Articles Posted in Federal Criminal Defense

Presentence reports are prepared by the probation officer assigned to the federal judge’s courtroom.  The judge looks to the report in making sentencing decisions and defendants’ attorneys can object or supplement the presentence report.  Here are some considerations on how to help yourself if you are being sentenced in a federal criminal court.

After verdict, the judge orders the in-court probation officer to prepare a pre-sentence report (PSR), then you and your attorney meet with the probation officer who will be preparing the PSR for your judge.  Look over the worksheet you are asked to complete and bring it with you to the meeting with the probation officer.

What I do, and suggest you insist be done for you, is have the defense attorney prepare an entire PSR, just like the probation officer’s finished product, and send it to the probation officer before he/she files their own PSR.  You know that you have fourteen days to object to the officer’s PSR, but objections have to go to an error in fact, not that the presentation of the facts, which can be very damning and negative.   Your lawyer’s “suggested” PSR is often used, or parts of it is used, by the probation officer in his/her final and completed PSR.

When I submit my own memorandum, I am mindful that I cannot change facts, but you can change focus.  There may be no doubt that my client has a prior conviction for a drug offense, but it may not be that simple.  Some of my clients were assisting law enforcement after their initial arrest and that fact can and is a legal reason for the federal sentencing judge to depart from the sentencing guidelines and impose a sentence below the guidelines range.  Often, I have a client whose drug conviction occurred before an extensive and successful course of treatment for substance abuse.   Although there is a prior conviction,  the successful completion of a drug program may be reason to present in the PSR that the defendant no longer is a danger to the community, or has assumed responsibility for past bad acts.  Again, the assumption of responsibility and the fact that a defendant is no longer a danger to the community is and are legal reasons for a judge to impose a sentence that is a variance in that it is less than the guidelines suggested sentence.

The thing to remember is that sentencing guidelines are not mandatory and are only  advisory.  Also know that when a judge imposes a sentence that is below the suggested guidelines sentence, he or she must state that the sentence is a variance from the guidelines.  A variance must be supported by findings by the Court and if your PSR contains legally sufficient reasons for a sentencing judge to make a finding that the sentence imposed is a variance the judge will always and only look to the PSR for facts to support a variance.

Take a moment to re-read what you have learned about the federal sentencing system –  what the guidelines are, how they are used, what findings a judge must make before imposing a sentence that is greater than or less than the recommended sentence under the guidelines.  Writing your own PSR for the probation officer can and is often rewarded by finding your own words in the final PSR that the judge reads and relies upon in making sentencing decisions.

Antitrust crime is a catch-all for unacceptable business practices and since antitrust violations are broadly defined and the decision to prosecute is more of a policy decision than anything else, the crimes are defined more in the selection of who is arrested than what the actual criminal act is.   For example, murder is the unlawful taking of a human life, which is a clearly defined act, whereas unfair trade practices are not as clearly defined or understood and are primarily guided by the U.S. Attorney’s policy statement.

A policy statement is a statement issued by the top level of an organization outlining the organization’s course of action on a matter.  Since antitrust violations are federal crimes, the U.S. Attorney’s office is the organization that decides whether or not to charge somebody with an antitrust crime and their Policy Statement on the matter can help shed some light on how they define antitrust violations and who they are after in terms of prosecution.

From their Policy Statement, you can tell that the U.S. Attorney’s primary focus is the enforcement of antitrust criminal statutes that directly affect consumers. The federal focus is not on business to business antitrust, but is focusing on protecting consumers. Their main priority in this regard is price fixing. In the words of the Attorney General in their Policy Statement, “…price-fixing violations in particular have a direct and immediate impact on the consumer in terms of the ultimate price that he/she must pay for goods and services. We must vigorously prosecute such collusive practices in our economy.”

The U.S. Attorney has said that the seven regional offices (Atlanta, Chicago, Cleveland, Dallas, New York, Philadelphia and San Francisco) cannot police the entire nation.  Knowing that, enforcement is now handed off to all of the U.S. Attorneys’ divisions. There are 93 district offices of U.S. Attorneys throughout the United States.

Now, antitrust arrests can originate, by example, out a complaint filed with the U.S. Attorneys Office for the Southern District of Florida.  What this means is that a broader net will be cast all over the U.S. in identifying price fixing schemes.  It also means that each office of the U.S. Attorney throughout the United States will be expected to undertake federal prosecutions under the Sherman Anti-Trust Act particularizing price fixing of consumer products.

Major corporations are under less scrutiny for antitrust violations.  In a practical business context, this means that if all the aluminum producers decide to fix the price of aluminum that the U.S. Attorney’s office will not focus enforcement on this agreement.  But if your local supermarkets agree to fix the retail price of aluminum foil that we can expect some federal arrests.

