I posted the other day about a federal fraud case here in the gorgeous Spring weather in Atlanta, Georgia. In that post I mentioned some of the ways to avoid a prison sentence for people facing federal fraud charges arising out of “white collar” or what we sometimes call “economic crimes.” I got a different client out of a federal prison in a fraud case recently, but this was done using a completely different strategy and method. This second matter involved one of those situations in which the client’s cooperation against others was the most valuable asset available to the federal criminal defense lawyer.
My client in this second matter is an extremely bright guy who made some mistakes and got involved in a fraud scheme. I could tell shortly after he and others were indicted together that the prosecutor suspected but did not yet realize that my client was actually the brains behind the operation. We decide to take the chance of going through the “proffer” exercise. I have written before on this, but it is worth describing once again.
When a federal prosecutor believes that a suspect or Defendant has valuable information that might assist in the prosecution of other people, the prosecutor will sometimes ask the defense lawyer to bring the client in for a “proffer.” The Government asks for these to see if the accused person has important and useful information, and also to assess whether my client might make a good witness if he or she decides to cooperate against others.
These proffer sessions to me are much like taking a test drive at an auto dealer. The driver is not obligated to buy, nor is the dealer obligated to sell. They just want to see whether the vehicle fits that particular person.
The dangerous part of the proffer is that the defense lawyer does not necessarily know everything that the prosecutor and federal agents know, so the lawyer needs to thoroughly and completely prepare his client beforehand. Furthermore, some people have a hard time admitting when they did something wrong, so quite often the attorney needs to assist his or her client in the way they admit what they did, as much as the actual admission itself.
In the case I am discussing, we spent a lot of time with the client working on the method for admitting what he did. It seemed to work. At the end of the proffer session, the prosecutor marveled, saying that he was surprised that my client was so clear and forthright when admitting what he had done. That clarity and certainty came back to help the client when he was asked to testify against one of his co-Defendants. Although the client had already started his sentence, he followed my advice and continued to cooperate truthfully. Amazingly, within an hour of his testimony, we had a ruling from the Judge letting him out of jail to recognize his assistance. It was one of those unfortunately rare situations where I walked a client out of custody based on my work for him or her.
There are a couple of lessons from these two cases discussed in these recent posts. First, avoiding jail in a federal fraud case is difficult. Second, every case is different, and the attorney needs to pick the correct strategy and tactics that seem best for that client under those circumstances.