The Journal of The DuPage County Bar Association

Back Issues > Vol. 15 (2002-03)

Representing Defendants in Federal Criminal Cases in the Northern District of Illinois;
Procedures Before the District Court

By The Honorable John W. Darrah

An attorney intending to engage in criminal trial practice in the U.S. District Court for the Northern District of Illinois must be admitted to practice before that bar generally1 as well as before the court’s trial bar.2 The attorney should be familiar with the Federal Rules of Criminal Procedure, the U.S. District Court, Northern District of Illinois Local Criminal Rules, and the Federal Rules of Evidence. These rules are generally similar to the rules of practice in Illinois criminal trial courts. Particular attention is given below to some of these rules. The similarity or dissimilarity of these rules with corresponding Illinois law is also noted.

Procedures vary among judges; the web site for the United States District Court for the Northern District of Illinois (http://www.ilnd.uscourts.gov/) has a web page for each District Court judge which may provide certain procedures in effect for a particular judge.

Arraignment

Arraignment is set within seven days after the filing of an indictment or information if the defendant is not in custody and no later than the second business day following the filing.3 At arraignment, the attorney often waives formal reading of the charges and enters a plea of not guilty on behalf of the defendant.

Pretrial Discovery

At the time of arraignment, pretrial discovery schedules and the time for filing pretrial motions are also set. Local rule requires the parties to confer and agree, within seven days of arraignment, on a timetable and procedures for completing discovery.4 This date is usually set at the time of arraignment. Discovery includes inspecting and copying any information subject to disclosure pursuant to Fed. R. Crim. P. 16, which sets out an extensive list of information subject to disclosure to the defendant by the Government and vice versa. This rule is similar to the Illinois Supreme Court Rules controlling criminal discovery.5 Discovery also includes the preservation of written notes of government agents, identification of evidence the Government intends to introduce pursuant to Federal Rule of Evidence 404(b) (other crimes, wrongs or acts), the proffer of statements of conspirators or the so-called "Santiago proffer,"6 and the filing of material subject to 18 U.S.C. § 3500.7 These are statements and reports of government witnesses which, by statute, are not available to the defendant until the witness has completed direct examination.8 It is common practice to disclose this material prior to trial upon motion of the defendant or otherwise.

The parties may move for additional discovery within seven days of the conference.9 All pretrial motions and supporting briefs must be filed within 21 days from the date of arraignment. Specific dates within the mandated time periods, as well as a date for hearing pretrial motions, are usually set at arraignment. Hearings on motions to suppress evidence may include the introduction of evidence, including testimony of witnesses, to resolve any disputed issues of fact. This is similar to the practice in Illinois courts. Federal constitutional law controls as it does in state courts.

Setting the Trial

The date for trial is also set at the time of arraignment. Unless the Government, the defendant, and the judge agree to a bench trial, the trial will be by jury.10 The Speedy Trial Act of 1974 sets time limitations within which a defendant must be brought to trial.11 A trial must be commenced within 70 days after the later of (a) the date of the indictment or information or (b) the date of defendant’s initial appearance before a judicial officer in the district in which charges are brought.12 Certain periods of time are excluded from the time limits by statute.13 The defendant may agree to exclude certain time periods from the limitation period.

Jury Trial

The rules regarding the selection of jurors permit each side 20 peremptory challenges if the offense charged is punishable by death.14 For other felonies, the Government is entitled to six peremptory challenges; and the defendant, or defendants jointly, to 10 peremptory challenges. If there is more than one defendant, the court may allow the defendants additional peremptory challenges to be exercised jointly or separately. In misdemeanor cases, each side is permitted three challenges.15 In addition to the above challenges, one to two alternate jurors entitle each side to one challenge; three to four alternates, two peremptory challenges; and five to six alternates, three peremptory challenges.16

The conduct of voir dire is left to the trial court’s sound discretion, and litigants do not have a right to have a particular question asked.17 The court may permit the parties to examine prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the parties to supplement the examination, including the submission of such additional questions, as it deems proper.18

The procedure used during voir dire varies among the judges of the federal district courts in the Northern District of Illinois. An informal poll of the judges disclosed that many do not permit the attorneys for the parties to ask questions of the prospective jurors. Some judges allow the attorneys to question the prospective jurors; however, some first review and approve the questions. A few judges permit individual examination by the attorneys outside the presence of the other prospective jurors. Generally, the judges would ask questions proposed by the attorneys if the judge thought they were appropriate.