Those who are cynics may well understand the policy of the government to be “pro business” in the sense that the major industries will be under lesser scrutiny of price fixing of primary commodities (think steel, petroleum, corn and soybeans), which can be a result of heavy lobbying on behalf major corporations in the U.S.

If all prosecutions are expressions of public policy and the selection of “targets” of enforcement is a policy decision of the political leaders of the U.S., then the politics of prosecution have small players in focus and major actors in the wings.

The Federal Bureau of Prisons has a compassionate release program that offers early release or a reduction of sentence to certain eligible federal inmates for “particularly extraordinary or compelling circumstances which could not reasonable have been foreseen by the court at the time of sentencing,” according to their Program Statement, published by the BOP. The Program Statement, which lists the procedures for implementation of the compassionate release program, pursuant to 18 U.S.C. § 3582(c)(1)(A) and 4205(g), includes the following criteria for inmates to be eligible to apply:

• Medical circumstances (Terminal or debilitated medical condition);
• Non-medical circumstances for elderly inmates;
• Non-medical circumstances for the death or incapacitation of a family member care giver of an inmate’s child; and
• Non-medical circumstances for the incapacitation of an inmate’s spouse or partner, when the inmate is the only care giver for that spouse.

Section 4 of the BOP Program Statement describes the three ways an elderly inmate can petition for compassionate release/reduction in sentence:

• a) “New Law” Elderly Inmates – If an elderly inmate was sentenced for an offense that occurred on or after November 1, 1987, who is 70 years or older, and has served 30 years or more of their sentence;
• b) Elderly Inmate with a Medical Condition – If an elderly inmate, who is 65 years or older and has a medical condition; or
• c) Other Elderly Inmates – If an elderly inmate, who is 65 years or older, has served the greater of 10 years or 75% of their sentence.

Section 4.b – Elderly Inmates with Medical Condition

Under Section 4.b of the Program Statement, elderly inmates with a medical condition must specifically meet the the following criteria in order to petition for a compassionate release:

• The inmate must be 65 years or older;
• The inmate must have a serious or chronic medical condition “related” to the aging process;
• The inmate must be experiencing deteriorating mental or physical health issues that “substantially diminishes” his/her ability to function in a correctional facility;
• The treatment the inmate is receiving in custody must seem to promise no substantial improvement to the inmate’s physical or mental condition; and
• The inmate must have served at least one half of their federal sentence.

When reviewing a petition for compassionate release under Section 4.b, the BOP looks at the following factors in making their determination:

1. The age the inmate committed the offense for which he/she is currently incarcerated;
2. Whether the inmate suffered from the medical condition at the time he/she committed the offense; and
3. Whether PSR (Presentence Investigation Report) contained a paragraph about the medical condition.

On March 25, 2015, the BOP added the following language to Section 4.b of their Program Statement: “The BOP Medical Director will develop and issue medical criteria to help evaluate the inmate’s suitability for consideration under this RIS category.”

Preparing a Petition for Compassionate Release under Section 4.b

When preparing a Petition for Compassionate Release for an elderly inmate with a serious medical condition, under Section 4.b of the BOP Program Statement, the petition must contain a paragraph on each of three factors listed above and must contain backup documentation from medical providers and medical records.  Failure to include this information in the Petition will either cause the Petition to be returned as legally insufficient, or even worse, may be stuck or remain “under consideration” from the various federal agents and agencies in the Bureau of Prisons or the Department of Justice legal department in Washington, D.C.

First, you file your petition with the Bureau of Prisons by sending it to the warden at the federal detention facility.  Copies of the Petition should be sent to BOP in Washington, D.C., to the U.S. Attorney in your district, and to the sentencing judge.  Then, if the warden approves the Petition,  the BOP will begin its review at the BOP regional office, followed by a medical review and a legal review at the Department of Justice in Washington, D.C.  Your best source of information in following the progress of your petition is the inmate’s case manager.  The case manager can, if they want, indicate where the petition is in the process – Whether the warden has reviewed, denied or approved the Petition and if it has been forwarded to BOP and DOJ headquarters.

Although the BOP Compassionate Release Program is good option strive for, keep the following sobering statistic in mind before you undertake a compassionate release petition:  In 2014, only 101 federal inmates were granted compassionate release petitions, the total number of petitions is not revealed, but there were 214,000 men and women in federal prison facilities in 2014.

This past week, the Senate Bill S. 2123, titled, “The Sentencing Reform and Corrections Act of 2015,” was approved by the Senate Judiciary Committee, in a vote of 15-5. The bill lowers minimum mandatory sentences of certain drug offenses and certain armed offenses, while establishing new minimum mandatory sentences for certain domestic violence offenses and could grant early release for thousands of Federal prisoners.

