Revised March 2026
MEMORANDUM
TO: Counsel/Pro Se Parties in Criminal Cases
FROM: Judge John L. Kane
RE: Pretrial and Trial Procedures - CRIMINAL CASES
______________________________________________________________________________
TABLE OF CONTENTS
I. GENERAL PROCEDURES ..................................................................................................... 3
A. Applicable Rules .................................................................................................................. 3
B. Communications with Chambers ......................................................................................... 3
II. MOTIONS ............................................................................................................................... 3
A. Duty to Confer in Advance of Motion ................................................................................. 3
B. Format for Motions .............................................................................................................. 4
C. Index of Attached Exhibits .................................................................................................. 4
D. Speedy Trial ......................................................................................................................... 5
E. Motions for Extensions of Time........................................................................................... 5
F. Motions to Continue ............................................................................................................. 5
G. Motions in Limine ................................................................................................................ 5
H. Proposed Orders ................................................................................................................... 5
I. Timing of Motions................................................................................................................. 6
III. IN-COURT PROCEEDINGS ................................................................................................. 6
A. Courtroom Protocol ............................................................................................................ 6
B. Record of Proceedings .................................................................................................... 6
C. Exhibits ............................................................................................................................... 7
D. Timelines and Other Demonstrative Aids ........................................................................... 8
E. Witness Lists....................................................................................................................... 8
F. Depositions ........................................................................................................................... 9
G. Special Equipment (Audio/Video)....................................................................................... 9
IV. TRIALS ................................................................................................................................ 10
A. Trial Preparation Conference ............................................................................................. 10
B. Jury Instructions and Verdict Forms .................................................................................. 10
C. Trial Briefs ......................................................................................................................... 11
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D. Optional Exhibit Notebooks for Individual Jurors ............................................................ 11
E. Trial Schedule .................................................................................................................... 11
F. Jury Selection ..................................................................................................................... 12
V. PLEA AGREEMENTS.......................................................................................................... 12
A. Right to Trial ...................................................................................................................... 12
B. Treatment of Notice of Disposition ................................................................................... 12
C. Change of Plea Hearing and Plea Documents ................................................................... 12
D. Review of Plea Agreements ............................................................................................... 13
VI. SENTENCING ..................................................................................................................... 14
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I. GENERAL PROCEDURES
A. Applicable Rules
Those appearing in criminal cases in the District Court must know and follow:
(1) The Federal Rules of Criminal Procedure;
(2) The Federal Rules of Evidence;
(3) The Local Rules of Practice of the United States District Court for the District of
Colorado;
(4) The Electronic Case Filing Procedures (Criminal Cases); and
(5) These Practice Standards.
The Local Rules of Practice and Electronic Case Filing Procedures are available on the
District of Colorado website at www.cod.uscourts.gov and from the Clerk’s Office. These practice
standards and my specific forms are located under my tab on the District of Colorado website at
www.cod.uscourts.gov/JudicialOfficers/SeniorArticleIIIJudges/HonJohnLKane.aspx [hereinafter
“my website”].
B. Communications with Chambers
1. Chambers staff cannot give legal advice or grant oral requests over the telephone. Please do
not ask to speak directly with law clerks about pending matters unless previously authorized
or invited to do so. If after fully and carefully reading these Practice Standards and the Local
Rules of Practice, you still have a question about procedure, you may contact my chambers
at 303-844-6118 or Kane
[email protected].
2. Ex parte communications: Unless specifically authorized for scheduling or other purposes,
neither counsel nor pro se litigants may communicate about a case by letter, email, or
telephone to the court. All communications must be made in the form of a motion, brief,
notice, or status report, and must be served on all opposing counsel and any pro se parties.
3. For information about courtroom technology, trial preparation, submission of trial exhibits,
and courtroom protocol, please contact my courtroom deputy clerk, Bernique Abiakam, at
[email protected].