The method by which the attorneys exercise peremptory challenges also varies. Most judges use the so-called blind strike procedure. A certain number of jurors are examined. This number varies among the judges. Some examine all the prospective jurors in the courtroom; others, a lesser number, such as the number of people that could be seated in the jury box. After these persons are questioned, the attorneys for the Government and the defendant would each then give the judge the names of the persons to be excluded by exercise of a peremptory challenge. These names would be submitted in writing without disclosing the names to the other side. The court would then excuse the persons named. This procedure occasionally results in a prospective juror being struck by exercise of a peremptory challenge from each side. A few judges examine jurors in panels of four similar to the procedure often used by state trial court judges in Illinois.

Jury trials are conducted in the same manner as in Illinois courts. Most of the examination of witnesses is done with the attorneys at the podium, which is in a fixed position. Some attorneys move about the well from time to time while questioning witnesses. The Federal Rules of Evidence are in effect. The rules are generally a codification of the evidentiary rules known to Illinois trial lawyers. One significant exception involves the use of a prior conviction to impeach a witness in federal court,19 which is different than the Illinois rule.20 An excellent resource for practice in the federal trial court is Federal Trial Handbook by Robert S. Hunter.21 The author also authored Handbook For Illinois Trial Lawyers,22 a work familiar to many who try cases in Illinois courts.

Four of the courtrooms located on the 12th floor in the Dirksen Federal Building are equipped with special audio-visual capabilities. These courtrooms have a large screen opposite the jury box. A special projector is located next to the podium in the well of the court. There are TV monitors on the podium, both counsel tables, the witness box and the bench. Documents and tangible evidence can be displayed on the screen and on the TV monitors in the courtroom by placing them under the projector lens. The judge can control or "black-out" the screen, which permits consideration of objections to the admission of evidence which is seen on the TV monitors only and outside the view of the jury. The TV screen on the podium and the witness box is sensitive to the touch; a witness or examining attorney can emphasize a particular part of an exhibit by touching the screen with a finger which makes a resulting mark on the large screen so it can be seen by the jury. The projector is also connected to a VCR, the Internet, and can be connected to a personal computer through outlets at counsel tables. Lawyers on cases set for trial in these courtrooms can make arrangements to familiarize themselves with the equipment prior to trial.

Motions for directed verdict have been abolished in federal court.23 At the close of the evidence on either side, if the evidence is insufficient to sustain a conviction, the court, on its own motion, or motion of the defendant, shall order the entry of a judgment of acquittal. If a motion for a judgment of acquittal is denied after the close of the evidence offered by the Government, the defendant may offer evidence without having reserved the right.24 If the jury returns a verdict of guilty or fails to return a verdict, a motion for judgment of acquittal may be made within seven days after the jury is discharged or within such further time as the court may fix during the seven-day period.25

Guilty Pleas

The procedure for a plea of guilty is set out in Rule 11 of the Federal Rules of Criminal Procedure. That rule is similar in part to the rule controlling a plea of guilty in an Illinois court.26 In practice, Rule 11 involves an elaborate admonishment of the defendant under oath to determine that the defendant was competent to offer a guilty plea, that he had effective assistance of counsel, that he understands the rights waived, that there is a factual basis for the plea, and that the plea of guilty is freely and voluntarily given.27 Many judges ask the defendant’s attorney to state the explanation of the charges the attorney gave the defendant. Some judges ask the defendant’s attorney to state what he told the defendant regarding possible punishment under the statute and sentencing guidelines.

