Dr. M Blatstein's Blog

Your Personal Narrative

and

The Presentence Interview Investigation Report

When addressing the Judge, initiating a written exercise is advisable. The Personal Narrative presents a great opportunity to share pertinent details about yourself and the incident in question.

YOUR SENTENCING HEARING – YOUR 1st and ONLY CHANCE TO SPEAK WITH YOUR JUDGE 

 What Can You Do To Stand Out?

M.. Santos interviews Federal Judge Mark Bennett on the importance of writing Your Personal NARRATIVE and including it in Your Presentence Report.

Creating a compelling narrative requires multiple revisions. To ensure the best possible outcome, it’s worth asking trusted friends or family to review beforehand. While your biography should contain pertinent information, we’ll collaborate to select the most pertinent details. We must communicate with those closest to you to gain a more intimate understanding of your personality, character, and circumstances. Remember, this is Your Life – we should approach it with the utmost seriousness.

The categories below are meant to encourage deep reflection but may be challenging. It is advisable to take time to consider them carefully and seek advice from trusted individuals, including a legal representative. You must provide authentic and heartfelt responses for several reasons. Firstly, it will hold no worth if you do not believe in what you are saying. Secondly, if a Judge suspects that someone else wrote your responses, it may cause further complications for you. Lastly, Probation will review your answers and offer recommendations to the Judge, therefore, they must trust your responses are sincere.

 Topic Categories:

In the United States Code, specifically in Title 18, Section 3553, there are provisions that state the various factors that judges must take into consideration when determining the proper sentence for a given offense. Among the most pertinent considerations are the Nature and Circumstances of the offense itself, as well as the offender’s Personal History and Individual Characteristics. These factors help to ensure that sentencing decisions are fair and just and that the punishment fits the crime. Here, through your NARRATIVE, this is your opportunity to provide your Story, Autobiography, or NARRATIVE of your life and what brought you to this day. Accepting responsibility, Triggering Events, and Having Remorse for the Victims you Created,

It is essential to start by conveying heartfelt condolences to the victims of the crime and acknowledging the immense agony and distress they have undergone. It is imperative to understand the seriousness of the crime and refrain from belittling its severity in any manner. This provides an opening to delve deeper into the subject.

Take some time to reflect on the events that led to this moment. What circumstances led you to commit this act? If applicable, you may draw on pertinent experiences from your childhood. Seeking the advice of an expert or legal professional may be helpful.

It is advisable to try and identify any triggers that may have contributed to your actions. Develop a plan to eliminate them from your life. It is pertinent to refine your initial drafts over time and to ensure that your personal narrative is authentic and truthful.

What have you learned from this experience? Did it bring up memories from your past? Share these insights with the judge. If you have victimized others, describe your plan to make amends, even if it is a small effort. Finally, outline your plan for preventing re-offending and ensuring that you will never appear in their courtroom again.

It is advisable to inform the Judge of your willingness to take financial responsibility and make amends. Bring some money with you (such as $100 or $1000) and tell the court that you would like to submit it if you can. You may say something like, “I understand that this may not be a significant amount, but I would like to offer $ 000.00 to the court.” 

Moreover, it would be helpful to let the court know that you have a job offer (only if you do and have that Character Letter with you) for when you return home and are willing to participate in the Financial Responsibility Program. If the Judge orders a payment of $25/Qt, you may find it challenging to comply. However, doing your best to honor the plan is advisable, even if you have little to no financial support while in prison. 

Not participating in the Financial Responsibility Program (FRP) while in prison may affect your ability to participate in other programs and could be held against you. Therefore, it is strongly advisable to participate in the FRP and any other programs that may be available to you.

Overall, it is essential to take financial responsibility seriously, as it can have a significant impact on your future. Additionally, it is advisable to approach the situation respectfully and properly, as this may positively impact how the court views your case.

Cases that judges find most challenging. If you fall into either of these two categories, the plan we have covered still applies, but with a caveat.
1. Predatory child sex offenders who have harmed children; if you fall into this category – You will be strictly monitored once released.

2. White-collar criminals who have harmed vulnerable people. If you fall into this category – once off supervised release, you are smart enough to know that you do not want to return.

 

 The Presentence Interview Investigation Report

can be aided by

Your Personal Narrative and Allocution

While I previously mentioned that it could be started in written format, it could also be submitted with the Sentencing Memorandum and made available in,

• Video MP4 format and placed in a flash drive or CD so that the judge could easily see it the week before (optimal timing) sentencing.
• You could work this with your attorney using either PowerPoint or a smartphone.

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YOUR PRESENTENCE INTERVIEW (PSI) – INVESTIGATION REPORT

• CONDUCTED BY THE PROBATION OFFICER – THE COURTS REPRESENTATIVE

 

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LIFE LESSONS, Admiral McRaven

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PREPARATION FOR THE PRESENTENCE INTERVIEW.

§9:30.7 Inside Baseball: Interview With Former Federal Probation Officer Tess Lopez, by Alan Ellis.