4. Parties are not to come to chambers unless their visit is authorized by my chambers in
advance.
II. MOTIONS
A. Duty to Confer in Advance of Motion
While the local criminal rules do not include an analog to D.C.COLO.LCiv.R 7.1(a) that
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imposes a duty to confer in advance of filing a motion, I expect parties and counsel in criminal
cases to make every effort to do so. By this I mean that, before filing any motion, status report,
statement, or other paper that includes a request for relief, the filing party shall have conferred or
made a reasonable, good-faith effort to confer with opposing counsel to resolve the issue in full
or in part. Parties are encouraged to discuss and agree upon collateral matters such as proposed
briefing schedules, requests for hearing, sub-issues to which they may be able to stipulate, and
other matters that can be resolved through the extension of mutual courtesies or other
demonstration of goodwill. Filings shall include a statement describing counsel’s efforts in this
regard and the matters on which agreement was reached. Certification that a telephone call or
email was directed to opposing counsel less than 24 hours before the paper was intended to be
filed and “no response” was received is per se NOT a good-faith effort.
B. Format for Motions
1. Motions and all supporting arguments should be contained in a single document. Motions
with separately filed briefs or memoranda are strongly discouraged.
2. It is not possible to predetermine the length of a good brief. Accordingly, I do not adhere to
any prescribed page limits for briefs. Counsel are expected to exercise good judgment.
Consider, however, that the longer it takes to make a point, the less likely it is to be
understood, and I will disregard string citations and repetitive arguments. Any case, statute,
or article cited in a brief as authority is accepted as certified by counsel’s signature that such
has been read and known not to have been overruled, modified, or amended. Furthermore,
counsel should bear in mind that sarcastic, rude, or ungrammatical briefs are not persuasive
and often counterproductive.
3. I prefer the body of the text and the footnotes to be in Times New Roman 12-point font. The
page numbers of motions and briefs should correspond with those given by CM/ECF, i.e., the
numbering should start with “1” and continue uninterrupted throughout the document.
4. Responses and replies shall identify by title and CM/ECF docket number the pleading or
motion to which they relate.
C. Index of Attached Exhibits
1. Each filing with an exhibit should contain an index of the exhibit(s) that accompany it as the final
page of the filing (i.e., after the Certificate of Service). Then, each exhibit should be attached to
the actual filing in CM/ECF. This includes any declaration in support of the filing, even if the
declaration has its own attachments. In the case of such declarations, the declaration should be a
single exhibit to the filing in CM/ECF and each of the attachments to the declaration should be
their own exhibits to the filing. For example, the Exhibit List on the last page of the filing would
state:
Ex. 1: Decl. of _____, dated ___
Ex. 2: Att. 1 to Decl. of _____, Email from ___ to ___, dated ___
Ex. 3: Att. 2 to Decl. of _____, . . . .
2. Restricted exhibits may necessarily be filed as separate entries in CM/ECF.
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3. If a document has already been filed in the docket, the previous entry should be cited and
the document should not be re-filed unless there is a compelling reason for doing so.
D. Speedy Trial
1. Every motion filed shall include a statement concerning the status of, and the impact the
motion may have, on the speedy trial clock.
2. Motions to exclude time from the speedy trial calculation filed by defense counsel must
include a certification that counsel has received authorization from the defendant for the
motion.
E. Motions for Extensions of Time
Motions for extension of time require a showing of good cause, which must be
established with particularity. Any motion for extension of time shall be filed as far in advance
of the deadline as possible, and no later than one business day before the date the filing would
otherwise be due.
F. Motions to Continue
Motions to continue (including motions to vacate or reset) hearings and trials will be
determined pursuant to United States v. West, 828 F.2d 1468, 1469–70 (10th Cir. 1987), unless a
party seeks to continue a hearing or trial beyond or to the Speedy Trial Act deadlines, in which
case it will be decided pursuant to the Speedy Trial Act. Motions to continue that implicate the
Speedy Trial Act must include sufficient facts and procedural history of the case to support the
findings necessary to support the continuance under United States v. Toombs, 574 F.3d 1262
(10th Cir. 2009).
