⚡️Quick reference for some of our favorite pro-tips and terminology from the video lessons + BONUS resources!
Pro Tip: In federal court, because these probation officers, prosecutors, and judges are dealing — for the most part — with the most serious offenses, when it comes down to your client you're already in a good position because it's just a misdemeanor.
Pro-Tip: For the first appearance, you should look on the ticket for the courtroom number. Then, search that courtroom number to find out what judge you will be before. 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 the misdemeanor calendar. Oftentimes, they have a schedule going and they can connect you with someone.
Pro Tip: You have to familiarize yourself with the current state of federal law as it's going to apply to your case before you have any conversations with the prosecutor or go in front of a judge.
Pro-Tip: Always know what statutory maximum can be imposed in your case (look to the penalty statute for whatever offense you're defending). This governs what class of misdemeanor it is. If it's a Class A misdemeanor, you can have a jury trial and the US Sentencing Guidelines will apply to your case.
Pro-Tip: When it comes to misdemeanor cases, you can definitely ask for a very small amount of probation as a sentence. You don't need to ask for a full year just because the stat max is one year.
Pro-Tip: It's important to keep all communications professional and formal. Even if you have a good relationship with, say the deputy clerk, you don't want to have casual conversations via phone or email because they are all recorded and attached to a filing to the district judge.
Pretrial Motion Phase
Pro-Tip: You can reach out to the federal public defender's office and ask for a shell or template or advice on a case you're handling.
Pro Tip: 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 explain which fonts and font sizes are acceptable.
Pro Tip: How your motion looks matters. There are some judges that will take note if your brief doesn't have a visual appeal.
Pro-Tip: Every single piece of what the government has to prove is open for you to fight and to litigate in an academic way.
Pro Tip: The initial filing is brief. You don't really need much, you just need to preserve the issue. And then the really heavy duty legal research stuff comes later.
Pro Tip: In federal court it's expected that you litigate and preserve the issues with filings. 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.
Pro-Tip: Don't overlook any opportunity to file something or make some argument because that's the essence of federal court.
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.
Pro Tip: Prepping for a hearing or trial is a marathon, not a sprint
Pro Tip: You've got to have a 30-day plan leading up to trial at the very least to make sure you have enough time to prepare
Pro Tip: When it comes to your 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.
- The government may call you as defense counsel and ask for a consent or joint motion to extend the timeline if both sides need more time.
- Usually, this occurs when the government needs more time but they don't want to file it alone.
- Make sure you see the document in advance to check the language and terms
- Unopposed Motion
- An unopposed motion is usually filed when the defense needs more time.
- Before you file, check with the prosecutor and ask for more time. If they agree, then you singularly as the filer do an unopposed motion.
- Always reach out to the government first before filing.
Pro Tip: When reviewing the U.S. sentencing guidelines, be sure to check out the notes at the bottom of each section. This is a good starting point for arguing a sentence in your case and identifying any possible issues at sentencing.
Pro-Tip: In federal court, we always look to statute 18 U.S.C. 3553 A to decide what the appropriate punishment is.
Pro-Tip: Go to the statute that classifies all of the different misdemeanor offenses and look and see what is the max that can be given.
Pro Tip: If there's an allegation in the PSR that is not correct, even if it's minor, you should object or make a correction.
Pro Tip: You want to be with your client, unquestionably, when they're being interviewed for the pre-sentence report. If you are not at that interview, you're going to be behind the ball when it comes to objecting or correcting what was said.
Pro Tip: Plan on including the PSR interview (which can take up to two or three hours) into your fees.
Pro Tip: There are some things that are going to come up, like providing a statement of acceptance, that are better suited to you navigating or helping your client navigate, rather than just having them sit there and extemporaneously express remorse.
Pro Tip: Prepare your client to be in the headspace for the pre-sentencing interview. Make sure they know what questions to expect and how to respond.
Pro-Tip: In addition to collateral forfeiture, when you are handling a Guns at the Airport case, 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. The contact number will be listed on your client's notice.
