Brief & Memo Index

The brief and memorandum bank is growing! It now contains a substantial number of briefs and memos generated by the Maryland FPD Office, and more will be added. We've also uploaded contributions from CJA attorneys. But we need more! To contribute, send your product in PDF format to our web administrator. 

 
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Appropriate Relief Motions: Funeral/compassionate leave, transportation orders, other logistical relief; CJA forms
Evidence: In limine motions, confrontation; appellate exclusion and inclusion arguments
Instructions: Non-standard federal jury instructions
Suppression: Fourth Amendment; custodial statements
Discovery: Brady; Rule 16
Detention: Memos on issues arising under the Bail Reform Act
Procedure: Double jeopardy, joinder, etc.
Sentencing: Guidelines issues, with emphasis on downward departure arguments

Appropriate Relief Motions

Name Description Category Author
Motion to withdraw Motion to withdraw as counsel because of conflict with another client's interests Appropriate Relief Motions Christopher
Postponement letter Unopposed letter requesting postponement of motions filing to be used with all judges. Appropriate Relief Motions Christopher
Petition - habeus corpus ad testificandum Petition for habeas corpus ad testificandum; once signed, serve on US Marshal in order to assure production of incarcerated witness. Appropriate Relief Motions Christopher
Return of Passport Motion to secure return of passport surrendered as a condition of pretrial release. Appropriate Relief Motions Gary Christopher
Motion to Exonerate Bond Motion and order to remove lien from property posted as security for release under Bail Reform Act. Appropriate Relief Motions Hazlehurst
Transportation Expenses Motion pursuant to 18 U.S.C. sec. 4285 requiring US Marshals Service to arrange and pay transportation of indigent sentencing to court for trial or sentencing. Appropriate Relief Motions Corcoran
Preplea PSR letter Form letter recommended by the U.S. District Court for requesting pre-plea presentence investigations by the U.S. Probation Office. Appropriate Relief Motions James Wyda
Remission of forfeiture Petition for remission of forfeiture Appropriate Relief Motions Gary Christopher

Evidence

Name Description Category Author
Memorandum to exclude evidence Where jury acquitted on CDS distribution and hung on conspiracy, government collaterally estopped from introducing evidence of the distribution on retrial of the conspiracy. Evidence Case
Spousal privilege Motion to bar prior statements by spouse who invokes spousal privilege and that exception to privilege for crimes committed against declarant spouse no longer applies in federal court after U.S. v. Trammel (S.Ct. 1980). Evidence Sasha Natapoff
Daubert - field sobriety Successful contention that the three standardized field sobriety tests (FSTs) developed and sponsored by NHTSA fail the scientific reliability standards of Daubert/Kumho. File includes memorandum, reply, and some affidavits. Evidence Natapoff
Daubert polygraph motion Motion arguing that exculpatory polygraph is admissible under Daubert. Evidence Long
Daubert profile motion Daubert-based challenge to detention hearing testimony by FBI profile testimony about child pornographers. Evidence Christopher

Instructions

Name Description Category Author
Firearms - definition of possession Definition of "possession" for purposes of felon in possession of firearms prosecution Instructions Delgado

Suppression

Name Description Category Author
Warrantless search Motion to suppress: warrantless search by duffel bag by consent of person who had no authority to consent. Suppression Wyda
Scope of permissible traffic stop Reply suppression memo: questions by officer exceeded scope of permissible traffic stop. Suppression Wyda
Anonymous tip - Terry stop Anonymous tip regarding firearm cannot provide reasonable suspicion for Terry stop. Suppression Case
Investigatory stop Defendant's u-turn and exit from National Park after it was closed was insufficient to permit investigatory stop. Suppression Bauer
Wardlaw challenge Argument that no reasonable suspicion existed to stop motor vehicle after it made safe, legal u-turn 1500 feet from "gate" check (similar to sobriety check). Distinguishes Illinois v. Wardlaw. Suppression Frey-Balter
Hodari D - use of force Officer's grabbing defendant, who then slipped away and ran, constituted arrest under Hodari D. requiring suppression of firearm subsequently tossed in the course of flight. Submission to unlawful arrest is not required if officer makes contact and employs physical force. Suppression Pearl
Suppress statements Motion to suppress statements made under assurances of non-prosecution and to require production of notes and hearing on reliability of agent's version where statements were in Spanish and were recorded after translation. Suppression Gray
Search of military base Memo in support of motion to suppress contending that while civilians lack 4th Amendment standing on closed military bases, enlisted personnel have standing, and search without probable cause or articulable suspicion is unconstitutional. Suppression Sasha Natapoff
Search incident outside car Memo challenging search under Belton where operator of car was arrested substantial distance from car. Suppression Citaramanis
Candyman Franks Motion Franks motion and reply challenging warrant in the "Candyman" child pornography cases; false allegation that defendant had received pornography. Suppression Gannett
Warrants - staleness Motion to suppress fruits of warrant search on grounds of staleness and that information that defendant acquired ammunition offers no basis to connect it with residence. Suppression Citaramanis
No knock Suppression motion based on no-knock execution of warrant. Suppression Citaramanis
Warrants - protected info Motion challenging warrant search where warrant based on affiant's unauthorized acquisition of unpublished telephone information protected by Telecommunications Act. Suppression Citaramanis