Motions to continue or reset hearings and trials should be made without delay at the
earliest opportunity. Stipulations for continuance are not effective unless and until approved by
the court.
G. Motions in Limine
Motions in limine are discouraged when the motion is evidence-driven and cannot be
resolved until evidence is presented at trial. If motions in limine are deemed necessary and not
evidence-driven, they must be filed before the Trial Preparation Conference, as ordered by the
court.
H. Proposed Orders
All proposed orders should be emailed to
[email protected] in editable
Word format. The email message should identify the case name and number in the subject line
and refer to the underlying motion by CM/ECF document number.
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I. Timing of Motions
Motions filed after 4 p.m. on the last business day of the week will be ruled on no sooner
than the next business day.
III. IN-COURT PROCEEDINGS
A. Courtroom Protocol
1. Courtroom Decorum. Creating a courtroom where all litigants, witnesses, and counsel feel
welcome and respected is of utmost importance to this Court. Courtesy and civility to and
from one and all is expected. All parties should observe the following courtroom decorum:
a. Stand when the Judge enters or leaves the courtroom, when addressing the Court, and
when the jury enters or leaves the courtroom;
b. Stand at the lectern when speaking, and communicate clearly and distinctly;
c. Request permission to approach the bench; and
d. Refer to all other persons by their surnames, prefaced by the individual’s title (e.g.,
Dr., Agent, Officer, Mr. or Ms., etc.).
It will not normally be necessary for counsel to approach a witness on the stand. The
courtroom deputy, upon request of counsel, will hand a witness an exhibit.
2. Oaths. Please note and advise all persons appearing with you in court, including co-counsel,
paralegals, clients, witnesses, and spectators that oath taking is treated formally in my
courtroom. The courtroom deputy is directed to administer an oath to a jury or witness
ONLY when all other activity in the courtroom has ceased. Attorneys are directed to observe
the administration of the oath and to stop all other activity.
3. Cell phones. Please place cell phones in “silent mode” or “off” in the courtroom.
4. Interpretation. If you have questions about the need for or scheduling of interpreters, please
review the information on the Court’s website at www.cod.uscourts.gov/CourtOperations/
RulesProcedures/InterpreterInformation.aspx.
B. Record of Proceedings
1. The official record of all trials and proceedings will be taken by a court reporter. Before any
courtroom proceeding, please provide the court reporter with your business card or other
means of contacting you, as well as a glossary of unusual or technical terminology, difficult-
to-spell names, and/or acronyms. Requests for realtime or daily or hourly copy should be
communicated to the reporter as soon as practicable, no later than two weeks before the
proceeding.
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2. Transcripts of any court proceeding can be ordered directly from the court reporter sitting at
the particular hearing. If you do not remember the reporter’s name, consult the Minute Entry
for that proceeding. Court reporters’ contact information can be found at www.cod.uscourts.
gov/AbouttheDistrict/ContactUs.aspx#report.
C. Exhibits
1. When to File Exhibit Lists. For motions hearings, exhibit lists shall be filed via CM/ECF
two business days before the hearing. For trials, parties shall file a unified exhibit list via
CM/ECF and email an editable Word version to
[email protected] no later
than seven days before the Trial Preparation Conference. These requirements apply to a
defendant if he or she has identified exhibits for the hearing or trial.
2. Format of Exhibit List. Parties must use the form Exhibit List available on my website,
indicating which exhibits are stipulated and which are not and the basis for any objections.
Counsel shall stipulate to the admissibility of exhibits to the maximum extent possible. A
failure to stipulate to authenticity of any particular exhibit must set forth specific reasons for
the objection.
