On July 27, 2023, President Biden nominated Richard E. N. Federico to the U.S. Court of Appeals for the Tenth Circuit. Richard Federico served as a federal public defender from 2015 to 2020 and currently serves as a captain in the United States Navy Reserve, Judge Advocate General’s Corps.
Mr. Richard Federico was born in Richmond, Indiana, in 1977. He earned his B.A. from Indiana University in 1999 and his J.D. from the University of Kansas School of Law in 2002. Mr. Federico also earned an L.L.M from Georgetown University Law Center in 2012, where he studied trial advocacy and national security law.
Mr. Federico received a commission as a U.S. Navy JAG Officer upon his graduation from law school in 2002. He began his Navy training, followed by the Basic Lawyer Course at Naval Justice School. In 2004, Mr. Federico was assigned to be part of the command’s national security case litigation team. In that role, Mr. Federico worked on 15 criminal trials. In June 2004, he served on temporary duty as a staff judge advocate for the U.S. Second Fleet, the Naval fleet responsible for the East Coast and North Atlantic Ocean, onboard the U.S.S. Mount Whitney. There, he advised military commanders on legal issues that arose in the joint operations center as part of a multinational, joint exercise: Operation Blinding Storm.
In 2005, Mr. Federico transferred to the U.S. Region Legal Service Office, Europe & Southwest Asia, at Naval Support Activity in Naples, Italy. For the first year, he served as a trial counsel in-country, prosecuting cases convened for trial by court-martial. He also acted as a government counsel for at least one administrative separation proceeding in Stuttgart, Germany. In 2006, while continuing to prosecute cases in Naples, he was promoted to Director of Military Justice with supervisory responsibilities for all Navy courts-martial cases in Europe and Southwest Asia.
In 2008, Mr. Federico was transferred to the Office of the Chief Defense Counsel, Office of Military Commissions (OMC-D). In this role, he represented detainees facing criminal prosecution by military commissions. Based in Washington, DC, he made more than 20 trips to Guantánamo Bay, Cuba, to attend hearings held in the Expeditionary Legal Complex. Mr. Federico also led investigative missions to Afghanistan and Korea.
In 2012, he was transferred from OMC-D to the Navy Legal Service Office Southeast to serve as Executive Officer. In that role, he supervised four offices, advising junior counsel on criminal defense cases. In October 2012, Mr. Federico returned to criminal defense, representing Sailors, Marines, and Coastguardsmen charged with crimes and facing a court-martial. As defense counsel, he tried six complex criminal cases before a jury. Mr. Federico also represented clients, including Senior Officers, in administrative and employment matters, including retirement determinations, medical licensure hearings, and, for lawyers, professional responsibility investigations and proceedings.
In 2015, Mr. Federico left active duty to affiliate with the Select Reserves as part of the Navy Reserve Law Program. From 2015 to 2019, as a Navy Reserve JAG Officer, Mr. Federico served as appellate defense counsel for the Navy Marine Corps Appellate Review Authority. In this role, he represented 34 clients on appeal in cases pending before the Navy-Marine Corps Court of Criminal Appeals. He also filed petitions for review before the U.S. Court of Appeals for the Armed Forces. In 2023, he was assigned to the Trial Service Office East in Norfolk, Virginia, as trial counsel to prosecute military cases.
Upon leaving active duty in 2015, Mr. Federico joined the Office of the Federal Public Defender for the District of Oregon in Portland as an Assistant Federal Public Defender. There, he represented indigent clients charged with federal crimes from initial appearance through judgment. Federico took on several notably complex cases, including a multidefendant case springing from the militia occupation of the Malheur National Wildlife Refuge.
In 2018, Mr. Federico was named Assistant Federal Public Defender for the District of Kansas. Two years later, he was promoted to Senior Litigator. In this role, he has represented indigent persons charged with federal crimes, including on appeal. Mr. Federico has filed one appeal before the U.S. Court of Appeals for the Tenth Circuit and consulted on others. As Senior Litigator, he also runs the office’s trial committee, a forum to analyze and prepare all cases within the office for jury trial.
Over the course of his career, between federal district courts and military courts martial, Mr. Federico has tried 32 cases. Of those 32 trials, Mr. Federico tried 30 before a jury and two as bench trials. He was sole counsel in 14, chief or lead counsel in 11, and associate counsel in 7. Additionally, he has filed 13 appeals to, and argued one case before, the Ninth Circuit.
