§6 Pre-Trial Motions, Discovery, and Hearings


Whether proceeding with appointment of counsel, pro se or pro per with standby counsel, the defendant should research any meritorious legal issues that can be raised in a pre-trial motion. This might include challenging the array of grand jurors, jurisdictional challenges, challenges to the sufficiency of the indictment, elements of the offense or surplusage in the indictment, motions for bill of particulars or motions to dismiss.

After thoroughly exploring the discovery provided by the government and the defense’s theory of the case, the defendant may move to suppress evidence based on constitutional grounds or demand exculpatory evidence be provided by the government pursuant to supra.

Various pre-trial hearings include detention and bail hearings, suppression and motion hearings, claim of ineffective assistance of counsel hearings and status conferences. If the defendant decides to plead guilty then a Rule 11 inquiry and hearing is held instead of trial.

Most legal issues are already well-settled law pursuant to Supreme Court decisions and these take precedence over Circuit Court or district court cases. However, there are issues in dispute by the Circuit Courts or those the Supreme Court has not recently ruled on. Legal issues not ruled on by the Circuit Court are issues of first impression and these are good issues to raise on direct appeal as well as issues that the Circuit Courts have not agreed on.

A. Pre-Trial Motions and Memorandums of Law

Any meritorious legal issues raised in a pre-trial motion can only be preserved for appeal by going to trial or through a “conditional plea” of guilty. In practice, when a defendant pleads guilty or enters a plea agreement, all legal issues are waived on direct appeal and in post-conviction section 2255 motions except for claim of ineffective assistance of counsel.

Most pre-trial motions are summarily denied by the district court regardless of the merit of the legal issue. In practice, very few defendants go to trial or preserve their appeal rights through a “conditional plea” of guilty and very few prosecutors will agree to offer such agreements.

However, any jurisdictional defects can be argued anytime either pre-trial or on direct appeal. Jurisdictional defects in the indictment, when argued well, guarantee a reversal upon direct appeal. Jurisdictional defects includes insufficient allegations or any elements of the offense not included in the indictment. Challenge these in a “Motion to Dismiss for Failure to State an Offense.”

The government has the burden of proof in all criminal cases and must prove all elements of an offense at trial, or all elements of the offense must be admitted by the defendant in a Rule 11 inquiry and colloquy or plea agreement. Any elements of the offense not proven at trial or admitted by the defendant are points of appeal.

Elements of the offense might include the jurisdictional fact of affecting “interstate commerce” and must pass the “substantial effects” test if challenged pursuant to United States v. Lopez, 514 U.S. 549, 131 L.Ed.2d 695, 115 S.Ct. 1624 (1995) with few exceptions. Jurisdiction when challenged must be proven on the record. Jurisdictional defects of the indictment should be researched thoroughly. See, Russell v. United States, 369 U.S. 749, 8 L.Ed.2d 240, 82 S.Ct. 1038 (1962); United States v. Spinner, 380 F.3d 514 (3rd Cir. 1999); United States v. Caperell, 938 F.2d 975 (9th Cir. 1991)(jurisdictional defects are not waived by guilty plea).

An indictment must be a plain, concise and definite written statement of the essential facts constituting the offense charged. Fed.R.Crim.P. 7(c)(l). “Generally, an indictment is sufficient if it sets forth the elements of the charged offense so as to ensure the right of the defendant not to be placed in double jeopardy and to be informed of the offense charged.” United States v. Rodriquez, 360 F.3d 949, 958 (9th Cir. 2004).

“The purpose of a bill of particulars is to protect a defendant against a second prosecution for an inadequately described offense, and enable him to prepare an adequate defense.” Cook v. United States, 354 F.2d 529, 531 (9th Cir. 1965). A bill of particulars is “[To] inform the defendant of the nature of the charge against him with sufficient precision to enable him to prepare for trial, to avoid or minimize the danger of surprise at the time of trial, and to enable him to plead his acquittal or conviction in bar of another prosecution for the same offense when the indictment itself is too vague, and indefinite for such purposes.” United States v. Ayers, 924 F.2d 1468, 1483 (9th Cir. 1991). The court may direct the government to file a bill of particulars. Fed.R.Crim.P. 7(f).

