⚡️Use this as a quick reference to review nuggets of wisdom from the videos and find outside resources to make sure you are getting all the rules and procedures right!

“The only thing worse than starting something and failing is not starting something.” Seth Godin

📖Dig Deeper...

The Fundamentals

The most important resource you should know is your Federal Rules of Criminal Procedure. These rules govern everything from the initial appearance to the discovery production, to the preparation of the PSR. Reading these from beginning to end can give you a good roadmap for handling your case.

You will notice that there's often correspondence between the rules and the codes.

The most important code to know, and the one most frequently cited, is 18 U.S. Code 3553 A, which governs factors to be considered when imposing a reasonable sentence.

Aside from that, you want to look at your specific case and understand that there's going to be a lot of code sections for you to reference within chapter 18 and also in corresponding case law.

Pro-Tip: You need to know the rules of procedure, whatever code is going to govern your specific events, and all of the corresponding precedent.

Introducing the Sexual Assault Case

The basics of the case

A close look at a sexual assault case demonstrates how a case might move through the federal courts through trial and appeal.

Her client was a veteran with a collapsed lung pneumothorax. He was being treated at the VA hospital and on the way to surgery, he was alleged to have grabbed a nurse's butt. The position taken on this case was that the client was under the influence of midazolam, which is a pre-surgery drug (essentially an anti-anxiety drug) and did not have the intent nor the mens rea that was appropriate to convict.

The challenges of the case

According to the nurse's testimony, the defendant laughed and stated that he "waited to be medicated so that (he) could get away with it."

After the alleged incident and statement, he was rolled into surgery. Afterward, the nurse talks to her supervisor, and the supervisor decides to call the police.

Background Insight

In Molly's experience, dealing with the nurses and the staff at the VA, they don't have a lot of patience for this kind of behavior. "It's kind of a different approach when it comes to somebody who's out of line, like the disorderly conducts, or throwing a fit when you're trying to get your medicine or something. They just call the cops. They call federal authorities. That is their practice."

Because of this practice, you see many cases that possibly wouldn't happen in a different hospital setting where nurses are trained differently and where there's a different culture and attitude that exists. Further, given how many veterans are dealing with issues like mental health, addiction, and homelessness, there are simply more interactions with VA staff that result in the decision to involve law enforcement than you'd see at a private hospital, for example.

The Charges

The client was charged with sexual assault and sexual battery.

He had no recollection of these actions and decided to go to trial.

The Approach

If you're only going to read the case jacket of this file, it really seems pretty cut and dry. Let's work out the best deal possible. But that is not at all the approach that Molly and her client decided to take. They ended up doing extensive litigation in this case.

The Defense

One part of the defense was hiring an expert. This expert is a doctor from Emory who was an expert on midazolam, which was the drug used on the defendant pre-surgery.

The defense performed a deep dive into the substance, the timing of administration, and the effects midazolam can have on person.

They ended up in a fight with the government about what this pharmaceutical does. But, essentially the defense was involuntary intoxication.

There was a bunch of litigation on whether they were actually going to be allowed to present that as a defense, but ultimately it was allowed.

The Results

The prosecutor dismissed the grade A misdemeanors and recharged the case as a simple battery and a simple assault. They had a bench trial on that and Molly was allowed to present her defense and her expert.

In the end, he was found guilty and they appealed it to the district judge.

Citations + Arrest

For the most part, people are not arrested immediately for misdemeanors. Similar to the state system, an officer has the discretion to make an arrest or not at the time the citation is issued.

In most cases, the client receives a citation with a court date on it. If they are arrested, they are released with a citation that serves as a summons.

In this case, because they decided to go to trial and because it switched hands, the government went through the whole rigmarole of indicting.

While in some situations, like this case, the government may want to go ahead and formally indict and start the process over again, most of the time, you're litigating based off of a ticket and you can take that all the way to your federal circuit court for appeal, and to the US Supreme Court via a writ of certiorari.

Initial Appearance

In this case, the client received a ticket and was given a court date. Usually, there's about a four-month span between arrest and the initial appearance.

Usually, the cases that you're going to litigate, you go to the first court date (typically referred to as an initial appearance) that's on the citation. There, you will typically request another court date if the client does not want to resolve the case at that point. At your second court date (essentially a status conference) you and your client may be the only ones on the calendar. Most hearings in federal court are done by appointment — you don't have long calendars and multiple people on a docket appearing before the same judge at the same time.

What to expect

The arraignment is considered an initial appearance where you can resolve the matter if you want, but you don't have to formally enter a not guilty plea.

Molly shares how it's kind of the "only cattle call we have in federal court. It's a fairly crowded courtroom."


As a defense attorney, you should look on the ticket for the courtroom number. Then, search that courtroom number to find out what judge is assigned to the case. You can then contact the US Attorney's office and find out if they've assigned the Assistant US Attorney who is going to handle that particular judge's misdemeanor/CVB calendar. Oftentimes, they have a schedule going and they can connect you with someone who is going to be assigned to your case.

Meeting the prosecutor + Making a deal

Often, the prosecutor isn't going to think about the case until the initial appearance because they have other cases they're working on and this is low-level stuff for them. But you can meet them for the first time at the first hearing and try to work out a good deal at that time. They will conduct pretrial conferences with anyone who would like to have one.

What are those preliminary documents that we should show up with?

When you're handling citations, there's not going to be an opportunity for you to file the entry appearance because the case is probably not even on the docket in PACER.

So you just show up to that very first initial appearance.

Sometimes the prosecutor will have your discovery for you.

Molly shares that she did not get discovery at the initial appearance for the sexual assault case. So both Molly and the prosecutor asked for more time to get discovery and allow her time to talk to her client.

Talking with the prosecutor

Asking for more time is a case by case situation. But you should speak with the prosecutor, see if there's an outstanding discovery, and see what they're thinking in terms of a resolution.

Oftentimes, they will propose a later date so they can look at the case further, speak with witnesses, and talk to the victim. Then they will get in touch to see if they can resolve it by the next appearance.

Asking for Additional Time for Negotiation and Discovery

The Courtroom Deputy Clerk

The Courtroom Deputy Clerk is responsible for managing the judge's calendar. You need to speak with them to set a new date or the judge's expectations.

Getting on PACER

If you plan on filing motions or you want to go ahead and get things on a docket online, speak with the Courtroom Deputy Clerk about their practice of getting the case on PACER.

This is not something they always do automatically, so be sure to discuss it with them.

How much time?

If you just need to negotiate with the prosecutor or talk to your client in a less chaotic environment, you might only ask for a month. But, if it's a case where you anticipate filing motions and going back and forth with the prosecutor at a more extensive level, you might ask for two months. However, usually, a month is the culture.

Filing Motions

Time to file motions under the Federal Criminal Rules of Procedure

When you're operating under an indictment, which again is case by case, then the clock formally starts at your arraignment and you technically have 14 days after that to file motions.

But when you're operating within this kind of strange, nebulous, informal CVB land (and your client is never formally charged in an indictment) you have a little bit more leeway. Though you don't want to come back and not have done anything when you have that second appearance.

