Criminal Adjudication

Pretrial Release

-Eighth Amendment: “Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments
inflicted.”

-A court violates due process by setting bail at an unusually high

amount based on the indictment alone

-Bail set at a figure higher than an amount reasonably calculated to

ensure the defendant’s presence at trial violates the Eighth
Amendment.

18 U.S.C. § 3141(a)

18 U.S.C. § 3141(a) states that

A judicial officer authorized to order the arrest of a person

under section 3041 of this title before whom an arrested person
is brought shall order that such person be released or detained,
pending judicial proceedings, under this chapter.

18 U.S.C. § 3142(a)

18 U.S.C. § 3142(a) states that

Upon the appearance before a judicial officer of a person

charged with an offense, the judicial officer shall issue an order
that, pending trial, the person be

(1) released on personal recognizance or upon execution

of an unsecured appearance bond, under subsection (b) of
this section;

(2) released on a condition or combination of conditions

under subsection (c) of this section;

(3) temporarily detained to permit revocation of

conditional release, deportation, or exclusion under
subsection (d) of this section; or

(4) detained under subsection (e) of this section.

18 U.S.C. § 3142(b)
18 U.S.C. § 3142(b) states that

The judicial officer shall order the pretrial release of the person
on personal recognizance, or upon execution of an unsecured
appearance bond in an amount specified by the court, subject to
the condition that the person not commit a Federal, State, or
local crime during the period of release and subject to the
condition that the person cooperate in the collection of a DNA
sample from the person if the collection of such a sample is
authorized pursuant to section 3 of the DNA Analysis Backlog
Elimination Act of 2000 (42 U.S.C. 14135a), unless the judicial
officer determines that such release will not reasonably assure
the appearance of the person as required or will endanger the
safety of any other person or the community.

-Under the Federal Bail Reform Act, the baseline presumption is

release on personal recognizance or an unsecured appearance bond

18 U.S.C. § 3142(c)(1): Conditions on Release

If the prosecution can overcome the presumption contained in §

3142(b) but cannot convince the judge that the defendant needs to be
detained pending trial, the defendant will be released pursuant to 18
U.S.C. § 3142(c), which states that

(1) If the judicial officer determines that the release described in

subsection (b) of this section will not reasonably assure the
appearance of the person as required or will endanger the
safety of any other person or the community, such judicial
officer shall order the pretrial release of the person—

(A) subject to the condition that the person not commit a

Federal, State, or local crime during the period of release
and subject to the condition that the person cooperate in
the collection of a DNA sample from the person if the
collection of such a sample is authorized pursuant to
section 3 of the DNA Analysis Backlog Elimination Act of
2000 (42 U.S.C. 14135a); and

(B) subject to the least restrictive further condition, or

combination of conditions, that such judicial officer
determines will reasonably assure the appearance of the
person as required and the safety of any other person and
the community, which may include the condition that the
person
(i), remain in the custody of a designated person,
who agrees to assume supervision and to report any
violation of a release condition to the court, if the
designated person is able reasonably to assure the
judicial officer that the person will appear as
required and will not pose a danger to the safety of
any other person or the community;

-Courts are split over whether a third party

custody release can entitle a defendant to a
sentencing credit

(ii) maintain employment, or, if unemployed, actively

seek employment;

(iii) maintain or commence an educational program;

(iv) abide by specified restrictions on personal

associations, place of abode, or travel;

-a prohibition on a defendant’s cooperation

with law enforcement officials is not
appropriate absent extraordinary
circumstances which make such a condition
“truly necessary to assure a defendant’s
appearance or protect the public safety.”

(v) avoid all contact with an alleged victim of the

crime and with a potential witness who may testify
concerning the offense;

-Courts generally find no problem with no

contact order for government witnesses as
long as defense counsel has access

(vi) report on a regular basis to a designated law

enforcement agency, pretrial services agency, or
other agency;

(vii) comply with a specified curfew;

(viii) refrain from possessing a firearm, destructive

device, or other dangerous weapon;
(ix) refrain from excessive use of alcohol, or any use
of a narcotic drug or other controlled substance
without a prescription by a licensed medical
practitioner;

(x) undergo available medical, psychological, or

psychiatric treatment, including treatment for drug
or alcohol dependency, and remain in a specified
institution if required for that purpose;

-The Federal Bail Reform Act does not apply to

defendants deemed incompetent to stand trial

(xi) execute an agreement to forfeit upon failing to

appear as required, property of a sufficient
unencumbered value, including money, as is
reasonably necessary to assure the appearance of
the person as required, and shall provide the court
with proof of ownership and the value of the
property along with information regarding existing
encumbrances as the judicial office may require

-A forfeiture agreement usually won’t be

accepted absent a financial accounting

(xii) execute a bail bond with solvent sureties; who

will execute an agreement to forfeit in such amount
as is reasonably necessary to assure appearance of
the person as required and shall provide the court
with information regarding the value of the assets
and liabilities of the surety if other than an approved
surety and the nature and extent of encumbrances
against the surety’s property; such surety shall have
a net worth which shall have sufficient
unencumbered value to pay the amount of the bail
bond

(xiii) return to custody for specified hours following

release for employment, schooling, or other limited
purposes

(xiv) satisfy any other condition that is reasonably

necessary to assure the appearance of the person as
required and to assure the safety of any other
person and the community
 -In cases involving drugs, firearms, or other
illicit material, courts generally find no Fourth
Amendment problem in authorizing
warrantless searches

In any case that involves a minor victim under

[various sections] or a failure to register [as a sex
offender], any release order shall contain, at a
minimum, a condition of electronic monitoring and
each of the conditions specified at subparagraphs
(iv), (v), (vi), (vii), and (viii).