Discovery

Name Description Category Author
Motion to produce addresses, etc. Motion in white collar case requiring production of witness' addresses, designation of documents to be used. Discovery Gray
Feeney discovery Letter in response to standard government discovery letter clarifying that third level of acceptance will not be lost by filing motions unless they are litigated. Discovery Gannett

Detention

Name Description Category Author
Motion opposing pretrial detention In 922(g) depending on credibility of officer, government seeking detention on dangerousness grounds must present live testimony, subject to cross examination. 18 USC � 3142(f). Detention Christopher

Procedure

Name Description Category Author
Opposition to joint trial Separate indictments charging separate schemes to defraud should not be consolidated for trial. Procedure Case
Motion - client incompetent to stand trial Motion and affidavit suggesting that client is incompetent to stand trial under 18 U.S.C. 4241. Procedure Bauer
New trial - newly available witness New trial motion to consider testimony of witness who was unavailable during trial because of assertion of Fifth Amendment privilege but who is now available. Procedure Frey-Balter
Commerce clause - carjacking Commerce clause challenge to federal carjacking statute. Procedure Frey-Balter
Motion to transfer Motion under Fed.R.Crim.P. 21(b) for transfer of trial from Maryland to Puerto Rico based on convenience to parties, witnesses, location of relevant events, and other factors. Procedure Jefferson Gray
New trial - newly discovered evidence Rule 33 (new trial0 motion based on newly discovered evidence of defendant's innocence. Procedure Frey-Balter
Severance Severance of codefendants under Rule 14 required to assure continuity of counsel, to avoid evidence which would be inadmissible in a separate trial, and to allow shorter trial for defendant. Procedure Frey-Balter
Habeas - plea agreements Habeas petition under 28 USC sec. 2254 seeking specific performance of state court plea agreement. Procedure Frey-Balter
Habeas - IAC in guilty plea Habeas petition alleging that attorney's misadvice as to parole eligibility constituted IAC rendering guilty plea involuntary. Procedure Frey-Balter
In limine - juvenile conduct In conspiracy case, motion in limine that evidence of acts committed prior to age 18 be accompanied with instruction that such evidence may be considered only for limited purpose of determining whether post-18 acts were committed with requisite knowledge. Procedure Frey-Balter
Bill of particulars Bill of particulars in white collar case requiring specification of laws violated, which claims alleged to be false, and basic information on the operation of the alleged conspiracy. Procedure Gray
Driving while suspended Motion to dismiss contending, under Maryland law, that a person validly licensed in Maryland cannot be found guilty of driving while suspended because of his suspension in another state. Procedure Sasha Natapoff
Outrageous government conduct Motion to dismiss based on amount manipulation, etc. Procedure Citaramanis
DNA sampling challenge Challenge to supervised release condition requiring submission of DNA sample pursuant to DNA Analysis Backlog Elimination Act of 2000 (?DNA Act?), 42 U.S.C. � 14131 Procedure Elisa Long
Waiver of presence Waiver of presence at arraignment under new FRCrP 10(b) Procedure Citaramanis
Dismiss - extraterritorial jurisdiction In aggravated sexual abuse case occurring on military base in Germany, motion to dismiss on ground that prosecution violates principles of extraterritorial jurisdiction. Procedure Citaramanis
Subpoenas - ex parte Motion in support of Rule 17(c) subpoenas arguing (a) that judicial approval is not required for subpoenas returnable prior to trial, (b) they may be requested ex parte, and (c) they may be made returnable to counsel. Procedure Pollack