Pro-Tip: Don't be casual about getting a reset

I think one of the warnings for my practice area would be don't be casual getting a reset. If you say you're going to get medical records, you better show up with medical records.

When you go to court and you say, I'm going to do something, you basically go back to your office and you do it. You don't put that on your to-do list for the next three weeks to try to get around to doing. Everybody else who's part of this is taking it very seriously and signing documents and filing briefs very, very quickly.

Your biggest job in the preliminary stages

In those preliminary stages, your biggest job is to make sure you're showing up and doing what you tell the court you're going to do. But, you don't have any deadlines or anything to track or worry about until that indictment, the red flag that indicates the clock is running and you need to be paying attention to the time.

The motions practice

In federal court, it's very different motions practice. You would file your motions and then you come back to court but you don't have a hearing right then. You have a scheduling conference to discuss deadlines, called a pre-trial conference.

Sometimes the court will do this telephonically, but often it's in person and your client doesn't have to show up. It's just for the attorneys to look at the filings (the defense motions) and set a schedule for a briefing or for an evidentiary hearing.

Then the court decides if you're going to get an evidentiary hearing.

If you are having an evidentiary hearing, typically they inform you that you will get a transcript and — depending on what you've alleged in your motions — you may have the opening brief and the burden. You will also have to pay for the transcript. A two to three hour hearing is roughly $400 or so.

Typically, you will have 28 days from the moment that transcript drops to file your brief, the government has 14 days to file a response, and the defense has seven days to file a reply.

Getting an Evidentiary Hearing

When do you find out if you get an evidentiary hearing?

As a defense attorney, you want to get that evidentiary hearing. You want to get somebody on the stand, you want to get that transcript, you want to get some impeachment material.

So part of the strategy in filing motions is to hope that when you come back for that pre-trial conference and scheduling meeting, the judge says, let's set an evidentiary hearing a couple of weeks from now, and we'll have it all transcribed and then litigate.

Suppression Issues

When it comes down to suppression issues, if something is dispositive of the case (for example, a motion to suppress evidence) then that's usually going to get you an evidentiary hearing.

Jackson-Denno vs. Miranda Motion

If the issue is straightforward like Jackson-Denno, then they might give you an evidentiary hearing early on. But if it's more of a Miranda question, they might defer that to closer to trial. It depends on the judge in the case and their particular practice.

Overall, you typically recieve an evidentiary hearing early on if you litigate a constitutional issue that would be dispositive of the case, and if your client has standing to challenge the search/seizure/interrogation.

Standing Issue

Sometimes, there's a standing issue and you're not getting an evidentiary hearing because you don't have standing. For example, if your client is a passenger in a car and is not the driver, your client cannot challenge the search of that car in federal court (this is often not the same in state court, depending on your state).

Transferring Judges

In this case, we actually switched judges, because originally, the prosecutor had charged us with a grade A misdemeanor, which meant that we were entitled to a district judge and jury.

But then they dismissed all of those charges. And it ended up being just a Class B misdemeanor; the simple assault and simple battery. Which meant we were back in front of the magistrate judge, and we didn't get a jury.

On this docket, there were some motions that were deferred, but ultimately, they were all heard by the same judge because we were not going to try the case in front of a district judge.

Important Considerations

a. Waiving Your Rights to a District Judge

If it's a Class A misdemeanor, the most serious misdemeanor, then you have the right to have your case heard by a district judge, and you get a jury of six.

You can also waive your right to proceed in front of a district judge and have your trial in front of the magistrate judge who was assigned to the case from the initial appearance. You still get six jurors.

So in this case, once my case got indicted, we had another initial appearance and formally entered a not guilty plea to the charges. The case then "went on the wheel" that distributes cases and I got a Magistrate judge assignment. I think it was actually a different Magistrate Judge than was initially assigned per the citation. So if there's an indictment, there is a chance you will essentially start the process over and possibly get a change of judge.

Regardless, if your client is charged with a Class A misdemeanor — punishable by up to one year in prison — your client has the right to have his trial in front of a federal district judge.

b. Strategy behind waiving your right to District Judge

Depending on your audience, you may want to waive your right to proceed in front of the district judge if you think that you have a better chance in front of your magistrate judge.

But that involves a formal waiver and a colloquy in front of the court. It also involves a magistrate judge letting the client know that they have an absolute right to be heard in front of the district judge and making sure they understand they are waving that right and that everything has been explained by the attorney.

If they decide to waive that right, they can stay in the magistrate court.

Any waiver is considered very serious in federal court. It's pretty extensive. It must be done formally, in front of a judge. And there's a lot of back and forth with the client. Prepare your client for these types of interactions.

Waivers in state court vs. federal: A Red flag

Waivers can sometimes be pretty perfunctory in state court for a lot of things. But in federal court, every waiver is taken very seriously.

c. Accessing waiver forms

Waiver forms are available online or via the deputy clerk.

However, even when you fill out the forms online, there's often an oral colloquy that you must go through after submitting the form.


"I have in my hand, what is labeled a waiver, a right to proceed in front of the district judge, did you review this with your attorney? Did you sign it? Is this your signature?"

d. Reaching out to the Federal Public Defender's Office

There is a strategy between deciding on a district court judge versus magistrate judge.

What are the general sort of strategy touchpoints?

The main issue for a new practitioner is that they don't know these judges.

Your local federal defender's office can be a significant resource when creating your strategy. They will talk to you at length and advise you about how things are going in their district and provide an invaluable opinion.

Why did my client waive his rights?

It was really based on the facts and potential evidentiary rulings that I ended up advising my client to waive his right to proceed in front of the district judge that we were assigned to and proceed in front of the magistrate judge instead.

Addressing Bond

This case was very different because it changed hands.

Typically, you have one prosecutor, the same prosecutor, that you're dealing with at the initial appearance on a ticket. And you're not dealing with bonds because, typically, the client does not get arrested, just cited.

In this case, when it changed hands and went to a new prosecutor, she made the decision to indict it. At that point, procedurally, we were in a whole new world.

The prosecutor knew that the defense wanted to try the case, so she formally charged it, triggering a whole different initial appearance. And all of this happened months after the defendant received the citation.

Addressing Bond

Usually, for the most part, there's not a bond issue. Your client receives a citation and they litigate their citation. That's it.

Even if you've been arrested, usually, you get a standard bond posted after you go to a municipal jail or a county jail for a couple of nights. Then you get out, are issued your citation, and have a court date. And that's when you meet the federal defender or you bring in your hired counsel.

One thing that's expected at the initial appearance when a case has been formally indicted is to address bond.

In this case, addressing bond was "Judge, he's been out for close to a year. He was given a ticket. The only reason we indicted it is so that we can have this on Pacer and litigate it. And it's going to be a trial."

The government has a decision whether or not to even ask for the client to be detained. In this case, they didn't move for detention. But it's still something that will come up if you have an indictment and you have that initial appearance.

What's covered at an initial appearance when your client is indicted

The initial appearance is to advise you of your rights, to address bond, to enter a not guilty plea, and then set a schedule to file motions (14 days).