- Acceptance of responsibility | A process whereby a defendant can "accept responsibility for their actions", enter a guilty plea, and receive a set number of levels of departure within the federal sentencing guidelines. A client will get 3 levels off for acceptance if his total offense level is 16 or more and get 2 levels off for acceptance if his total offense level is less than 16.
- Assimilated Crimes Act | Section 18 USC 13. Federal authorities can cite or charge an individual for a state offense with a state code by also charging this statute. It gives the feds jurisdiction over crimes that occur on federal property.
- Central Violations Bureau ("CVB") | (CVB) refers to those petty offenses (as defined under 18 USC 19) that occur on federal property, such as federal buildings, national parks, military bases, post offices, Veteran Affairs centers, Social Security Administration Offices, local national forests, and any other areas that are patrolled or under the jurisdiction of the federal government.
- Change of plea | change of plea is a form that says you're entering a not guilty plea at an initial appearance or a guilty plea at a plea hearing.
- Circuit Split | A circuit split occurs whenever two or more federal circuit courts have conflicting rulings on the same legal question.
- Collateral forfeiture | Essentially converts the criminal offense into a civil offense with a civil penalty.
- Final PSR| The final presentence report document that goes to the judge with your objections/corrections and any objections/corrections from the government.
- Joint Resolution | A negotiated plea between prosecution and defense.
- Pre-sentence report ("PSR") | A document that is created by a US probation officer after someone is convicted of a federal offense. It's the result of thorough interview and discussion with your client, and provides details about your client's personal history, criminal record, and the facts of the case. It's used to calculate your client's guideline range and will be reviewed by your sentencing judge in advance of your sentencing hearing.
- Report and Recommendation "R&R" | The Report and Recommendation is the judge's order following the litigation of pretrial motions. 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. After you have submitted briefs on pretrial issues, you wait for the 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.
- Reasonable Sentence |
CVB offenses are governed by 18 U.S.C. section 19. This statute specifically states that petty offenses include Class B misdemeanors, Class C misdemeanors, and infractions.
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 the magistrate judge and you meet with the district judge to set a trial schedule.
Central Violations Bureau ("CVB")
(CVB) handles those petty offenses (as defined under 18 USC 19) that occur on federal property, such as federal buildings, national parks, military bases, post offices, Veteran Affairs centers, Social Security Administration Offices, local national forests, and any other areas that are patrolled or under the jurisdiction of the federal government.
Where all of the federal tickets are handled.
CVB offenses are governed by 18 U.S.C. section 19. This statute specifically states that petty offenses include Class B misdemeanors, Class C misdemeanors, and infractions.
We will also see Class A misdemeanors on the CVB docket. Here is a breakdown of the particulars for each type of citation:
- Class A Misdemeanors: The maximum sentence is one year of imprisonment; a fine of up to $100,000; a $25 special assessment; a $25 CVB processing fee; and up to one year of supervised release or 5 years of probation. Class A misdemeanors include some assaults, simple possession of drugs (for personal use), and petty thefts. For these cases, our clients will be tried before a U.S. District Court Judge, unless they consent to have a magistrate judge handle the case.
- Class B misdemeanors: The maximum sentence is 6 months of imprisonment; a $5,000 fine; a $10 special assessment; a $25 CVB processing fee; and up to one year of supervised release or 5 years of probation. Many CVB offenses are Class B misdemeanors (DUIs, trespasses, and a host of other offenses).
- Class C misdemeanors: The maximum sentence is 30 days of imprisonment, a $5,000 fine, a $5 special assessment; a $25 CVB processing fee; and one year of supervised release or 5 years of probation.
These are offenses for which the maximum sentence is a 5-day jail term, a fine of up to $5,000, one year of probation, a $5 special assessment and a $25 CVB processing fee.
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.
Keep an eye on 21 USC 844 which defines a typical state felony possession charge into a misdemeanor. So long as it's a personal use amount, even if it's heroin or ketamine, simple possession is a misdemeanor on federal land. Some local rules permit collateral forfeiture in these cases (score points by knowing this in advance since it usually is super-insider intel).