-Some courts find the Adam Walsh Act

Amendments constitutional because the judge
retains discretion about how to impose its
mandatory conditions

-Some courts find the Adam Walsh Act

Amendments unconstitutional as a violation of
procedural due process, the doctrine of the
separation of powers, and/or the Eighth
Amendment

-18 U.S.C. § 3142(c)(2): The judicial officer may not impose a financial
condition that results in the pretrial detention of the person

-18 U.S.C. § 3142(c)(2) is coextensive with the Eighth Amendment

prohibition on excessive bail

-A financial condition only violates § 3142(c)(2) if it is pretextual

-18 U.S.C. § 3142(c)(3): The judicial officer may at any time amend
the order to impose additional or different conditions of release

Detention Hearings

18 U.S.C. § 3142(f)(1): Prosecution’s Motion

-§ 3142(f)(1)(A): The prosecutor can move for a detention hearing if

the defendant is charged with one of three types of crimes:

-sex trafficking of children and trafficking of children by force,

fraud, or coercion;
 -federal crimes of terrorism, provided that the crime charged
carries a maximum punishment of 10 years or more
incarceration

-crimes of violence as defined in 18 U.S.C. §3156(a)(4)

-§ 3142(f)(1)(B): The prosecutor can move for a detention hearing if

the defendant is charged with “an offense for which the maximum
sentence is life imprisonment or death.”

-§ 3142(f)(1)(C): The prosecutor can move for a detention hearing if

the defendant is charged with a federal drug crime with a maximum
punishment of 10 years or more.

-§ 3142(f)(1)(D): The prosecutor can move for a detention hearing if

the defendant is charged with any felony if such person has been
convicted of two or more offenses described in subparagraphs (A)
through (C) of this paragraph, or two or more State or local offenses
that would have been offenses described in subparagraphs (A)
through (C) of this paragraph if a circumstance giving rise to Federal
jurisdiction had existed, or a combination of such offenses.

-§ 3142(f)(1)(E) The prosecution can move for a detention hearing if

the defendant is charged with one of three types of felonies:

any felony that is not otherwise a crime of violence that involves

a minor victim or that involves the possession or use of a
firearm or destructive device (as those terms are defined in
section 921), or any other dangerous weapon, or involves a
failure to register under section 2250 of title 18, United States
Code.

-courts are split over whether a crime attempted against

an undercover officer posing as a minor “involves a minor
victim”

18 U.S.C. § 3142(f)(2): Prosecution or Judge’s Motion

Upon motion of the attorney for the Government or upon the judicial
officer’s own motion in a case that involves:

(A) a serious risk that such person will flee

(B) a serious risk that such person will obstruct or attempt to

obstruct justice, or threaten, injure, or intimidate, or attempt to
threaten, injure, or intimidate, a prospective witness or juror.
Procedural Aspects of Detention Hearings

Scheduling

-18 U.S.C. § 3142(f) states that

The hearing shall be held immediately upon the person’s first

appearance before the judicial officer unless that person, or the
attorney for the Government, seeks a continuance. Except for
good cause, a continuance on motion of such person may not
exceed five days (not including any intermediate Saturday,
Sunday, or legal holiday), and a continuance on motion of the
attorney for the Government may not exceed three days (not
including any intermediate Saturday, Sunday, or legal holiday).

-Pursuant to § 3142(f), the defense may not seek a

continuance of more than five days (not including any
intermediate Saturday, Sunday, or legal holiday) unless
there is good cause.

-§ 3142(f) also provides that the prosecution may not seek

a continuance of more than three days (not including any
intermediate Saturday, Sunday, or legal holiday) unless
there is good cause.

-§ 3142(f) does not contain a definition of “good cause.”

-Courts are split over whether a defendant’s failure to

object to the prosecutor’s continuance motion is deemed
to have implicitly joined in the motion

Right to Counsel

-18 U.S.C. § 3142(f) states that

At the hearing, such person has the right to be represented by

counsel, and, if financially unable to obtain adequate
representation, to have counsel appointed.

Trial Rights

-18 U.S.C. § 3142(f) also states that

 The person shall be afforded an opportunity to testify, to present
witnesses, to cross-examine witnesses who appear at the
hearing, and to present information by proffer or otherwise.

-A defendant only has a conditional right to call adverse

witnesses at a detention hearing

Rules of Evidence

-18 U.S.C. § 3142(f) states that “[t]he rules concerning admissibility of

evidence in criminal trials do not apply to the presentation and
consideration of information at the hearing.”

Burden of Proof

-Pursuant to 18 U.S.C. § 3142(f),

The facts the judicial officer uses to support a finding pursuant

to subsection (e) that no condition or combination of conditions
will reasonably assure the safety of any other person and the
community shall be supported by clear and convincing evidence.

-Clear and convincing evidence is evidence that proves the

facts at issue to be “highly probable....”

-Every court to address the issue has found that the burden of flight
risk proof is a preponderance of the evidence

Reopening the Hearing

-18 U.S.C. § 3142(f) provides that

The hearing may be reopened, before or after a determination

by the judicial officer, at any time before trial if the judicial
officer finds that information exists that was not known to the
movant at the time of the hearing and that has a material
bearing on the issue whether there are conditions of release
that will reasonably assure the appearance of such person as
required and the safety of any other person and the community.

Waiver

-A defendant may waive his right to a detention hearing

-Waiver is not absolute and can be viewed as a request for an

indefinite continuance for good cause.
18 U.S.C. §3142(g): The Four Factors

-Factor One: (1) the nature and circumstances of the offense

charged, including whether the offense is a crime of violence, a
violation of section 1591, a Federal crime of terrorism, or involves a
minor victim or a controlled substance, firearm, explosive, or
destructive device

-Factor Two: (2) the weight of the evidence against the person

-This includes the weight of the evidence of the defendant’s guilt

AND

-the evidence that the defendant is a flight risk and/or a danger

to members of the community.

-Factor Three: (3) the history and characteristics of the person,

including

(A) the person’s character, physical and mental condition, family

ties, employment, financial resources, length of residence in the
community, community ties, past conduct, history relating to
drug or alcohol abuse, criminal history, and record concerning
appearance at court proceedings; and

-(B) whether, at the time of the current offense or arrest, the

person was on probation, on parole, or on other release pending
trial, sentencing, appeal, or completion of sentence for an
offense under Federal, State, or local law....

-Factor Four: (4) the nature and seriousness of the danger to any
person or the community that would be posed by the person’s
release....

Detention

-Pursuant to 18 U.S.C. § 3142(e)(1),

If, after a hearing pursuant to the provisions of subsection (f) of

this section, the judicial officer finds that no condition or
combination of conditions will reasonably assure the appearance
of the person as required and the safety of any other person and
the community, such judicial officer shall order the detention of
the person before trial.
First Presumption

-Pursuant to 18 U.S.C. § 3142(e)(2),

In a case described in subsection (f)(1) of this section, a

rebuttable presumption arises that no condition or combination
of conditions will reasonably assure the safety of any other
person and the community if such judicial officer finds that

(A) the person has been convicted of a Federal offense

that is described in subsection (f)(1) of this section, or of a
State or local offense that would have been an offense
described in subsection (f)(1) of this section if a
circumstance giving rise to Federal jurisdiction had
existed;

(B) the offense described in subparagraph (A) was

committed while the person was on release pending trial
for a Federal, State, or local offense; and

(C) a period of not more than five years has elapsed since
the date of conviction, or the release of the person from
imprisonment, for the offense described in subparagraph
(A), whichever is later.