Types of bonds

For the most part when it comes to bond in the federal system, we almost exclusively do the unsecured bonds. Very rarely have I had a client that had to put up cash, surety, or property.

Notifying your client of conditions of bail

If it is the initial appearance follows an indictment, you address bond. You and your client sign a series of documents that notify your client of the consequences of not following the conditions of his bail and also lay out all terms of the bond. The client is then expected to review these terms with a pretrial services officer.

Arrest Process

Contacting the US Marshals

If you know that your client is going to be indicted and hasn't been arrested before, they may have to go through the process of being arrested and booked. You can contact the US Marshals to get your client formally booked and fingerprinted at the courthouse before you walk into your hearing.

If you're arguing for a bond, the Marshals often process your client and take your client's fingerprints to see if you have any outstanding warrants running through the system.


Filing for an extension

Filing for an extension is a fairly common practice. To file for an extension, you will typically discuss it with opposing counsel and then file a motion with the court asking for the extension. If the prosecutor does not oppose the request, it is an "unopposed motion for extension." If it's granted, you have a new deadline.

Without an extension, you have 14 days from your client's initial appearance to get all of your pre-trial motions filed.

Chance of getting an extension denied

While other jurisdictions might keep tighter deadlines, in the Northern District of Georgia, it is rare to see a motion denied. Also, the prosecutors usually consent to these motions and they are filed as unopposed. You also want to include a proposed order for the judge to sign, as well. PACER allows you to file the proposed order as an attachment.

The culture

After you ask the prosecutor if they oppose an extension, they will ask you to include language about the speedy trial clock in your motion/order to avoid a motion to dismiss for speedy trial violations.

This language is sufficient (for an order): IT IS HEREBY ORDERED that any delay occurring in extending the motions deadline and the holding of the pretrial conference shall be excludable pursuant to the Speedy Trial Act, 18 U.S.C. § 3161(h)(7)(A) and (B)(iv).

Speedy Trial

What are the limits for a speedy trial?

Technically it's 70 days from indictment to trial (see 18 U.S.C. 3161(c)(1)).

From the time of a complaint (a charging document that alleges an offense, but has not been presented to a grand jury) to an indictment, it's a real tight 30 days. The prosecution has to present the case and have an indictment in 30 days from the time the client enters their not guilty plea to the complaint. There are times when the prosecutor may reach out and negotiate an extension to indict, but only when your client is out on bond. If your client is in custody, you can file a motion to dismiss for a violation of speedy trial under 18 U.S.C. 3161.

a. Motion to Dismiss

While you can agree to the extension, the culture is to file a motion to dismiss if your client does not get indicted within that 30-day time frame, especially when your client is in custody.

The case will be dismissed and your client will be released but it is a dismissal without prejudice. The government will just present their case to the grand jury later and your client will go through the arrest process and initial appearance again.

But the benefit is — if your client is in jail and custody — they get released, and they have a couple of weeks out before they're indicted to get their affairs in order.

Pause Speedy Clock

This is the speedy trial language you put in your proposed order for a motion to continue your pretrial motions deadline: The Court finds that the interests of justice in continuing the pretrial motions deadline and in holding the pretrial conference substantially outweigh the interests of the public and the defendant in the speedy resolution of this matter, and thus the Clerk is directed to count as excludable any delay occurring in extending the motions deadline and the holding of the pretrial conference. 18 U.S.C. § 3161, et seq.

Common Federal Misdemeanors

Any offenses that occur on federal property or have a federal hook. It's pretty common to see a high volume of traffic-based offenses such as DUIs and reckless driving, cases from the VA, obstruction of mail, drug cases, guns at the airport, and cases from the federal forests such as fishing, hunting, and gaming violations.

  • Under the Assimilated Crimes Act, Section 18 U.S.C. 13, federal authorities can cite or charge an individual for a state offense with a state code. In addition to citing 18 U.S.C. 13 on a client's citation, the charging officer will typically also cite the state code violation which provides the elements of the offense.

    This makes the starting point for a lot of these cases the same starting point that you're already familiar with in state court.

  • You see a pretty serious volume of traffic-based offenses coming through federal court. And you would resolve them fairly similar to how you resolve them on the state level. But you're going to have clients that know this citation indicates they're expected in federal court, and they're going to be looking for an attorney that knows how to handle federal misdemeanors.


    In federal court, you have an Assistant U.S. Attorney assigned to each case and — when it comes to the misdemeanor/CVB calendar — they are often new, less experienced federal prosecutors (though not always). This usually gives you more leverage and negotiation power because these prosecutors are typically handling this calendar in addition to their typical federal prosecutor caseload — which includes serious crimes with serious penalties. These cases pale in comparison, and the prosecutor typically has more important things to be doing and learning.

    Depending on the facts, you can negotiate a dismissal, just as you could in traffic court. Or they may offer a collateral forfeiture, which basically converts the criminal offense into a civil offense with a civil penalty.

    If granted a collateral forfeiture, your client would pay a fine and the charge would not go on their record.

  • There are a lot of DUI or drug cases that occur on federal property, such as a National Forest.

    The Advantage

    One of the advantages of taking on a federal misdemeanor drug case is that, depending on your state's statutory scheme, you may get better results for your client because of statute 21 U.S.C. 844a. This statute says that so long as it's a personal use amount, even if it's a hard drug, certain clients are eligible for a civil penalty (collateral forfeiture) rather than a criminal conviction. Further, the offense is a misdemeanor, not a felony, notwithstanding the substance possessed. Though some clients may actually be arrested for simple drug possession, many are simply issued a citation and summoned to the petty offense/CVB calendar. This is often very different than state court, especially when it comes to substances other than marijuana.

    Handling Drug Cases

    The first priority in handling drug cases is understanding the laws. Before proceeding with case, start by identifying the code and becoming familiar with it. If your client has no priors and they are charged with personal use, then you're in a great position to do a collateral forfeiture/civil penalty under 21 U.S.C. 844a.

    Special Probation + Expungement

    If your client is under the age of 21 with no priors, you could get the record completely expunged under Chapter 18 of U.S.C. 3607. This chapter addresses special probation and expungement for certain drug offenders.

    Make sure your client meets all of the criteria. If so, discuss this option with the prosecutor. The prosecutor will likely consent to such a resolution, and you can jointly propose this to the court. The judge will draft an order for special probation.

  • Guns at the airport is another very common type of federal misdemeanor you will see on the CVB calendar, especially in Georgia and other states where carrying a firearm is common.

    Usually, these are very simple cases commonly resolved with collateral forfeiture.

    Getting the Gun Back

    You can speak to the prosecutor regarding who is the best person to contact in regards to trying to get your client's weapon back. They may provide contact information for an agent at the airport or an individual at TSA. However, in many cases, the firearm is confiscated and your client will not have it returned to him.

    Special Circumstances

    As a result of being charged with bringing a gun to the airport, your client may lose their Global Entry and/or pre-check status, but this has nothing to do with the outcome of the case in court. This will be handled by the airline and/or TSA. Prepare your client for the likely loss of these travel privileges as a result of the citation.

