As an author of considerable renown, scholar, educator, consummate trial lawyer and recipient of numerous awards and commendations from the Department of Justice and various law enforcement agencies, Supervisory Assistant United States Attorney David Marshall Nissman has applied his impressive skills to completely restructure the book as a practical, concise and comprehensive guide for judges, attorneys and investigators involved in the practice of criminal law.  Drawing upon almost twenty-five years as a trial lawyer in state and federal courts, materials from the Federal Judicial Center, Federal Public Defenders Offices, FBI, Secret Service, the Department of Justice, prosecutors and defense counsel, Nissman has produced the outstanding treatise of its kind now in circulation.  Original chapters have been updated and new sections added to cover subjects recently developed such as DNA, video surveillance, digital evidence, cellular phones, smart cards, searching and seizure of computers, Batson issues and the like.

No practitioner will want to be without a copy of Proving Federal Crimes (PFC).  Regardless of the degree of experience and sophistication, no attorney or investigator who works in this evolving area has experienced every problem and situation covered in PFC.  Experience alone will frequently not suffice to carry the day absent supporting authority.  Looking back on my own days as a fledgling Assistant United States Attorney, I wish I had the benefit of Nissman's comprehensive effort.  Armed with only a copy of the criminal code and the file, I frequently was unsure if I was on foot or horseback.  PFC would have answered the myriad of questions about "how to" while sparing me considerable unnecessary embarrassment.  If you want a ready reference complete with answers to virtually every area of criminal law and procedure, PFC is something you will definitely have in your library.

~Honorable Charles H. Turner, U.S. Attorney – District of Oregon 1982-1993; United States Department of Justice 1962-1993. Review published in Chicago Daily Law Bulletin, August 8, 2001, and The Verdict, the newsletter of the Oregon District Attorneys’ Association (7/10)

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“A must have for all Department of Justice.”  ~DOJ Librarians Council

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“Proving Federal Crimes is the best treatment of criminal law and practice ever... It should be on the bookshelf of every prosecutor, criminal defense attorney, judge, and police department."

~Dupage County Bar Journal

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I suspect that no jurisdiction in the United States relies as heavily on court-appointed attorneys as does the United States Virgin Islands.  A relatively small number of attorneys in the Virgin Islands engage in a regular criminal defense practice, and I am certainly not one of them.  Therefore I share the fate of so many practitioners here, in that I am frequently called upon to handle criminal matters, and I have little experience in the area of criminal defense.

Faced with this situation, I initially employ a tactic which many of my colleagues have confessed to me that they also employ.  I confide in my appointed client that I have only slightly more experience in criminal defense litigation than I have flying manned space missions to Mars.  I usually add that, notwithstanding, I am happy to take their case to trial, since I’ve watched many episodes of Perry Mason and I think I could get the real perpetrator to confess on the witness stand.  After hearing this, the wiser of my appointed clients immediately request that I arrange a plea bargain.

Some, however, remain recalcitrant, leaving the attorney no choice but to mount a defense.  But how does one do this in the criminal law area?  There are, I understand, a totally different set of procedural rules, and a great many statutes that I’ve never read.  In the past, I have represented defendants whose co-defendants were represented by skilled criminal attorneys.  In that case, I would try to imitate the experienced criminal defense attorney.  Once one of my defendants had a co-defendant that was represented by the Honorable Edgar Ross before his most recent service on the bench.  Attorney Ross knew his stuff. He kept demanding Jencks material.  I thought I’d better do the same, so I also demanded Jenks material.  Yet I was plagued by doubt.  What is Jenks material, I wondered?  How would I recognize it?  Was it sent to you with a packing slip saying Contents: Jencks Material?

Happily, there is now a solution to this sort of dilemma, and it comes from a source close to home.  David Nissman, long-time Assistant United States Virgin Islands, has now written an updated version of Proving Federal Crimes, a publication that had been previously issued by the United States Department of Justice from 1954 to 1980. Proving Federal Crimes is essentially a blueprint for conducting a Federal prosecution.  Organized in the rough chronology of a Federal criminal proceeding, it deals with topics ranging from the criminal investigation to pretrial proceedings, from grand jury practice to trial practice, from sentencing to post-trial proceedings.

In addition to the step-by-step analysis of the criminal justice system, the book has several unique features, many of which are valuable in civil practice.  Proving Federal Crimes has a detailed treatment of corporate prosecutions, including corporate subpoenas, corporate attorney-client privilege issues, and the value of corporate compliance programs as a method of preventing corporations from being indicted.  One of the things a commercial lawyer frequently does is make efforts to prevent corporate clients from becoming corporate criminal defendants, and this book can help those efforts.  The book also contains a comprehensive treatment of federal jurisdictional issues, investigative techniques and methods, international evidence issues, and a comprehensive chronicling of common defenses.

Proving Federal Crimes has unique features, many of which are valuable in civil practice.  For example, there is a detailed treatment of corporate prosecutions, including corporate subpoenas, corporate attorney-client privilege issues, and the value of corporate compliance programs as a method of preventing corporations from being indicted.  One of the things a commercial lawyer frequently does is make efforts to prevent corporate clients from becoming corporate criminal defendants, and this book can help those efforts.