Second Presumption

-Pursuant to 18 U.S.C. § 3142(e)(3),

Subject to rebuttal by the person, it shall be presumed that no

condition or combination of conditions will reasonably assure the
appearance of the person as required and the safety of the community
if the judicial officer finds that there is probable cause to believe that
the person committed

(A) an offense for which a maximum term of imprisonment of ten

years or more is prescribed in the Controlled Substances Act (21
U.S.C. 801 et seq.), the Controlled Substances Import and Export Act
(21 U.S.C. 951 et seq.), or chapter 705 of title 46;

(B) an offense under section 924(c), 956(a), or 2332b of this title;

(C) an offense listed in section 2332b(g)(5)(B) of title 18, United

States Code, for which a maximum term of imprisonment of 10 years
or more is prescribed;
(D) an offense under chapter 77 of this title for which a maximum
term of imprisonment of 20 years or more is prescribed; or

(E) an offense involving a minor victim under section 1201, 1591,

2241, 2242, 2244 (a)(1), 2245, 2251, 2251A, 2252 (a)(1), 2252 (a)(2),
2252 (a)(3), 2252A (a)(1), 2252A (a)(2), 2252A (a)(3), 2252A (a)(4),
2260, 2421, 2422, 2423, or 2425 of this title

18 U.S.C. §3142(h): Contents of Release Order

-First, §3142(h)(1) sets forth the general requirement that the judge
provide the defendant with a written statement of the conditions
imposed on release pursuant to 18 U.S.C. §3142(c) in language that
the defendant can understand

-Second, pursuant to § 3142(h)(2)(A), the judge must advise the

defendant of “the penalties for violating a condition of release,
including the penalties for committing an offense while on pretrial
release.”

-Third, pursuant to § 3142(h)(2)(B), the judge must advise the

defendant of “the consequences of violating a condition of release,
including the immediate issuance of a warrant for the person’s
arrest.”

-Fourth, pursuant to § 3142(h)(2)(C), the judge must advise the

defendant of the existence of 18 U.S.C. § 1503 (intimidation), § 1510
(obstruction), § 1512 (tampering) and § 1513 (retaliation)

18 U.S.C. §3142(i): Contents of Detention Order

-18 U.S.C. §3142(i) states that

In a detention order issued under subsection (e) of this section,

the judicial officer shall

(1) include written findings of fact and a written statement

of the reasons for the detention....

18 U.S.C. § 3147: Penalty for Offenses Committed While on

Release

-Pursuant to 18 U.S.C. § 3147, A person convicted of an offense

committed while released under his chapter shall be sentenced, in
addition to the sentence prescribed for the offense, to
 (1) a term of imprisonment of not more than ten years if the
offense is a felony; or

(2) a term of imprisonment of not more than one year if the

offense is a misdemeanor.

-A term of imprisonment imposed under this section shall be

consecutive to any other sentence of imprisonment.

18 U.S.C. § 3148: Sanctions for Violation of a Release Condition

-The judicial officer shall enter an order of revocation and detention if,
after a hearing, the judicial officer

(1) finds that there is

(A) probable cause to believe that the person has

committed a Federal, State, or local crime while on
release; or

(B) clear and convincing evidence that the person has

violated any other condition of release; and

(2) finds that

(A) based on the factors set forth in section 3142(g) of this

title, there is no condition or combination of conditions of
release that will assure that the person will not flee or
pose a danger to the safety of any other person or the
community; or

(B) the person is unlikely to abide by any condition or

combination of conditions of release.

-If there is probable cause to believe that, while on release, the person
committed a Federal, State, or local felony, a rebuttable presumption
arises that no condition or combination of conditions will assure that
the person will not pose a danger to the safety of any other person or
the community.

18 U.S.C. § 3148(c): Prosecution for Contempt

-The judicial officer may commence a prosecution for contempt, under

section 401 of this title, if the person has violated a condition of
release.
Bail in Capital Cases

-If a defendant is charged with a capital crime in which the death

penalty is a possible punishment, there is no federal right to bail

Prosecutorial Discretion in Charging

Burden of Proof

-For a prosecutor to charge a defendant with committing a crime, the

prosecutor must have “probable cause to believe that the accused
committed an offense defined by statute....”

-“[p]robable cause is reasonable ground of suspicion supported

by circumstances sufficiently strong in themselves to warrant a
cautious man in the belief that the party is guilty of the offense
with which he is charged.”

Selective Prosecution

-Prosecutorial decisions are subject to the presumption of regularity

under the Equal Protection Clause

-To overcome that presumption, evidence must tend to establish

that the prosecution’s decision to prosecute the defendant and
not prosecute others was based upon race, religion, or some
other arbitrary classification.

-A defendant must prove two elements to raise a viable claim of

selective prosecution: (1) discriminatory purpose; and (2)
discriminatory effect.

-To prove discriminatory purpose, the defendant must

present evidence that the decision to prosecute him was
invidious or in bad faith.

-To prove discriminatory effect, the defendant must

present evidence that similarly situated individuals of the
same race, religion, etc., were not prosecuted.

Vindictive Prosecution

-A defendant raises a rebuttable presumption of prosecutorial

vindictiveness by presenting evidence that the government increased
the number or severity of the charges against him after he exercised a
statutory, procedural, or constitutional right.
 -To raise the presumption in the pre-trial context, the defendant
must also point to an accumulation of circumstances giving rise
to a reasonable likelihood of vindictive action by the government

The Preliminary Hearing

-A preliminary hearing is held to ensure that the prosecutor’s charges

were based on probable cause

Rule 5.1(a): When a Preliminary Hearing Need Not be Held

-(1) the defendant waives the hearing;

-(2) the defendant is indicted;

-(3) the government files an information under Rule 7(b)

charging the defendant with a felony;

-(4) the government files an information charging the defendant

with a misdemeanor; or

-(5) the defendant is charged with a misdemeanor and consents

to trial before a magistrate judge.