    Pro-Tip: In addition to collateral forfeiture, your client will likely receive a notice from the TSA for an additional fee. Make your client aware of this additional expense and contact the TSA to try to negotiate the fine. This is a negotiable fine, but that is not mentioned on the notice sent from TSA. The contact number will be listed on your client's notice. Call the number and ask if your client can pay half of the amount due. They often agree to this proposal.

  • Obstruction of mail is another federal misdemeanor that is pretty much on every CVB calendar. It's also one of the most serious offenses on the misdemeanor/petty offense calendar.

    The Postal Inspector will join the prosecutor at the first appearance, typically, and usually comes prepared with their own discovery, which you will receive at that time.

    What Qualifies?

    Basically anything that would hinder, delay, or obstruct mail would qualify as a federal misdemeanor charge of obstruction of mail.

    Types of Offenders + What the Offense Might Look Like

    There are two types of offenders in these cases: postal employees and civilians.

    The offense could look like anything from theft of mail to mail that was not delivered on time.

    Many of these charges involve something that's seemingly benign and not offensive, but it meets the elements of the statute and the Postal Inspector takes it very seriously if mail is mishandled.


    Typically these cases are difficult and the prosecution typically seeks a criminal conviction.

    For the most part, your room to negotiate in these cases may be limited because the Postal Inspector wants a conviction, as well. Especially if the facts against your client are bad and if the case is easily proven (these cases usually involve video evidence and statements from your client).

    However, you may be able to negotiate fines or community service hours, especially if your client has already been terminated and you can show that there has already been some appropriate amount of punishment.


    I usually divide these cases up as I do any other case. I offer a flat rate, non-refundable retainer for pre-trial. And then, if we go to trial, there's going to be an additional cost separate from experts and any other kind of auxiliary expenses.

    But I would not take one of these serious misdemeanors in federal court pre-trial for less than $5,000.

    Federal Employment Attorneys

    Sometimes you may need to look for a federal employment attorney who is well-versed in federal employment laws. However, these can be hard to find.

    Understanding the "other side"

    In federal court, it's common practice to have a prosecutor and an agent sitting at the prosecutor's table.

    The agents, especially the Postal Inspectors assigned to the obstruction of mail cases, tend to be very intense and serious.

    If you're dealing with an obstruction of mail case where you need to negotiate with the prosecutor, it may be better done at a later date, not in front of the agent.

    Pro-Tip: In federal court, we always look to the factors delineated in statute 18 U.S.C. 3553 A to decide what the appropriate punishment is.

Different Classes of Misdemeanors

In federal practice, courts distinguish between different types of misdemeanors, dividing by class A, B, or C. It's important to know the class you're dealing with as there will be different penalties and procedures.

Class A misdemeanors are the most serious and are punishable for up to a year in jail and include a right to a jury trial. Meanwhile, the penalties for Class B and Class C are far less, with up to six months in jail. However, they do not include a right to a jury trial.

Class C misdemeanors are often referred to as "petty offenses."

Classification of Offenses in Federal Court

These classes are used to identify the possible sentencing exposure for the crime as designated in 18 U.S.C 3559.

You can also find details on the classification and sentencing of petty offenses and misdemeanors in the Federal Rules of Criminal Procedure, Rule #58.

If your client is charged with a Class A misdemeanor, the United States Sentencing Guidelines (USSG) are going to apply. But if they are charged with a Class B or Class C, they're not. So, if you're dealing with a Class A, you have to make sure you have a good working knowledge of the guidelines and you prepare your client for everything that comes with that process.

Researching the Elements

When you get these cases, you want to start by researching the code section, how it's charged, and the elements that have to be met. You can use this to find any avenues you might be able to litigate.

  • Pro-Tip: Go to the statute that classifies the offense charged and look and see what is the maximum amount of incarceration that can be imposed. This determines the class of the misdemeanor, which then determines whether the guidelines apply or not.
  • Pro-Tip: With these cases, you can definitely ask for a very small amount of probation. And that's normal. These are not cases that typically result in incarceration, even if up to one year can be imposed.

Personal Use Drug Statute 21 USC 844

So long as it's a personal use amount, even if it's heroin or ketamine, you're going to be handling it through a citation.

Special probation and expungement for certain drug offenders

Special Probation + Expungement

  • If your client is under the age of 21 with no priors, you could get the record completely expunged under Chapter 18 of U.Sc. 3607. This chapter addresses the special probation and expungement for certain drug offenders.
  • Basically, the court can enter into this agreement where if you do your special probation, they withhold judgment, and ultimately, the case is dismissed.
  • If you're under 21, it gets completely expunged.
  • Make sure your client meets all of the criteria. If so, you can go directly to the court with the consent of your client. The judge will draft an order for special probation.
Understanding the Culture - Pro Tip for Entering Federal Court

One of the key things to keep in mind regarding the culture of federal court is that it is a very small world. You should enter with respect and show up with humility.

One of the biggest faux pas those new to federal court might make is coming in too aggressively or like they know everything. A big attitude combined with a lack of know-how in the federal world can earn you a bad reputation very quickly.

Additionally, In the federal world, attorneys tend to be more academic and intellectual in their approach, rather than dramatic or emotional. It's very important to know the law well.

Learning the language and the customs of federal court

While many opportunities exist for entering this arena, it can be a detriment to your client if you don't have a clear understanding of the processes, customs, and language of a federal courtroom.

Lawyers can easily get blindsided by the tempo, rhythm, and the expectations of the federal court because they are completely different in many instances than what they will see in a state court.

Addressing the obstacles in the learning process

A lot of the trickiness is not just nailing the law and nailing the rules. It's nailing all of this other tacit knowledge that insiders have. But if you haven't had a mentor who could walk you through all these stages, you're really not going to pick up on that knowledge without learning as you go, which is so painful.

Another obstacle to consider is if you're not going to show up to federal court on a regular basis, it's harder to invest in learning.

What's great about this course is it gives you the tools that you need to be able to go and market to that audience where you can show up on these federal misdemeanor calendars on a regular basis.

Important People in a Federal Case

Courtroom Deputy Clerk

  • The person who is in control of the calendar is the one of the most important people in the federal courtroom.
  • They are essentially the master of ceremonies
  • You can look up online who the courtroom deputy clerk is for whichever judge you're assigned to — search the page for the district you are working in (the webpage for the Northern District of Georgia, for example) and then find the contact information for your assigned judge. Listed next to their contact information will be contact information for their courtroom deputy.
  • This individual is who is going to be giving you a court date and calendaring your hearings, etc.
  • If you plan on litigating the case, you'll need it opened on the online docket (PACER). Ask the deputy whether there's anything you'll need to do to make sure you can file into the case online.
  • The deputy clerk knows everything in terms of the courtroom they are assigned. They work very closely with the judge and can answer any miscellaneous questions you may have. You can feel free to ask them questions!
  • I think people don't realize the power and the importance the power these people have and the importance of respecting them and developing a good relationship with the courtroom deputy, in particular.
  • They are the epicenter of all knowledge and typically a very poised, organized scheduler and handler of all the judge's business.
  • You need to go through this lovely person before you get to the judge or get any get anywhere on the calendar. Rather than emailing a judge with a request, for example, you always contact their deputy clerk instead.

