Preparation, Sentence Mitigation, White-Collar

PRESENTENCE INTERVIEW PREPARATION – NOW IS YOUR TIME TO: “JUST DO IT.”

PARTICIPATE IN YOUR DEFENSE – WHAT YOU DO NOW MATTERS

 

“It’s surprising how many otherwise competent attorneys ‘punt’ at the sentencing hearing.”
Federal Judge Patrick J. Schiltz 
“Don’t wait to think about sentencing advocacy,” since 99 percent of federal criminal clients will be facing sentencing, start preparing the case for sentencing early on.
Federal Judge Robert N. Scola 

YOUR ATTORNEYS KNOW THE LAW. 

  • ANTI-KICKBACK LAWS.

  • PUBLIC CORRUPTION: BRIBERY.

  • FRAUD: PPP, WIRE, BANK, MONEY LAUNDERING OR HEALTHCARE (MEDICARE, MEDICAID).

  • THE DOJ INDICTS EQUALLY; THEY DON’T CARE IF YOU’RE AN EXECUTIVE, CEO, PHARMACIST, DOCTOR, IN INVESTMENTS, BUSINESS OR HOLDING PUBLIC OFFICE.

KEEP IN MIND THAT MOST DEFENSE COUNSEL WILL KNOW ALMOST NOTHING ABOUT

  • THE NUANCES OF FEDERAL PRISON OR

  • YOUR PERSONAL BACKGROUND, OR

  • HOW DID YOU GET TO THIS POINT IN YOUR LIFE?

  • YOUR NARRATIVE IS ‘THEIR’ ONLY BACKGROUND RESOURCE FOR YOUR DEFENSE,  MEMORANDUM, AND 18 U.S. Code § 3553

    • title 18, Section 3553, states the various factors that judges must consider when determining the proper sentence for a given offense. Among the most pertinent considerations are the Nature and Circumstances of the offense itself and the offender’s Personal History and Individual Characteristics.
    • These factors help ensure that sentencing decisions are fair and just and that the punishment fits the crime. This is your opportunity to provide your Story, Autobiography, or narrative of your life and what brought you to this day. Accept responsibility and Have Remorse for the Victims you Created.

YOUR INDICTMENT WASN’T AN EASY READ

WRITING YOUR NARRATIVE

  • It isn’t easy to face our inner truths, daemons, or what happened. It may take a third party to discuss what happened or act as a sounding board—someone who will be truthful without making you feel inferior but is not an enabler or a yes person.
  • What is essential is to start (yesterday), writing everything that comes to mind, and if the story begins from childhood – so be it. The length does not matter because it likely will be rewritten several times before you’ve taken responsibility and have understood that there were victims (there always are – per the courts). You want to make amends to them, your family, as well as to never see this court again.

SOUND FAMILIAR?

  • If parts of this ring or are true and you now feel that you want to consider a trial or an appeal, consider asking your counsel how many trials or appeals they have won. Then, are you still prepared for a harsher sentence should you lose? This is a strategic and not a trick question.

I. THE PARTS OF YOUR PRESENTENCE INTERVIEW PREPARATION 

 

YOUR PROBATION OFFICER MAY HAVE REQUESTED COPIES FROM THIS LIST.

  1. Divorce Decree
  2. Financial Records
  3. School Diplomas, Your highest education level completed, Professional Diplomas, and any Trade or Occupational Certification(s).
  4. Marriage Certificate
  5. Naturalization papers
  6. Draft Registration card
  7. Car Registration papers
  8. Military Discharge certificate
  9. Birth or baptismal certificate
  10. Immigration papers or passport
  11. Employment verification (pay stubs)
  12. Character Letters of Recommendation
  13. Military Disability information (C-number)
  14. Income Tax reports for the last three years (or more if requested)
  15. Outstanding Detainers and Immigration Issues Resolved Before the Presentence Interview
  16. Proof of residence (rent receipts, property, mortgage papers, etc.)
  17. Professional papers (COPIES: Social Security Card, Drivers’ License, and Birth Certificate.)
  18. Medical Records, Hospital—Surgical—Pathology and Blood Lab Reports, Copies of X-ray, MRI, CT, Ultrasound, PET Scans, EEG, and EKG reports (on Flash Drives or CDs), Prescriptions for Medications and Medical Devices.

