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Current Topics in Federal Criminal Defense

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Current Topics in Federal Criminal Defense THE OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE EASTERN DISTRICT OF VIRGINIA AND THE FEDERAL BAR ASSOCIATION’S CRIMINAL LAW SECTION AND ITS CHAPTERS IN NORTHERN VIRGINIA, RICHMOND, & HAMPTON ROADS PRESENT A CJA PANEL TRAINING PROGRAM CURRENT TOPICS IN FEDERAL CRIMINAL DEFENSE Wednesday, November 16, 2016, 10:30 a.m. - 3:30 p.m. Hilton Downtown Richmond, 501 East Broad Street, Richmond This page intentionally left blank for double-sided pagination and printing TABLE OF CONTENTS Program Schedule. iii Faculty Information. iv Lessons From Defending Federal Fraud Charges.. 1 Discussion overview. 1 Memorandum, Managing Large Volumes of Discovery in Federal CJA Cases (May 14, 2015). 3 Memorandum opinion and order (re. government interference with witnesses). 7 Motion reply (re. government sending of “victim notification” letters to potential defense witnesses). 14 Order (re. witnesses receiving “victim notification” letters, admissibility of certain testimony). 23 Rule 29 motion for judgment of acquittal (wire fraud, conspiracy).. 27 Rule 29 motion for judgment of acquittal (health care fraud, aggravated identity theft).. 46 Sentencing position (conspiracy to commit wire fraud).. 62 National Institute of Justice, Five Things About Deterrence (July 2014) . 100 Amendments to the U.S. Sentencing Guidelines. 101 Presentation slides.. 102 U.S. Sentencing Comm’n, Amendments to the Sentencing Guidelines (effective Aug. 1, 2016). 122 -i- Amy Baron-Evans et al., Litigating Challenges to the Amended Definition of “Crime of Violence” in § 4B1.2(a). 135 U.S. Sentencing Comm’n, Amendments to the Sentencing Guidelines (effective Nov. 1, 2016). 154 Cooperation: Preparing for Success in Dealing With the Devil.. 225 Discussion overview. 225 Sample, proffer letter.. 227 Sample, plea agreement.. 230 Sample, motion for sentence reduction.. 244 Memorandum, Public Internet Access to Plea Agreements (Mar. 20, 2008). 251 Standing Order 2013-03 (D. Md.).. 254 How to Deal With a Government Hack: Law Enforcement’s Use of Remote Search Technology. 257 Presentation slides.. 258 Search and seizure warrant. 277 Application for search warrant. 280 Affidavit in support of application. 281 Rule 41, as amended. 314 -ii- PROGRAM SCHEDULE 10:00 Program check-in begins 10:30 Opening remarks Geremy Kamens 10:35 Lessons From Defending Federal Fraud Charges Peter White Nina Ginsberg Geremy Kamens, moderator 11:35 Amendments to the U.S. Sentencing Guidelines Patrick Bryant Fran Pratt 12:35 Lunch (provided as part of program) 1:20 Cooperation: Preparing for Success in Dealing Jonathan Fahey With the Devil Dennis Fitzpatrick Rick Colgan 2:20 Break 2:30 How to Deal With a Government Hack: Law Andrew Grindrod Enforcement’s Use of Remote Search Technology 3:30 Complete evaluations and adjourn -iii- FACULTY INFORMATION PATRICK L. BRYANT Appellate Attorney, Office of the Federal Public Defender, Eastern District of Virginia Education: B.A. 1998, Duke University; J.D. 2002, Washington and Lee University School of Law Professional: Staff attorney, U.S. Court of Appeals for the Fourth Circuit, Richmond, Virginia, 2002-04 and 2005-07; law clerk, Hon. Charles R. Wilson, U.S. Court of Appeals for the Eleventh Circuit, Tampa, Florida, 2004-05; research and writing attorney, Office of the Federal Public Defender, Alexandria, Virginia, 2007-present RICHARD J. COLGAN Assistant Federal Public Defender, Eastern District of Virginia Education: B.A. 1975, State University of New York at Buffalo; J.D. 1979, University of Tennessee College of Law Professional: Weisberg and Stein, P.C. ,1980-88; private solo practice, Virginia Beach, Virginia, 1988-98; Colgan & Kimball, Virginia Beach, Virginia, 1998-2004; Colgan, Kimball & Carnes, Virginia Beach, Virginia, 2004-06; assistant public defender for Isle of Wight and Southampton Counties, 2006-07; assistant federal public defender, Norfolk, Virginia, 2007-present JONATHAN L. FAHEY Assistant U.S. Attorney, Eastern District of Virginia Education: B.S. 1994, James Madison University; J.D. 1999, University of San Diego School of Law Professional: Law clerk, Arlington County Circuit Court, Arlington, Virginia, 1999-2000; assistant Commonwealth’s attorney, Fairfax County, Virginia, 2000-02; special assistant U.S. attorney, Alexandria, -iv- Virginia, 2002-05; assistant U.S. attorney, Alexandria, Virginia, 2005-present DENNIS M. FITZPATRICK Assistant U.S. Attorney, Eastern District of Virginia Education: B.A. 1990, George Mason University; J.D. 1999, University of Maine School of Law Professional: Assistant Commonwealth’s attorney, Fairfax County, 2000-04; special assistant U.S. attorney, Alexandria, Virginia, 2005-07; assistant U.S. attorney, 2007-present; adjunct