Peter Vaira's Eastern District Blog

October 15, 2012

Brady Material at Sentencing in Federal Court, a Neglected Practice

Filed under: Uncategorized — by petervaira @ 5:00 am

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[1].  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[2], and Giglio v. United States[3], 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[4]

The obligation of the prosecutor to search for and turn over Brady material extends to the sentencing process.  See, United States v. Quinn[5]; United States v. Weintraub[6].  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[7].  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.[8]

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:



*        *       *

            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.

*        *       *      *

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

[2] 373 U.S. 83 (1963).

[3] 405 U.S. 150 (1972).

[4] 408 U.S. 39 (1987).

[5] 537 F. Supp. 2d  99 (D.C. Circuit 2008).

[6] 871 F.2d 1257 (Fifth Cir. 1989).

[7] 501 F. Supp. 1324 (D. Colo. 1980).

[8] 28 U.S.C. § 530(B), the McDade Amendment.

March 23, 2012

A History of the Eastern District By Former Chief Judge Harvey Bartle III

Filed under: Uncategorized — by petervaira @ 3:23 pm

Former Chief Judge Harvey Bartle III has written Mortals with Tremendous Responsibilities, a History of the United States District Court for the Eastern District of Pennsylvania, St. Joseph’s University Press.  Cost is $35.00.

Judge Bartle’s book recounts the story of this federal district court which traces its history back to 1789 and the Judiciary Act signed by President George Washington.  Highlighted are the Court’s judges, its important cases, and the growth and changes in its jurisdiction, workload, and administration over more than 220 years.

Judge Bartle said that the book grew out of a project in which the court hired a professor from Indiana Pennsylvania University in 2006 to research on the significant occurrences of the court since its inception.  After the professor completed the research, the task fell to the court to put it in a readable form. 

Judge Bartle was Chief Judge at that time, volunteered to prepare the manuscript in book form.  He said it was necessary that a lawyer who was familiar with the Court actually be the author.  Judge Bartle said he also did significant research on his own.

Copies may be purchased at the Clerk’s office for the Eastern District of Pennsylvania, Room 2609, 601 Market Street, Philadelphia, PA 19106.  Make checks payable to “St. Joseph’s University Press” in the amount of $35.00.

March 9, 2012

Court Amends Local Civil Rules 7.1 and 7.4

Filed under: Uncategorized — by petervaira @ 2:57 pm

On February 27, 2012, the Judges of the Eastern District approved a resolution effective as of that date to amend Local Civil Rule 7.1 and Local Civil Rule 7.4(b)(2).

In Rule 7.1, the party opposing a motion shall serve a brief in opposition within 14 days after service of the moving party’s motion.  This rule is extended to responses to motions filed under Federal Civil Rule 12(b) or 56.  In absence of a timely response the motion may be granted as uncontested, except as provided by Federal Rule of Civil Procedure 56.  The prior Rule 7.1 permitted 21 day responses to Rule 12(b) or Rule 56 motions.

Rule 7.4 regarding Notices and Stipulations paragraph (2) is amended to state that “in accordance with Fed. R. Civ. P. 6(b) no stipulation between the parties relating to the extension of time shall be effective until approved by the Court”.  Under the prior Rule 7.4 the Clerk of the Court could grant an extension of 30 days upon a stipulation of all parties.

January 3, 2012

Another Judge Adapts Peter Vaira’s Proposed Amendment to Local Criminal Rule 32.3.2

Filed under: Uncategorized — by petervaira @ 11:57 am

As the result of Peter Vaira’s proposed amendment to Local Criminal Rule 32.3.2, Judge Timothy J. Savage of the Eastern District of Pennsylvania amended his own required procedures in 2011 to require both prosecution and defense counsel to serve each other with any material provided to the probation officer in the sentencing procedure.  Recently Judge Berle M. Schiller amended his procedure to follow Judge Savage’s requirements.  For a copy of the proposed amendment, or Judge Savage’s order, please e-mail

November 30, 2011

The 2012 Edition Now Available

Filed under: Uncategorized — by petervaira @ 11:14 am

The 2012 edition of Eastern District Federal Practice Rules, Annotated, edited by Peter Vaira is now available for sale through the Gann Law Books website.  The URL is:  A purchase of the book provides an automatic interactive e-book access.  The book contains all rule amendments to October 24, 2011, and cases through 783 F. Supp. 2d 1353, and 275 F.R.D. 342.  The book includes extensive case annotations of the local civil and criminal federal rules (not found anywhere else), and an invaluable overview of the individual variations in practice and procedure among the Court’s Judges and Magistrate Judges as well as the Clerk’s Office Procedure Handbook.