Sentencing

Name Description Category Author
Minimal role Minimal role (3B1.2); departure for collateral consequence of conviction (loss of military career). Sentencing Christopher
Departure - combination of factors Departures for community service (5H1.11), aberrant behavior (Ch.1, Pt.A, 4(d)), combination of factors. Extent of departure should take aggregate sentence (including 924(c)) into account. Sentencing Christopher
Departure - effect on defendent's child Departures sought because of untoward dnaeffect of defendant's incarceration on emotionally disturbed child (5H1.6 p.s.) and because of pretrial conditions of confinement (poor medical care). Sentencing Christopher
Departure - medical Departures sought because of defendant's extraordinary physical impairment (renal failure). 5H1.4 p.s. Sentencing Christopher
Departure - diminished capacity Argument for diminished capacity departure under � 5K2.13 based on diagnosis of anxiety causing inability to process information, etc; also arguments that loss overstates culpability and that conduct was "single act of aberrant behavior." Sentencing Wyda
Departure - diminished capacity - aberrant behavior Argument for (1) diminished capacity departure under 5K2.13 based on defendant's psychotic episode during offense; (2) aberrant behavior; (3) post-offense rehabilitation; and (4) heartland departure under 5K2.0 Sentencing Wyda - Pollock
Departure - unforseeable conduct Argument for departure: legitimacy of debt owed and unforeseeable conduct of codefendant removed extortion from heartland. Sentencing Christopher
Departure - rehabilitation Arguments for departure: (1) defendant's post-offense rehabilitation (successful drug treatment) and (2) overrepresentation of criminal history in the form of Youth Corrections Act conviction. Sentencing Zwaig
Departure - disparity - state offenses Departure sought to eliminate disparity in sentencing that arises from Maryland unique sentencing scheme for state offenses. Sentencing Case
Overrepresentation departure Argument under USSG sec. 4A1.3 that scored criminal history category overrepresents actual criminal history of defendant. Sentencing Frey Balter
Post-charge rehabilitation departure In child pornography case, benign conduct was outside the heartland; defendant's significant educational and employment changes since beginning of investigation justifies departure under 5H1.2 and 5H1.5. Sentencing Frey-Balter
Deportable alien - conditions of confinement Drug offender is eligible for departure because as a direct result of his status as a deportable alien, he will endure harsher conditions of confinement. Sentencing Frey Balter
Career offender - battery Defendant is not career offender under 4B1.2 because battery offense did not result in a "conviction" under 4B1.1; alternatively, battery is not a "crime of violence;" under 5G1.3(c), sentence should run concurrently to undischarged sentence. Sentencing Frey Balter
Heartland departure In threatening communications case, departure proper under 18 USC 3553(b), USSG secs. 5K2.0 and 2A6.1 because there was only a "single instance" of a threat against a person; defendant entitled to acceptance of responsibility adjustment despite USPO allegations of "misrepresentation." Sentencing Frey-Balter
Armed Career Criminal inapplicable Armed Career Criminal Act inapplicable because following priors not predicates: (1) housebreaking in violation of Md. Code Art. 27, sec. 30(b; (2) possession with intent to distribute marijuana; (3) storehouse breaking under Md. Code Art. 27, sec. 32, which requires only a breaking (no entry); conspiracy to possess cocaine. Sentencing Frey Balter
Obstruction - testimony Letter memo opposing obstruction adjustment under USSG 3C1.1 for testifying at suppression hearing that consent to search was not given. Suppression Citaramanis
Association a sentencing consideration Defendant's membership in neo-nazi group is constitutionally protected associational tie / abstract belief which is not relevant to sentencing and may not be considered. Sentencing Frey-Balter
Departure - political persecution Departure from re-entry guidelines justified because re-entry was due to political persecution in country of origin (El Salvador). Sentencing Frey-Balter
Overrepresentation departure Departure justified from career offender level under USSG 4B1.1 because status substantially overrepresents defendant's actual criminal history. Also analyzes defendant's cooperation to justify additional departure levels. Sentencing Hazlehurst
Diminished capacity departure Departure justified on bases of overrepresentation of criminal history under USSG 4A1.3, diminished capacity under USSG 5K2.13, exceptional family responsibilities, and a combination of factors. Sentencing Hazlehurst
Career Offender - Overrepresentation Chart of federal decisions pertaining to departures based on finding that career offender status overrepresented criminal history. Sentencing Citaramanis
Immigration consequences - sentencing Memo seeking departures based on collateral consequences of immigration status. Sentencing Citaramanis
