if arraignment waived, within 14 days of latest scheduled arraignment ■ Check court’s standing orders and discovery orders ■ Ask for an extension of time ■ Otherwise, must show good cause for untimely filing – E.g., 5C treated a suppression issue as preserved even though motion filed midway through trial; defense counsel not aware until agent testified that Tello was detained to allow the dog to continue to search the vehicle ■ US v. Tello , 924 F.3d 782 (5C 2019)
Example: post-verdict motion arguing statute doesn’t apply extraterritorially is untimely unpreserved (but not waived) ■ US v. Vasquez , 899 F.3d 363 (5C 2018) – Extraterritoriality was not jurisdictional challenge to RICO murder prosecution – Post-verdict motion was untimely – Argument was unpreserved, but not “waived” ■ “Waiver” ordinarily entails “the intentional relinquishment or abandonment of a known right.” ■ Rule 12 amended in 2014 to change consequence of late motion to being “untimely” instead of “waived” ■ Therefore, considered for plain error – Court held no error, plain or otherwise, because Congress clearly and affirmatively indicated the RICO statute applies extraterritorially
Pretrial Motions – Preservation Tips ■ Set forth enough facts to warrant favorable ruling – Otherwise, district court does not have to hold an evidentiary hearing ■ Argue all applicable theories – E.g., motion to suppress statements because of Miranda violation won’t preserve suppression based on other theory ■ Unconditional guilty plea w Unconditional guilty plea waiv ives all es all non-ju non-jurisdictional def risdictional defects e cts except ch cept challenge t allenge to constitutionality of statut constitutionality of statute – To preserve other issues, such as suppression of evidence, must do conditional plea, stipulated bench trial, or regular trial – See Class v. US , 138 S. Ct. 798 (2018); US v. Coil , 442 F.3d 912, 914 (5th Cir. 2006); US v. Torres , 740 F. App'x 54, 55 (5th Cir. 2018)
Preserving with a Conditional Plea ■ Conditional pleas exist in the WDTX – USAO does not have blanket policy against them (per Najera argument) ■ Conditional pleas per Rule 11(a)(2): – In writing – Consent of court and the government – Reserve right to have appellate review of specific pretrial motion ■ 5C relaxes these Rule 11(a)(2) requirements if record clear that defendant intended to enter a conditional guilty plea and to appeal particular pretrial ruling, and neither government nor district court opposed such a plea – See US v. Wise , 179 F.3d 199 (5C 1999)
Preserving with a Stipulated Bench Trial ■ For stipulated bench trial, make it clear for the record (in writing or orally); – Only entering into stipulations because of the court’s adverse ruling, – Stipulated facts include the evidence that should have been suppressed (so the pretrial ruling harms the defendant), – Government unwilling to do conditional plea, and – Client is not admitting guilt. ■ Should still get the 2 points for acceptance of responsibility if do not deny factual elements and just reurge pretrial motion at bench trial – US v. Najera , 915 F.3d 997 (5C 2019) ■ But government could elect to withhold the third point because of the “resources expended litigating a suppression motion” – US v. Longoria , 958 F.3d 372 (5C 2020) (circuit split)
Proffer, Proffer, Proffer ■ Fed. R. Evid. 103(a)(2): to preserve error of excluding evidence, party must inform court of “its substance by an offer of proof, unless the substance was apparent from the context” ■ Best practice to give: – 1) a detailed summary of the substance of the excluded evidence; – 2) all all the things you expect to show or prove by that evidence; and and – 3) all all the grounds on which the evidence should be admitted. ■ The proffer principle applies outside of trial as well – E.g., 5C affirmed denial of CJA attorney’s request for an investigator when request not detailed enough about need and why defense counsel couldn’t do it – US v. Gadison , 8 F.3d 186 (5C 1993)
Contemporaneous Objection Rule ■ To preserve error when evidence is admitted, you must: – 1) timely object or move to strike, and – 2) state the specific ground. - Fed. R. Evid. 103(a)(1)(A); see Fed. R. Crim. P. 51(b) ■ Continuing objection can preserve error if court grants it, and it’s clear what the objection covers – But 5C cautions against a pretrial grant of a continuing objection – US v. Sanchez-Hernandez , 507 F.3d 326 (5C 2007); US v. Fortenberry , 919 F.2d 923 (5C 1990) ■ Motion in limine preserves issue (without a later objection) if – sufficiently specific, and – definitively ruled on pretrial. – US v. Lucas , 849 F.3d 638 (5C 2017) ■ If the MIL ruling was not definitive, you must still object when the evidence is admitted if the court did not definitively rule earlier – But can use the MIL as a shorthand for the objection ground ■ For Rule 609, must “run the gauntlet” to preserve – testify and then be impeached by priors – If you decide to take out the sting, error no longer preserved – Luce v. US , 469 U.S. 38 (1984); Ohler v. US , 529 U.S. 753 (2000)
Trial – Motion for Judgment of Acquittal ■ To preserve challenge to the sufficiency of the evidence, move for judgment of acquittal: – 1) at close of government’s case, and – 2) at close of defense case. – Fed. R. Crim. P. 29(a) ■ A general motion preserves insufficiency of evidence to support verdict (but not venue) – But where “a defendant asserts specific grounds for a specific element of a specific count for a Rule 29 motion, he waives all others for that specific count” – US v. Herrera , 313 F.3d 882 (5C 2002) (en banc); US v. ■ Can still preserve with a post-verdict motion for judgment of acquittal within 14 days of verdict – Rule 29(c) – But this doesn’t invoke the double jeopardy bar – US v. Villarreal , 324 F.3d 319 (5C 2003) ■ If unpreserved, sufficiency claims reviewed for “manifest miscarriage of justice”
Trial – Jury Instructions ■ You can request certain instructions in writing, and must do so at the close of evidence or at any earlier time reasonably set by the court – Fed. R. Crim. P. 30(a) ■ To preserve error, your objection must be: – Timely (before jury retires to deliberate), and – Sufficiently specific ■ Make sure the charge conference is on the record! – Filing your proposed jury instructions before the charge conference is insufficient ■ When in doubt, file written objections
Guilty Pleas ■ Failure to comply with Rule 11 reviewed for plain error unless objected to – 5C can review entire record when evaluating substantial rights ■ Tip: use the 5C’s Ander’s checklist to make sure they court doesn’t miss anything at time of plea
Sentencing – PSRs ■ Before PSR interview, think about what information you want to be in the PSR – Attend PSR interview ■ Rev Review P PSR w with t the c client – see Fed. R. Crim. P. 32(i)(1)(A) (court will verify defendant and attorney read the report and any addendum) – Check facts as well as Guidelines – Check criminal history – even the convictions and arrests that don’t score ■ These could matter for BOP purposes – Go over supervised release conditions, especially any special ones ■ The PSR will follow the client through BOP and any future cases
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