-Federal Rule of Criminal Procedure 5.1(c) states that

The magistrate judge must hold the preliminary hearing within

a reasonable time, but no later than 14 days after the initial
appearance if the defendant is in custody and no later than 21
days if not in custody.

-Federal Rule of Criminal Procedure 5.1(e) states that

At the preliminary hearing, the defendant may cross-examine

adverse witnesses and may introduce evidence but may not
object to evidence on the ground that it was unlawfully
acquired. If the magistrate judge finds probable cause to believe
an offense has been committed and the defendant committed it,
the magistrate judge must promptly require the defendant to
appear for further proceedings.

-Federal Rule of Criminal Procedure 5.1(f) states that

If the magistrate judge finds no probable cause to believe an

offense has been committed or the defendant committed it, the
 magistrate judge must dismiss the complaint and discharge the
defendant. A discharge does not preclude the government from
later prosecuting the defendant for the same offense.

-Federal Rule of Evidence 801(d)(1)(A) indicates that a statement is

not hearsay if

The declarant testifies and is subject to cross-examination about

a prior statement, and the statement:

(A) is inconsistent with the declarant’s testimony and was

given under penalty of perjury at a trial, hearing, or other
proceeding or in a deposition....

-Federal Rule of Evidence 804(b)(1), in the case of an “unavailable”

declarant, provides an exception to the rule against hearsay for
testimony that:

(A) was given as a witness at a trial, hearing, or lawful

deposition, whether given during the current proceeding or a
different one; and

(B) is now offered against a party who had — or, in a civil case,
whose predecessor in interest had — an opportunity and similar
motive to develop it by direct, cross-, or redirect examination.

Right to Counsel

-If a defendant is not provided with an attorney before a preliminary

hearing, there is a constitutional violation.

-While the failure to appoint counsel to a defendant before a

preliminary hearing is Constitutional error, it is still subject to a
harmless error analysis.

Grand Jury

Rule 6(a)(1): Summoning a Grand Jury

-Federal Rule of Criminal Procedure 6(a)(1) provides that

When the public interest so requires, the court must order that
one or more grand juries be summoned. A grand jury must have
16 to 23 members, and the court must order that enough legally
qualified persons be summoned to meet this requirement.
Rule 6(d): Who May be Present

Federal Rule of Criminal Procedure 6(d) states as follows:

(d) Who May Be Present.

(1) While the Grand Jury Is in Session. The following persons

may be present while the grand jury is in session: attorneys for
the government, the witness being questioned, interpreters
when needed, and a court reporter or an operator of a recording
device.

(2) During Deliberations and Voting. No person other than the

jurors, and any interpreter needed to assist a hearing- impaired
or speech-impaired juror, may be present while the grand jury is
deliberating or voting.

Rule 6(e): Secrecy

Federal Rule of Criminal Procedure 6(e)(2) states that

Unless these rules provide otherwise, the following persons

must not disclose a matter occurring before the grand jury:

(i) a grand juror;

(ii) an interpreter;

(iii) a court reporter;

(iv) an operator of a recording device;

(v) a person who transcribes recorded testimony;

(vi) an attorney for the government....

Fifth Amendment Indictment Clause

-The Indictment Clause/Grand Jury Clause of the Fifth Amendment

states that

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a
grand jury, except in cases arising in the land or naval forces, or
in the militia, when in actual service in time of war or public
danger....
-The phrase “infamous crime” encompasses all felonies except for
military/war crimes.

-There is a violation of the Indictment Clause if the judge’s jury

instructions constitute a constructive amendment of the indictment by
allowing the prosecution to prove something different than the
crime(s) charged in the indictment.

Grand Jury Practice

Rules of Evidence

-The Federal Rules of Evidence do not apply at grand jury

proceedings.

Right to Counsel

-Courts across the country have found that there is no right to counsel
in connection with grand jury proceedings.

Trial Rights

Exclusionary Rule

-The exclusionary rule does not apply at grand jury proceedings.

-There is nothing to stop an unsuccessful prosecutor from re-charging

a defendant and taking the case before a new grand jury to secure an
indictment.

Exculpatory Evidence and Knowingly Perjured Testimony

-The prosecution has not duty to disclose exculpatory evidence to the

grand jury but must not present knowingly perjured testimony

Harmless Error

-A valid conviction renders any error before the grand jury harmless

-For grand jury errors asserted prior to the conclusion of trial,

dismissal of the indictment is appropriate if and only if it is
established that the violation substantially influenced the grand jury’s
decision to indict/if there is grave doubt that the decision to indict was
free from the substantial influence of such violations.
Judicial Review of the Probable Cause Determination

-A defendant is precluded from seeking dismissal of an indictment on

the ground that it was not supported by probable cause.

The Role of Defense Counsel

-Defense counsel makes all decisions except for

(i) what plea to enter; (ii) whether to waive jury trial; and (iii)
whether to testify in his or her own behalf.

-Defense counsel, however, must refrain from doing three things: (1)
presenting frivolous arguments; (2) destroying or manufacturing
evidence; and (3) suborning perjury.

-A defendant has no constitutional right to have his attorney present

evidence or testimony that his attorney believes to be false

The Right to Have Appointed Counsel

The Right to Counsel at Trial

-Sixth Amendment provides in relevant part that “[i]n all criminal

prosecutions, the accused shall enjoy the right...to have the assistance
of counsel for his defense.”

-The Sixth Amendment right to counsel only requires the appointment

of counsel to an indigent defendant in a federal or state criminal case
if the defendant is actually sentenced to a term of imprisonment.

-If a judge does not appoint counsel to an indigent defendant and

proceeds to sentence the defendant to a term of imprisonment after
conviction, an appellate judge has the option of (1) throwing out the
conviction; or (2) severing the term of imprisonment from the
punishment

-An indigent defendant cannot be forced to serve a suspended

sentence that was imposed after a trial during which there was no
appointed counsel.

The Right to Counsel on Appeal

-The government must provide an indigent defendant a copy of his

trial transcript free of charge when it is necessary for him to obtain
adequate appellate review
-An indigent defendant’s right to attorney on appeal applies to all
direct appeals

-While an indigent defendant has the right to appointed counsel for

his direct appeal, he does not have the right to appointed counsel for
any subsequent appeals.