Apprendi challenge to ACCA Challenge to Armed Career Criminal application based on (a) Apprendi v. New Jersey; (b) lack of notice by government; (c) plea agreement and advice of rights during guilty plea. Sentencing Citaramanis
Aberrant behavior Motion for aberrant behavior departure in arson case. Sentencing Citaramanis
Juvenile Priors Chart showing treatment of juvenile priors under selected federal criminal statutes. Sentencing Case
Bar uncounseled prior Motion to bar sentencing use of uncounseled prior where no valid waiver of counsel occurred. Sentencing Corcoran
Extreme conduct Sentencing memorandum arguing for diminished capacity (5K2.13) departure and arguing against (a) "organizer" (3B1.1) adjustment where abuse of trust (3B1.3) adjustment applies and (b) "extreme conduct" (5K2.8) departure. Sentencing Wyda
Coram nobis Maryland state court petition for writ of error coram nobis seeking to vacate uncounseled prior which otherwise would enhance federal sentence. Sentencing Christopher
Feeney sealing order Proposed order barring further disclosure of presentence reports by DOJ and Congressional Comittees to whom they must be disclosed under the PROTECT Act. Sentencing Barrett
Proposed departure findings Sample proposed specific findings of fact in support of downward departures, designed to provide record support for departures on de novo review pursuant to the Protect Act. Sentencing Barrett
Feeney Wade Motion challenging government's refusal to move for third acceptance level under USSG sec. 3E1.1 Sentencing Bahl
Coram nobis - involuntary plea Coram nobis challenging voluntariness of guilty plea Sentencing Citaramanis
Fraud loss -bankruptcy Sentencing memorandum in bankruptcy fraud case contending that loss should not include pre-bankruptcy unsecured debts but only assets that would have been available to pay them absent bankruptcy. Sentencing Citaramanis
PROTECT sealing order Proposed order requiring the sealing of PSRs and other sentencing documents and prohibiting the U.S. Sentencing Commission from forwarding such documents without leave of court. Sentencing Gannett
PSR Exclusion - Protect Act Motion to exclude sensitive information from presentence reports to assure that it will not become publicly available by operation of the PROTECT Act Sentencing Bahl
Manslaughter sentencing Sentencing memorandum arguing for court to accept plea in case involving involuntary manslaughter, where upward departure is warranted by aggravating circumstances surrounding offense, and sentence also accounts for downward departure grounds in light of defendant's community and charitable works, extreme remorse, and immediate acceptance of responsibility. Sentencing Sherri Keene
ACCA Violent Felonies Chart of case authority identifying which felonies have and have not been held to operate as predicates under the Armed Career Criminal Act, 18 U.S.C. sec. 924(e) Sentencing Case
Career Offender Predicates Chart of case authority identifying which felonies have and have not been held to operate as crimes of violence predicates under USSG 4B1.1 Sentencing Case
Escape as crime of violence Sentencing memorandum contending that Maryland law of escape is sufficiently ambiguous to allow sentencing court to look beyond fact of conviction and examine facts of the case. Sentencing Anton Keating
Coram nobis - appeal dismissal Coram nobis petition seeking to vacate predicate conviction because circuit court appeal from conviction was dismissed without notice to defendant or counsel. Sentencing Michael Citaramanis
Post conviction petition Post conviction petition challenging predicate prior conviction on ground that the sentnece was illegal in including a condition of confinement. Sentencing Michael Citaramanis
Sentencing jury objection Challenge to prosecution effort to empanel sentencing jury -- theough Blakely may prohibit court from finding upward adjustments, sentencing reform act doesn't authorize jury sentencing. Sentencing Sarah Gannett
Coram nobis - involuntary plea Coram nobis challenge to predicate prior conviction on ground that plea was not knowing. Sentencing Sarah Gannett
Good conduct time challenge Habeas challenge (sec. 2241) challenging BOP's interpretation of "good time" statute, 18 USC 3624(b). Sentencing Sarah Gannett
Booker - rehabilitative efforts Early post-Booker sentencing letter stressing client's post-offense rehabilitation / recovery from addiction. Sentencing Paula Xinis
Reentry DC misdemeanors Sentencing memorandum contending (successfully) that 8-level adjustment in re-entry case is inapplicable because DC drug trafficking convictions prior to 2000 are misdemeanors and therefore not aggravated felonies. Sentencing Sherri Keene
ACCA Challenged Predicates ACCA status predicated on resisting arrest conviction challenged under Shepard v. United States, 125 S.Ct. 254 (2005). Memo also responds to government argument that predicate offense vacated on coram nobis can still serve as ACCA predicate. Sentencing Sarah Gannett