Upon the defendant’s motion, the court may strike surplusage from the indictment or information. Fed.R.Crim.P. 7(d). The motion is justified for good cause to: (1) remove language that does not add meaning or give effect to every word; (2) remove language that does not add meaning or give effect to every word; (3) remove language that would bias or prejudice the court or jury against the defendant. The authority of the court to strike such surplusage is to be limited to doing so on defendant’s motion, in the light of the rule that the guaranty of indictment by a grand jury implies that an indictment may not be amended. See, Ex parte Bain, 121 U.S. 1, 30 L.Ed. 849, 7 S.Ct. 781 (1887). “Alias may be struck from indictment if it does not serve a useful purpose, such as identifying accused or protecting accused from double jeopardy.” United States v. Payden, 613 F.Supp. 800 (S.D.N.Y. 1985).

If there is good cause to believe the grand jury array is improper or there may have been prosecutorial misconduct during the proceedings, then file a pre-trial “Motion to Inspect Grand Jury Minutes.” Prosecutors cannot attend grand jury proceedings. To prove prosecutorial misconduct the defendant might have to subpoena the grand jurors to a hearing. Prosecutors who “shop around” to different grand juries until they find one to indict is also improper.

Rarely will the district court grant the motion to inspect grand jury minutes without serious grounds and evidence of misconduct. However, it is important to file the motion anyway to preserve the issue for appeal. If any discrepancy arises between what is presented before the grand jury and the indictment, it provides grounds to dismiss or quash the indictment.

Grand jury minutes and proceedings are presumed “regular” by the courts, but without inspection there is no way the defendant will ever know what happened in that proceeding except for any grand jury witnesses who also testify at trial.

If there is good cause to challenge, dismiss or quash the indictment, then a “Motion to Dismiss Indictment – Insufficient Allegations” can be filed and argued. If the indictment is insufficient, then a “Motion for Bill of Particulars” can be filed by the defendant. Although a bill of particulars will not cure or correct a defective indictment failing to charge an element of the offense, it can assist a defendant in preparing an adequate defense and also protect against a second prosecution for the same offense.

The government is very limited in amending the indictment without resubmitting the indictment to a grand jury. If the indictment has unnecessary language or surplusage, then a “Motion to Strike Surplusage from Indictment” can be filed by the defendant and argued. This includes any references to aliases which prejudice the defendant.

Pre-trial motions include:

  • Motion to Inspect Grand Jury Minutes
  • Motion to Dismiss for Failure to State an Offense or Jurisdictional Defect
  • Motion to Dismiss Indictment – Insufficient Allegations
  • Motion for Bill of Particulars
  • Motion to Strike Surplusage from Indictment

If the government intends to present evidence obtained from an illegal search or arrest, then the defendant should “Motion to Suppress Evidence.” If the government fails to provide exculpatory evidence the defendant believes the government has in its possession during, discovery, then the defendant should “Motion to Produce Exculpatory Evidence in its Possession.”

If defense counsel is adequate or ineffective in pre-trial matters or fails to adequately investigate the defendant’s case, then the defendant must petition the court for substitute counsel either by writing a letter to the judge or by getting defense counsel to withdraw from the case with a “Motion to Withdraw as Counsel and Appointment of New Counsel” or “Motion for Substitute Counsel.”

If the government violates the defendant’s Sixth Amendment right to a speedy trial or the Speedy Trial Act, the defendant should file a “Motion to Dismiss Without Prejudice” unless there is evidence of prosecutorial misconduct during the grand jury or pre-trial proceedings in which case file a “Motion to Dismiss With Prejudice.”

When filing “without prejudice” the government has the capacity to re-indict the defendant whereas “with prejudice” if granted by the court ends the prosecution.