-An indigent defendant does not have the right to appointed counsel
for any collateral appeal of his criminal conviction, such as petition for
writ of habeas corpus.

The Right to Self-Representation

The Creation of the Right

-A defendant has a constitutional right to self-representation, i.e., to

proceed pro se

Invocation of the Right

-For a defendant to ensure that his request to proceed pro se will be

granted assuming that he is competent to represent himself, the
request must be both (1) made prior to trial; and (2) clearly asserted

-If a defendant does not make a request to proceed pro se until after
the start of trial, the right to proceed pro se is subject to the trial
court’s discretion

Judicial Safeguards

The Judicial Warning

-If the defendant makes a request to proceed pro se, the judge must
do three things before granting the request:

(1) advise the defendant of the right to counsel; (2) warn the
defendant of the dangers of self-representation; and (3) ensure
that the defendant is competent to represent himself.

-Waiver of the right to counsel might be valid despite the judge’s

failure to advise the defendant of the dangers of self-representation.

Standby Counsel
-If a judge grants the defendant’s request to proceed pro se, he can
still appoint standby counsel

-If, over the pro se defendant’s objection, standby counsel (1)

substantially interferes with or controls the defense; or (2) appears to
control the defense, there is a violation of the right to self-
representation, and the defendant is entitled to a new trial.

Competence to Proceed Pro Se

-A defendant who is competent to stand trial is per se competent to

proceed pro se and plead guilty.

-A defendant’s competence to stand trial does not automatically mean

that he is competent to represent himself at trial.

No Right to Self-Representation on Appeal

-A defendant has no right to self-representation on appeal

Ineffective Assistance of Counsel

-Courts apply a two-prong approach to determine whether a

defendant received the ineffective assistance of counsel, with the
defendant bearing the burden of proving both:

-(1) that counsel’s performance “fell below an objective

standard of reasonableness” as measured by “prevailing
professional norms;” &

-(2) prejudice, i.e., “a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding
would have been different.

-Under the first prong, there is “a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional
assistance,” and the defendant must overcome the presumption that
the representation “might be considered sound trial strategy.”

-Under the second prong, the court focuses upon two things: (1) the
significance of defense counsel’s error(s); and (2) the strength of the
other evidence against the defendant.

Fifth Amendment

Invoking the Privilege

-An individual can invoke the privilege against self-incrimination in
two circumstances:

-The first circumstance is when the individual is asked a

question and an answer in itself would support a conviction
under a federal [or state] criminal statute.

-Second, an individual can invoke the Fifth Amendment privilege

if an answer would furnish a link in the chain of evidence
needed to prosecute the claimant for a federal [or state] crime.”

-Even an individual who protests his innocence can invoke the Fifth
Amendment privilege against self-incrimination.

-An individual cannot plead the Fifth if the danger that answering a
question could lead to his prosecution is of “imaginary and
unsubstantial character....”

Offers of Immunity

-Transactional immunity means that a witness cannot subsequently be

prosecuted for any crime in connection with the transaction that
formed the basis for his testimony.

-Use and derivative use immunity also suffices for Fifth Amendment
purposes:

-Use immunity literally means that the prosecution cannot

directly use the witness’ testimony to later prosecute the
witness.

-Derivative use immunity means that the government cannot use

the witness’ testimony to gather additional evidence and
interview additional people to develop a criminal case against
the witness.

-Prosecution can still proceed if the evidence that they seek to

introduce was derived from an independent source

Quashing a Subpoena

-A subpoena is a lawfully issued mandate of the court issued by the

clerk thereof ordering an individual to appear and/or produce
documents.
-A witness or party can move to quash (declare invalid) the subpoena
on grounds of lack of relevance or privilege.

The Fifth Amendment and Testimonial Acts

-The Fifth Amendment only covers “testimonial” evidence that results

from compelled communicative acts, i.e., acts which disclose the
content of one’s mind.

-The voluntary creation of documents is not testimonial for Fifth

Amendment purposes.

Pretrial Practice

Rule 12 Motions to Suppress

-Federal Rule of Criminal Procedure 12(3)(C) states that a motion to

suppress evidence “must be raised before trial....”

-Testimony from a suppression hearing is inadmissible as substantive

evidence because the admission of such evidence would violate the
Fifth Amendment.

-Many courts have held that suppression hearing testimony is

admissible as evidence of impeachment.

Rule 18 Motions to Transfer Venue

-Sixth Amendment: “in all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an impartial jury of the
state and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law....”

-Federal Rule of Criminal Procedure 18 states that Unless a statute or

these rules permit otherwise, the government must prosecute an
offense in a district where the offense was committed. The court must
set the place of trial within the district with due regard for the
convenience of the defendant, any victim, and the witnesses, and the
prompt administration of justice.

-A defendant be prosecuted in the district in which any “crucial

element” of the crime was performed.

-18 U.S.C. § 3237(a): Except as otherwise expressly provided by

enactment of Congress, any offense against the United States begun
in one district and completed in another, or committed in more than
one district, may be inquired of and prosecuted in any district in
which such offense was begun, continued, or completed....

-Federal Rule of Criminal Procedure 21(a): Upon the defendant’s

motion, the court must transfer the proceeding against that defendant
to another district if the court is satisfied that so great a prejudice
against the defendant exists in the transferring district that the
defendant cannot obtain a fair and impartial trial there.

-Failure to grant a motion to transfer venue violates due process in

one of two circumstances: If

-(1) trial in the district was or would be inherently prejudicial; or

(2) the jury-selection process permits an inference of actual

prejudice.

Discovery

Rule 16 Discovery

Rule 16(a)(1)(A):

Upon a defendant’s request, the government must disclose to the

defendant the substance of any relevant oral statement made by the
defendant, before or after arrest, in response to interrogation by a
person the defendant knew was a government agent if the
government intends to use the statement at trial.

-Federal Rule of Criminal Procedure 16(a)(1)(B)(i):

Upon a defendant's request, the government must disclose to the

defendant, and make available for inspection, copying, or
photographing, all of the following:

(i) any relevant written or recorded statement by the defendant

if:

•statement is within the government’s possession,

custody, or control; and

•the attorney for the government knows—or through due

diligence could know—that the statement exists....

-Federal Rule of Criminal Procedure 16(a)(1)(D):

 Upon a defendant’s request, the government must furnish the
defendant with a copy of the defendant’s prior criminal record
that is within the government’s possession, custody, or control if
the attorney for the government knows—or through due
diligence could know—that the record exists.