The following cases are representative of Mr. Federico’s litigation career:
- In United States v. Starks, Mr. Federico represented Devonte Starks, who was charged with possession with intent to distribute fentanyl and heroin. At the jury trial, Federico challenged the government’s evidence and cross-examined the key witness, a codefendant turned informant. During closing arguments, the prosecutor told the jury that Mr. Starks no longer had a right to be presumed innocent after the presentation of the trial evidence. Starks was convicted on both charges. Federico appealed, arguing that the district court erred in permitting the prosecution’s direction to the jury to disregard the presumption of innocence. The Tenth Circuit agreed, reversing and vacating Mr. Starks’ conviction and sentence. Federico then negotiated a resolution in lieu of re-trial that led to his client being sentenced to time served, a significant reduction from the original 180-month sentence.
- In United States v. Barriss, Mr. Federico was court-appointed as sole counsel to represent a Los Angeles man charged in Kansas with offenses from a “swatting” call, a criminal harassment tactic wherein an individual contacts an emergency service and falsely asserts a need to send first responders to another person’s address. As a result of this call, a Wichita police swat team shot and killed an innocent man in the doorway of his home. Upon being appointed, Federico discovered that his client was also under indictment in the District of Columbia and under investigation in more than 20 federal districts for similar conduct. Mr. Federico negotiated a global resolution with three U.S. Attorneys’ Offices and the Kansas Sedgwick County District Attorney’s Office. The defendant pleaded guilty to 51 counts and was sentenced to 240 months in federal prison.
- In United States v. Allen, Mr. Federico was appointed by the court to serve as co-lead counsel to represent Curtis Allen, the lead defendant in a five-week jury trial case. The defendants were charged with conspiring to use a weapon of mass destruction to violate civil rights for a plot to target an apartment complex in Garden City, Kansas, housing Somali refugees using explosive devices. The investigation included hundreds of hours of recorded conversations and audio/video from confidential human sources as well as FBI undercover agents. Allen was convicted by the jury and sentenced to 300 months in prison. The conviction and sentence were affirmed on appeal.
- In United States v. Bundy, Mr. Federico was court-appointed to represent Ryan Payne, a 26-year old man charged as a co-conspirator behind the occupation of the Malheur National Wildlife Refuge. Beginning on January 2, 2016, a far-right extremist militia group, led by Ammon Bundy and Ryan Bundy, seized the Malheur National Wildlife Refuge in Harney County, Oregon. For 41 days, the armed occupiers prevented federal officials from performing their official duties at the refuge by force, threats, and intimidation. More than two dozen militants were charged with federal offenses, including conspiracy to obstruct federal officers, firearms violations, theft, and destruction of federal property.
Mr. Federico was selected by the district court judge to lead the defense teams in negotiations with the government and joint pleadings and to organize the case, the hearings for which required significant courtroom time. Federico also argued the case before the Ninth Circuit on behalf of five defendants in an appeal which was ultimately dismissed. Mr. Payne subsequently entered a guilty plea for conspiracy to impede officers of the United States and firearm possession in a federal facility; he was sentenced to 37 months in prison.
- In United States v. Mays, Navy-Marine Corps Trial Judiciary, Southwest Judicial Circuit, Navy Base San Diego, California, Mr. Federico led a multiagency criminal investigation into a fire onboard the USS Bonhomme Richard, which caused the total loss and decommissioning of the multi-billion-dollar Navy warship. When Federico started work on the case, both the Navy’s command center and the Naval Criminal Investigative Service (NCIS) were investigating the cause of the fire. Mr. Federico wrote a lengthy prosecutorial merits report and advised the Vice Admiral, who charged 20-year-old sailor Ryan Mays with arson. Federico served as lead prosecutor during the preliminary hearing in December 2021. At its conclusion, he turned the case over to active-duty prosecutors for trial. In a bench trial in 2022, Mays was found not guilty.
- In United States v. Smith, No. I 9-cr-40091-DDC (D. Kan.), Mr. Federico was appointed lead counsel to represent a Fort Riley soldier charged with distributing information about explosives to persons who intended to target national politicians and news organizations. The government presented evidence that the defendant had engaged in extremist conduct and speech and professed white nationalist ideology. Defense counsel countered that narrative and told the story of a young man who suffered enormous trauma as a child, when he was bullied by classmates, struggled with a physical deformity, and was the target of a school shooter at his high school. The defense team negotiated a plea agreement and engaged in extensive sentencing advocacy to avoid the terrorism enhancement under the U.S. Sentencing Guidelines, which resulted in the soldier receiving a low-end sentence of 30 months in prison.