Additional pre-trial motions include:

  • Motion to Suppress Evidence
  • Motion to Produce Exculpatory Evidence in its Possession
  • Motion to Withdraw as Counsel and Appointment of New Counsel
  • Motion for Substitute Counsel
  • Motion to Dismiss Without Prejudice
  • Motion to Dismiss With Prejudice

B. Suppression, Exclusion in Limine and Brady Motions

Search warrants, arrests and seizures of evidence must be executed based on probable cause and the fruits of those searches and seizures must fall within constitutional limits. Otherwise the evidence should be suppressed before trial with a “Motion to Suppress Evidence” pursuant to Fed.R.Crim.P. 12(b)(3)(C) and Fed.R.Crim.P. 41(h).

The right to object to the admission of evidence obtained by an illegal search or seizure is lost unless a timely objection is made to its introduction. Byars v. United States, 273 U.S. 28, 71 L.Ed. 520, 47 S.Ct. 248 (1927). When a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be used against him at trial on the issue of guilt unless he makes no objection. Simmons v. United States, 390 U.S. 377, 19 L.Ed.2d 1247, 88 S.Ct. 967 (1968).

The proponent of a motion to suppress evidence illegally seized has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure. Rakas v. Illinois, 439 U.S. 128, 58 L.Ed.2d 387, 99 S.Ct. 421 (1978).

Suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. Co-conspirators and co-defendants have no special standing. It is ordinarily entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he alleges and, if the allegation be disputed, that he establish that he himself was the victim of an invasion of privacy. Alderman v. United States, 394 U.S. 165, 22 L.Ed.2d 176, 89 S.Ct. 961 (1969).

To establish the required standing, a defendant must either: (1) show presence on the searched premises at the time of the search; (2) allege a proprietary or possessory interest in the premises or objects searched; (3) be charged with an offense that includes as an essential element possession of the seized evidence at the time of the contested search or seizure. The automatic standing rule in Jones v. United States, 362 U.S. 257, 4 L.Ed.2d 697, 80 S.Ct. 725 (1960) has been overruled by United States v. Salvucci, 448 U.S. 83, 65 L.Ed.2d 619, 100 S.Ct. 2547 (1980), wherein the court said: “We simply decline to use possession of a seized good as a substitute for a factual finding that the owner of the good had a legitimate expectation of privacy in the area searched.”

Illegally obtained confessions by law enforcement officers or federal agents or other testimony can be suppressed by motion. A confession stemming from custodial interrogation of the defendant is not admissible unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Custodial interrogation means questioning initiated by law enforcement officers after a person has been taken into custody of otherwise deprived of his freedom of action in any significant way. Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966).

Procedural safeguards include: (1) prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has the right to the presence of an attorney, either retained or assigned. It is possible for the defendant to waive these Miranda rights.

A “proffer agreement” is generally understood to be an agreement between a defendant and the government in a criminal case that sets forth the terms under which the defendant will provide information to the government during an interview and is intended to protect the defendant against the use of his or her statements. United States v. Lopez, 219 F.3d 343 (4th Cir. 2000).

Where evidence has been unlawfully obtained in violation of the accused’s constitutional rights and has been erroneously admitted in evidence, there must be a reversal if there was a reasonable probability that the evidence complained of might have contributed to the conviction. Fahy v. State of Conn., 375 U.S. 85, 11 L.Ed.2d 171, 84 S.Ct. 229 (1963).

Court of Appeals reviews district court’s denial of motion to suppress evidence de novo; district court’s factual findings are reviewed for clear error. United States v. Willis, 431 F.3d 709 (9th Cir. 2005).

Where evidence has been lawfully obtained and admitted, but there exists good cause to limit some portion of the evidence from the jury’s consideration during trial, the defendant should file a “Motion for Exclusion in Limine.”