3. Marking Exhibits. Each party must pre-mark all exhibits that will be used or identified in a
hearing or trial. Exhibits pre-marked or exchanged before a hearing or trial may not be
admitted. The Government’s exhibits should be marked with numbers starting at 1. The
defendant’s exhibits should be marked with numbers starting with where the Government’s
proposed exhibits leave off. For example, if the Government anticipates having 300 exhibits
at trial, the defendant’s exhibit numbers will start with 301. There is no need for defendants
to seek to re-admit exhibits offered by the Government and admitted by the court. Once an
exhibit is marked whether in a hearing or at trial, that number will be permanent and no new
additional numbers should be used to mark it. Each document exhibit shall be paginated,
including any attachments thereto.
4. Paper Exhibits. Paper copies of exhibits shall be submitted in 3-ring binders and shall be
labeled with the following information: (i) caption, (ii) nature of proceeding, (iii) scheduled
date and time, and (iv) “original” or “copy.” Paper exhibits, including the set of original
exhibits, shall bear extended tabs showing the number of the exhibit. If exhibits are not
bound and labeled properly, the hearing or trial may be delayed or continued until they are.
5. Number of Sets of Exhibits.
a. Original Exhibits: At the start of every trial or evidentiary hearing, the parties shall
submit a set of original exhibits (labeled as “original”) to my courtroom deputy. The
“original” set will be for the witness stand and will be the only set that goes to the
jury room during deliberations in a jury trial.
b. Copies of Exhibits: In addition to the original exhibits, the parties shall provide three
sets of paper copies and a digital copy as follows:
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i. The paper copies shall be submitted in the same format as the original
exhibits. One set is for the opposing party, the other two are for the court. For
trials, one court copy of the parties’ proposed exhibits shall be delivered to my
chambers (not the opposing party) no later than seven days before the Trial
Preparation Conference. The original set and additional copies of the final
exhibits may be brought to the courtroom the first morning of the trial, along
with any exhibits needing to be replaced based on rulings from the Trial
Preparation Conference.
ii. The parties shall also submit their exhibits on a flash drive for the court
reporter. If an exhibit cannot be presented in digital form on a flash drive, the
party shall contact the court reporter to discuss an alternate format.
D. Timelines and Other Demonstrative Aids
1. In cases in which a sequence of events is relevant or helpful to deciding any issue presented,
the parties shall prepare a stipulated demonstrative that sets out the timeline of these events.
If any element of this timeline is disputed, the demonstrative should so indicate.
2. The parties are also encouraged to submit similar demonstrative aids for reference during the
course of their presentations if such would assist the court or the jury.
3. The parties should provide three total copies of any demonstrative aid, unless it is
prohibitively expensive or difficult to make copies of a particular demonstrative aid.
Demonstrative aids will not be provided to the jury during its deliberations, unless otherwise
ordered.
E. Witness Lists
1. When to File. For motions hearings, witness lists should be filed via CM/ECF two business
days before the hearing. For trials, the parties shall file their final witness lists via CM/ECF
no later than seven days before the Trial Preparation Conference. These requirements
apply to a defendant if he or she has identified witnesses for the hearing or trial.
2. Format. The parties should use the form Witness List available on my website. It should list
the witnesses to be called by each party in its case in chief and set forth the best estimate of
the time required for that witness for direct examination. It should also include potential
rebuttal witnesses. This witness list is counsel’s representation, upon which opposing counsel
may rely, that the witnesses listed will be present and available for testimony. The witness
list should note any testimony that is expected to occur via video teleconferencing, but such
testimony will not be permitted, unless a related motion is made and granted. The witness list
must include witnesses whose testimony is to be presented by way of deposition.
3. Witness Sequestration. Upon motion, witnesses will be sequestered until a particular
witness’s testimony is complete. Each party may retain one advisory witness throughout the
trial. If an expert witness’s testimony is based in part on observations at trial, the need for the
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witness’s presence must be disclosed not later than the Trial Preparation Conference.