 

Counsel and Clients need to hold each other accountable and be respectful and listening to each other. While counsel is reaching out to Probation, the defendant is responsible for providing copies of ‘all’ of their Biographical Background and Personal Identification information that Probation has requested from your attorney.

At the same time, it is critical to draft a well-thought-out NARRATIVE and Release Plan and include content relevant to their PATTERN SCORE and Risk Assessment Survey. After multiple revisions, these are woven together, and then with the copies of all of the documents that are accurate and comprehensive, are organized and prepared and then given to the Probation Officer ~2 weeks before the interview so that it can be eventually included in their PSR, under Seal.

This allows time at the interview for the Probation Officer to get to know the client and ask any questions they may have. This ‘discussion’, with counsel present and the fact that the defendant was prepared and the officer’s time was respected, is usually appreciated as Probation Officers’ time is a rare commodity. Being comprehensive and accurate, as outlined below, allows the court to consider sentences outside the guideline range or “variances” because you are the only resource for the – the government will Not Volunteer this information.

I. Counsel’s goal is to learn the final “dictation date,” or the date by which the P.O. must complete their first draft of the official Presentence Report (PSR).

• Right away, counsel and client know their timeline to have everything completed. If the client has a company with legal issues that need to be resolved or personal issues, all of this requires time in addition to preparing for their Interview.
• Therefore, requesting, at a bare minimum 3 months to prepare for the interview would be great. This would also have been done at the guilty hearing, and hopefully, the judge agreed before setting the date for sentencing.
• Counsel learns who the PO will be and contacts them before they have spoken with the Prosecutor. Next, building a fundamental introductory relationship is important to understand what the officer already knows – which hopefully is not a lot!
  • This offers counsel the opportunity to explain your position, as the PO was not at trial and has not yet formed an opinion.
  • They may still have an open mind if they have not spoken with the prosecutor.
    • If the PO had already spoken with the Prosecutor before they ever met/interviewed you – they may have already been influenced, just not in your favor.
  • Your attorney aims to make their case and position with a personal meeting.
  • Meanwhile, you have begun writing your personal narrative, which will undergo multiple rewrites until it is distilled into its final version, where you accept responsibility.
    • This is your story, a Unique and Honest version of the events that resulted in your arrest. Once complete, your Personal Narrative is to be included in your Presentence Report.
    • Next, start writing your Release Plan, followed by an Allocution or your conversation with the judge at sentencing.
    • Then, be ready should the Judge wish to speak with you at the Sentencing Hearing and honestly answer his/her questions from the heart.
• Prison Placement: Counsel will start framing reasons “why” this prison placement request is being made (e.g., supported with reasons why, for example, programs: medical, FSA programming, etc.).
  • BOP Example: FPC Alderson,
• Counsel will outline each factor for the PO to consider under 18 U.S. Code § 3553
  • Part E (departure, assistance in the investigation or prosecution of another person, section 994 of title 28,)
    • These factors include aspects of the offense or the offender’s background that the guidelines do not adequately consider. Some examples of E factors include:
      1. The defendant’s role in the offense
      2. The defendant’s criminal history
      3. The presence of substantial assistance provided by the defendant to law enforcement
      4. The defendant’s mental or physical condition
      5. The defendant’s acceptance of responsibility for the offense
      6. Any other relevant factor that justifies a departure from the guidelines and
  • Part F (sentence below the guideline range under 18 U.S.C. §3553(a)) of the PSR makes strong arguments to support these requests.
    • These factors are also considered under 18 U.S.C. § 3553(a) and include:
      1. The nature and circumstances of the offense
      2. The history and characteristics of the defendant
      3. The sentence must reflect the offense’s seriousness, promote respect for the law, and provide just punishment.
      4. The need to afford adequate deterrence to criminal conduct.
      5. The need to protect the public from further crimes of the defendant.
      6. The need to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment.
    • Defendant does Not Have:
      • 1) more than 4 criminal history points, 2) a prior 3-point offense, or 3) a prior 2-point violent offense
      • did not use violent threats
      • did not result in death or injury
      • was not an organizer, leader, manager, or supervisor
      • defendant has truthfully provided the Government with all information and evidence
  • If the PO is receptive to a variance, it may be key to convincing the court to consider a sentence below the guideline range.
  • If your client receives a prison sentence, the Presentence Report (PSR) followed by The Statement of Reasone (SOR) are the documents used by the BOP to determine your client’s future.
    • This information (or lack thereof) will dictate whether the client is sent to a dormitory-style Camp or the Penitentiary Maximum-Security Prison.

• Meeting with the probation officer is to discuss their position on these issues.
  • This is particularly important in a complex case involving numerous counts, various ways to calculate the guidelines, and which guideline is appropriate.
  • Personal contact with the probation officer builds rapport and offers an opportunity to explain your position.
  • Sometimes as they are so busy with no extra time, and for a complex case, the PO would welcome the opportunity for defense counsel to explain their version of the case.
  • Remember, the PO wasn’t present at the trial; therefore, this personal meeting also assures the lawyer that the PO understands the case and their personal position. At the same meeting, they can get a feel as to how receptive the PO is.