Also don't forget to check out 18 USC 3607 which governs special probation and expungement for certain drug offenders.
- No priors
- 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.
The private defense bar doesn't currently take up a lot of space on these federal misdemeanor calendars. And there are good opportunities for private attorneys to succeed in this space, because in many of these cases, you can work out very favorable resolutions.
For example, a DUI on federal land is much easier to handle, win, and aggressively litigate in federal court than it is in the state court. In state court, you have DUI Task Force Officers who are very well-trained in roadside field sobriety tests, and they know what they're doing.
However, in federal court, when you get a DUI, it's usually coming from a Forest Service/park ranger type law enforcement officer. And it's very rare that you see anyone who is following the most up-to-date procedures and policies. So it's a great opportunity to take cases and get good results.
Additionally, this is the one calendar where you're often dealing with a new Assistant US Attorney. It's where they kind of get their bearings in federal court. They're usually very recent hires, and they are given a lot of leeway to handle this calendar that nobody else wants to handle. So it's one of the few spaces in the federal arena where you can really negotiate and push for a certain result for your client and the Assistant US Attorney doesn't feel immediate pressure to go back to their supervisor.
Most attorneys that focus on federal cases divide their fees by pre-trial and trial.
People tend to accept the fact that the rate for hiring an attorney in federal court is insanely high, it's the going rate, and that's the market.
Molly wouldn't handle a misdemeanor case short of trial for less than $5,000.
Typically she charges a flat rate, but she shares that when you break it down to an hourly rate it's just a lot of time and work.
One of the things that make this such a great opportunity for lawyers is that there just isn't a lot of competition. The amount of lawyers willing to take on federal misdemeanors is few and far between because it can be a very intimidating world and not all lawyers are comfortable.
The reason many lawyers aren't comfortable is that they are not prepared to ask for the fees that you will need to support the amount of effort these cases can take.
Having a working knowledge of how to evaluate how much work a case will take will coom with experience, but there are certain general things you can look for.
For instance, if you're dealing with a low-level collateral forfeiture case or something you can resolve at the initial appearance, it's common to charge a couple of thousand dollars.
If you're dealing with a Class A misdemeanor, a trial, or a case that's going to involve the pre-sentencing report, it's common to charge anywhere from $5,000 to $10,000.
Structuring Your Fees
You can also structure your fees by separating the pre-trial fee from the trial fee. If your client is not sure they are going to trial, you can charge a pre-trial fee that ranges from $2,000 to $5,000.
But it's important to communicate that if you go to trial there will be an additional fee that commonly ranges from $2,000 to $5,000.
Explain to your client that this does not include expert costs or fines/fees if imposed.
What are they paying for?
It's important to keep in mind all of the elements that are calculated into your fees. Not only is it difficult to find a lawyer who is skilled and knowledgeable in federal court, but it involves a lot of both mental and emotional work.
Practicing at the federal level is highly academic and will require a lot of research to properly prepare for each case. Additionally, a good federal defense attorney will provide emotional support for their clients through this very intimidating process.
So, essentially, they are paying for someone who will not only answer all of their legal questions but also someone who will ease their fears and anxiety caused by the process.
Federal court can be very intimidating for your client so it's important to help them through the process by empowering them with knowledge and expectations. Inform them about the procedure and the code section that they're charged under. You also want to prepare them for the level of decorum and professionalism that is the culture in federal court.
It's also important to let them know that you're on their side and you're going to do everything possible to put them in the best position possible. Essentially, part of your job is to give them confidence and help them manage any fear or intimidation that they may be experiencing.
Keep in mind that you will probably have to reassure them throughout the procedure due to the level of intensity and formality.
The most common initial question potential clients are going to ask is, "do you handle these types of cases?" Typically, it's very difficult to find lawyers who handle federal misdemeanors, which gives you an advantage from the first encounter.