Federal Rule of Criminal Procedure 16(a)(1)(E):

Upon a defendant’s request, the government must permit the

defendant to inspect and to copy or photograph books, papers,
documents, data, photographs, tangible objects, buildings or
places, or copies or portions of any of these items, if the item is
within the government’s possession, custody, or control and:

(i) the item is material to preparing the defense;

(ii) the government intends to use the item in its case-in-

chief at trial; or

(iii) the item was obtained from or belongs to the

defendant.

Federal Rule of Criminal Procedure 16(a)(1)(F):

Upon a defendant's request, the government must permit a

defendant to inspect and to copy or photograph the results or
reports of any physical or mental examination and of any
scientific test or experiment if:

(i) the item is within the government’s possession,

custody, or control;

(ii) the attorney for the government knows—or through

due diligence could know—that the item exists; and

(iii) the item is material to preparing the defense or the

government intends to use the item in its case-in-chief at
trial.

-Federal Rule of Criminal Procedure 16(a)(1)(G):

At the defendant’s request, the government must give to the

defendant a written summary of any testimony that the
government intends to use under Rules 702, 703, or 705 of the
Federal Rules of Evidence during its case-in-chief at trial....
The Brady Doctrine

-Brady doctrine: The prosecution violates the Due Process Clause by

failing to timely disclose to the defendant material exculpatory
evidence before trial.

-Evidence is material if it would have created a reasonable

probability of a different outcome at trial.

-The Brady doctrine applies irrespective of the good faith or bad faith
of the prosecution.

-The Brady doctrine covers both substantive and impeachment

evidence

-Courts are split over whether failure to disclose inadmissible

evidence can ever form the basis for a Brady violation

The Jencks Act

-The Brady doctrine trumps the Jencks Act

-18 U.S.C. § 3500(a):

In any criminal prosecution brought by the United States, no

statement or report in the possession of the United States which
was made by a Government witness or prospective Government
witness (other than the defendant) shall be the subject of
subpoena, discovery, or inspection until said witness has
testified on direct examination in the trial of the case.

-18 § 3500(b):

After a witness called by the United States has testified on

direct examination, the court shall, on motion of the defendant,
order the United States to produce any statement (as
hereinafter defined) of the witness in the possession of the
United States which relates to the subject matter as to which
the witness has testified. If the entire contents of any such
statement relate to the subject matter of the testimony of the
witness, the court shall order it to be delivered directly to the
defendant for his examination and use.

-18 U.S.C. § 3500(c) allows the prosecution to give the original

statement to the judge so that he can redact irrelevant portions
-18 U.S.C. § 3500(d)

(d) If the United States elects not to comply with an order of the
court under subsection (b) or (c) hereof to deliver to the
defendant any such statement, or such portion thereof as the
court may direct, the court shall strike from the record the
testimony of the witness, and the trial shall proceed unless the
court in its discretion shall determine that the interests of
justice require that a mistrial be declared.

-18 U.S.C. § 3500(d) states that

The term “statement”, as used in subsections (b), (c), and (d) of

this section in relation to any witness called by the United
States, means

(1) a written statement made by said witness and signed

or otherwise adopted or approved by him;

(2) a stenographic, mechanical, electrical, or other

recording, or a transcription thereof, which is a
substantially verbatim recital of an oral statement made
by said witness and recorded contemporaneously with the
making of such oral statement; or

(3) a statement, however taken or recorded, or a

transcription thereof, if any, made by said witness to a
grand jury.

-The Jencks Act will not compel disclosure of a Government lawyer’s

recordation of mental impressions, personal beliefs, trial strategy,
legal conclusions, or anything else that “could not fairly be said to be
the witness’ own” statement.

The Destruction of Evidence

-If the government destroys (or fails to preserve) evidence that is

merely potentially exculpatory, that destruction does not violate the
Due Process Clause unless the destruction was in bad faith.

-The Due Process Clause is violated by the bad faith or good faith
destruction or failure to preserve evidence that is apparently
exculpatory if the defendant cannot obtain comparable evidence by
other reasonably available means.

Notice Obligations in Discovery Statutes

-A statute that merely compels the defendant to accelerate the timing
of his disclosure does not violate the Fifth Amendment.

-A criminal statute that places a pre-trial notice obligation on the

defendant but does not place a reciprocal notice obligation on the
prosecution violates the Due Process Clause.

Pleading

Federal Rule of Criminal Procedure 11

-Federal Rule of Criminal Procedure 11(a)(1): A defendant may plead

not guilty, guilty, or (with the court’s consent) nolo contendere.

-A plea of nolo contendere or no contest is inadmissible in

subsequent trials

-Federal Rule of Criminal Procedure 11(a)(2): With the consent of the

court and the government, a defendant may enter a conditional plea
of guilty or nolo contendere, reserving in writing the right to have an
appellate court review an adverse determination of a specified pretrial
motion. A defendant who prevails on appeal may then withdraw the
plea.

-Federal Rule of Criminal Procedure 11(a)(4): If a defendant refuses to

enter a plea or if a defendant organization fails to appear, the court
must enter a plea of not guilty.

Plea Bargaining

-Rule 11(c)(1) states that the court/judge must not participate in plea
discussions.

-If a judge errs by participating in plea discussions, the error is

subject to a harmless error analysis and is not structural error
requiring automatic reversal.

-Dismissal agreement: Rule 11(c)(1)(A) states that the plea agreement

may specify that an attorney for the government will “not bring, or
will move to dismiss, other charges....”

-Sentencing recommendation agreement: Rule 11(c)(1)(B) states that

the plea agreement may specify that an attorney for the government
will recommend, or agree not to oppose the defendant’s request, that
a particular sentence or sentencing range is appropriate (such a
recommendation or request does not bind the court)

-Sentencing agreement: Rule 11(c)(1)(C) states that the plea

agreement may specify that an attorney for the government will agree
that a specific sentence or sentencing range is the appropriate
disposition of the case (such a recommendation or request binds the
court once the court accepts the plea agreement).

-Federal Rule of Criminal Procedure 11(c)(3)(A): To the extent the

plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the
court may accept the agreement, reject it, or defer a decision until the
court has reviewed the presentence report.