II. NOW TO HUMANIZE YOURSELF TO THOSE WHO HOLD YOUR FUTURE IN THEIR HANDS. 

  • 1/4. PERSONAL NARRATIVE

  • 2/4. ALLOCUTION

  • SENTENCING – APPEAL DENIED – LESSONS LEARNED

  • 3/4. RELEASE PLAN

  • 4/4. CHARACTER LETTERS

Write a Personal Narrative, WHY?

  • People recognize Brands (Nike“Just Do It”), cars (Tesla ),  and even the Olympics Their Rings. 
  • The DOJ has already published Your Brand or Narrative Worldwide as your INDICTMENT, and they didn’t even get your permission. Do you agree with how you are portrayed? Does it represent the best version of who you are?
  • If you do nothing, your judge will have no choice but to sentence you based on the “Four Corners” of that document. If you’re like me, it was not that flattering.
  • But if you choose to take the time, with the help of others, possibly those who are familiar with the process, and develop a well-written Narrative in which you’ve accepted responsibility and feel remorse for the victims harmed—without making any excuses—these are steps in the right direction.
  • This is the most important essay or autobiography of your life’s story and hitting specific target points is crucial to Humanizing yourself to your current and future stakeholders. Here, You Get One Chance To Make A Great First Impression, Period.

If you are still confused, call me [240.888.7778] for a Consultation at No Charge. I answer and return all of my calls personally, with No AI Anywhere.

1/4. THE PERSONAL NARRATIVE

  • Judge Mark Bennett gets annoyed with Booker and 18 U.S. Code § 3553 in the Memorandum. However, as he explains in this video, including the defendant’s well-written Narrative in the Presentence Report is a great idea.”

Attorney Alan Ellis interviewed Federal Judges nationwide, and they all had similar thoughts on what they wished to hear from defendants. 

  • Along with Federal Judge Bennett, there was a heartfelt, believable Allocution where there was accepting responsibility, an apology, and remorse for actions taken and a plan never to return.
  • Character letters from those who have known the person for a long time could be from anyone in the community. 
  • There was agreement that their most challenging cases were predatory child sexual offenders harming children and white-collar offenders harming vulnerable people.
  • Regarding mental illness, show me that they are not a con artist, sociopath, or psychopath.
  • Lawyers need to be credible. Candor is good, and acknowledging that the crime was heinous is also important to the court. Develop a reputation for asking for realistic sentences, not those that are ridiculously too low.

2/4. THE ALLOCUTION

A lawyer’s thorough preparation is essential to humanizing their client, crafting a compelling narrative and allocution,  preparing them to speak with their judge. If they are unable to do so, then other options could be written, PowerPoint, video, or in-person. Content-wise, 

  • Judge Jon Levy of the District of Maine in Portland emphasizes the significance of the defendant’s post-apprehension actions. This includes whether they have engaged in rehabilitation programs or provided valuable services while in detention, such as teaching fellow inmates new skills. In cases of presentence release, the judge seeks information on whether the defendant has made amends or restitution, engaged in employment, received mental health or substance abuse treatment, and demonstrated meaningful efforts to redirect their life.
  • Judge John R. Adams (Northern District of Ohio) stated, “A defendant’s statement during allocution is generally more crucial than what a lawyer says at sentencing. I prefer the defendant to take responsibility for his actions.”
  • Judge Adams demands that defendants refrain from wallowing in self-pity. He unequivocally stated, “The defendant must commence their allocution with a sincere apology to the victims.” Furthermore, he emphasized the necessity of defendants taking tangible actions to make amends for the harm caused to the victims, particularly in cases of white-collar fraud. Additionally, he adamantly expressed his frustration when presented with a Presentence Report indicating that the defendant has squandered substantial amounts on luxuries and now claims inability to meet their restitution obligations.

Your Allocution develops from your Narrative. During the judge’s conversation with you, in addition to covering the points below, he/she may want to know your plan is not to return to their courtroom. Believe them the first time.