Source: politico.com

It has been a generation since the United States Congress has reviewed and revised Federal Sentencing.  Prior to 1984, Federal judges had unbridled and unfettered discretion in formulating appropriate sentences.  Under the broad outline of the Federal criminal code, each judge had the power and authority to make sentencing determinations.  It was, and has been since the earliest years of our nation a judicial determination, only subject to Due Process and Equal Protection constitutional review.  Judge’s judged and judges decided: They were given the authority and power to balance the serious nature or character of an offense with public safety and the individual convicted of a Federal crime.

It was in 1984 that the United States Congress began what has been over thirty years of sentencing under the Federal Sentencing Guidelines.  The basic underlying incarcerative theory became a politicians’ view of what is appropriate and what is not in fashioning sentences to Federal prison.  The Sentencing Guidelines was intended to create balance, fairness and consistency.  The Sentencing Guidelines were intended to eliminate racial discrimination and disparity.  The Sentencing Guidelines were to bring to a modern court system scientific, reasoned and rational sentencing reform.  It has done very little to effect the intent of the Congress.  What was “sold” to the people of the United States as a rational sentencing system has done very little to reduce crime, improve recidivism rates, eliminate racially imbalanced sentences nor effect good public policy.  It was, is and always has been a political tool for politicians to seek and obtain re-election through fear of criminality and without provable result or outcome.

Public policy based on good social science to effect a better sentencing format has failed to effect any of its primary goals.  It has been over thirty years of a bizarre wizard’s brew of rules promulgated under the penumbra of the Sentencing Guidelines.  It has spawned a cottage industry of consultants and seminars for lawyers to divine sentencing memorandums to besieged judges burdened and not benefited from the Sentencing  Guidelines Commission. I have been among the voices in the wilderness calling for changes.  There are Federal judges who after mastering the Sentencing Guidelines as a genie, who seek daily in Federal courts to assist defense lawyers in fashioning rational results in sentencing.

The Senate Bill S. 2123, emanating from the U.S. Senate Judiciary Committee, presents the hope and promise of making right what has been a wrong perpetrated against and unknowing public who was sold a system that has failed.   I urge all my readers to send emails to their Senators and Congressmen/women to vote YES when the SENTENCING REFORM AND CORRECTIONS ACT moves from Committee to legislative review.

United States District Courts were, until recent years, required to strictly and mechanically follow the sentencing guidelines propounded by the U. S. Sentencing Commission. With the changes of the past eight years, the Courts have been largely permitted to vary or depart from the guidelines. Nonetheless, the U.S. Sentencing Commission still maintains a powerful influence on what Judges can and cannot do in deciding what is a guideline or “legal” sentence under federal criminal law.

From time to time we have seen substantial changes in the published sentencing guidelines, and 2015 is a banner year for change. Changes approved by the U.S. Sentencing Commission outlined in this report will be effective on November 1, 2015, unless the Congress acts to overrule, repeal or modify the new guidelines.

This blog entry deals only with the new guidelines affecting white collar crimes. These include money laundering, fraud, currency violations, mortgage fraud and securities law violations. The Commission explained in its proposed changes that it wants to more fairly balance harm suffered by victims and the intent and actual participation of the defendants, as well as updating the realities of the monetary ranges which were last set in 1988.  The criticism which prompted these changes comes from criminal lawyers and judges, as well as prosecutors in the Justice Department and the U.S. Attorneys Office that the current (soon to change) guidelines have produced overly severe sentences in some cases and inappropriately light sentences in others. Additional changes, particularly in mortgage fraud cases, emphasize the actual knowledge and acts of defendants and cuts the link that equates a conspirator with no actual knowledge, no intent and no participation in the actual acts. This comes up often when one of the conspirators who by his/her actions assists or provides the opportunity for mortgage fraud but does not or is not involved in the structuring and savaging of victims.

This came up in a recent federal mortgage fraud case I was defending in the Miami Federal court. My client, who had an ownership interest in a title company and had the duty to supervise employees was sentenced under the same guidelines as the bad actors. Imagine if you owned a bank or title company or mortgage brokerage firm and while you were hospitalized and removed from the day to day operations, your employees concocted and executed acts of fraud and deceit, hid them from you and changed records such that even with a serious due diligent effort to uncover the fraud you could not have found the bad acts of your employees. In this case the fraud only became known when defaults resulted in foreclosures and then the banks saw that they had lent monies far in excess of the values fraudulently assigned to the properties and that the owners were never financially qualified from the get-go.

The changes in the guidelines now state that the defendant be proven by the prosecutor to have actual knowledge and proven intent to cause the losses before their sentence can be increased by the actual dollar amounts. Nothing changes a defendant’s criminal liability as a conspirator.  You have the duty to supervise and the duty to know of the fraud: the proposed guidelines instructions do not release you from guilt as a conspirator, but your sentence is not tied to the actual amount of the loss. And the losses are also subject to changes in computational and analytical approach. This makes more sense when you actually read the proposed changes.