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Federal white collar prosecutors like me constantly make judgment calls in the course of their daily work. Two equally reasonable prosecutors may view very differently whether an act is a crime, a regulatory violation, a civil matter or nothing at all. The time devoted and level of scrutiny applied to specific transactions and the tactics used to investigate a case can vary greatly depending on the judgment of the individual prosecutor involved. The bulk of a prosecutor’s decision-making is generally not guided by established law, regulation or policy, but rather is based on broad discretionary powers. As U.S. Supreme Court Justice Antonin Scalia has noted, this is “an area where so little is law and so much is discretion.” Prosecutors need to make these discretionary calls, particularly in charging and disposition, for a number of reasons. We have to balance the investment of resources against the significance of the crime, judge the likelihood that at the end of the day we will have a provable case, and consider whether facts about the crime or the defendant would make a specific result unjust or disproportional. A prosecutor learns over the course of a career how to exercise this discretion from a number of sources: one’s supervisors and peers within the office, the ethos and history of the office in which one works, one’s experience, and simply one’s own sense of justice and fair play. Another source of influence, often overlooked, comes from interactions with defense counsel who can bring to bear facts and arguments overlooked. When defense counsel try to influence prosecutorial discretion, their credibility and their understanding of the role that federal prosecutors perceive themselves to be playing are critical. CREDIBILITY Those of us who practice federal white collar law live in a small town. Kevin Bacon and his six degrees of separation have nothing on us. I bet we are separated by only about two or three degrees: Any white collar prosecutor knows someone who knows someone who knows pretty much any white collar defense practitioner, and thus any prosecutor can get an accurate sense of his credibility and style. The converse is also true: Pretty much any white collar defense lawyer knows someone who knows someone who knows of a specific federal prosecutor. As a result, perhaps more than in any other area of the law, reputation and personal credibility are the coin of our realm. Before you walk in the door, the prosecutor likely will have asked others about your reputation and whether she can take your representations at face value. Thereafter, every representation you make to the prosecutor will be evaluated for credibility. Straight shooters are in a far better position to have their arguments taken seriously. Those who aren’t straight shooters will have difficulty. One respected prosecutor has a simple response to those who engage in questionable conduct: “It’s no problem. But now I know.” Every case has bad facts. If you didn’t have bad facts, I wouldn’t have a case, and we wouldn’t be talking. Rather than denying or ignoring your bad facts, it is far better to simply acknowledge them and to try to place them in context. We understand that you are not your client. A simple “It could have been handled better” or “In retrospect, it should not have been done this way” or, even my favorite, “It is what it is” can be disarming and go a long way in advancing a dialogue and enhancing your credibility. An attorney who simply repeats things his client told him without any further due diligence runs a huge risk of being wrong. At best, we may think that you are careless or that you think we can be spun. Or perhaps we will think the worst: that you are attempting to mislead us. That may squander your chance, at the right time and place, to influence our discretion. UNDERSTANDING PROSECUTORS Over my career, I have heard it all: Prosecutors are smug, self-righteous, arrogant, lazy, insensitive and out of control. They are eager to trample the Constitution in pursuit of cases. One defense lawyer has even written that you cannot be a good prosecutor and still be a good person. (I thought her law review article was funny, in that Stephen Colbert kind of way, until I realized it wasn’t satire. I think she means it.) I am not here to debate any of that, except to note that large numbers of people disagree with that assessment and that generalizing about the character of a large number of people has proved to be not very useful. Instead of accepting such rhetoric, try to understand what values drive the prosecutor. It is likely that he took the job, perhaps taking a financial penalty, to do justice in ways that few others can. He understands the power of the position and, one hopes, the sobering responsibility of exercising that power appropriately. His concept of justice may differ from yours, of course. It is your job to try to get him to move more toward your thinking. How do you do that? WHAT WORKS First, understand and acknowledge that the average prosecutor thinks consistency, especially consistency among similar defendants, is a good thing. (That is why some of us are such pests about the U.S. Sentencing Guidelines.) If you want a specific result, try to find similar situations in which the government has gone your way. Get facts of those cases and compare them to your case. We like to think we act reasonably, and showing what other federal prosecutors have done in similar situations is helpful to convince us of the reasonableness of a specific course of conduct. Second, notwithstanding that desire for consistency, we understand – or can often be persuaded to understand – that every person and every case is different, and perhaps that some of those differences should drive our discretion. We know little about your client except for all the bad things that our investigation has revealed. That is the nature of our investigations; we investigate facts, not people. It is useful to have counsel place those facts into the context of a real person. Otherwise, we are making assessments based on what can be a sterile set of facts. I have seen material in a presentence investigation report that, had I known about it earlier, would have significantly influenced my decisions. Third, understand that our time and effort has a value. If we made a plea offer early in the investigation, it will be difficult to get a similar one later, after the prosecutors and the investigative agents have worked to uncover more incriminating evidence. But an early plea offer can sometimes work to your advantage. We are required to assess culpability based on “readily provable” conduct. If your client has some exposure, think about an early, more favorable resolution before the government has invested significant resources in the investigation and before all the facts have crystallized. Likewise, if you have facts showing that the case has problems, by all means share them early. In every investigation, a prosecutor or his supervisor has to figure out whether an investment of time will yield a credible criminal case. We have better things to do than to chase after a case that isn’t going anywhere. Sometimes all we need is a compelling fact to push us in that direction. WHAT DOESN’T WORK Here are a couple of things that I have found don’t usually work: Don’t threaten to crush us at trial. The prosecutors you are dealing with are largely experienced, and they probably have lost their fair share of trials. It doesn’t scare us much anymore, and such threats may serve to get the competitive juices flowing. More important, it doesn’t really advance the conversation. It is far better, in talking about litigation risk, to describe specific facts or issues that make the case problematic to prosecute. Tie it into the standard that federal prosecutors use in assessing cases, contained in the U.S. Attorney’s Manual: whether we have sufficient admissible evidence that probably will be sufficient to obtain and sustain a conviction. Please resist the temptation to lecture us about the good old days. You may be sincere in your belief that the department has fallen so far from when you worked here or first started dealing with us. Current federal prosecutors are pretty cynical about the argument. (I first heard it nearly 20 years ago, so we have been going downhill for a long time.) If you think the prosecutor is deviating from historical office practice or tradition in some way, give some specifics, or see if you can talk to his supervisor. By the way, we are all familiar with the language in Berger v. United States about the role of prosecutors. Some of us even have it taped to our wall. Honestly, we don’t need to hear it from you. A preachy attitude doesn’t work with your teenager, so why do you think it would work on us? Given the broad scope of conduct involved in what we investigate, and the fine line between criminal and non-criminal conduct in the white collar world, the appropriate exercise of prosecutorial discretion is critical to an effective and efficient system of justice. Experienced defense counsel understand that a prosecutor’s discretion shouldn’t be left to chance. They understand that, under the right circumstances and with the right messenger, they can guide that discretion to benefit their client and the greater cause of justice. This article originally appeared in Legal Times , a publication of ALM. John Roth is chief of the Fraud and Public Corruption Section at the U.S. Attorney’s Office for the District of Columbia. The views expressed are his own and not necessarily those of the Department of Justice.

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