Federal Public Defender

  • They know the ins and outs of the district and the culture of specific courtrooms, since they work there every day.
  • They can offer valuable opinions about the judges you're assigned to and the type of case you are handling.
  • Most Federal Public Defender's office have what is called a "duty attorney" every day - - this attorney is available to answer the phone and answer general questions about a case, strategy, procedure, or culture in a given courtroom.
  • They can offer sample motions, sample pleadings, briefings, insight about what their office had typically done given certain charges

US Marshal

  • Interact with clients on a daily basis — they are the ones in charge of effectuating arrests, holding clients in "lock up" (the facility in the courthouse where detained clients are held before and after hearings), and the booking process.
  • If your client has to go through the process of an arrest, or bond, or needs to be fingerprinted or entered into the system, the Marshals are the ones to do it. In the Northern District of Georgia, they are on the 16th floor.
Motion for a Bill of Particulars

A motion for Bill of Particulars is very common in federal court and it's a great resource to use when you need information that's not readily apparent in the indictment or discovery.

You can use this motion to ask the government to further specify — beyond indictment — what they plan to prove. However, the government will probably file a motion to object to the request. You can then file a reply to their response.

The judge will decide whether or not the government should provide the bill at some point in pretrial proceedings. Sometimes they decide it before an evidentiary hearing on a suppression issue, sometimes they decide it after the suppression issues have been litigated.

When you might use it

You might use this motion if you want clarity on the specifics of what your client did, said, or conspired to do (according to the indictment), who are the others known and unknown in a conspiracy case, or details on something else alleged in the case that is unclear or vague and not readily apparent from the discovery. The goal of a motion for a Bill of Particulars is to "avoid surprise" at trial.

Reasons why you should use it

The main reason you might want to file a motion for Bill of Particulars is to commit the prosecution further to their burden of proof. Essentially, this can be used as a strategy to close the doors on where the prosecutor can go. For a false statements case, for example, it narrows the scope of what the government must prove for a conviction.

Another important reason you might file is to avoid prejudice and surprise at trial.

When to file

You would file this motion early on as a pre-trial motion. If you haven't filed for an extension, you have 14 days to file this motion and it should be done fairly quickly after you've reviewed the discovery.

Motion for Rule 17c, Subpoena

FRCRP 17c contemplates the issuance of subpoenas for trial preparation, and it covers certain things that the government can request.

In the sexual assault case, the government wanted all of the client's medical records so they motioned the court to get the documents, which the judge granted very quickly.

In the case, the government’s expert, who also ran the VA, handed over medical documents without consent or a court order. Then, the government wrote a very broad request and wanted to go back and get more records related to before, during, and after the surgery. The judge quickly granted the motion for the records.

Molly felt like this was a violation of HIPAA, so she contacted the deputy clerk to let the judge know that she was going to file a motion to quash.

After filing the defense motion to quash, the judge granted in part and denied in part Molly's request, and the government was able to get a very limited amount of records.

If Molly hadn't responded, they would have been able to get all of the client's medical records.

Dealing with a 3rd Party

When it comes down to third party documents and 17c subpoenas (and particularly medical records), you might get in a situation where you're dealing with whoever represents that medical institution. Then you have to start negotiating with them and asking them to provide you with what the judge has ordered by a certain deadline. So, in addition to a prosecutor, you will also be dealing with a separate civil big law attorney.

Nixon Factors

These come into play when you request a 17(c) subpoena:

Rule 17(c) provides, in relevant part, that “[a] subpoena may order the witness to produce any books, papers, documents, data or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence.” Fed. R. Crim. P. 17(c)(1).

A party seeking documents through a Rule 17(c) subpoena must show: “(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general ‘fishing expedition.’” United States v. Nixon, 418 U.S. 683 (1974). Accordingly, in order to sustain the validity of a trial subpoena, the defendant “must clear three hurdles: (1) relevancy; (2) admissibility; and (3) specificity.” Id at 700.

Pro Tip: Set your PACER notifications to alert you as they come in so you can respond quickly to any motions like this.

BREAK Getting ready for trial

Motion to Participate in Voir Dire

While there are some judges that will give you a thorough opportunity to question prospective jurors, in federal court it's common for judges not to allow lawyers to participate in the voir dire process.

There is no absolute guarantee nor right for the attorney on either side to actually question the pool. The judge does the questioning instead.

The process

Both sides will submit proposed jury instructions for the judge to review. But, ultimately, the judge has complete control.

Once you file the motion to participate in voir dire, it is usually deferred to when it's time to try the case.

Pro Tip: Because it's not guaranteed that you're going to be able to question whoever comes in, you want to preserve the issue. So I file the Motion to Participate in Voir Dire across the board, even if I know I'm dealing with a judge who has a reputation for allowing that thorough questioning.

Pro Tip: When you file a motion it stops the clock and gives you more time to prepare when needed.

Pro Tip: You will have an opportunity to file pretrial motions that relate to trying your case once you are closer to trial. Motions in limine will be handled after all of the pretrial motions are resolved. So you will have a chance to file motions based on relevancy and certain trial issues once the case is on a trial calendar.

Post-Hearing Brief

One of the biggest differences between state and federal court is how you litigate pretrial motions.

In federal court, you file your boilerplate pretrial motions (such as suppression motions) and then you vie to get an evidentiary hearing.

If you have a hearing, you wait for a transcript, and you get into your briefing. It's a similar process to a motion for a new trial. Only after you receive the transcript do you file a thorough pleading addressing the particulars in your case and the testimony that was presented at the hearing. Your initial, boilerplate motion just gives you the opportunity to request the hearing.

The Strategy

One of the biggest reasons to vie for a getting an evidentiary hearing is to get the transcript. You can use the transcript in a credibility argument at trial, for impeachment, or as way to figure out who you're dealing with on the stand ahead of time.

Reasons you may not be granted an evidentiary hearing

There are some judges that are not going to give you an evidentiary hearing if they think that it's futile or there is a standing issue.

The expectation

Getting an evidentiary hearing is like the first part of the battle. And if you get it, the expectation is that there's some merit to what you're trying to flesh out.

Pro Tip: The initial pretrial motion you file can be short and to the point. You don't really need much, you just need to preserve and particularlize your issue. And then the really heavy duty legal research stuff comes later, once you've received a transcript and can deeply analyze and present your arguments.

Pro Tip: In federal court it's expected that you litigate and preserve the issues with your pleadings and briefs. It's an academic exercise. And if you don't go in there and file something and find that one weird little kink in the law that maybe gives you a hook and differentiates your case, you're going to be judged harshly. The expectation is that you file stuff and you litigate.

Pro Tip: If you can get an evidentiary hearing, get one.

Getting Certified for Trial

In a case that is indicted, if you don't ask for extra time or file any motions, after 14 days the judge enters an order certifying the case ready for trial.

If you do file motions, then you have your evidentiary hearing and a briefing schedule that's set by the judge.