Where it is discovered by the defendant that the government withheld or failed to disclose exculpatory evidence, a motion should be filed. Under Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194 (1963). The suppression of material evidence by the government requires that a new trial be ordered regardless of good or bad faith on the part of the prosecution.

A defendant who seeks to make out a successful Brady doctrine claim must establish: (1) the prosecution’s suppression of evidence; (2) the favorable character of the suppressed evidence for the defense; and (3) the materiality of the suppressed evidence.

The Brady doctrine applies in four distinct types of situations: (1) the prosecutor has not disclosed information despite a specific defense request; (2) the prosecutor has not disclosed information despite a general defense request for all exculpatory information or without any defense request at all; (3) the prosecutor knows or should know that the conviction is based on false evidence, and; (4) the prosecutor fails to disclose purely impeaching evidence not concerning a substantive issue, in the absence of a specific defense request. United States v. Anderson, 574 F.2d 1347 (5th Cir. 1978).

The U.S. attorney is the representative not of an ordinary party to a controversy but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all and whose interest, therefore, in a criminal prosecution is not that it shall win a case but that justice shall be done. Strictly speaking, there is never a real violation” unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.

The components of a Brady violation are that: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the state, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler v. Greene, 527 U.S. 263, 144 L.Ed.2.d 286, 119 S.Ct. 1936 (1999).

Exculpatory evidence cannot be kept out of the hands of the defense just because the prosecutor does not have it, where an investigating agency does. United States v. Zuno-Arce, 44 F.3d 1420 (9th Cir. 1995).

Any favorable evidence, regardless of whether requested or not, is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Whether evidence is material does not depend upon whether the defendant would more likely than not have received a different verdict with the evidence but whether in its absence he received a fair trial, that is, a trial resulting in a verdict worthy of confidence. Kyles v. Whitley, 514 U.S. 419, 131 L.Ed.2d 490, 115 S.Ct. 1555 (1995).

The Brady doctrine has been extended to cases in which the defendant failed to request disclosure. United States v. Agurs, 427 U.S. 97, 49 L.Ed.2d 342, 96 S.Ct. 2392 (1976).

If the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting his credibility falls within the rule. United States v. McClintock, 748 F.2d 1278 (9th Cir. 1984).

C. Fourth Amendment and Privacy Rights

A defendant has the Fourth Amendment right to .have evidence obtained in a criminal case by the government or any police officer or investigator done legally if said evidence was to be used against him/her. Search warrants must be executed based on probable cause sworn by affidavit and the fruits of those searches must fall within constitutional limits, otherwise the evidence can be suppressed through a “Motion to Suppress Evidence.” Similar standards apply to arrests as well.

If an arrest is illegal, all evidence obtained thereafter is “fruit of the poisonous tree.” It’s black letter law that any evidence obtained upon an illegal arrest is to be suppressed based on the “fruit of the poisonous tree” doctrine. See, United States v. Oaxaca, 233 F.3d 1154 (9th Cir. 2000).

A warrantless arrest would be illegal if not supported by probable cause, or the initial probable cause was dissipated by a continued investigation into the allegations. An arrest cannot be used as a pretext to conduct an illegal search to secure probable cause for a search warrant. See, United States v. Hernandez, 55 F.3d 443 (9th Cir.1995)(A legal stop cannot be used as a pretext to uncover unrelated crimes where there is no reasonable suspicion for the latter.).

The Ninth Circuit provides law enforcement officers guidance when probable cause exists at the beginning of an investigation, but turns out to be naught based on subsequently discovered evidence. In United States v. Ortiz-Hernandez, 427 F.3d 567, 574 (9th Cir. 2005) law enforcement was cautioned if “probable cause is established at an early state of the investigation, it may be dissipated if the investigating officer later learns additional information that decreases the likelihood the defendant has engaged, or is engaging in criminal activity.

“The continuation of even a lawful arrest violates Fourth Amendment when the police discover additional facts dissipating their earlier probable cause.” BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986). Police officers “may not disregard facts tending to dissipate probable cause.” Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988).