Overall Judges Look For,

  1. A sincere demeanor
  2. Discuss what “taking full responsibility” means to the defendant.
  3. An acknowledgment that there are victims (e.g., even when the PSR indicates “no identifiable victim,” as it does in most drug cases);
  4. A more impressive Allocution details how the defendant’s criminal conduct affected the victims.
  5. An expression of genuine remorse.
  6. A plan to use prison or probation time productively.
  7. Discussing why the defendant wants to change his or her criminal behavior, perhaps most importantly, information that helps humanize the defendant and the defendant’s role in the crime.
  8. Tell their story, but don’t minimize the seriousness of what your client did.
  9. Judges sometimes ask defendants what they will do to reduce their need to re-offend upon release.
  10. Show his/her strengths and weaknesses.
  11. If you can show that you and the court agree on the seriousness of the offense, the chances of the court accepting your other statements will increase.

SENTENCING: BEING PREPARED – I WASN’T

MY MISTAKES AS PROOF OF CONCEPT, ON THE DAY OF MY 1st SENTENCING ‘3’ LESSONS WERE NOT LEARNED.

  1. THE JUDGE ASKED ME IF I HAD ANYTHING TO SAY OR WHAT MY PLAN WAS TO NOT RETURN TO HIS COURTROOM. NOBODY TOLD ME I WAS GOING TO BE QUESTIONED BY THE JUDGE.
  2. NEXT, THE JUDGE SAID HE DIDN’T WANT TO SEE ME BACK IN HIS COURTROOM AGAIN. I AGREED. AT THE SAME TIME, MY ATTORNEY AND I ASKED IF I COULD APPEAL THE INDICTMENT AND THE JUDGE AGREED. I ASSUMED THAT I WOULD EITHER 1) WIN OR 2) LOSE. 
  3. WRONG AGAIN – HE DID NOT WANT TO SEE ME BACK IN HIS COURTROOM.
    1. I LATER LEARNED THERE WAS A 3rd) DOOR, UGH!

2nd Sentencing: DOOR, NUMBER #3) SENT ME BACK TO PRISON: UGH.

3/4. RELEASE PLAN

If you’re reading this for the first time, it can appear both overwhelming and premature. Both are correct. But at minimum, giving this idea a little thought is a good start. I wish I had learned most of what I am providing early on, so please pick and choose what you are comfortable with.

The Release Plan is divided into Six Parts.

  1. Before your Presentence Interview (and is provided along with your Narrative to be woven into your Presentence Report), 
  2. Before your Sentence Hearing (building and after giving more thought to your 1st Release Plan),
  3. Once inside, this is where it grows—primarily by documenting your Personal Developmental Growth, which includes the FSA Programs and everything Constructive that you have been working on in areas of interest to you, including mentoring others or teaching classes.
    • Sierra v. Jacquez – An Example of Why You Need To Document Your FSA Credits.
      • The petitioner believes that, despite not having written documentation and other issues, he has accumulated 365 days’ worth of FSA time credits and is entitled to immediate release. The BOP provided the petitioner’s FSA Time Credit Assessment, indicating that he earned 75 FSA time credits.
  4. Before release, provide details of what you will be doing once released. This can be started by following example forms developed by Rikers Island, the MN Dept. of Corrections – ‘The National Institute of Corrections Manual, or the Release Plan Prep Guide. All of this will, or should (as nothing is Guaranteed), make you appear a better candidate for a Halfway House. These beds are limited, and Residential Reentry Managers want to fill these beds with people who will reenter society successfully. Is this You? This video doesn’t cover everything, but I hope it provides some constructive insight.
  5. After Release / Post-Incarceration Services, you are still under the supervision of the Bureau of Prisons.
    • For many in BOP custody until he/she completes his prison term (for sentences greater than six months).
    • You’re in a Residential Re-entry Center (halfway house) or working with the BOP’s Community Corrections Management.
    • If you’re eligible to be transferred to home confinement (the last six months or 10% of the sentence, whichever is less), your client will transition from the RRC or CSC with another set of rules and requirements.
    • Even after leaving BOP custody, he/she will start his supervised release period, which is often for three years.
    • Each of these is a different branch of the Justice Department, 
    • You Do Not Want To Get Disciplined or have any Infractions that Could Return You To Prison
  6. Supervised Release / Parole / Halfway House
    • You think You’re Out/Done,
    • But You’re Still Under “Federal” Control,
    • This could be the Hard Part – No Mistakes – Don’t assume,
    • For Questions, Ask your Probation Officer or Residential Reentry Manager First and Often. Not hearing back is Not an OK To do what you want to do.
    • Some are harder to deal with if your charge is a State Charge – But Make This Temporary.
    • Supervised Release – Probation

