The Do’s and Don’ts In Taking Federal Criminal Appointments
by Richard Anderson
1. How to Get on the List
In Dallas, joining the list of attorneys eligible for criminal appointments is voluntary. The CJA panel attorneys list is administered by a committee appointed by the Chief Judge. Committee members consider an attorney’s past federal court experience and if that attorney has been licensed in federal court for at least three years. The committee also considers indicators, such as prior extensive state criminal law experience and whether the attorney is in a firm or office-sharing arrangement with experienced federal criminal practitioners who can advise and work with the attorney.
There is also a mentoring program for those individuals who desire to be on the panel, but lack extensive federal criminal law experience, and a small stipend for the attorney going through this mentoring process.
2. Know Your Resources
The mission of the Federal Public Defender’s Office is to provide assistance and education to court-appointed attorneys who are assigned federal criminal cases.
The best 24/7 resource for federal criminal practice issues is www.fd.org, the website for the Federal Defender Service. This website has an amazing breadth of information, including articles on current issues in sentencing and statistical information from the U.S. Sentencing Commission. For those appointed to a complicated case, there is a litigation support page at www.fd.org/odstb_litigationsupport.htm.
Our District’s website, txn.fd.org, has links to the 12th Edition of Introduction to Federal Sentencing, covering the basics of federal sentencing. There are also links to the 5th Circuit blogs, the Supreme Court blogs, Sentencing Policy Blog and a list of every federal criminal case that has ever been reversed (and why). There are also links to CJA forms for handling an appointment.
3. Know Your Courts
The federal criminal practice is deadline-driven. The U.S. District Courts website lets you search for a link to your particular district to find the local rules. [www.uscourts.gov/Court_Locator.aspx] Many federal judgeswill also issue a scheduling order simultaneously with arraignment.
When in doubt, contact the courtroom deputy.
4. Be Aware of the Fee Structure
There are case maximums concerning both your fees and any investigative or expert witness fees. You need prior approval from the court for the compensation to exceed the maximum compensation allowed. You may be required to prepare a trial budget to submit to the court, ex parte, for approval before incurring the expense. The Northern District of Texas has online voucher forms to automatically calculate your compensation request.
5. See the Client Early
The initial interview is critical to establish trust and form an attorney-client bond that will be the basis for the important decisions to be made in the case.
The client needs to know that the federal system treats certain crimes much differently than do the state courts. The harsh reality of the federal system is that there is a higher probability of significant penitentiary time. All sentencing in federal courts is done by the judge using the Federal Sentencing Guidelines as a basis for the sentence imposed.
Before the initial interview, look at the guidelines for the particular offense and offender. Significant inquiry into your client’s past criminal history is necessary, as career offender status, armed career offender status and other statutory enhancements to the sentence might apply.
6. Explain the Risk/Reward Options
The guidelines reward an individual for not going to trial. Your independent analysis of the guideline calculations is essential.
7. Be Diligent on Discovery
In preparing for trial or a plea, it is important to determine the quality of the information in the government’s case. A request for discovery, whether made by letter or e-mail, should be documented early. You may need to attach that to a motion to compel to get the discovery that you believe you are entitled to, but do not file a form discovery motion. The judges are going to want specific requests for discovery.
8. Scrutinize the Plea Agreement and Factual Resume
Carefully review the language in the plea agreement and the factual resume. Explain to the client the ramifications of each document. Admitting facts in the factual resume that were not included in the indictment may result in a longer sentence based on sentencing guideline enhancements. The client must fully understand paragraphs in the plea agreement, such as waiver of appeal.
9. Always Go to the Presentence Report Interview with the Client
Unchallenged assertions in the presentence report set in stone the basis for guideline calculations and enhancements. Get a copy of the Form-1 probation interview in advance and go over it with your client. Remember, in the presentence interview, you are a lawyer, not a facilitator.
10. Objections Memorandums
If your client has a prior criminal history, pull the documents to determine if the prior indictment and guilty plea support any sentencing enhancements based on criminal history.
Objections to the presentence report go to guideline calculations, and any recommended sentencing enhancements, or departures. The sentencing memorandum serves a different purpose, allowing you to argue outside the guidelines about why a sentence different than that recommended by the guidelines is appropriate for your client.
It is the use of the sentencing memorandum and intelligent arguments for variances that allows the court to untether itself from the guidelines and formulate a sentence for both the offense and the offender.
- Do not take the AUSA’s Guideline calculations as the gospel.
- Do not fail to close the discovery/Brady loop before advising your client on taking a case to trial or entering into a plea.
- Do not ever be afraid to ask an Assistant Federal Public Defender or an experienced federal criminal practitioner for help.
Richard A. Anderson was appointed by the Fifth Circuit to be the Federal Public Defender for the Northern District of Texas in 2006. He is a past-president of both the Dallas (1983) and Texas (1991) Criminal Defense Lawyers Associations, and past chairman (1986) of the Criminal Law Section of the State Bar. He can be reached at Richard_Anderson@fd.org.