F. Depositions
1. Together with Federal Rule of Criminal Procedure 15, this practice standard governs the use
of depositions in criminal proceedings.
2. At the beginning of a hearing or trial, a party shall deliver to the courtroom deputy
the original transcripts of all depositions the party intends to or may use, whether for
impeachment or otherwise.
3. For depositions to be used at a hearing, counsel shall exchange with each other their
designations of anticipated deposition and videotape deposition testimony at least seven
days before the hearing. Objections shall be filed at least two business days before the
hearing. If objections are made, the offering party should provide the court with a notebook
containing the deposition transcripts with tabs that identify the relevant testimony at least
two business days before the hearing.
4. If the parties intend to offer deposition testimony in lieu of a live witness at trial, counsel
shall exchange with each other their designations of anticipated deposition and video
deposition testimony. After the original exchange, counsel shall notify opposing counsel of
any counter-designated deposition testimony, exchange objections to all designated
testimony, and make a good-faith attempt to resolve such objections. Objections to any
portion of a proposed deposition, including a videotaped deposition, shall be filed at least
seven days before the Trial Preparation Conference. Any objectionable portion of the
deposition shall be identified with specificity, e.g., by page and line. The parties shall also
submit the transcript(s) of the designated deposition testimony to my chambers at
[email protected] before the Trial Preparation Conference. In the
transcript(s), the Government’s designations should be highlighted in yellow, defendant’s
designations should be highlighted in blue, and testimony that is the subject of an objection
should be highlighted in red. I will make every effort to resolve objections at the Trial
Preparation Conference to speed things along and to facilitate any necessary redaction.
5. For jury trials, parties shall provide a person to read the deposition answers.
6. For bench trials, depositions will not usually be read in open court. Instead, I will read them
in chambers in any requested sequence. The offering party shall provide the relevant
deposition transcript as an exhibit with its designated portions highlighted. If both parties
seek to use portions of the same deposition transcript, they shall confer beforehand and the
exhibit provided shall contain the Government’s portions highlighted in yellow and the
defendant’s in blue.
G. Special Equipment (Audio/Video)
The court has audio-visual and other special equipment that may be used by the parties.
Notify my courtroom deputy, Bernique Abiakam at Bernique
[email protected], no
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later than 14 days before a hearing or trial regarding use of such equipment or any request to
bring your own equipment through security for use in the courtroom. You may schedule a time
with Ms. Abiakam to visit the courtroom and run through your technology needs.
IV. TRIALS
A. Trial Preparation Conference
The parties will be directed to contact chambers to set the Trial Preparation Conference
and trial dates. The court will issue an order confirming the dates and specifying deadlines for
the tasks to be completed before the Conference. The Conference will be held approximately 3 to
10 days before trial. Counsel who will try the case must attend the Conference.
B. Jury Instructions and Verdict Forms
1. I place great emphasis on the preparation of narrative instructions that clearly and accurately
inform the jurors of the law that applies in a given case. Jury instructions and verdict forms
will be submitted to the court, argued, revised, and approved before trial begins. This
practice allows counsel to refer to the instructions throughout the case. In my experience, the
repeated use of the instructions results in more efficient trials and informed decision-making
by the jury.
2. The parties will jointly submit proposed jury instructions and verdict forms at least 21 days
before the Trial Preparation Conference, or as otherwise directed in the order setting the
Trial Preparation Conference. The parties shall consult and base their instructions on the
“Sample Jury Instructions-Criminal” on my website. The jury instructions shall identify the
source of the instruction and supporting authority, e.g., “Judge Kane’s Sample Instruction 2”
or “§ 103, Fed. Jury Practice, O’Malley, Grenig, and Lee (5th ed.).” Whenever practicable
and appropriate, the parties shall modify the Criminal Pattern Jury Instructions prepared by
the Criminal Pattern Jury Instruction Committee of the United States Court of Appeals for
the Tenth Circuit to the discrete issues in the case. The pattern instructions and updates may
be found online at https://www.ca10.uscourts.gov/form/criminal-pattern-jury-instructions.