professor, George Mason University School of Law, 2012-present NINA J. GINSBERG Partner, DiMuroGinsberg, P.C., Alexandria, Virginia Education: B.A. 1973, University of Rochester; J.D. 1978, Antioch School of Law Professional: Private practice, Alexandria, Virginia, 1978-2011, with an emphasis on complex criminal litigation, including financial and corporate fraud, computer crime, national security litigation, professional ethics (individual and corporate defendants); past and present member of numerous committees of the Virginia State Bar, Bar Association of the District of Columbia, U.S. Sentencing Commission, and National Association of Criminal Defense Lawyers ANDREW W. GRINDROD Assistant Federal Public Defender, Eastern District of Virginia Education: B.A. 2008, Wake Forest University; J.D. 2012, University of Chicago Law School Professional: Law clerk, Hon. Paul S. Diamond, U.S. District Court, Philadelphia, Pennsylvania, 2012-13; associate, Kirkland & Ellis, -v- LLP, Washington, D.C., 2013-15; assistant federal public Defender, Norfolk, Virginia, 2015-present GEREMY C. KAMENS Federal Public Defender, Eastern District of Virginia Education: B.A. 1992, College of William and Mary; J.D. 1997, University of Virginia School of Law Professional: Law clerk, Justice Henry W. Whiting, Virginia Supreme Court, Winchester, Virginia, 1997-98; law clerk, United States District Judge Harold L. Murphy, Rome, Georgia, 1998-2000; associate, Hunton & Williams, Richmond, Virginia, 2000-02; assistant federal public defender, Norfolk, Virginia, 2002; assistant federal public defender, Alexandria, Virginia, 2002-14; acting federal public defender, 2014-15; federal public defender, 2015-present FRANCES H. PRATT Assistant Federal Public Defender, Eastern District of Virginia Education: B.A. 1986, Duke University; J.D. 1993, Duke University Professional: Law clerk, Hon. William L. Osteen, Sr., U.S. District Court, Greensboro, North Carolina, 1993-94; contract attorney, North Carolina Resource Center, Durham, North Carolina, 1994-95; staff attorney, Office of Defender Services Training Branch, Administrative Office of the United States Courts, Washington, DC, 1995-2002; appellate attorney, Office of the Federal Public Defender, Alexandria, Virginia, 2002-08; assistant federal public defender (appeals), Alexandria, Virginia, 2008-present PETER H. WHITE Partner, Schulte Roth & Zabel LLP, Washington, DC Education: B.A. 1985, University of Notre Dame; J.D. 1989, University of Virginia School of Law -vi- Professional: Law clerk, Hon. Richard L. Williams, U.S. District Court, Richmond, Virginia, 1989-90; assistant U.S. attorney, District of Columbia, 1992-97; assistant U.S. attorney, Eastern District of Virginia, 1997-99; private practice, 1999-present, serving as lead defense counsel for individuals charged with federal fraud offenses -vii- This page intentionally left blank for double-sided pagination and printing -viii- LESSONS LEARNED FROM DEFENDING FEDERAL FRAUD CHARGES Peter H. White Nina J. Ginsberg Geremy C. Kamens, moderator DISCUSSION OVERVIEW I. Discovery II. Motions Before Trial - CJA 1 - III. Motions At and After Trial IV. Sentencing - CJA 2 - - CJA 3 - - CJA 4 - - CJA 5 - - CJA 6 - Case 1:15-cr-00057-GBL Document 42 Filed 10/09/15 Page 1 of 7 PageID# 218 - CJA 7 - Case 1:15-cr-00057-GBL Document 42 Filed 10/09/15 Page 2 of 7 PageID# 219 - CJA 8 - Case 1:15-cr-00057-GBL Document 42 Filed 10/09/15 Page 3 of 7 PageID# 220 - CJA 9 - Case 1:15-cr-00057-GBL Document 42 Filed 10/09/15 Page 4 of 7 PageID# 221 - CJA 10 - Case 1:15-cr-00057-GBL Document 42 Filed 10/09/15 Page 5 of 7 PageID# 222 - CJA 11 - Case 1:15-cr-00057-GBL Document 42 Filed 10/09/15 Page 6 of 7 PageID# 223 - CJA 12 - Case 1:15-cr-00057-GBL Document 42 Filed 10/09/15 Page 7 of 7 PageID# 224 - CJA 13 - Case 1:14-cr-00278-GBL Document 57 Filed 10/17/14 Page 1 of 9 PageID# 517 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division ) UNITED STATES OF AMERICA ) ) Case No. 1:14-CR-278 v. ) ) Honorable Gerald Bruce Lee AMIR A. BAJOGHLI, M.D., ) ) Trial: October 22, 2014 Defendant. ) ) DEFENDANT’S REPLY TO GOVERNMENT’S RESPONSE TO MOTION IN LIMINE SEEKING CORRECTIVE WITNESS INSTRUCTION FOR CERTAIN PATIENT WITNESSES Defendant Amir A. Bajoghli, M.D., by and through counsel, hereby submits this Reply to the Government’s Response to the Motion in Limine Seeking Corrective Witness Instruction for Certain Patient Witnesses. (Def. Mot. (Dkt. No. 43); U.S. Resp. (Dkt. No. 55).) The pending Motion in Limine presents a simple question of law: whether the patients to whom the government sent “victim notification” letters can be considered “victims” under the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771, or Victims’ Rights and Restitution Act (“VRRA”), 42 U.S.C. § 10607, such that the government did not act improperly.
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