~Francis D’Eramo, civil lawyer, Nichols, Newman, Logan & D’Eramo; published in the Virgin Islands Bar newsletter, summer 2001.  Mr. D’Eramo graduated from the University of Pittsburgh and is the author of Parratt vs. Taylor and Liberty Interests under the 14th Amendment, Civil Rights Annual (1987)

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“Regardless of your level of experience, this book is almost like having a seasoned prosecutor at your side as it handily works an effective blend of substantive law, practical tips, and ethical advice.” ~Georgia Bar Journal

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“Almost every question that can come up during a criminal case from indictment through post-trial     proceedings appears to be answered in a succinct manner complete with case citations… An extremely well organized and useful book.”                        
~ABA Criminal Justice Magazine                                                                                                                                                              

The book Proving Federal Crimes is an update of a United States Department of Justice manual that was written to provide a trial book for the use of federal attorneys back in the '50s, '60s, and '70s.  The current author, David Nissman, is a Department of Justice employee who has sought and received permission to create this commercial addition.  The book is laid out basically in a chronological order of a federal prosecution, commencing with evidence-gathering advice, such as use of informants, search warrants, and wire taps, and proceeds through the grand jury into court.  Of course the latter aspects provide the value to the practitioner.

When one uses a legal manual such as this, the reader does not just sit down and read it cover to cover like a novel.  Its value lies in how quickly and accurately it can answer legal questions posed to it by the user.  A book such as this therefore should be designed to answer questions posed to it by an attorney (or judge) who is hard pressed for time, in a quick and easy manner.  A technique that many lawyers (including this one) use in determining the value of such a book is to give it a real life test; i.e., pick out a very difficult legal question that you have recently faced and see if the book will yield the answer quickly, accurately, and with a usable citation.  The test that I gave Proving Federal Crimes involved a Batson question that arose recently in a civil case over which I presided.  An issue of fact to be decided by the jury in the case involved an interpretation of a racial insult uttered in the Spanish language by the plaintiff’s boss.  The jury was going to be asked to determine just how humiliating was the insult.  During voir dire it was determined that Spanish was the first language of two prospective jurors who were of Latino background.  Would Batson be violated if either or both Spanish-speaking jurors were peremptorily challenged, presumably because they spoke Spanish?  I found the answer to this question on the first try at the end of Paragraph 25.07, which included a case citation.

Thus, Proving Federal Crimes passed my test.  Parenthetically in my case neither side sought to excuse the two Latino jurors so the issue did not arise.  As mentioned earlier, although the book is intended for prosecutors and is an update of a Department of Justice manual which is 20 years out of print, I believe that defense attorneys (and judges), and especially those lawyers who only occasionally dabble in criminal law, will want a copy.  First, it is good to know what the prosecutor knows, and second, almost every question that can come up during a criminal case from indictment through post-trial proceedings appears to be answered in a succinct manner complete with case citations.

The organization of the book is what really makes it helpful to the lawyer.  It takes the reader directly through the criminal case process from the initial investigation through the indictment phase, the pretrial discovery phase, the trial phase, and on to post trial.  While the average attorney does not need the information on how to conduct a successful criminal investigation, the book is particularly helpful in laying out the law involving discovery, pleadings, pleas, and pretrial motions.

The only shortcomings I found in the book were the very limited amounts of material relating to trial evidence matters, and the treatment of the sentencing guidelines.  As a judge who presides over many criminal trials, the most pressing issues usually involve pre-trial in limine motions concerning Rule 404(b) material and trial evidence issues involving hearsay.  These are not covered, presumably because the reader is expected to have an evidence manual at his side, but it would have been very helpful to have covered these issues in this book, so as far as possible to make it a one-stop source of help.  Another shortcoming is the treatment of the United States Sentencing Guidelines.  The subject is a bit complex for the brief overview that the author gives it in this book.  It would probably be better to exclude the subject than provide the very limited coverage given it (without providing any case citation, I might add).  The only other criticism, a “nit” if you will, is the author’s occasional “he/she” use, which I find annoying.  I would recommend that neutral nouns be used in place.  All in all these are very meager criticisms of what I consider to be an extremely well-organized and useful book.

~Judge Harry Leinenweber, United States District Court Judge, Northern District of Illinois, published in Criminal Justice, American Bar Association, Volume 16, #2, summer 2001

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“Proving Federal Crimes presents complex issues in a straightforward manner that will be as useful to agents in the field as it is to attorneys in the courtroom.” ~Oregon State BarBulletin                                                                                                                   

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 United States Department of Justice, it went through seven editions between 1954 and 1981, but time and changes in the law had rendered it passed – a dust collector on the library shelf, a silent reminder of the way things used to be done.  Fortunately, that has changed. 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 which 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.

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 dots 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.  ~Oregon State Bar Bulletin 

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“I was a federal agent for 30 years.  If only a book like this existed when I was making cases, my job would have been easier and I would have been far more effective.  Mr. Nissman has done agents and lawyers a great public service with this book.” ~Robert H. Burch, President, Corpus Juris Publishing Co.

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“Proving Federal Crimes does not proselytize the prosecutorial viewpoint. Because it cites cases and legal arguments likely to be relied upon by the defense, it is valuable resource for the defense attorney.” ~Robert Tucker, Federal Defender

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As a new prosecutor in the 1980's, I consulted Proving Federal Crimes constantly to learn the basics of how I should approach an investigation or other aspects of a case.  This book is that and far more. The field of federal prosecution has grown exponentially in the last twenty years and this work surveys all of the many new areas with which we must be familiar when we structure an investigation and prepare a case for trial. In addition, it provides far greater detail than the original work so that it is not only valuable to the new prosecutor seeking to learn the ropes, but also the experienced prosecutor seeking a refresher on the law. Although all Chapters contain extremely useful information, l, this reader found the sections on obtaining physical evidence, international issues, interaction with the intelligence community, common defenses and corporate responsibility to be particularly helpful. ~Ron Sievert, Assistant United States Attorney, Western District of Texas

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“A must have for all litigators.” ~Treston Moore, Defense Attorney

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“Proving Federal Crimes has unique features, many of which are valuable in civil practice.” ~Virgin Islands Bar Bulletin

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