Typically, you get the transcript and then one side has 30 days to file an initial brief, the other side has 30 days to file a response, and then there's 15 days for a reply.

Once all of that is submitted to the judge, then you just wait for your R&R, your report and recommendation. The report and recommendation is the judge's order. It's usually very detailed, and it explains their rulings as to any of the issues you've litigated during that pre trial phase. It also certifies the case ready for trial.

When you get your R&R, you have 14 days to file objections if you want to preserve these issues. Your objections would go to the district judge if your case is going in front of the district judge.

Then, the district judge affirms (or denies) the magistrate judge's rulings and you meet with the district judge to set a trial schedule.

Motion for Continuance
  • Consent Motion/Joint Motion for Continuance
    • There's no faux pas with the defense asking for a continuance, but there is a feeling that the US Attorney should not be dragging their feet. Which is why you'll sometimes see a consent motion initiated by the government (rather than an unopposed request coming from the prosecutor).
    • The government may call you as defense counsel and ask for a consent or joint motion to extend the timeline if they need time (and often, you will need more time, too).
    • Usually this occurs when the government needs more time but they don't want to file a motion to continue without defense joining the motion.
    • Pro Tip: Ask to see their motion to continue before they file it — you want to check the language and terms, especially if it is going on the docket as "jointly filed."
  • Unopposed Motion
    • An unopposed motion is usually filed when the defense needs more time but the government does not oppose the request.
    • Before you file, check with the prosecutor and ask their position on your request. Let them know how much additional time you'll need (14 days, 30 days, etc.) If they agree, then you use PACER to file it (not jointly with the government, but unopposed) and file as the defendant.
    • Pro Tip: Always reach out to the government first before filing. The deputy clerk will often reach out and ask what the government's position is if you don't note it in your motion, so go ahead and do it before filing and include that information in your pleading.
Filing a Leave of Absence

If you plan on traveling or going on vacation, it's very important that you correctly file your leave of absence with the court so you are not scheduled for a hearing while you're unavailable.

In the PACER system, you have the option of filing your leave as a "request" or a "notice."

You complete a standardized document with all of your case numbers and specific dates according to the Rules of Procedure. You address it to all of the court deputies assigned to judges you appear before.

PACER will ask you to upload the document and input your specific dates in the system.

Usually, judges are very amenable and some judges may reach out to let you know you are approved.

Pro Tip: I recommend filing a notice instead of a request (because then you're not asking, you're telling).

Pro Tip: Check with your local federal defender's office on how to best file as it may differ under other jurisdictions.

Pro Tip: If you've been approved and you are still scheduled for court during your leave, as long as you've properly filed your request you can reach out to the deputy clerk and reset the hearing via email. This happens all the time and is simply an oversight on the deputy's part. They are usually apologetic and quick to reset a date if you have a properly filed leave of absence on PACER.

Formatting Pleadings

Your motions need to comport with your local rules stated on your district website.

It's not completely standardized, because there are ways to comply with the rules with some variation. So, stylistically, you'll see some differences.

However, it is crucial that you get everything correct.

The government is very standardized. So the Assistant US Attorneys will have a template that everyone in their office uses. On the defense counsel side, however, you might see some variation with different fonts and font sizes.

It's important to know your local rules before writing your briefs. The rules can typically be found on the court's website and will share which fonts and font sizes are acceptable. The rules change whether you are handling a matter in the district court (which includes magistrate pleadings) or in a federal circuit court.

Pro Tip: How your motion looks matters. There are some judges that will take note if your brief doesn't have a visual appeal.

Subpoena Process

When you need to file a subpoena under seal (for a witness, for example), you will need to get an application and order signed by your magistrate.

Take your application and order to your magistrate judge to review and sign. They will make sure it is sufficient. You will have an opportunity to meet with them in chambers and explain why you need whatever you are subpoenaing.

Reach out to the deputy clerk and let them know you have an app and order to present to the judge. Sometimes they will allow you to send it electronically, via email, and you will hear back from them once it's signed and ready for you to pick up (rather than presenting it in person, in chambers).

Once it's signed, you will take it to the filing clerk and let them know you are filing applications and orders for a subpoena under seal. They will give you your copies.

Pro Tip: You have the right to prepare your defense and, when it's a pre-trial, the government has no need to know what you're trying to compile or who you're trying to talk to. It's important to file these apps and orders under seal for this reason.

Phone Conference with the Judge

Some judges prefer to do their pre-trial conferences and address other issues over the phone, via a teleconference.

Their deputy clerk will reach out to you and provide the number to call and the scheduled time. Once you call and opposing counsel is ready, the deputy clerk will get the judge and let you know that the call is being recorded.

These teleconferences are limited to meetings that do not require the defendant to be present (like the scheduling pretrial conference or another discussion that does not require your client's participation).

Pro-Tip: It's important to be fully prepared at the phone conference. Have the docket and your research available and prepare your argument ahead of time.

Pro-Tip: This is a formal conversation. Don't be too casual. It is being recorded and transcribed, even though it is just a phone call.

Change of Prosecutor

Prosecution can be very interchangable.

In this case, because it was a misdemeanor, we were dealing with a new, inexperienced prosecutor. And because this case took some time to matriculate through the system, it took enough time where the former prosecutor moved on and there was a new prosecutor assigned to the case.

There is a chance you will deal with more than one prosecutor in any given case. However, some cases that are pretty quick might just deal with the same US Attorney from that initial appearance to the time it's resolved (especially if you are just negotiating a collateral forfeiture or something straight forward like that).

Notice of Setting Trial

You will get an initial trial date pretty quickly after the Report and Recommendation (R&R) is filed.

Notice of hearing for pre-trial conferences

  • Initial pre-trial conference
    • Occurs after the initial 14-days deadline to file motions
    • This is when you will find out whether or not you will get an evidentiary hearing
    • This is basically a scheduling hearing
    • The defendant does not normally have to attend
    • Purpose is to schedule the litigation of your motions
  • Second pre-trial conference
    • Both sides come in to discuss trial issues
    • Usually occurs about a month before trial
    • Come prepared with all of your filings and the docket
    • Your scheduling order will tell you what you need to have done before this conference
    • If the trial gets continued, the pre-trial conference also gets continued

Pro Tip: Cases in federal court are quickly set for trial once all pretrial issues are resolved. If you want to move to continue, talk to opposing counsel and file a motion. Continuances are often granted, but you should expect an initial date as soon as the R&R hits the docket.

Waiving Right to District Judge

In this case, we experienced more of a delay in getting certified for trial because ultimately my client, strategically, as advised by me, decided to waive his right to appear in front of a federal district judge and allow his trial to be in front of a federal magistrate judge.

We looked at our two judges and my client felt more comfortable with the magistrate judge and made a decision that he was going to waive his right to go in front of a district judge.

So at that point, once we have that notice set, and the district judge was expecting us to go to trial, I needed to go ahead and submit a waiver so that the district judge no longer expected us to be in court and try this case in front of him.

So we submit our waiver to the magistrate judge, who then advises the client of his right to be heard in front of a district judge.