4/4. CHARACTER LETTERS

  • They include the fact that they know you have broken the law and have known you for a long time. They can come from family, friends, community, or religious leaders. They are ‘not’ offering sentencing recommendations to your judge.
  • Should an employer be willing to write a letter that states they are willing to rehire you after release from prison due to your ‘character and skills’ – that is a Great letter and should be included in your Presentence Report, Memorandum, and Release Plan. They may write, “I know he/she won’t be back to this court because we will be looking out for them in the future and holding them accountable.”
  1. Halfway House Job Letter Should Include,
    • They know you are going to prison, that you have just been released, and they are still willing to hire you.
    • Your job will keep you in one place where probation can call or show up and find you.
    • Your pay will be $/ Hour, 5 Days/ week, 8 hours / Day. It includes your manager’s name and phone number and states they can speak with Halfway House and Probation as needed.
    • How they know you and how long they’ve known you.
    • What do they think of you?
  2. Who do you ask:
    • Relatives, Religious leaders, Volunteer organizations, or employers (especially if they are willing to rehire you)?
    • Request Character letters and keep reminding the people you’re asking, then pick the ten best. Then, give them all to your lawyer at one time. Do not include personal information (phone, address); for businesses, that is OK.
    • Start asking for these letters ASAP.

STAKEHOLDERS, EXTERNAL

THE FIRST STAKEHOLDERS YOU MEET?

The Courts /Your Judge usually already has a sentence in mind by the time you get to your sentencing hearing.

  • If your NARRATIVE was written and embedded within your Presentence Report, your judge likely would have read it and learned more about you than just what was in your INDICTMENT. Depending on your NARRATIVE, judges across the country agree that they want to hear from the defendants because crimes do not happen in a vacuum.
  • Judges want to know why. After learning the why, do you take responsibility for your actions? Do you have remorse for the harm caused to the victims of the crime you have perpetrated?

  1. YOUR ATTORNEY.

    • If you have taken my advice, you have asked many questions and found counsel that you feel is a good fit. Should your discussions covered the topics of plea vs. trial, hopefully they’ve been candid and your expectations realistic.
    • At this point they know nothing about you personally or your background other than your charges and what you share with them.
    • Please do not lie as, as the only person who will suffer is you.
    • Besides your charges, they will only learn more about who you are, if you first draft a well-written Narrative. This may help in your defense.

  2. THE PROBATION OFFICER WHO CONDUCTS YOUR PRESENTENCE INTERVIEW IS THE MOST IMPORTANT YOU WILL MEET – PERIOD. WHY?

While Probation Officers are overworked and have little time, they also have the ear and respect of your Judge, so if you can share your story with them successfully, that is a win!

  • Ideally, You want everything provided to the Probation Officer 1-2 weeks before the Presentence Interview, organized and spellchecked.
  • Providing everything that they have requested including your Personal Narrative, Release Plan, and Ten of the best Character Letters. If done right, your narrative should contain all of the information your officer will need to fill out in their Presentence Report Worksheet. 
  • Well written, a Personal NARRATIVE should contain all the information your Probation Officer needs
  • “Why? 
    • Being overworked and having no time, some may appreciate counsel’s effort in organizing everything they’ve requested and providing it to them early.
    • They can now take their time to fill in their Probation Report Worksheet.
    • Then, on the day of the interview, they’ll have the time to get to know you personally and ask any remaining questions they may have.
    • At the end of their meeting, the Probation Officer may feel that the defendant took this seriously, leaving them with a more positive view of who you are, different from the person referenced in their Indictment.”
  • It provides information about the offense for which the defendant is being sentenced,  Acceptance of Responsibility and Victim Remorse statement, Release Plan, and where the sentencing guidelines apply.
    • This includes background information about the defendant, such as
    • Criminal history, education, work experience, family background, and health history,
    • A Realistic Sentence Recommendation and BOP Placement Request Could Also Be Included.