-Federal Rule of Criminal Procedure 11(c)(5)

If the court rejects a plea agreement containing provisions of

the type specified in Rule 11(c)(1)(A) or (C), the court must do
the following on the record and in open court (or, for good
cause, in camera):

(A) inform the parties that the court rejects the plea
agreement;

(B) advise the defendant personally that the court is not

required to follow the plea agreement and give the
defendant an opportunity to withdraw the plea; and

(C) advise the defendant personally that if the plea is not

withdrawn, the court may dispose of the case less
favorably toward the defendant than the plea agreement
contemplated.

-Federal Rule of Criminal Procedure 11(c)(3)(B)

To the extent the plea agreement is of the type specified in Rule

11(c)(1)(B), the court must advise the defendant that the
defendant has no right to withdraw the plea if the court does
not follow the recommendation or request.

-Federal Rule of Criminal Procedure 11(d)

A defendant may withdraw a plea of guilty or nolo contendere:

(1) before the court accepts the plea, for any reason or no
reason; or
 (2) after the court accepts the plea, but before it imposes
sentence if:

(A) the court rejects a plea agreement under 11(c)

(5); or

(B) the defendant can show a fair and just reason for
requesting the withdrawal.

Characteristics of a Valid Guilty Plea

Constitutional Requirements

-For a defendant’s guilty plea to be constitutionally valid, it must be

voluntary, knowing, and intelligent, with a factual basis for the plea

-A plea is involuntary if it was the result of actual physical acts of

violence or induced by threats (or promises to discontinue improper
harassment), misrepresentation (including unfulfilled or unfulfillable
promises), or perhaps by promises that are by their nature improper
as having no proper relationship to the prosecutor’s business (e.g.
bribes).

-A plea is involuntary and unintelligent if the defendant is unaware of

the Constitutional protections that the defendant is waiving by
pleading guilty or nolo contendere.

-A defendant’s plea is deemed unintelligent and unknowing if the

defendant does not have notice of the critical elements of the crime(s)
charged.

-Even in the absence of an explicit indication of notice of the

elements, such notice can typically be presumed.

-Rule 11(b)(2): Before accepting a plea of guilty or nolo contendere,

the court must address the defendant personally in open court and
determine that the plea is voluntary and did not result from force,
threats, or promises (other than promises in a plea agreement).

-Rule 11(b)(3): Before entering judgment on a guilty plea, the court

must determine that there is a factual basis for the plea.

-Alford plea: there is a proper factual basis for a defendant’s guilty

plea even if the defendant claims that he is innocent as long as he
acknowledges that there is sufficient evidence to prove his guilt
beyond a reasonable doubt.

Brady and Guilty Pleas

-The Brady doctrine does not require the prosecution to disclose to

the defendant material impeachment evidence before he pleads guilty
or enters into a binding plea agreement.

Prosecutorial Misconduct

-A prosecutor can make and carry out a legal threat to increase the
charges against a defendant unless a plea agreement is reached.

-The prosecution cannot use the plea bargaining process as an

attempt to forestall or prevent the defendant’s potential civil case
against the government.

Breach of a Plea Agreement

When is There a Breach?

-If the defendant commits a material breach of a plea agreement, he is

no longer entitled to the benefit of the bargain, and the plea
agreement is rendered invalid.

-The same applies to the prosecution.

-Unlike with commercial contracts, courts will not find that terms are
implied-in-fact or implied-in-law in plea agreements.

Consequences of a Material Breach

-If a defendant commits a material breach of a plea agreement, he

loses the benefit of the bargain.

-If the prosecution materially breaches a plea agreement and the

defense preserves the issue by raising a timely objection, the
defendant is entitled to an automatic reversal, even without a showing
of actual prejudice.

-If the prosecution materially breaches a plea agreement, but the

defense does not preserve the issue by not timely objecting, the
defendant has to demonstrate actual prejudice, i.e., that he was
actually harmed by the prosecution’s breach.
-There are two options that a court has after it has been determined
that the prosecution has committed reversible error by materially
breaching a plea agreement:

-The first is specific performance of the plea agreement, which

would mean resentencing, with the government saying and
doing what it has promised to say and do.

-The second remedy is allowing the defendant to withdraw his

plea.

Right to Trial by Jury

When Does the Right Apply?

-Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to

a speedy and public trial, by an impartial jury of the state and
district wherein the crime shall have been committed

-A defendant is per se entitled to a right to trial by jury in cases in

which he is charged with a crime with a maximum punishment of
imprisonment in excess of six months.

-If a crime is punishable by a maximum term of incarceration of six

months or less, there is a rebuttable presumption that the crime is a
petty offense that does not entitle the defendant to the right to a trial
by jury.

-Even if a crime has a maximum punishment of six months or less

incarceration,

A defendant is entitled to a jury trial in such circumstances...if

he can demonstrate that any additional statutory penalties,
viewed in conjunction with the maximum authorized period of
incarceration, are so severe that they clearly reflect a legislative
determination that the offense in question is a “serious” one.

-If a defendant is charged with multiple petty offenses, he is not

entitled to a jury trial

Federal Rule of Criminal Procedure 23

Federal Rule of Criminal Procedure 23(a):

 If the defendant is entitled to a jury trial, the trial must be by
jury unless:

(1) the defendant waives a jury trial in writing;

(2) the government consents; and

(3) the court approves.

Federal Rule of Criminal Procedure 23(b):

(1) In General. A jury consists of 12 persons unless this rule

provides otherwise.

(2) Stipulation for a Smaller Jury. At any time before the verdict,
the parties may, with the court’s approval, stipulate in writing
that:

(A) the jury may consist of fewer than 12 persons; or

(B) a jury of fewer than 12 persons may return a verdict if

the court finds it necessary to excuse a juror for good
cause after the trial begins.

(3) Court Order for a Jury of 11. After the jury has retired to
deliberate, the court may permit a jury of 11 persons to return a
verdict, even without a stipulation by the parties, if the court
finds good cause to excuse a juror.

Unanimous Verdicts

-Federal Rule of Criminal Procedure 31(a): “[t]he jury must return its
verdict to a judge in open court. The verdict must be unanimous.”

Jury Selection and Deliberations

Fair Cross-Section of the Community

-To establish a prima facie violation of the fair-cross-section

requirement, the defendant must show:

-(1) that the group alleged to be excluded is a “distinctive”

group in the community;
 -(2) that the representation of this group in venires from which
juries are selected is not fair and reasonable in relation to the
number of such persons in the community; and

-(3) that this underrepresentation is due to systematic exclusion

of the group in the jury-selection process.