For some simple offenses, clients are usually fine with hiring you from that initial phone call. However, those dealing with more serious misdemeanors usually want to meet in person before moving forward.
What happens if your client is late to court?
It is incredibly important for you to get your client to the courtroom on time. However, if they are late and have a decent excuse, everyone is usually amenable to getting a reset.
Any lawyer who wants to put the time, energy, and focus into federal cases can do it. But you have to be willing to put in the work and do the heavy legal research.
When I get a case, the first step I take is to do a deep dive into the case, the statute(s) charged, and the cases that litigate the statutes.
After researching my circuit (the 11th), I like to look outside my circuit. While your circuit is binding in terms of precedent, there are certain statutes that are litigated nationwide under the standardized U.S. code and you might find something interesting in another circuit that you can include in your briefing.
I also like to reach out to the federal public defender's office. They are a very important resource because they do this type of work day in and day out. Their feedback and insight can be invaluable to your case. They usually have someone available to private practitioners to answer questions, provide sample filings, or even walk you through the current status of a law or particular legal issue.
Molly's Top 3 Tips for Preparing:
- Perform heavy-duty research
- Gain a good working understanding of what you're tackling: Know the law, your facts, the cases, and the precedent
- Reach out to the federal public defenders for questions or support
Favorite Issues - What to Look For
Two important things to flag in your misdemeanor case:
- A circuit split | Occurs whenever two or more circuit courts of appeals issue conflicting rulings on the same legal question.
- Constitutional vagueness
- Do a deep dive into the statute to see if the facts match the law
- You might get a dismissal if you can present a cogent legal argument
- A lot of misdemeanor charges or petty offenses are arguably vague
It's extremely important to come to court prepared both with knowledge and confidence.
Molly's Tips for preparing:
- Practice positive self-talk | Let yourself know that you are capable, competent, and ready
- Practice your opening statement | I spend weeks practicing my opening statement by rehearsing in front of a mirror, recording, and memorizing every line.
- Prepping for the closing | Your closing needs to be adjusted based on the information that comes out during trial. I usually do a ton of work tweaking my argument the night before I deliver my closing statement.
- Bounce ideas off of non-lawyers | This can be useful for bench trials or jury trials because, either way, your case is going to be heard by a human being.
Molly's Courtroom Checklist
- An expanding file, and folders within that
- The federal code book
- Sentencing guidelines
- Specific cases or documents cited in your brief
- All of the stuff that you would have for any given witness
- All of your exhibits
While it's vital to learn the basics before walking into a federal courtroom, the misdemeanor level is one of the best places to start gaining confidence in the world of federal practice.
Molly shares how trying misdemeanors is a good sandbox for people to get comfortable and get a sense of what it might be like if they wanted to invest further and start handling felony cases because it can familiarize them with the culture and how things matriculate through federal courts. But it's low stakes and the law is not as dense. So it doesn't require the full-fledged effort and knowledge base that you need to handle a felony.
Federal felony cases can be very fascinating. They are incredibly high-stakes cases that help you to become a very skilled lawyer. It's never rote or routine, so you are constantly learning.
But it's not a good idea to take on a federal felony case by yourself if you've never practiced in federal courtroom before.
Taking Steps Toward Taking Federal Felony Cases
The first thing you can do to move into federal felony practice is to learn about the Criminal Justice Act Panel, or the CJA panel in your district. These are the lawyers that are taking appointed conflict cases that cannot be handled by the federal defender in that district.
You can find out who is on the panel and reach out to them to volunteer your time.
You can also reach out to someone who has retained federal work to see if you can volunteer your time to work with them.
Once you've had some experience volunteering or sitting second chair in the felony court, then you can apply for the CJA panel in your district.
Working in the Federal Public Defender's office is an incredible job — and it's very competitive to get in. Applying for a position is not as simple as applying for other legal jobs. Rather, it's more akin to applying to law school.
Typically, they want someone who is profoundly connected to the work.
During her application process, Molly submitted academic writing samples and went through a series of interviews.
Pro-Tip: Talk to others who have gone through the process before applying.