Articles Posted in Sentencing

Good late January Morning gentle readers, the sky is gray and cold, what better time to talk yet again about the Presentence Investigation Report (we sometimes call it the “PSR”) in federal criminal cases.  Careful readers will recall that I return to this subject around every 3-4 years on this blog, such as here and here.

Recall, the PSR is a document prepared by a U.S. Probation Officer who works for the Judge.  The PSR is only prepared if a Defendant is either found guilty by a jury, or if he or she admits to committing a crime in a guilty plea proceeding.

The PSR has two basic part.  First, the Probation Officer (or “the PO”) outlines the crime and as part of that then makes recommendations as to how the Sentencing Guidelines might apply to that conduct.  Second, the PO writes up what is essentially a miniature biography of the accused person, with information about the Defendant’s family, education, health, financial situation and other factors that  might impact what is or is not a “reasonable sentence”.

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.

As many know, I am a criminal defense lawyer in Atlanta Georgia who handles federal criminal cases here and all over the United States (I’m currently working on federal cases in Vermont, Pennsylvania, Maryland, North Carolina, Florida, the Middle and Southern Districts of Georgia, and out in Texas and Arkansas).  Many of my clients are accused of what are sometimes called “white collar” or “economic” crimes.  No matter what name we give such cases, they are almost always charged under one of the federal laws that outlaw fraudulent conduct.

Many people contact us because they are fearful that they might go to a federal prison for one of these fraud-type cases.  A case I recently finished included some of the arguments that help such clients avoid a jail sentence in a federal fraud prosecution.

My client was married to one of the other people charged in a large federal fraud prosecution.  Her spouse was a former law enforcement official who convinced his wife and others to get involved in a certain business proposition.  As you likely guessed already, that business proposition was based on false and untrue (meaning fraudulent) statements in loan applications sent to various banks.

Readers (the 4 of you know who you are) are aware that I am a criminal defense lawyer in Atlanta who’s specializes in federal cases and criminal appeals.  My cases in federal court are often in Georgia, but also take me to other parts of the country.  Today, I am meeting with a client in Atlanta to go over the Presentence Investigation Report (or “PSR”) for her case in federal court in Texas.  So, let’s talk about the PSR.

A PSR is the document that is sort of the beginning and the end of a federal criminal sentencing process.  If a Defendant is found guilty, by pleading or through a jury verdict, the sentencing hearing does not happen right away.  Instead, federal sentencing hearings happen 2-3 months after the plea or verdict.  During this intervening period, a United States Probation Officer (often called the “PO”) has to prepare the PSR, which is a lengthy document designed to tell the Judge more about the Defendant as a person and how the federal sentencing guidelines might apply to that person and his or her crime.  See more on the sentencing process here.

The start of the PSR is when the PO wants to interview the Defendant.  Here is often Mistake #1 made by inexperienced or substandard lawyers.  To being with, it is close to malpractice for the lawyer to NOT attend this session with the PO, although I have seen lots of lawyers allow their clients to do so, often with disastrous results for the client down the road.  The PO is basically an arm of the court and works for the Judge, so this is mostly the first time for the accused person to make an impression, good or bad.  Also, there are pesky rules and court cases holding that a false or even misleading statement to the PO can qualify as “obstruction of justice”, so the lawyer damn well should be present to make sure that his or her client does not lie or otherwise screw up this first impression on the Judge’s PO!

I just got a call from my client in a recent federal criminal case here in Atlanta.  My client was outside the gates of the federal prison, and gave me one last call before he went inside to begin serving his sentence, or as some inmates call it, “doing time.”  I always feel bad for my clients and their families when anyone is separated from society and their loved ones because they are incarcerated.  In the big picture, this man received a very favorable sentence, considering the facts of his situation on the day when I first met him.  Still, it’s a sad feeling to get such a call.  The call made me want to put down a few thoughts about what I have learned over the years concerning the experience for clients who are  “doing federal time.”

