The tickle of curiosity. The gasp of discovery. Fingers running across the keyboard.

Friday, November 24, 2017

Federal Plea Deals a Primer for Writers and Readers with Sarah Smith

JMR-Memphis -Blind Justice-3
JMR-Memphis -Blind Justice-3 (Photo credit: Wikipedia)
ThrillWriters and ThrillReaders, today I am sharing with you information from Sarah Smith. 

Ms. Smith is a Juris Doctor with twenty years federal and state experience and eighteen years of government ethics law. She is now retired, non-practicing, lupus-afflicted attorney. I have been following her on Twitter and have respected the way she helps laypeople understand the law and how it applies to our lives. 

The following information was compiled within the scope of what is currently happening with Flynn and his association with President Trump. THIS POST IS NOT MEANT TO BE POLITICAL. Thrillwriting is a non-political, educational site which hopes to compile information as a resource to plotting or understanding fiction. I present this in it's original form so you can see the process applied to a real-world scenario. 

Follow Sarah Smith on TWITTER.

Sarah Smith (by permission from her Twitter thread):
  • Good morning, everyone. Throughout the weekend, I will fill in this thread about Mike Flynn, how federal plea agreements generally work, and what it means within the context of the Trump/Russia investigation.
  • 97% of federal criminal prosecutions are resolved by plea bargain. (read more about this here)
  •  As a practical matter, the deck is stacked against a criminal defendant in federal court. First, federal investigators come equipped with a near bottomless pit of investigatory resources. Second, the pre-trial discovery rules are very different from state courts.
  • Defendants may not take pre-trial depositions in fed criminal cases. This alone is a huge handicap to defendants. Also, while fed prosecutors are requires to hand over exculpatory information in their possession, often, this is not tendered until trial or right before trial.
  • The US courts report that 90% of federal criminal cases result in guilty plea. Regardless, that percentage still reflects that defendants consider it more beneficial to plead guilty, than to proceed to trial( read more HERE)
  • I will approach this in a very rudimentary manner, assuming some of you have little knowledge of federal criminal cases. First, there is an investigation. During the course of an investigation, the target of the investigation will eventually (usually) learn he is the target.
  • Often times, early in the investigation, feds will approach the target and ask for cooperation. Or, if the target has counsel, the USAG will communicate w[ith] defense counsel about the possibility of cooperation.
  • This is a precarious time for the target and his counsel. Why? Because at this phase, statements of counsel and of the target can later be used against the target. This is one area which differs considerably from many state courts. So counsel must walk a tight rope.
  • Assuming the target decides at this juncture to accept the govt’s offer, it does NOT mean a plea bargain is in effect. It merely means that the target will be given the opportunity to “proffer”, so that the govt can assess whether the target is truthful and useful.
  • A fed proffer statement is when the target tells all to federal investigators. Back when I practiced law, I sat through many proffers. Mind you, at this stage, ZERO “discovery” has been conducted between the parties. (Discovery is the exchange of trial info between parties).
  • For more info about the federal proffer process, read THIS.
  • Continuing along, let’s assume that the target proffered and things went South. In such case, there is no plea bargain offered and the target has quite likely made his own situation much worse, adding obstruction (lying to fed investigator) charges.
  • Also in such a situation, defense counsel is often placed in jeopardy and, minimally, is faced with various client conflict of interest matters. It is not unusual to see a change of counsel at this juncture (much to tje delight of the USAG, I might add).
  • I note here that at this juncture, the govt MAY request that the target perform various duties to prove his worth. The govt may have the target “wear a wire”, record phone calls, or other acts. This can be done BEFORE any formal plea is negotiated.
  • It is at this time defense counsel generally steps back & allows client to earn leniency. I had a couple of proffer interviews where feds had the target make recorded phone calls—I always stepped out of the room w Asst USAG, so as not to make ourselves witnesses in the case.
  • Assuming things go well for the target at this juncture, the DOJ will send a formal plea offer to defense counsel. The plea agreement will specify that Defendant cooperated and provided substantial assistance to the govt and that the govt intends to file a motion under 5k1.1
  • The target’s cooperation can be ongoing as the plea is negotiated. The defense counsel would encourage the target to be honest and to perform the tasks requested by the federal investigators.
  • I should also note that often times the feds may ARREST or THREATEN TO ARREST a target and have the target proceed as an informant (CI) WITHOUT counsel. This is quite common. If arrested, it is likely done under sealed indictment or sealed charging information.
  • Either way, the objective of the target is to obtain leniency at sentencing. (Go HERE
  • Defendants get some consideration for acceptance of responsibility under the federal sentencing guidelines, regardless of whether a 5k1.1 motion is filed.
  • An indictment is different from the charging information filed without indictment:of responsibility under the federal sentencing guidelines, regardless of whether a 5k1.1 motion is filed.
  • Defendants may WAIVE charging by grand jury indictment. This is important to understand, because reading court dockets which show sealed grand jury indictments would not reflect when a CI/target/defendant has waived indictment by GJ.
  • An “indictment” is a formal statement of criminal charges. Indictments are issued, or "handed up," by grand juries.
  • Let’s pause to review
  1. Targets may cooperate w or w/o counsel, pre-charging or post-charging.  Targets who seek leniency “proffer” to govt 
  2. Defendants may waive GJ indictment 
  3. Defendants who accept responsibility=eligible for consideration, notwithstanding 5k1.1 departure.

  • Again, the period of investigation after a target becomes aware of the investigation is a perilous time for the target & defense counsel. It often results in a change of counsel. 
  • Re Flynn, the NDVA had a GJ convened back in May. Now, take a moment to review the processes I have described in this thread and envision Flynn as the target.
  • Based upon McCabe’s May testimony to Congress, we know that a federal GJ was investigating Flynn. Flynn may or may not have been a cooperating target at that time (unlikely) AND this means Flynn HAD NOT entered a formal plea agreement w the govt at that time. 
  • It could be that Flynn was a cooperating target for that GJ investigation against others bf McCabe testified (unlikely)Regardless, Flynn had no plea agreement with the govt in May when McCabe testified. If he entered into a formal plea, it was AFTER McCabe’s testimony.
  • There is another possibility and that is that Flynn is being investigated in MULTIPLE JURISDICTIONS. It could be that Flynn has packaged up his federal liabilities in a district other than NDVA. If so, the NDVA GJ referenced by McCabe targeted others besides Flynn.
Fiona - 
I hope this thread helped you develop your legal plot line, or if you are reading fiction or non-fiction that it gave you more insight into the process. Again, my thanks to Sarah Smith for continuing to explain the confusing world of law intricacies. No folks, it's not what you see on TV.

Happy reading and writing!

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