Changing the Timeline

Once the client waives his rights and we know we're going to go in front of the magistrate judge, the old timeline and trial date do not apply. This magistrate judge is now going to set his own trial date.

Pro Tip: You want to get intel and make a really informed decision about which judge will be a better audience for your trial, if you have a choice and can execute a waiver.

Pro Tip: The government cannot oppose the waiver of rights. It is your client's right and decision.

Client's Right to Jury

In federal court, only Class A misdemeanors give you a jury. Class B and Class C misdemeanors do not get a jury. Instead, they have a bench trial.

In this case, the prosecutor dismissed the Class A misdemeanors and proceeded with Class B, thereby eviscerating the client's right to a jury.

The Battle of the Experts

After the sexual assault and sexual battery charges were dismissed and the client was just left with a simple assault and simple battery indictment, the battle started getting pretty intense.

First, there was a lot of back and forth over whether or not Molly would be allowed to present evidence of diminished capacity based on the defense of voluntary intoxication. The government's contention was that this was a strict liability offense — they only wanted to focus on whether or not the defendant touched the nurse's butt.

Molly wanted to bring in an expert to talk about midazolam, the drug that was used on her client. And the government wanted an expert who was from the same hospital where the crime allegedly occurred. The expert was also the same person who handed over the HIPAA records without consent.

The battle of the experts was one issue that was left unresolved before trial. There was an intense fight over the witnesses and who was going to be a permissible expert in this case.

Molly shares that everything is a battle in federal court and "if there's an angle you can fight, you fight it out."

The magistrate judge held a hearing to make his final rulings as to evidence, testimony, and experts.

Paying for the experts

Based on the charge, the client is usually responsible for paying for an expert when they've hired private counsel. However, in the public defender's office, there is funding for paying experts.

These experts can be very expensive and it's a cost you should include in your fee and your contract. If your case requires an expert, be sure to reach out to them ahead of time with a retention letter to determine their hourly rate and create an agreement.

Additionally, some indigent clients may qualify for federal funding of an expert as part of the Criminal Justice Act. Defense would need to file a motion to the judge who would make the decision to grant or deny the request. This is typically done by Criminal Justice Act ("CJA") or "panel" attorneys, who take on appointed conflict cases in federal court.

Questioning government expert

Whenever you're presented with a government's expert, you're going to get their report and CV ahead of time. However, you still want to file a motion to voir dire that witness and make some sort of argument to the court that they shouldn't be able to testify.

The trial judge will then allow you the opportunity to cross-examine them on their credentials and you would be able to make your argument.

In this case, Molly felt that there was an issue in terms of bias because the government's witness worked at the location where the alleged incident occurred.

Pro-Tip: If you don't think your client can afford the significant expense of hiring an expert, you should consider referring them to the public defender. The federal defenders are well-funded and use experts in any case that needs them. A client who needs a lot of expert testimony may be better off being represented by an office who can handle these extraneous costs.

Pro-Tip: Always litigate the experts. The other side is going to do the same.

Pro-Tip: Anything that you want to challenge, put it in writing and preserve it.

The Trial

In this sexual assault case, both sides essentially conceded that a butt was touched. However, the question was whether or not the defendant had the requisite intent — was he involuntarily intoxicated or was this a knowing and intentional action?

Taking the stand

Testifying on the government's side was the victim, who was a nurse, an intern, and a medical resident at the VA. Molly also subpoenaed the janitor who the client verbally high-fived her client after the incident.

The defendant also took the stand, despite Molly advising against it.

Surprise during trial

Unfortunately, the defense's expert on the drug the client was administered also had a history of touching butts. The prosecution found an unsubstantiated complaint that was in his employment file from many years ago.

After this information was presented, Molly objected and moved for a mistrial. However, it wasn't granted and since there was no jury, the judge said he was just going to "forget it."

The Sentencing

After a two-day trial, the judge took a recess and decided on his ruling.

Usually, in federal court, when you have your verdict you don't move into sentencing because you have to do the preparation of the PSR, or the pre-sentencing report.

In this case, they waived preparation so they could move into sentencing quickly after the guilty verdict.

Both parties agreed on the guidelines were zero to six months and they both spoke at the sentencing hearing where they put a lot on the record about why they were requesting particular sentencing.

In this case, the prosecution asked for jail time while the defense asked for probation.

The judge has to make his findings as the the guidelines and as to 18 USC 3553 A.

During the sentencing hearing, they went through the guidelines, 3553 A factors, why they were asking for the sentence they were asking for, and then the judge made a bunch of findings on the record and sentenced the client to probation.

Pro-Tip: A common practice in federal court, especially when dealing with more serious cases or felonies, is to not waive the preparation and to have the sentencing postponed.

Pro-Tip: It's good to have an open discussion with the prosecutor to find out their sentencing recommendation beforehand.

Pro-Tip: Probation for misdemeanor cases is pretty-heavily supervised. If there is a violation, you're going to be back in court and the prosecution is probably going to request jail time if the violation is considered serious enough.

Entering a Plea

When dealing with a Class A misdemeanor (which will be governed by the US Sentencing Guidelines) and not going to trial, you would typically enter a plea, then schedule a time to meet with a US probation officer for a presentence report ("PSR") interview, then the presentence report is disclosed to you and the prosecutor and you can file objections or make corrections, then a final presentence report is disclosed, and only then do you have your sentencing hearing.

After the plea hearing, the probation officer will meet with you and your client to interview your client and prepare the initial pre-sentencing report. The probation officer will send you their initial report via email. You will review the report with your client and make any corrections or objections within 14 days. Those objections and corrections are sent via email (and the prosecutor is CCed) and the instructions for doing so are usually contained on the first page of the initial presentence report.

Any objections or corrections you email are included in final pre-sentencing report. The judge will address any objections in the final PSR during the sentencing.

Change of Plea

Whenever you enter a plea in federal court, you're going to have a document called a change of plea, which essentially states that you're entering a guilty plea. Typically, these are provided in the courtroom.

Then, you will go through a formal process in court where the prosecutor will show the change of plea form and state that they have it. They will confirm your client's signature and your signature. The conversation is will be recorded and be very formal. This is how you enter a not guilty plea and if you enter a guilty plea, this process is typically followed by a lengthy colloquy from the judge, ensuring your client is knowingly and intelligently entering his guilty plea.

The hearing

Once you have agreed to a plea with the prosecutor you will set a date for the plea with the deputy clerk.

The prosecutor will be present at the hearing, but your client will basically just go through the plea colloquy, and then the judge accepts the plea. After the hearing, you and your client will go to have the PSR prepared.

How the Process Differs for Class B & Petty Offenses

With a Class B or a petty offense, typically the process is more straightforward. The idea is that you're going to get everything done with a resolution in one hearing. The probation officer won't be involved in the process of writing a PSR. The PSR addresses the US Sentencing Guidelines and since Class B and petty offenses are not governed by the guidelines, the idea is that there is no need for a PSR.

Federal Court Costs + Fines

It's important to prepare your client for any financial charges they may be faced with before going to court. The range of fees will depend on the charges and the case. But you can start by examining the statute and preparing your client for the maximum fine possible.

