Legal Practice Tips

A First Recourse

Review of 'Proving Federal Crimes'

By James M. Peters

Proving Federal Crimes, by David Marshall Nissman; Corpus Juris Publishing Co., 411 Shadow Oak Drive, Conyers, Georgia, 2001, 686 pages, $120.00.

As a federal prosecutor, I have long been familiar with Proving Federal Crimes as one of the bibles of federal prosecution. Originally published by the U.S. Department of Justice, it went through seven editions between 1954 and 1981, but time and changes in the law had rendered it passe - a dust collector on the library shelf, a silent reminder of the way things used to be done.

Fortunately, that has changed. Oregon State Bar member and former Lane County Deputy District Attorney David Marshall Nissman has done a tremendous service by revising and updating this venerable publication for the commercial market. Nissman borrows from his quarter-century as a state and federal prosecutor to provide an up-to-date, practical and easy-to-use reference guide that should be required reading for every lawyer and agent working in the federal system. It is also valuable for all who teach or want to learn about federal criminal law.

For those looking for in-depth treatment of key issues, this is not your book. What Nissman has produced is a reference guide that makes no pretense of being an encyclopedia. Rather, it offers a concise analysis of those thorny issues that raise their heads repeatedly in federal practice. The strength of this book is that it presents these complex issues in a straightforward manner that will be as useful to agents in the field as it is to attorneys in the courtroom.

Nissman is the creative genius behind USABook, the Intranet site available only to federal prosecutors. He is also a co-author of Beating the Insanity Defense (Lexington, 1980), The Prosecution Function (Lexington, 1982) and Law of Confessions (Clark, Boardman, Callaghan, 1994). In Proving Federal Crimes he has taken the best of the historical volume, updated it, and added sections on topics the original authors could not have conceived of during their earlier revisions, such as topics relating to technology.

In the opening chapter, Nissman identifies the basic principles of a federal criminal investigation, from analyzing theinitial complaint, processing the crime scene and conducting lineups, to using fingerprint and handwriting evidence and avoiding common pitfalls in financial and tax investigations. Along the way, he updates the text with sections on DNA, digital evidence, tracing e-mail, creating computer-animated illustrations and other cutting-edge techniques that have emerged in the two decades since the volume was last published.

The next 10 chapters focus on evidence gathering, summarizing the law on search and seizure, electronic surveillance, confessions, overseas evidence, informants, immunity and other critical issues. There is an important section addressing special issues that arise when corporations or other business entities are suspected of committing crimes here. To his credit, Nissman interrupts the discourse on building a case with an important chapter on ethics, reminding prosecutors of their responsibility to do justice and use mature discretion in wielding the formidable power that is at their disposal.

Nissman then turns to pre-trial issues, including federal jurisdiction, dual and successive prosecutions, juvenile offenders, working with grand juries, detention, discovery, plea bargaining and the rules of speedy trial. These areas are full of traps for unwary practitioners. The book is helpful in navigating the demanding network of federal rules, regulations and case law, and offers subtle insights that would take years to assimilate on the job. Finally, he addresses trial issues: jury selection, common defenses, sentencing and post conviction relief.

While this book seems intended mainly for prosecutors and federal agents, I think defense attorneys will find it a useful guide to ensuring that the government dot's its 'i's' and crosses its 't's.' Particularly useful for those who question the government's handling of cases are the many references to the United States Attorney's Manual and the companion Criminal Resource Manual, which are the Department of Justice's published guidelines for initiating and prosecuting cases in federal court.

Nissman's use of materials originally produced by the Department of Justice, but now in the public domain, is especially effective. He has succeeded in blending the work of many talented writers in a way that is both concise and comprehensive, both historical and timely - all in a format both trial lawyers and agents in the field will find easy to use. Doubtless this book will be the first place to go for concise, up-to-date answers to specific questions about any number of issues related federal criminal law.

As a busy trial lawyer, I understand the need for an aid to the last-minute research that inevitably accompanies a heavy trial schedule. One thing that sets this volume apart from others is that it comes with a CD containing the entire text of the book, which makes searching for those elusive answers to questions that inevitably occur during trials much less stressful - for those who go to battle armed with a laptop computer. The CD also contains more than a dozen difficult-to-find public domain titles, including the Department of Justice's guidelines for searching and seizing computers. These alone are worth the price of the book.

This book has shortcomings, and one of them is what is missing. One of the most controversial subjects facing federal prosecutors today is the applicability of state rules of professional conduct to federal prosecutors and agents acting under their supervision. Conflict between federal prosecutors and the defense bar over this issue has been growing since the 1970s. The most recent chapter in this conflict is the so-called McDade Amendment, which became effective on April 19, 1999, and is codified at 28 U.S.C. 530B. Under this statute, a government attorney is subject to the rules of professional conduct of 'each State where such attorney engages in that attorney's duties.' 28 U.S.C. 530B(a). Differences in the various states' ethics rules have caused considerable confusion among federal prosecutors who are licensed in several states, or whose practice includes multiple jurisdictions. Some fear that they may unwittingly be committing ethics violations because of McDade, and it has had a chilling effect on some legitimate investigations. This legislation was considered so important that in the wake of its passage the Department of Justice established a new office, the Professional Responsibility Advisory Office, to counsel federal prosecutors on the statute's implications. While Nissman makes a passing reference McDade in his chapter on corporations, this edition of Proving Federal Crimes fails to give this important and timely issue the attention it deserves. Perhaps subconsciously Nissman hopes Congress will come to its senses and repeal it.

Despite this oversight, Nissman has taken a classic reference book and has expanded, updated and improved on it. The result is certain to become the first recourse for concise, insightful analysis of the many legal, technical and logistical hurdles that go into proving federal crimes. +


ABOUT THE AUTHOR

The author is an assistant U.S. attorney in Boise, Idaho. More information about the book can be found on the publisher's website at www.corpusjurispublishing.com.


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