For starters, the federal prison system is operated by a huge organization called, oddly, the “Bureau of Prisons.”  Regular practitioners usually call it “BOP.”  The BOP operates throughout the entire country.  There are various “security levels” amongst the many federal prisons, and these fall into three basic categories, High, Medium and Low.   Continue reading

The media and “the Internets” are all agog over yesterday’s filing in the Mueller Investigation by which the Office of Special Counsel said that one of its cooperating witnesses in that federal criminal case, former General and National Security Advisor Michael Flynn, has provided “substantial assistance”.  I’ve been handling federal criminal cases for over 35 years, and have been on the “giving” and “receiving”end of substantial assistance.  Despite the furor in the media, I wanted to talk a little about how these things work in the real world.

For starters, the idea that those who cooperate with prosecutors get a better “deal” is not exactly news. This practice of trading info for jail time is probably as old as crimes and criminal justice systems.  However, the absolutely horrible 1984 Comprehensive Crime Control Act, inter alia, wrote this practice into federal criminal law.  For the first time, this law created specific statutes, Guidelines and Rules of Procedure that encapsulated the practice of rewarding someone for “snitching.” Continue reading

OK, here’s my second post on the annual amendments to the Federal Sentencing Guidelines, rules that govern imposition of a criminal sentence in all federal courts from Alanta to Alaska, from Maine to Moultrie (way down in South GA, look it up if you’re not familiar with it).  There are two good defense-friendly amendments I will mention, but first, a little more history (poor readers, you know my inclinations).

Over the past 30 years, there have been a number of trends we see in these yearly Guideline amendments.  For the first 15-20 years, virtually all such amendments resulted in harsher sentences.  Then, when Congress and the public began finally listening to those of us hollering about how the United States had turned into the country that incarcerates the largest percentage of its population, the rules slowly began to soften.  It also helped when fiscal hawks joined the “defense” side of the argument, pointing to the millions of dollars wasted when locking up low-level offenders.  The past 10-15 years have included a number of amendments that actually reduce or make sentences less harsh than earlier versions of the Guidelines.  The 2018 amendments are more down the middle, a few that jack up sentences (for newer offenses like dealing fentanyl or designer drugs)  and others help to soften the blow for many of my clients.  Today, I want to discuss two defense-friendly changes effective 11-1-18.

First, there is a change concerning the “acceptance of responsibility” rules, found at USSG §3E1.1.  Remember that a defendant can earn up to 3 points “off” the scoring rules when he or she “accepts responsibility”, which generally means pleading guilty and doing so early enough so that the prosecutor did not have to actually do some work preparing for trial.  However, experienced readers know about Presentence Reports, defense objections, and the all-important federal sentencing hearing where arguments on each side are presented to the Judge, whose rulings on contested issues can have a huge impact on the sentencing “range” and therefore the ultimate sentence.  One of the biggest issues is often the scope of “relevant conduct”, meaning how much stuff done by other people will the Defendant in court be held accountable for?  Over the years, some prosecutors and truly mean judges took the position that a Defendant who fights against relevant conduct can lose the 3-point reduction because that Defendant has not shown he or she is truly accepting responsibility.

Here is a photo of one of the bookshelves of my Atlanta officer where I handle lots of federal criminal cases. IMG_0658  If you look closely you will see row after row of Federal Sentencing Guidelines Manuals, stretching from the current version back to the slim original 1987 Guidelines.  I just got done ordering the newest version.  Each year, like clockwork, the United States Sentencing Commission issues a new and amended version of the Guidelines.  Each year, this annual version comes into effect on November 1.  Just like the New Year celebrations make people take stock and consider their lives, the yearly issue of the Sentencing Guidelines caused me to reflect on this three-decade experiment in using “Guidelines” to impose a federal criminal sentence. I will write several posts about the Guidelines, their changes, and how all of this impacts lawyers and clients involved in a federal criminal case.

Let’s start by discussing the increased complexity of the Sentencing Guidelines.  My original 1987 version was a slim 557-paged tome, while the most recent version is a two-volume set that exceeds 2100 pages total.  One reason that the materials are more lengthy is that every year, the Sentencing Commission also publishes all the earlier amendments as part of the current year’s issue.

Many lawyers do not appreciate the importance of having all of the earlier amendments.   I like to keep all of my old books just so that I can trace back the lineage of the current Guideline and its predecessors.  Sometimes, researching the Guidelines is a bit of an archeological expedition, with the attorney peeling back layers of history in order to figure out the reasoning behind the current version of a particular rule.

