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N•THIS ISSUE •es in Whil:e Co[Jar Cases Opera•:e |ienl:s Pay in Cash Be Careful! Obl:ain Evidence Abroad

4 National Association of Criminal Defense Lawyers From the President Looking Back, Moving Ahead By Martin S. Pinales Letters to the Editor July zoo7 8 Affiliate News COVER STORY By Gerald Lippert 12 9 Substantial NACDL News Assistance The SENTENCING GUIDELINES STILL ADVISORY Key to Freedom VA. INDIGENT DEFENSE SYSTEM GRADES IMPROVERD PASSENGERS CAN CHALLENGE BOGUS TRAFFIC STOPS By Mark P. Rankin and By Jack King Rachel R. May Your 22-year-old client, a repeat 43 offender charged with selling Inside NACDL cocaine and possessing a firearm, Stalwarts in Defense of Liberty faces a mandatory 25 years in prison. The federal prosecutor calls and makes an offer. By Norman L. Reimer If he is willing to set up his cocaine supplier, your client could be out of 46 prison before his 40th birthday. His reaction:"When do start?!" Book Reviews This article addresses the basics regarding how to handle a case in •" FLAKE which your federal client THE TRIAL OF A COP is cooperating with law enforcement. Cooperation in the federal system is subject to its own unique body of By Hugh Anthony Levine law and procedures. Moreover, defense counsel's skills of investigation Reviewed by Ephraim Margolin and advocacy are as important as ever. °•° THE DEVIL'S ADVOCATES GREATEST CLOSING ARGUMENTS IN CRIMINAL LAW 20 Daubert Challenges to By Michael S. Lief & H. Mitchell Caldwell Experts in Federal Reviewed by Thomas F. Liotti Criminal Cases: An 48 New Members Overlooked Defense By Michael A. Morse and 51 Verbatim Alexandra C Gaugler The criminal defense bar rarely Chaplains of the Common Good mounts serious Daubert challenges By Joseph E. Lowery to government experts in securi- ties, antitrust, and healthcare fraud cases.The authors explain how a 52 NACDL Staff Directory Daubert challenge can: (1) provide crucial insight into the govern- ment's case; (2) expose weaknesses in the government's theory; and 53 (3) lock in the testimony of the government's witness. Reviews in Review ":* JUROR CONCURRENCE *•* CORPORATE CRIME By Ellen S. Podgor Publisher Norman L. Reimer Editor Quintin Chatman 55 Practice Points Sales and Marketing James Bergmann Art Director Catherine Zlomek Criminal Complaints: Procedure in Senior Graphics Designer James Moy Detention and Preliminary Hearings Editor Emeritus Richard Bing 150 18th Street, NW, Suite 950, Washington, DC 20036 By Jeff Mueller The Champion welcomes articles for publication. Please champmag@aoLcom for information. 59 State Legislative Affairs Update By Scott Ehlers Ensure Justice and due process for persons accused of crime. 62 Classified Advertisements Foster the integrity, independence and expertise of the criminal defense profession. Promote the proper and fair administration of criminal justice.

Substantial Assistance prison gate. Yet, even a guihy plea will result in a 25-year sentence. The Key to Freedom While daydreaming about the prospect of doing trusts and estates work in Key West, your desk phone snaps you back to reality. It's the federal prosecutor with Representin• a Cooperatin• an offer if Danny will set up his cocaine supplier, the Defendant in Federat Court government will drop the firearm charge and may ask the sentencing court to impose a significantly reduced sentence. Rather than face a mandatory 25 years, Danny could be out of prison before his 40th birthday. As you are obligated to do, you inform your client of the prosecutor's offer. Danny's reaction: "When do start?!" With that, you now represent a snitch in federal our new client, Danny, has been charged with what court. is, in the of the Justice Department and This article addresses the basics regarding how to eyes Congress, one of the most heinous of crimes, for handle a case in which your federal client is cooperating which he faces a mandatory minimum of 25 years in with law enforcement. Cooperation in the federal system prison. Terrorism? Nope. Carjacking? Nah. Murder?! Not is subject to its own unique body of law and procedures. quite. He's been charged with selling 5 kilograms of pow- Moreover, defense counsel's skills of investigation and der cocaine to an undercover DEA agent. Where normal- advocacy are as important ever. Many of the topics as ly he would face a minimum 10-year stay in federal herein would warrant their own in-depth article; we prison, a prior felony drug conviction (for which he have attempted to provide a detailed summary of the served probation) doubles that and since he had an many issues at play. unloaded gun in his pocket at the time, he faces 5 years of consecutive time.' Danny, a 22-year-old kid who has Pre-Sentence Cooperation: USSG never spent so much as a day in county jail, now faces the § 5K1.1 and 18 U.S.C. § 3553(e) prospect of tasting freedom again when he is his father's age. He is petrified and desperate. United States Sentencing Guidelines [hereinafter As always, you have explored every of "USSG"] § 5K1.1 and 18 U.S.C. § 3553(e) govern pre- avenue defense. Unfortunately, the drug sale is on crystal-clear sentence substantial assistance in exchange for sentence videotape as is Danny's voluntary, post-Miranda con- reduction. USSG § 5Kl.! governs downward departures fession. The prior conviction is valid, so the enhanced from a Guidelines sentence in return for providing sub- is another unfortunate reality. A jury sentence trial stantial assistance to the government. Pursuant to 18 would do little more than walk this kid through the U.S.C. § 3553(e), a court, upon government motion, is BY MARK P. RANKIN AND RACHEL R. MAY .1.2 WWW. NACDL.ORG THE CHAMPION