Please refrain from using legalese where commonly used words are available (e.g., not
“prior” or “subsequent” but “before” and “after”). And please use the names of the
defendant(s).
3. To the maximum extent possible, the parties shall agree on one stipulated set of proposed
jury instructions. The filed Jury Instructions shall include all of the parties’ stipulated,
proposed, and counter-proposed instructions in a single, page-numbered document. Do not
submit jury instructions individually or as separate Word files. Each instruction should
be numbered (e.g., “Stipulated” or “Government’s [Defendant’s] Proposed” Instruction No.
1) for purposes of making a record at the Trial Preparation Conference. A party’s written
objection to a proposed instruction should immediately follow the objected to instruction and
accompanied by that party’s counter-proposed instruction, if any. A counter-proposed
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instruction should be a redlined version of the opposing party’s proposed instruction. For
examples on how to submit the jury instructions, see Case Nos. 16-cr-00111-JLK, Doc. 81,
and 16-cv-02327-JLK, Doc. 148. The parties are expected to work together to craft the
instructions and should exchange proposals and attempt to work through objections well
before the submission due date.
4. The parties shall submit their instructions and verdict forms via CM/ECF and email them in
an editable Word format to
[email protected].
5. In addition to any record created at the Trial Preparation Conference or other supplemental
jury instruction conference(s), counsel will be provided the opportunity to make a record of
objections before final arguments and after the close of evidence. After being sworn in, each
individual juror will also receive a notebook of instructions, which (unless otherwise
ordered) will be compiled by my staff.
C. Trial Briefs
Trial briefs identifying issues and legal authority with which you wish me to be familiar
before trial may be helpful, as may timelines or glossaries of names, technical terms,
abbreviations, or acronyms. Trial briefs must be submitted no later than seven days before the
Trial Preparation Conference.
D. Optional Exhibit Notebooks for Individual Jurors
There is technological equipment available in the courtroom for parties to utilize in
presenting exhibits to the jury and the court. However, if the parties so choose, counsel may
provide each juror with a notebook containing copies of the parties’ key exhibits to reference in
the courtroom during the trial. (Only the original set of exhibits will be available in the jury room
during deliberations.)
1. If used, counsel should confer and provide one individual juror notebook for each juror that
includes selected exhibits of each party.
2. Individual juror exhibit notebooks should include only those exhibits previously admitted
by stipulation or admitted by the court at the Trial Preparation Conference. If
additional key exhibits are admitted during the trial, the parties may provide the courtroom
deputy with copies of these additional admitted exhibits to be placed in the individual juror
exhibit notebooks.
E. Trial Schedule
Counsel will be present to deliver the exhibits and go over any last-minute items with
the courtroom deputy at 8:30 a.m. on the first day of trial. The normal trial day begins at 9:00
a.m. and continues until 4:30 p.m. Lunch recess normally is from 12:00 to 1:15 p.m. We may
continue beyond 4:30 p.m., but jurors have a right to rely on their being excused for the day no
later than 5:00 p.m. For the convenience of everyone, additional recesses are scheduled for 10:15
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to 10:30 a.m. and 3:15 to 3:30 p.m. If a recess is needed at any other time, make a request, and it
will be granted.
F. Jury Selection
1. Voir Dire. I will conduct a voir dire examination. Counsel will have 30 minutes per side to
conduct supplemental voir dire. I do not require counsel to submit voir dire questions to me
in advance, but if they choose to do so, they should be submitted at least two business days
before the Trial Preparation Conference. No questions concerning jury nullification or
agreement or disagreement with any applicable law contained in the instructions or to
be offered will be permitted.