  1. THE PROSECUTOR

    •  Will still likely want to convict you (to protect society) but still may be swayed by your NARRATIVE.

  2. THE DEPARTMENT OF JUSTICE (DOJ)

    • Wants a conviction.

  3. THE JUDGE WHO SENTENCES YOU

    • Judges understand that crimes do not happen in a vacuum, and they already know what your Attorney (wants you to have no prison time) and the DOJ and the Prosecutor want; both want you in prison.
    • The only person they do not know is you, and why did these events occur? What happened in your life? All they know is what they have read in the Presentence Report and your INDICTMENT unless you take the time to write a heartfelt, well-written Personal NARRATIVE.

WHO ARE THE STAKEHOLDERS YOU MAY NEVER MEET – BUT ALSO IMPACT YOUR LIFE?

SECURITY DESIGNATION’S

  • MADE BY THE BOP Designation and Sentencing Computation Center (DSCC) IN GRAND PRAIRE TX.
  • THEIR DECISIONS COME FROM YOUR EFFORTS, THROUGH THE PRESENTENCE REPORT

MEDICAL DESIGNATION’S

  • THEIR DECISIONS COME FROM YOUR EFFORTS, THROUGH THE PRESENTENCE REPORT
  • MEDICAL CARE LEVELS I AND II ARE MADE BY THE BOP Designation and Sentencing Computation Center (DSCC) IN GRAND PRAIRE TX.
  • MEDICAL CARE LEVEL III AND IV IS MADE BY THE BOP’s Office of Medical Determinations and Transportation (OMDT) IN GRAND PRAIRE TX.

STAKEHOLDERS, INTERNAL

BOP Staff, Warden, Unit Team, and Case Manager.

For case managers and unit teams, these are employees, and they see hundreds of inmates/people (if not thousands), so how can you differentiate yourself – demonstrate that you are staying out of trouble, doing your assigned job, attending FSA Classes, and doing other constructive work. Reading Non-Fiction, teaching a course, and documenting everything you do (these are ideas I learned from others). Are you an artist? That is important as long as you have constructive interest that can lead to a career after release. There are few ways in prison to demonstrate an individual’s Personal Growth and Development that prepare them to reenter society as law-abiding citizens. However, using your time constructively is essential, as BOP Staff will observe you daily.

  • Eventually, you will be released. Will you need to work? What are your interests? Is this too early or premature in your sentence to consider this question? Honestly -> No.
  • Are you a High School Graduate? If not, consider getting your GED. If yes, get a College Degree with the Second Chance Pell Grant.
  • If you have already graduated from college or graduate school or built a successful business, consider teaching a course and giving credit to your case manager.
  • In the meantime, use your time constructively. Read to learn, which is Non-Fiction on any topic from painting to computers, History to Philosophy. And if you’re serious, which I hope you are, write down the parts that interest you for later use.

Halfway House Managers (RRM), Probation Officers during Supervised Released

  • They will also have tremendous sway over your activities. 

MINIMUM CAMPS

FREESTANDING FEDERAL PRISON CAMPS

  • These are not associated with Higher Secure facilities.

SATELLITE MINIMUM CAMPS

  • ARE ON THE SAME COMPOUNDS AS A HIGHER SECURITY PRISON AND PROVIDE MUCH OF THE LABOR.
  • THEY USUALLY PROVIDE MORE PROGRAMMING AND MEDICAL SERVICES
  • DUE TO THE HIGHER SECURITY, THAT ATMOSPHERE IS LIKELY TO TRANSFER OVER TO THE CAMP, ALTHOUGH IF THIS IS YOUR FIRST TIME YOU’LL LIKELY BE UNAWARE.

COMPARISON

Unfortunately, I have seen both, so I am biased, but not in a good or fair way. At FPC Pensacola, there were very few lockdowns and no razor wire. At the Satellite Camp Cumberland, I was immediately put in Isolation (SHU) due to the court’s paperwork not being there – possibly a rare occurrence. Lockdowns, though, were all the time, fog (OK), but primarily disruptions at the Medium (fights, stabbings, etc). The guards (I think) rotated, as there was always a heightened atmosphere of security – but that could just be me (psychologically) comparing two facilities back-to-back. Razorwire, yes.

……………..INSIDE, TO FOLLOW

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