- In United States v. Barry, Mr. Federico was assigned to an appellate defense team representing a Navy SEAL convicted of sexual assault. At the court-martial stage, the military judge found the defendant had forced his girlfriend to engage in nonconsensual sex and sentenced him to a dishonorable discharge and three years in prison. Under military law, a case that results in a conviction automatically gets reviewed by the officer who referred the charges to court-martial, also called a convening authority. The convening authority has the power to reduce the charges or dismiss the charges in the case. Typically, a convening authority seeks guidance from a judge advocate general while reviewing a conviction. In this case, however, the convening authority heeded improper advice that he did not have the discretion to do anything but affirm the findings and sentence.
Mr. Federico successfully appealed the conviction based on that error. As lead counsel through the appeal, he cross-examined three Admirals, including the then-Judge Advocate General of the Navy, and briefed the Court of Appeals for the Armed Forces. That court found that the Navy JAG had improperly advised the convening authority and reversed the conviction of the defendant, dismissing the charges against him with prejudice.
- In United States v. Kamin, Mr. Federico was assigned by the Department of Defense to serve as lead counsel to represent Mr. Kamin, an Afghan man who was charged before a military commission with providing material support for terrorism and held at a Guantánamo Bay detainment facility. As part of the litigation, Federico led an investigative mission to Afghanistan and Korea, garnering diplomatic support for repatriation from senior Afghan government officials. On behalf of the defendant, he also filed a petition for a writ of mandamus before the Court of Appeals for the D.C. Circuit, which has jurisdiction over military commission cases. Following Executive Branch review, the charges against Mr. Kamin were dismissed and he was later released from Guantánamo.
In 2019, Mr. Federico was designated and certified by the Judge Advocate General of the Navy as a Military Judge. Military Judges preside over general and special courts-martial cases referred for trial. He continues to serve as a Military Judge in a reserve capacity, or part-time, with the Navy Reserve Trial Judiciary Unit.
Mr. Federico has presided over 11 court-martial cases. For several of the cases, he only oversaw an initial appearance and arraignment. In others, he only presided over preliminary matters or search warrant applications. He has not presided over any trials. He presided over four cases that went to judgment by plea and sentencing. Federico has not written any opinions that have been published or are publicly available.
Professional Activities and Accolades
Mr. Federico has distinguished himself in both the military and the civilian justice systems by assuming leadership positions in his legal communities as well as supervising, training, and mentoring other lawyers and legal professionals. As a senior officer in the Navy, he has provided training on substantive legal issues and trial advocacy, supervised completion of required qualifications, and taken part in case strategy discussions at both the trial and appellate level.
As Senior Litigator for the Federal Public Defender, Federico runs the office’s “trial committee,” the purpose of which is for lawyers to present cases, brainstorm ideas, and solicit feedback to assist in trial preparations. Meetings include trial lawyers, appellate lawyers, and investigators. He has also served as a mentor in the office’s “Second Chair” program for Kansas lawyers seeking classroom and courtroom training in federal criminal law and procedure in hopes of admission to the Criminal Justice Act Panel in the District of Kansas. Federico has also served as a supervisor in the office’s “Third Chair” program for summer law student interns, wherein he provides classroom training, reviews substantive legal work, and takes the students on field trips to visit prisons, meet clients, and observe court proceedings.
Mr. Federico has also received numerous military awards and medals. In 2019, he earned the Rear Admiral Hugh H. Howell, Jr. Award of Excellence for outstanding contributions to the Naval Reserve Law Program. In 2007, he was also awarded Junior Officer of the Year, U.S. Region Legal Service Office, Europe & Southwest Asia. Additionally, the Defense Department also honored him with the Defense Meritorious Service Medal (2012), the Meritorious Service Medal (2015), the National Defense Service Medal (2003), the Global War on Terror Expeditionary Medal (2010), the Global War on Terror Service Medal (2004) and the Overseas Service Ribbon (2006). He also received the Navy and Marine Corps Commendation Medal four times (2021, 2019, 2008, 2005) and the Navy and Marine Corps Achievement Medal (2006).