2. Batson Challenges. Challenges pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), shall be
made and considered at the time challenges for cause are made, before the jury is sworn.
3. Note-taking and Questions. Jurors will be permitted to take notes during the trial and to
submit questions for the court and counsel in writing. Copies of juror questions will be
provided to counsel and a record made outside the presence of the jury before an answer is
given.
V. PLEA AGREEMENTS
A. Right to Trial
All defendants have a Constitutional right to a speedy and public trial. For that
reason, the failure to enter a guilty plea will have no impact on the sentence imposed.
Under no circumstance will I reward a defendant for pleading guilty. Counsel are expected
to inform their clients accordingly.
B. Treatment of Notice of Disposition
Any notice of disposition filed pursuant to D.C.COLO.LCrR 11.1(a) shall be
considered a pretrial motion within the meaning of 18 U.S.C. § 3161(h)(1)(F) for the purpose of
computing time under the Speedy Trial Act, 18 U.S.C. §§ 3161-74.
C. Change of Plea Hearing and Plea Documents
Upon the filing of a Notice of Disposition, I will set a change of plea hearing. In addition
to providing my courtroom deputy with the signed original and one copy of the Statement by
Defendant in Advance of Change of Plea and the Plea Agreement on the date of the hearing, the
documents must be emailed to my chambers at
[email protected] and
furnished to the Probation Office no less than seven days before the hearing.
I will not accept Plea Agreements or Statements in Advance of Plea that are insufficiently
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edited or tailored versions of the form documents. The defendants that appear in this Court are
entitled to be treated as individuals and with dignity and respect. As a result, any plea documents
that are submitted should be edited to be written in plain language with minimal legalese. They
also must not contain any irrelevant information or unfilled blanks. The use of the forms as drafts
is not prohibited, but each provision of each document must be particularized and any irrelevant
parts must be deleted from the final document that is tendered to the Court.
If a defendant speaks but is unable to read and write in English proficiently, the
documents must be read in full to the defendant. If a defendant does not speak English
proficiently, the parties must submit to the Court an English version of the documents along with
certified translations in the defendant’s preferred language that are signed by the defendant. I
will confirm with the defendant at the change-of-plea hearing that these requirements have been
fulfilled and, in the event that they have not, will reject the documents and vacate the hearing.
D. Review of Plea Agreements
Accepting or rejecting a proposed plea bargain is entirely a matter of judicial discretion.
Plea bargains are divided into two principal categories: sentence bargains and charge bargains.
Bargains based on or presenting agreements as to length or terms of a sentence are subject
entirely to judicial authority such that the involvement of both the prosecution and the defense in
determining sentences is strictly advisory. While permitted by Federal Rule of Criminal
Procedure 11(c)(1)(C), I will not accept a plea bargain based upon an agreed sentence or seeking
to bind the court to a specific sentence or sentence range. I personally believe doing so would be
a violation of my judicial oath. See 28 U.S.C. § 453.
A judge’s discretion is more limited when accepting or rejecting a plea agreement based
on the charges involved because deciding what charges to bring or dismiss falls within executive
authority. Nevertheless, such decisions must be supported by expressed rational justifications
related to the particular case and defendant.
In conformity with my review of all plea agreements, I will consider in detail those
containing an appellate waiver and whether the individual facts of the case indicate that such a
provision is in the public interest. Generally, I will not accept a plea agreement in which the
prosecution has informed or suggested to the defendant that it will offer a less favorable plea
bargain or will not engage in plea negotiations if the defendant files any pretrial motions.
Accepting such plea agreements would, in my judgment, endorse the extortion of guilty pleas
from defendants and thus constitute a violation of my oath. Of course, if a defendant has
independently determined that his or her best course of action is to forego filing any pretrial
motions, an advisement from the prosecution discouraging pretrial motions would not undermine
the validity of a plea agreement in the same way.