All lawyers need to keep up with their reading, and criminal defense attorneys are no different.  I’ve been plowing through recent federal criminal cases, and came across three (not from the Atlanta area) that deal with the financial aspects of a federal criminal sentence.  Each sort of reminds me of the Ojay’s song, “For the Love of Money”  with that great refrain, “Money Money Money Money, MONEY!”

OK, class, let’s remember the basics.  A federal criminal sentencing hearing involves more than just the amount of time a person might have to go to prison.  A federal judge can also impose three distinct types of financial orders that require payment.  First there is a “fine”, which usually can be up to $250,000 per count, this money is considered “punishment” and the payment goes directly to Uncle Sam.  Next, there is “restitution”.  This is supposed to pay back victims any loss they suffered from the crime, and while the Defendant pays this money to the Clerk of the Court, the money goes back to the victim eventually.  Then, we have the often misunderstood “forfeiture.”  Under the current version of this old doctrine, property used in or obtained as a result of a crime belongs to the government from the moment the crime took place.  If that property has been used up (or in the case of real money, has been spent) then the government can try to get an equal amount out of the Defendant using the “substitute assets” rule.  The forfeiture payments also go right to the U.S.  And, here’s the kicker: if a Defendant is able to pay, he or she can be forced to pay all three amounts for the same crime, meaning triple whammy for any person of means who is convicted of a federal offense.

Now to our recent decisions discussing some of these financial aspects of federal criminal sentencing.     In United States v. Green 16-3044-2018-07-31, the Defendant’s Mom got VA benefits, and when her mother passed away, Ms. Green kept spending the monthly check without telling the VA. This went on for many years, and it took many years more before the government got around to charging her with a crime in New York.  Ms. Green was required to pay restitution, but the question was how far back did her restitution obligation go, especially since many of the monthly payments were outside the 5-year statute of limitations?  The prosecutors argued that embezzlement of this sort is a “continuing crime”, meaning that they wanted her to pay restitution back to the point when the Defendant’s mother died. Nope, said the Second Circuit, only those within the limitations period qualify as restitution.

My criminal defense office is in Atlanta, but as a lawyer my clients are from various parts around the country.  Readers of this blog know that the majority of my clients face federal criminal charges.  One long-standing client recently died, it was very sad, he was in his late 50’s and is survived by his wife of three decades and seriously disabled child.  I was very troubled by this man’s case, for I felt he did not commit a crime.  However, the prosecutors threatened to go after his wife, leading this client to decide to plead guilty to protect his spouse.  The Judge imposed a 6-month sentence and ordered my client to pay a substantial “forfeiture”.  The client passed away recently, leading me to ponder the criminal defense lawyer’s duties when his or her client dies and some parts of a case are still unresolved.

For many years, I have known about a somewhat quirky rule which says that death can end a criminal case. The theory goes like this: if a criminal Defendant is convicted, that conviction is not “final” until his or her appeal rights are over.  If the Defendant dies while the case is on appeal, the courts are supposed to dismiss all the charges “ab initio,” which is fancy Latin for “from the beginning.”  The theory is that the case might have been reversed by the higher courts, and it is unfair to saddle the Defendant’s family with a conviction or monetary payment without the chance to take full advantage of appellate rights.  I’ve had this happen a few times, before, and have filed one of the strangest documents any lawyer gets to file: “Defendant’s Suggestion of Death.”  I simply do not understand why we always call it merely a “suggestion” of death, for the condition seems final enough to flat-out say  “my client died, dismiss his case.”  Anyway, I’ve had a couple of cases dismissed because of my client’s untimely death.

However, my client’s death recently got me thinking so I did some additional research.  Many of my readers know that at the sentencing hearing there are several different types of “punishment” that can be imposed in a federal criminal case.  Jail time is the most obvious, but a Judge can also impose supervised release (which comes after any imprisonment and can result in more time in custody if the person violates the conditions of release), a fine (money paid to the U.S. Treasury), restitution (which is paid back to “victims”, but the Defendant makes the payment to the Clerk’s office), and forfeiture (which is a legal theory saying that the property or proceeds from a crime belong to the government from the moment the crime happens and the Defendant needs to give them up).  I started pondering the impact of a Defendant’s death on all of  aspects of a sentence, including restitution, fines and forfeiture. Amazingly, the answers turn on when the Defendant dies, and where.

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