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May 2024: Three Things I Learned in Federal Court this Month
Juanita Holsey • May 29, 2024
  1. Ask for the bond. Even if there is a lengthy criminal history or the facts seem damning/incriminating (?), ASK. I am testing out my new method, but so far, it’s good. I call the assigned AUSA and make arrangements to have discovery produced at the initial appearance or after we conclude the appearance. If time permits, I send a hard drive in advance, and if it doesn’t, I bring it with me for a hand delivery. At the initial appearance, I request additional time to prepare for the hearing so that I have time to get through some of the discovery before the detention hearing. Consider speaking with the government to find out what testimony to expect from the agent. When the task force is not involved in the investigation, oftentimes the Agent is providing testimony based on reports reviewed, not evidence reviewed. We know how unreliable those police reports can be. While weight of the evidence is an important factor in the Court’s determination, there are sometimes facts that increase the appearance of safety for others and the community.

    Outside of presumption cases, “pretrial detention should be exception rather than rule…and release is required if there is any set of conditions that will reasonably assure the defendant’s appearance in Court and Safety of others and community.” U.S. v. Leyba, 104 F. Supp.2d 1182 (2000). While we refer to bond as a privilege, the statute and the case law deem it a right. The Court is tasked with finding the least restrictive conditions to impose after determining the person will not be detained. Make offerings from the conditions in the statute to combat arguments about dangerousness and flight risk.

  2. Don’t skip the criminal history. Address the elephant in the room….that criminal history is more important than just determining the criminal history calculation. Dig into it. Look at how the convictions occurred. If the person was convicted of multiple cases on the same date, look into the weight of the evidence in each of those cases. By doing so, you can create a space for argument about an overstatement of criminal history for consideration of a downward variance. Very serious offenses that have been placed on the dead docket or dismissed need to be explained—it may not be considered for criminal history category, but it affects requests for downward variances. Plan to address it because the government will certainly talk about how the person could have been convicted of those charges. If addiction is an issue and all of the criminal history is property crimes, address the addict behavior. It is common to see theft crimes during active addiction, so show a timeline of relapse and increased criminal activity compared to the criminal history during sober periods. Regardless of what the history is, take the time to address charges.

  3. Relevant conduct is important when there is a second case, either State or Federal, and a conviction has already occurred. Depending on the base-level offense and the criminal history, this could result in a departure or recalculation of the applicable guideline range.

    The Sentencing Commission defines a prior sentence as “any sentence previously imposed upon adjudication of guilt…for conduct not part of the instant offense.”  U.S.S.G. § 4A1.2(a)(1). Under the application notes, “conduct that is part of the instant offense means conduct that is relevant conduct to the instant offense under the provisions of 1B1.3 (Relevant Conduct).” In Chambers, the court found that the additional points for a related offense overstated the seriousness of the prior criminal history and found a downward departure under U.S.S.G. § 4A1.3 was appropriate. U.S. vs. Chambers, 2001 WL 96365 (2001). It is important that where there is a prior conviction for similar conduct that you can argue arose from the same conduct that you argue it is relevant conduct and should not be used to compute the criminal history category.

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