-To prove that a group is distinctive, the defendant must prove (1) that
the group be defined and limited by some clearly identifiable factor
(for example, sex or race), (2) that a common thread or basic
similarity in attitude, ideas, or experience run through the group, and
(3) that there be a community of interest among the members of the
group, such that the group's interests cannot be adequately
represented if the group is excluded from the jury selection process.

-Even after the defendant establishes the prima facie case, the State
can still respond that the way that it selects jury venires is necessary
to support a significant state interest.

Voir Dire

-Special jury questioning on racial, religious, or other similar bias is

only Constitutionally required when special factors are present that
tend to indicate that the relevant bias might play a role in the case.

-The only case that the Supreme Court has identified as per se
mandating special jury questioning is a capital case involving an
interracial crime.

Jury Challenges

Pre-Existing Knowledge

-It is not required that the jurors be totally ignorant of the facts and
issues involved, and it is sufficient if the juror can lay aside his
impression or opinion and render a verdict based on the evidence
presented in court.

Challenges

“For Cause” Challenges

-There are two ways that a venireman might be unqualified to serve as

a juror:
 -First, the venireman might be statutorily unqualified to serve
based upon, e.g., not being a U.S. citizen or not speaking
English.

-Second, the venireman might be unqualified to serve based upon

actual or implied bias.

-A defendant’s conviction must be reversed if the trial court

improperly allows or does not allow a prospective juror to be
challenged “for cause”

Peremptory Challenges

-A peremptory challenge is a challenge in which the party does not

need to state the reason(s) for the challenge.

-If a party exercises its peremptory challenges on impermissible

grounds such as race, religion, or gender, there is a violation of the
Equal Protection Clause of the Fourteenth Amendment.

-There is a three-step process to determine whether the exercise of

peremptory challenges violates the Equal Protection Clause:

-First, the party claiming a Batson violation must make a prima

facie case that the challenged strike was based on race, religion,
gender or some other impermissible ground by presenting
evidence that gives rise to an inference of discriminatory
purpose.

-Second, if a party establishes the prima facie case, the burden

of production shifts to the proponent of the challenge to come
forward with a race, religion, gender, etc. neutral explanation
for the challenge.

-Even if the proponent of the strike produces only a

frivolous or utterly nonsensical justification for its strike,
the case does not end-it merely proceeds to step three.

-Under the third element, the judge must decide whether the
opponent of the challenge has proved purposeful discrimination

-The burden of proof is on the proponent of a challenge on

discriminatory and nondiscriminatory grounds to prove that it would
have made the challenge on the neutral grounds alone.
-The Equal Protection Clause covers the discriminatory use of
peremptory challenges both by the prosecution and by the defense.

-A defendant has standing to challenge the prosecution’s use of

peremptory challenges even if he is not the same race, religion,
gender, etc., as the stricken veniremen.

-If the defendant raises a successful Batson challenge on appeal, the

result is an automatic reversal of the defendant’s conviction.

-If either party raises a successful Batson challenge during jury

selection, the trial court must quash the entire jury panel and initiate
another jury selection de novo.

Allen Charge

-If the jury is deadlocked, the judge can give an Allen charge
instructing jurors holding the minority position (whether it be “guilty”
or “not guilty”) to consider whether the majority position has validity.

Right to Testify

-Through some combination of the Fifth and Sixth Amendments, a

criminal defendant has the right to testify in his own defense.

-This right can only be overcome by a significant state interest and

that this determination must be done on a case-by-case basis as
opposed to a per se basis.

-The right of a criminal defendant to testify is not subject to waiver.

-When a defendant testifies, the prosecutor and/or the judge in

entitled to comment on the benefit that the defendant derives from
being able to hear other witnesses testify before he testifies and thus
tailor his testimony to the testimony that has already been given.

Right to Not Testify

-The Fifth Amendment prohibits the prosecutor or judge from making

adverse comments about the defendant’s decision not to testify

-If a criminal defendant chooses not to testify, he is automatically

entitled, upon request, to an instruction that the jury should draw no
inference from his failure to testify.
-The judge can give a no adverse inference instruction, even over the
defendant’s objection, as a matter of judicial housekeeping.

-If a defendant invokes his Fifth Amendment privilege and chooses not
to testify at his sentencing hearing, the judge cannot draw an adverse
inference from the defendant’s choice not to testify.

-If the defendant chooses to testify on his own behalf, he must respond
to any relevant questions by the prosecution on cross-examination.

-If the defendant testifies on direct and then refuses to answer

questions on cross-examination, the judge can either (1) strike the
defendant’s testimony from direct examination and instruct the jury
not to consider it; or (2) instruct the jury that it can infer from the
defendant’s refusal to answer certain questions that his responses
would have tended to incriminate him.

Sentencing

-Both federal and state sentencing schemes contain many mandatory

minimum sentences that form an absolute basement for sentencing

Federal Sentencing Guidelines

Supreme Court Precedent

Rights/Protections at the Sentencing Phase of Trial

-There is no problem with a judge considering the presentence report

in imposing sentence, even though that report would be inadmissible
at the guilt/innocence phase of trial.

-The Federal Rules of Evidence and the Confrontation Clause do not

apply at the sentencing phase of trial.

Sentencing Enhancements and the 6th Amendment

-The Federal Sentencing Guidelines use a “modified real offense

system” because there can be sentence adjustments under it even for
related crimes that were not charged or proven

-The Sixth Amendment requires that any fact that increases the
penalty for a crime above the statutory maximum penalty must be
submitted to the jury and proved beyond a reasonable doubt
-There is no problem with judicial fact-finding during sentencing that
increases the penalty for a crime above the mandatory minimum
sentence as long as it does not increase the penalty above the
statutory maximum.

-A judge can determine during sentencing that a defendant’s prior

crime qualifies as a sentencing enhancement

-The “statutory maximum” for Apprendi purposes is the maximum

sentence a judge may impose solely on the basis of the facts reflected
in the jury verdict or admitted by the defendant.

-The prosecutor needs to do one of two things to ensure that a fact is

considered part of the statutory maximum for Apprendi purposes: (1)
include the fact in the verdict sheet; or (2) get the defendant to
stipulate to the fact or admit to the fact on the witness stand.