Another gorgeous early winter day in beautiful Atlanta, Georgia, and I am preparing to assist a client who will be interviewed soon as part of the preparation of the Presentence Investigation Report. For any of you somewhat unaware of this process (the six of you know who you are), here is a short primer explaining this crucial document that is part of a federal criminal case. I also want to discuss how an accused person’s attorney needs to help the Defendant navigate through this process.
Whether the Defendant is found guilty after a jury trial, or decides after consulting with counsel that the best course is to plead guilty, the next major step in court will be the sentencing hearing. The Federal Judge generally will time that sentencing hearing to happen 2-3 months down the road. In the interim, the United States Probation Officer (the “USPO”) assigned to the matter needs to prepare the important Presentence Investigation Report (sometimes referred to as the “PSR”).
The PSR is generally a lengthy document, sometimes close to 100 pages if the USPO attaches relevant documents like the indictment or plea agreements. For the most part, the report contains four types of information. First, the PSR outlines the charges, whether the accused person has been on bail, and the process that led to the Defendant being found guilty by a jury or after pleading guilty. Second, the PSR contains the USPO’s independent evaluation of the facts in the case. Third, the PSR is sort of a miniature biography of the accused person. Last, the PSR is the place in which the USPO makes his or her independent recommendations as to how the mostly nasty Federal Sentencing Guidelines might apply in a particular case.
One of the first steps in the preparation of the PSR is when the USPO does an interview of the Defendant. Now, this is where it can get tricky.
Let’s assume that the Defendant went to trial, but was found guilty. The USPO must prepare a factual recitation of the case, and also apply the Guidelines to those facts. Inexperienced lawyers think they can somehow help by re-arguing the defense perspective with the USPO. For the most part, that is not a productive strategy, unless there are some specific facts that do NOT undercut the jury’s verdict but which could impact the application of the Guidelines. Probation Officers and Judges understand that in this example the person was found guilty, so re-arguing innocence is mostly a waste of time unless there are specific facts that can reduce the potential sentence. A classic example of such facts involve cases where the Guidelines increase the potential sentence based on aggregate harm, such as “loss” in an economic crime, or the overall quantity of drugs in a controlled substances prosecution.
Now, let’s think about the opposite situation, meaning the lawyer is getting ready for the client’s interview with the USPO after the Defendant entered a guilty plea. Such a Defendant is usually aiming to reduce the Guideline range by getting the two or three-level reduction for “acceptance of responsibility.” Many times, at the PSR interview the USPO will ask the accused person what she or he did. I cringe when I hear stories of lawyers who allow their clients to answer these questions without proper preparation. I have seen Probation Officers and Judges deny the acceptance of responsibility reduction even when the Defendant pled guilty if the accused person tries to excessively minimize or deny her conduct during the interview with the USPO. I try to maintain a good relationship with the USPO’s, and many of them know that my preference is to submit a “statement” from the Defendant regarding the facts of a case. This way, I can work with the Defendant to make sure he or she says enough to show true acceptance of responsibility, yet is allowed to still provide their own view of what happened. While I try to help clients in wording these statements, I also want to make certain that the Defendant is OK with what we are submitting.
Last point about the interview with the USPO. The client must tell the truth! A false answer can screw up everything, even if the Defendant pled guilty and otherwise accepts responsibility for his or her crime. I have also seen situations involving other lawyers where the Defendant lied about a prior arrest, the Judge decided that the lie demonstrated that the accused person was not accepting responsibility (thus taking away the otherwise-earned 3-level reduction), and also added the two-level enhancement for “obstruction of justice.” A five point swing can happen if the lawyer fails to adequately prepare the client to prevent such a situation.
OK, so this is a brief overview of the PSR and the interview with the USPO. I need to get back to work, but hope to post later about other aspects of preparing for a federal sentencing hearing.