I deem it essential and morally obligatory to consider all the criteria under 18 U.S.C. §
3553 (as described in Section VI below) before determining an appropriate sentence. It should be
obvious that those factors are necessarily implicated in my decision of whether to accept or reject
a proposed plea bargain. My general practice, therefore, is to incorporate the foregoing into my
Federal Rule of Criminal Procedure 11(b)(1) advisement, conditionally accept the defendant’s
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plea if appropriate, and defer my acceptance or rejection of the plea agreement until after the
prosecution and the defendant have provided sentencing statements and the Probation Office has
submitted a presentence report.
VI. SENTENCING
Title 18, Section 3553 of the United States Criminal Code sets forth the sentencing
criteria that must be considered in imposing a sentence that is sufficient but not greater than
necessary. Counsel are certainly familiar with the complete list of factors, so I elaborate on only
a few here.
First and foremost, in sentencing a defendant, I must gain a complete understanding of
the nature and circumstances of the offense. Thus, I examine the following:
(1) The facts of the offense in specific detail, including those related not only to the
commission of the crime or crimes but to the planning and post-execution as well;
(2) Whether the totality of the circumstances might indicate or suggest patterns, series, or
continuity of unlawful behavior and damage or injury to others;
(3) The characteristics of the defendant, including his or her mental and physical health,
skills, education and occupational qualifications, capacity to learn and adapt, family
history, and previous treatments and programs; and
(4) The support available to the defendant from all sources, such as that provided by family,
friends, and religious and social organizations, in addition to plans or living arrangements
the defendant has after any period of confinement.
Second, pursuant to § 3553(a)(2), I also determine the need for the sentence imposed by
evaluating:
(1) The seriousness of the crime, including the effects on others, the need to promote respect
for the law, and provide just and commensurate punishment;
(2) What would deter the defendant from further criminal behavior;
(3) How to protect the public when violence, deviance, or other predatory behavior is
indicated; and
(4) The opportunity to provide the defendant with needed education, vocational training,
medical care, and other effective treatment programs.
While I must calculate and consider the applicable Guidelines range, see Gall v. United
States, 552 U.S. 38, 49 (2007), my sentencing inquiry always extends to each and every
applicable factor under 18 U.S.C. § 3553. Any analysis offered by the parties should as well. For
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illustrations of my sentencing objectives, read United States v. Worku, No. 12-cr-346-JLK, 2014
WL 2197537 (D. Colo. May 27, 2014); United States v. Jumaev, No. 12-cr-00033-JLK, 2018
WL 3490886 (D. Colo. Jul. 18, 2018); and United States v. Muhtorov, 329 F.Supp.3d 1289 (D.
Colo. 2018).
Regardless of whether a sentence is to be imposed after a plea agreement or trial, the
filing of detailed and individually tailored sentencing statements is the bare minimum I expect
from both the prosecution and the defendant. Case-specific reasons for recommended sentences
must be stated with particularity. If I am not satisfied with the parties’ sentencing statements or
the presentence report, I may order supplemental reports or statements. Very infrequently, I have
called witnesses or ordered examinations and reports by independent experts. Of course, full and
timely notice is provided to counsel should this situation arise.
Upon request of either or both parties or on my own motion, witnesses can be called in an
evidentiary hearing. With the court’s permission, interested persons may be permitted to address
the court without being called to testify under oath as witnesses. This latter group is afforded this
opportunity to express opinions and consists of relatives, friends or professionals such as
ministers, counselors or other therapists, and can also include victims of any offense committed
by the defendant. In this court such a hearing will almost always be scheduled after the court
receives the final Presentence Report and may be set on the same date in preface to the
sentencing.
Before a sentence is imposed, I will provide both the prosecution and the defendant’s
counsel with the opportunity to address the court and offer arguments on what constitutes an
appropriate and condign sentencing disposition. Finally, the defendant will have the opportunity
to address the court as an exercise of his or her right of allocution.
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