Typically, a CVB client will be given 60 days to pay their fines and fees. The judge will make this clear as they pronounce their order when you resolve the case. If the fines and fees are paid within that time, the case is formally closed.

Negotiate the Fine

The prosecutor can reduce the fines significantly depending on how they're feeling about the client and the facts of the case. So don't be afraid to go back and forth when it comes to fines, because there is a lot of room for a prosecutor to have discretion and offer you something different.

Probation for a Fine

If the fine is too much for your client to pay, they can go on probation until it is paid pack. This is different than an actual probation sentence and will be closed out as soon as the total fine is paid.


Setting expectations is so important in this work. Clients can handle bad news, they just cannot be surprised by bad news. And so, that's our job. Having that information when you're talking to them on the front end is so valuable.

Preparing Your Client for Probation

Probation for a federal misdemeanor is taken very seriously in federal court. So it's important to prepare your client and make sure they understand the terms and conditions of their probation and the consequences if they don't follow the designated rules.

The maximum time for probation on a misdemeanor is set at one year.

Meeting with the Probation Officer

You can expect your client to meet with the United States probation officer the same day they enter into this resolution and their supervision begins. Usually, their office is located in the federal courthouse. You should accompany your client to this meeting if at all possible.

Once your client meets with a US probation officer, they will likely be required to take a drug test immediately. Then, they will mostly likely initiate routine drug screens.

Testing Positive for Drugs While on Probation

If your client tests positive on a drug screen while on federal probation, they will probably need to hire a lawyer to represent them on a probation revocation.

You can expect a very serious hearing back in front of the same judge in federal court, where you can make whatever arguments you'd like to make for your client.

Depending on the facts of the violation — especially if it is a "special probation" drug case — your client may lose their opportunity for a civil penalty and face a criminal conviction.

Usually, they will not be arrested for testing positive, but the probation officer will file a petition for revocation. A hearing will be scheduled and if they judge finds your client has violated the terms and conditions of their probation, they may be ordered to go into custody right after the hearing. It is important to prepare them for this, if it is a possibility.

U.S. Sentencing Guidelines

According to the U.S. Sentencing Guidelines, there is mandatory revocation for certain drug positives in felony cases. But in this world of misdemeanor cases, revocations are not nearly that serious. For the most part, the people are pretty amenable to work with you and try to put your client in a good position despite the violation, assuming the violation is minor and your client has done relatively well on supervision.

Reaching Out to the Probation Officer

It's a good strategy to reach out to the probation officer and discuss what they're going to recommend if your client has violated probation. They are not going to hesitate to talk to defense counsel and may have some empathy since they know your client.

Reaching Out to the Prosecutor

The court wants to know the position of all parties when it comes to probation violations. When you're filing something, or making some sort of announcement on a probation violation, always indicate the position of the probation officer and the position of the prosecutor. A lot of times the culture is that the prosecutor defers to probation, but sometimes they do take different positions.

You want to make sure that you loop in both the prosecutor on the case and the supervising officer and articulate their stance to the judge.


Sentencing for Class A Misdemeanors

Sentencing is one of the most involved and important parts of criminal procedure. It's incredibly important when dealing with Class A misdemeanors to know the U.S. Sentencing Guidelines and understand how they interplay with the law.

Start by "Running the Guidelines"

One of the first steps you should take when dealing with a Class A misdemeanor is to visit your copy of the U.S. Sentencing Guidelines, which is available in a hard copy or online. Then, search the index and find the section for your client's offense.

Once you find the offense, it's time to identify any points that could be ascribed. Points will be based on various factors that might have occurred at the time of the offense. For example, a drug case might add points if a firearm was used.

Additionally, pursuant to Federal Rule of Criminal Procedure 16 discovery, you should get at the outset, the criminal history of your client so that you can calculate this for your client's criminal history score. The criminal history score is compared to the total points for the offense (called the "total offense level") on a grid to determine your applicable sentencing range.

These points are a significant part in determining your client's sentence and they vary depending on the facts of each case. Once you've added them up and properly calculated your client's criminal history score, you can locate you advisory guideline range on the sentencing grid.

Preparing the Pre-Sentencing Report

The probation officer is going to prepare a pre-sentencing report (PSR) and provide their version of your client's criminal history score, alongside their version of the total offense level, to come up with where your client lands on the sentencing grid. Probation's version of your client's advisory sentence range will be considered by your sentencing judge.

The Pre-Sentencing Interview

The pre-sentencing report is going to include findings of facts regarding the offense as well as personal and background information of your client gathered from the pre-sentencing interview.

During the interview, the probation officer may ask your client questions regarding:

  • History of abuse + neglect
  • Their childhood
  • Their education
  • Past 10 years of their work history
  • Where they've lived
  • Who their family members are
  • Drug use
  • And gang membership

It's incredibly important for you to attend the pre-sentencing interview with your client. If you're not at the interview, you're going to be behind the ball when it comes to objecting or correcting what was said.

For example, if the probation officer asks your client questions about their criminal history, as their attorney, you should inform them that will not be discussed during the interview and they can reach out to the prosecutor for the information.

Acceptance of Responsibility

If your client accepts responsibility and enters a plea early on, they will receive three levels off of their sentencing calculations if their total offense level is 16 or more (and two points off if their total offense level is less than 16).

It's important to know the benefits of having three levels off their total offense level due to "acceptance of responsibility" so your client can calculate what it's going to look like if they choose this route versus if they lose at trial.

The probation officer is going to ask your client for a statement of acceptance/responsibility during the PSR interview. It's a good idea for you to help your client create this statement because it will be included in the PSR and considered by the judge. Some judges allow you to present this at sentencing (or filed as an attachment to your sentencing memo) and you do not have to have it ready for the probation officer during the PSR interview. You should feel free to contact the officer who is conducting your interview and writing your PSR and find out whether they will expect the statement at the time of the interview.

Pro Tip: Probation officers are typically assigned to specific judges, so they know the culture of the courtrooms and the preferences of the judge when it comes to sentencing. You can ask them about the judge's preference regarding an acceptance of responsibility statement going into the PSR or whether that can simply be presented orally at sentencing (during what's called an "allocution" by your client, where they have an opportunity to speak to the court). Feel free to ask them what's preferred.

Opportunity to Object to the Pre-Sentencing Report

You will have 14 days to file any objections or make corrections to the probation officer's PSR.

Look for any issues in terms of a factual correction or legal argument that may have bearing on how they calculated the offense. Then, formally file your specific objections through email according to their instructions on the first page of the PSR. These objections/corrections will be included in the final pre-sentencing report that goes to the judge.

When you get to sentencing, you should address the probation officer's calculations as well as 18 U.S.C. 3553 A, which lays out all the factors the judge must consider before imposing a sentence in a federal case.

These factors are what a defense lawyer would see as mitigating factors, including the background and characteristics of your client and the big picture concepts like specific and general deterrence. The court must make findings as to all of these things. And then, in some cases, they have room to depart from the guidelines and go higher or lower based on those factors in the code.