The Fourth Amendment prohibits unreasonable searches and seizures. Evidence obtained by means of an unlawful search seizure by federal officers is not admissable against the accused in a criminal prosecution. Mapp v. Ohio, 367 U.S. 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684 (1961).

Law enforcement officers seeking to search private property must respect a legitimate expectation of privacy in that property. Rakas v. Illinois, 439 U.S. 128, 58 L.Ed.2d 387, 99 S.Ct. 421 (1978). The determination of whether an individual has such a legitimate expectation of privacy normally embraces two discrete questions: (1) whether the individual, by his conduct, has exhibited an actual (subjective) expectation of privacy, that is, preserve something private; and (2) whether his subjective expectation of privacy is one that society is prepared to recognize as reasonable, that is, whether the individual’s expectation, viewed objectively, is justifiable under the circumstances. Smith v. Maryland, 442 U.S. 735, 61 L.Ed.2d 220, 99 S.Ct. 2577 (1979); Katz v. United States, 389 U.S. 347, 19 L.Ed.2d 576, 88 S.Ct. 507 (1967).

A person claiming a Fourth Amendment violation must, as an initial matter, demonstrate a legitimate expectation of privacy in the place searched or thing seized. The expectation of privacy is reasonable, as required to assert a Fourth Amendment violation, if it derives from a source outside the Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. United States v. Gamez-Orduno, 235 F.3d 453 (9th Cir. 2000).

Individuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer. Their expectations of privacy at the workplace may be reduced, for purposes of the Fourth Amendment’s protection against unreasonable searches, by virtue of actual office practices and procedures. United States v. Gonzalez, 300 F.3d 1048 (9th Cir. 2002).

The Supreme Court has adopted exceptions to the rule that unlawfully seized evidence must be suppressed. The first is that the connection between the lawless conduct of the police and the discovery of the challenged evidence may become so attenuated as to dissipate the taint. Nardone v. United States 308 U.S. 338, 84 L.Ed. 307, 60 S.Ct. 266 (1939). The second is that illegally seized evidence may be admitted if the same evidence was lawfully discovered through an independent source. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 64 L.Ed. 319, 40 S.Ct. 182 (1920).

The third exception, which the Supreme Court has never formally adopted but has recognized is the inevitable discovery doctrine. Under that doctrine, unlawfully seized evidence is admissable if there is no doubt that the police would have lawfully discovered the evidence later. See, United States v. Romero, 692 F.2d 699 (10th Cir. 1982).

To establish a good-faith exception to the exclusionary rule, the government has the burden of proving that its agent’s reliance upon the warrant was objectively reasonable. It is impermissible to shift the burden to the defendant to prove bad faith. United States v. Michaelian, 803 F.2d 1042 (9th Cir. 1986).

One exception to the fruit-of-the-poisonous-tree doctrine is known as the independent source doctrine. It operates to admit evidence that is actually found by legal means through sources unrelated to the illegal search. Independent source evidence is not fruit of the poisonous tree because its discovery through independent legal means does not result from the official’s illegal conduct. United States v. Ramirez-Sandoval, 872 F-.2d 1392 (9th Cir. 1989); See, Murray v. United States, 487 U.S. 533, 101 L.Ed.2d 472, 108 S.Ct. 2529 (1988).

The Fourth Amendment’s prohibition of unreasonable searches and seizures forbids law enforcement officers to conduct a warrantless search of a home pursuant to the consent of a wife when the husband was present on the scene and objected. Georgia v. Randolph, 547 U.S. 103, 164 L.Ed.2d 208, 126 S.Ct. 1515 (2006).

D. Judicial Notice and Statement of Facts

If necessary the defendant can execute a “Judicial Notice” and inform the court as to the law bearing on the case or the issue before the court. Additionally the defendant can attach a “Statement of Facts” or “Background” summary of the case or the issue before the court to the motion or as part of the legal argument in the memorandum of law.

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