This is a necessary workbook for anyone who has a case in the courts of the Eastern District.

November 18, 2011

Court Costs for E-Discovery

Filed under: Uncategorized — by petervaira @ 12:16 pm

In an article published in the Legal Intelligence on November 8, 2011, Peter Vaira discussed the recent decision In Re The Aspartame Antitrust Litigation.  In an order issued by Judge Legrome Davis, the Court upheld $510,137 in court costs to the prevailing party, mostly for e-discovery costs.  See In Re Aspartame Antitrust Litigation, 06-cv-1732 Order, October 5, 2011.

The court awarded costs for various e-discovery procedures which have been given a variety of interpretation by various federal district and circuit courts.  The extent of the discovery was described by the court as “staggering”.  Judge Davis’ ruling is sure to offer guidance in future litigation on such issues.  For a copy of Peter Vaira’s article please email

For a complete discussion of court costs awarded to the winning party see Vaira, Eastern District Federal Practice Rules, Comment on Local Civil Rule 54.1 (Gann Law Books).

September 28, 2011

The Luzerne County Corruption Case and the Media

Filed under: Uncategorized — by petervaira @ 2:47 pm

Peter Vaira is the moderator of a program presented at the Pennsylvania Association of Criminal Defense Lawyers on November 20, 2011 on the Luzerne County corruption cases and the media at the Ritz Carlton Hotel, Philadelphia.  Panelists are Hank Grezlak, editor of the Legal Intelligencer and Joel Slobodzian, court reporter for the Philadelphia Inquirer.  The panel will discuss mistakes defense counsel have made in statements to the press during the investigation of the Luzerne County federal investigation.

The program is part of a two day program given by PACDL on November 19 and 20, 2011.  For a complete program contact

Litigation Costs to Prevailing Party

Filed under: Uncategorized — by petervaira @ 2:46 pm

On September 13, 2011, Peter Vaira published an article in the Legal Intelligencer, Litigation Costs to the Winning Party.  The article discusses the costs that the Clerk of Court may award to the prevailing party pursuant to Local Civil Rule 54.1.  Vaira discussed the recent case of Aspartame Antitrust Litigation, 06-cv-1732 in which the Clerk awarded costs of $576,058 to the defendants in a class action suit.  For a copy of the article with the complete citations contact .  The costs in Aspartame have been appealed to the district court.  The blog will report the court’s decision.

July 26, 2011

Proving Foreign Law

Filed under: Uncategorized — by petervaira @ 12:45 pm

On July 12, 2011, Peter Vaira published an article in the Legal Intelligencer on proving the Law of a Foreign Country in Federal Court and International Arbitrations.  The subject is governed by Rule 44.1 of the Federal Rules of Civil Procedure.  The rule gives wide discretion to the trial judge who may use numerous methods to ascertain the law of the foreign country.  Judges and practicing attorneys agree that the most effective method of proving the law of a foreign country is through the testimony of an attorney practicing in that country.  Vaira included the advice of attorneys who practice international law regarding how to select an expert.  For a copy of the article with complete legal citations contact

July 18, 2011

Sample Motion for Mutual Disclosure of Material Submitted to the Probation Officer for Sentencing

Filed under: Uncategorized — by petervaira @ 3:19 pm

Presently, Local Criminal Rule 32.3.2 of the Eastern District of Pennsylvania provides that when a sentencing date is fixed, the attorney for the government will make available to the probation officer all investigative and file material relevant to the case.  There is no requirement in the Rule that this material be provided to the defense counsel.  Quite often it is not, with defense counsel often being surprised by the probation officer’s report.  There is no reason that such material should not be provided to the defense counsel.  Likewise, there is no reason government counsel should not see the material defense counsel provides to the probation officer.

The Local Criminal Rules of the Northern District of Illinois require mutual disclosure by all parties of all material presented to the probation officer.  Peter Vaira has proposed an amendment to Rule 32.3.2 which provides mutual disclosure between counsel of all material presented to the probation officer.  Peter Vaira has been told such an amendment is under consideration.  Judge Savage, on his own initiative, requires such disclosure in his Practices and Procedures.  Until an amendment is adopted, set forth below is a sample motion to be filed by defense counsel at sentencing or immediately following sentencing.  The motion is also applicable for the Middle and Western Districts of Pennsylvania, which have no requirement of mutual disclosures.

Defense counsel hereby requests that the Court enter the following order: Counsel for the government and defense counsel are directed to provide opposing counsel with copies of all material and pleadings provided to or served on the probation officer in this matter.  In the event a witness is made available to the probation officer for interview, that witness should also be made available to opposing counsel for an interview as to the substance of the information provided to the probation officer.

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