October 17, 2012

White Collar Crime Committee Newsletter

Brady at Sentencing in Federal Court, a Neglected Practice

By: Peter F. Vaira, Vaira & Riley, Philadelphia, PA[1]

There has been a considerable discussion of the government’s duty to disclose favorable evidence to the defendant as a result of the District Court decision in United States v. Stevens[2].  The defendant was a sitting U.S. Senator whose conviction was thrown out by the Court for the prosecutor’s failure to turn over extensive exculpatory material until nearly five months after trial.  As a result of that decision, the Attorney General issued a January 4, 2010 Memorandum to federal prosecutors regarding searching for and disclosing favorable material.  This article discusses a vastly overlooked area for Brady material, the sentencing phase. 

In Brady v. Maryland[3], and Giglio v. United States[4], the Supreme Court established the rule that defendants in a criminal trial have a due process right to receive favorable information from the prosecutor regarding the defendant’s conduct and the prosecuting witnesses’ conduct that would aid in the defense of the charges.  Although there have been varying interpretations of what is favorable, the Supreme Court has said the information must be disclosed it if would overturn a verdict of guilty by a reasonable doubt.  See, Pennsylvania v. Ritchie[5]

The obligation of the prosecutor to search for and turn over Brady material extends to the sentencing process.  See, United States v. Quinn[6]; United States v. Weintraub[7].  Indeed, Brady was a sentencing case.  The Court in Brady held that all evidence favorable to an accused whether material either to guilt or punishment  must be supplied to the defendant.  Brady has a two pronged disclosure requirement but in the words of one federal district court judge, “Prosecutors all too frequently forget about the second requirement for disclosure [punishment]”. See United States v. Feeney[8].  The ABA Rules of Professional Conduct also impose a prosecutorial obligation to turn over favorable material in the sentencing process.  Rule 3.8 (d) of the Rules of Professional Conduct requires the prosecutor to make timely disclosure to the defense and the court of all unprivileged mitigating information relating to the sentencing of the defendant.  This rule is binding on all federal prosecutors in states which have adopted it.[9]

The importance of Brady to the sentencing process is evident from the statistics of the disposition of criminal cases.  In federal court, over 85% of the criminal cases filed result in guilty pleas.  Of those that go to trial over 90% result in convictions.  Despite these figures, the search for Brady material in the sentencing process is greatly neglected by the prosecutors and defense counsel, and gets little attention from the courts.

The prosecutor’s Brady obligation in the sentencing process is even more important considering the requirements of the Federal Sentencing Guidelines.  The sentencing guidelines require the Court to make numerous findings concerning the defendant’s role in the offense, such as whether sophisticated means were used, the amount of financial loss in a fraud case, the quantity of drugs in a narcotics case, or the defendant’s actual role in a conspiracy, all of which could be affected by favorable material.  Many offenses require their own particular findings that must be made by the court.  

The standard to determine whether the material is favorable is far less stringent at sentencing than for the guilt phase.  Unlike the guilt phase where the material must affect a finding of guilty beyond a reasonable doubt, the standard at the sentencing phase is whether the material would alter a finding of preponderance of the evidence required to prove any of the sentencing guideline adjustments.  In practical terms, the test should be: whether the disclosed material would reduce the weight of evidence regarding a sentence adjustment from a preponderance (51%) to 50% or less causing the court to find the adjustment was not proven.  For example, pursuant to Section 3B1.1 of the sentencing guidelines, the defendant’s offense level may be increased by 4 levels depending upon whether the defendant was an organizer or leader of criminal activity that involves 5 or more persons.  The sentence level increase is 3 levels if the defendant was only the manager or supervisor of criminal activity involving 5 persons.  If the defendant was the organizer manager or supervisor of any other criminal activity the offense level is increased by 2.  Thus, any information that would lessen the weight of the evidence regarding any of the above factors would substantially decrease the sentence.  The calculation of loss in a fraud case is most always a subject of contention at sentencing.  Creed Black, a former prosecutor and an experienced criminal defense lawyer in Philadelphia put it this way, “the estimation of fraud loss in a criminal case is an inexact science.  If there are things in the government’s file that undercut its own numbers, those are Brady material.  In many cases the government’s loss number may be just an estimate, often one advanced by the victim in hopes of enhanced restitution.    Did the government run alternative calculations and present only the highest; did the loss methodology contain flaws which were not disclosed; does the government file reveal credits against loss; or does the government’s number include interest or penalties which the guidelines specifically exclude from loss.  These items are Brady material and must be disclosed.” 

In the sentencing process a great source of the favorable material may be found in the files and interview reports of the investigating agency.  This is especially important in a guilty plea where the defense counsel has had little opportunity to view the particulars of the government’s evidence.  The prosecutor should be directed to cause a search of those files.  The Attorney General’s January 4, 2010 directive specifically instructs the prosecutor to cause such a search of the files of the investigative agency to determine if there is any favorable Brady material.

The Brady request for sentencing material for each case will depend upon the adjustments to the base level offense required by the sentencing guidelines.  Defense counsel cannot rely upon the pre-trial motion request made pursuant to Rule 16 of Federal Rules of Criminal Procedure.  In order to formalize the process for sentencing, I propose the Court issue a standing order directed to defense counsel to particularize the adjustments to the sentence that the prosecutor should address, and the defense counsel’s request be served on the prosecutor, with a copy to the probation officer.  A draft of such an order is set out below.  I suggest that the Rules Committee of the district court consider enacting a standing order to this effect.


The defendant in this case (has entered a plea of guilty) or (been found guilty) of charges (indicate the charges).

Within ten days of this Order, defense counsel is to serve upon the government, with copies to the probation officer, any requests for favorable material pursuant to Brady v. Maryland and specifically relating to mitigation of punishment for all chapter three adjustments of the United States Sentencing Commission Guidelines Manual which are necessary to calculate the sentencing guidelines. 

Pursuant to the requirements of Brady v. Maryland the prosecution is to respond to this request by affirmatively conducting a search of the prosecution files, including evidence and interview reports in possession of the investigative agency assisting the prosecution.  The prosecution is required to make a formal response in writing.

                                                                  BY THE COURT:





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            Courts may be reluctant to require such a procedure by formal order.  It will most likely require the organized effort of the defense bar to promote the adoption of a formal order to this effect.  In the meantime, defense counsel should as a matter of course, file a motion making such a request on the prosecutor, with a copy to the probation officer.

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[1] Peter Vaira is a former United States Attorney for the Eastern District of Pennsylvania and the former Attorney in Charge of the Chicago Strike Force on Organized Crime.



[2] 1:08-cr-00231 (D.D.C. April 7, 2009).



[3] 373 U.S. 83 (1963).



[4] 405 U.S. 150 (1972).



[5] 408 U.S. 39 (1987).



[6] 537 F. Supp. 2d  99 (D.C. Circuit 2008).



[7] 871 F.2d 1257 (Fifth Cir. 1989).



[8] 501 F. Supp. 1324 (D. Colo. 1980).



[9] 28 U.S.C. § 530(B), the McDade Amendment.