• When working with Probation Officers, a little extra effort goes a long way as they are very busy, doing their best, and never have enough time. They may appreciate your efforts in easing that portion of their workload.
  • Consider presenting your entire view of the case clearly in a letter to the PO as soon as possible.
  • It is helpful to have the Probation Officer and Assistant U.S. Attorney (AUSA) buy into your client’s behavior and role in the offense before requesting relief from the Guidelines, and again, everything to be completed and handed in before the interview and dictation date.

II. Learn as much as they can about the judge’s likes and dislikes. If they find this hard, ask a Federal Defender.

• Counsel will want to learn whether the judge reads sentencing memos and character letters and how long those letters should be.
• If applicable, issues like overcrowding and staff shortages could affect your client’s access to their Programming Needs or other required BOP Services- is the Judge sensitive to this?

 III. Mental Illness: Did this contribute to the crime, or has your client suffered significant abuse or trauma? Either way, have them evaluated, and if you are unsure of a local expert, ask the prosecutor for recommendations.

• If there is a current treating therapist, it is best for all if they appear as witnesses; most judges would rather hear from a treating physician than a doctor for hire. This is not to put down experts, as they provide expert testimony that can only come from a select few.
  • If, on their own, treatment was started before the indictment, Guilty Hearing, PSI, or Sentencing, all the better. (AA, NA, GA, Psych. Counseling); this needs to be included in the PSR, Sentencing Memorandum…
• Mental Health example in this White Collar case. This client is an
  • Exceptionally bright, high-functioning, and very successful individual.
  • He/She is very skilled, highly motivated, and works 18-20-hour days for money-promotions-privileges.
  • The psychological evaluation:
    • The client is an obsessive-compulsive perfectionist.
    • Suffers from depression and anxiety.
    • The overwhelming desire to be successful, personally and financially, may cause an ordinarily law-abiding person to “cross the line” into inappropriate or illegal behavior.
      • Familiar?
    • Later diagnosed with bipolar disorder
  • Latest statistics by the U.S. Sentencing Commission
    • 6 percent of inmates received downward departures for diminished capacity (U.S.S.G. §5K2.13).
    • If half of the inmates have symptoms of mental health problems,
      • yet only 2.6 percent are receiving departures, are the judges simply insensitive?
    • Or does the problem lie at the feet of the defense counsel, who is not taking the time to conduct a thorough investigation into the client’s social and psychological history?
      • Unfortunately, I believe it is the latter.  Tess Lopez,

 IV. Character Letters: only pick out a few to discuss in the memorandum, but add at the end that “there were another 50 that all said similar things, and the PO has those.”

• If an employer is willing to write a character letter that says they are willing to rehire you due to your skills and character once you are released – that is a Great letter for The NARRATIVE and Release Plan. 

 V. The Sentencing Memorandum is best submitted approximately seven days before the sentencing hearing,

• Corroborate the issue with the appropriate supporting documents, albeit a doctor’s letter/ report/ medical/treatment records, etc. Remember to document, document, document.
• All of this is preferably done under seal via the Probation Office so that the information is appended to the PSR when given to the BOP.
• In The Sentencing Memorandum, give the Judge 1 or 2 cases with the highlighted pertinent points; if there is a video or pictures, include those.

 VI. 18 U.S.C. §3553(a)(2)(D) requires a sentencing court to consider The Nature and Circumstances of the offense and The History and Characteristics of the Defendant. In the client’s NARRATIVE, most of this should be covered.

• To determine which 18 U.S.C. §3553(a) factors apply, while someone with experience should:
  • 1st) Conduct in-depth (multi-hour) interviews with the defendant, should an evaluation be needed (even in White-Collar); now is the time, and
  • 2nd) plus having the time (multi-hours) to speak with family members, close friends, and business associates or trusted employees to understand the person better.
  • As most Officers do not have ‘any’ time, at times, this is left to counsel to do themselves. This provides the opportunity to discuss hiring someone to do this part of the background work, or it may just not get done.
• Evaluation of the care needed for a client’s medical condition – may support a cost-related (home confinement) argument.
  • This is most apparent in cases of defendants diagnosed with a terminal illness or a diagnosis that falls outside the scope of what the BOP can provide (Long-Haulersor Post-COVID).
• The cost of incarceration should also be factored into whether a sentence is “greater than necessary.”
  • Last are those, where appropriate, emphasizing to the court what the client would be doing if not incarcerated (i.e., working, supporting a family, paying taxes, and/or restitution).

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The Presentence Report Determines Your Future – So Preparation For Your Interview is Vital

• Judges use the PSR to determine the length of a sentence.
• The Bureau of Prisons (BOP) uses the same PSR for prison placement.
• The PSR is again used by Probation during Supervised Release.
• Lastly, this same PSR becomes a permanent part of your record and the Inmates Bible – It truly is the gift that keeps on giving.

Call Dr.Blatstein at 240.888.7778 or by email for a No Obligation Free Consult; I return all of my calls personally.