Special attention is directed to Rule 11(c), which provides that if the parties agree that upon a plea of guilty, the Government will move to dismiss other charges28 or agree that a specific sentence or sentence range is appropriate or that a particular guideline provision is or is not applicable and the court accepts the plea agreement, the agreement is binding upon the court.29 However, if the parties agree that the Government will recommend or agree not to oppose the defendant’s request for a particular sentence or sentencing range or that a particular guideline provision or the like is or is not applicable, any such recommendation or request is not binding on the court.30

A corporate defendant may only plead guilty by an authorized officer, director or managing agent or by counsel if counsel is authorized to do so by a specific corporate resolution.31

Sentencing

Immediately following the entry of a plea of guilty or upon a verdict of guilty, the defendant and his attorney must immediately report to the U.S. Probation Office to begin preparation of the presentence report.If the defendant is in custody, his attorney should contact the Probation Department.32 The attorneys for the Government and the defendant are required to submit their version of the offense and serve copies upon opposing counsel.33 The Presentence Investigation Report is usually provided to the parties about two weeks before sentencing; and the defendant’s attorney can file objections to the report, as well as motions for downward departure, if appropriate, before sentencing. The date for a sentencing hearing and sentencing is usually set by the court at the time of entry of a guilty plea or verdict of guilty.

Conclusion

A trial lawyer experienced in Illinois criminal practice can competently and effectively represent a client in a criminal case in the federal district court in Chicago with the appropriate preparation and effort. This includes understanding the above-mentioned rules as well as the substantive law of each charge against the defendant and the applicable sentencing guidelines.34 The defense attorney who is willing to make this commitment will likely find representing a client in a federal criminal proceeding a professionally rewarding experience.

1 N.D. Ill. R. 83.10.

2 N.D. Ill. R. 83.11.

3 N.D. Ill. Crim. R.10.1.

4 N.D. Ill, Crim. R. 16.1.

5 Ill. Sup. Ct. R. art. IV, Part B.

6 United States v. Santiago, 582 F.2d 1128 (7th Cir.1978).

7 N.D. Ill. Crim. R. 16.1(a)1-5.

8 18 U.S.C. § 3500(a)

9 N.D. Ill. Crim. R. 12.1(b).

10 Fed. R. Crim. P. 23(a).

11 18 U.S.C. § 3161.

12 18 U.S.C. § 3161(c).

13 18 U.S.C. § 3161(h)(1)-(9).

14 Fed. R. Crim. P. 24(b)(1).

15 Fed. R. Crim. P. 24(b)(2).

16 Fed. R. Crim. P. 24(c)(4).

17 United States v. Montenegro, 231 F.3d 389 (7th Cir. 2000).

18 Fed. R. Crim. P. 24(a).

19 Fed. R. Evid. 609.

20 See People v. Montgomery, 47 Ill.2d 510 (1971).

21 Robert S. Hunter, Federal Trial Handbook (3rd ed. 1993).

22 Robert S. Hunter, Trial Handbook for Illinois Lawyers Criminal (7th ed. 1996); Robert S. Hunter, Trial Handbook for Illinois Lawyers Criminal Sentencing (7th ed. 1997).

23 Fed. R. Crim. P. 29(a).

24 Fed. R. Crim. P. 29(a).

25 Fed. R. Crim. P. 29(c)(1).

26 Ill. S. Ct. R. 402.

27 Fed. R. Crim. P. 11(b).

28 Fed. R. Crim. P. 11(c)(1)(A).

29 Fed. R. Crim. P. 11(c)(1)(C).

30 Fed. R. Crim. P. 11(c)(1)(B) (emphasis added).

31 N.D. Ill. R. 11.1.

32 N.D. Ill. R. 32.1(d).

33 N.D. Ill. R. 32.1(e).

34 U.S. Sentencing Guidelines Manual (2002).

Judge John W. Darrah is a United States District Court Judge for the Northern District of Illinois, Eastern Division. He is an Adjunct Professor at John Marshall Law School (2002 - present) and Northern Illinois University College of Law (1976-present). Judge Darrah was a DuPage County Circuit Court Judge from 1986-2000 until his appointment to the federal bench. As a practicing attorney from 1969-1986, he was both an assistant state’s attorney and an assistant public defender for DuPage County as well as a private general practitioner with the current Illinois Attorney General Jim Ryan. Judge Darrah received his Juris Doctor from Loyola University School of Law in 1969.


 
 
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