Today's column is a summary of a program that I moderated at the 2013 Federal Bench Bar Conference on June 7 in Philadelphia. The participants were U.S. District Judge Mary McLaughlin of the Eastern District of Pennsylvania; Mike Engle, past president of the Pennsylvania Association of Criminal Defense Lawyers; Ann Flannery, former assistant U.S. attorney; and Peter Schenck, chief of the Criminal Division of the U.S. Attorney's Office in Philadelphia. I designed the program.
Over 85 percent of criminal cases filed in federal court result in guilty pleas, and the vast majority occur before trial. Of those that go to trial, well over 90 percent result in guilty verdicts. Simply based upon statistics, the sentencing hearing in over 90 percent of the cases is the most important aspect of the criminal process. The federal sentencing guidelines, although now only advisory, still make the sentencing hearing a complicated event that must be prepared for with professional due care. Gone are the days when one can throw the client on the mercy of the court, explain his or her past good life, and seek rachmones (a Yiddish term often used by Chicago defense lawyers, meaning compassion). Sentence preparation must begin early and in earnest.
If a guilty plea is contemplated, defense counsel should begin dealing with the prosecutor as soon as possible. Schenck advised to start talking with the prosecutor long before the guilty plea date. Start discussing the plea as soon as possible in your early meetings with your client. Keep in mind you do not know the extent of the evidence in possession of the government, and the sooner you get control of it, the better you can serve the client.
A key person in this process is the probation officer, who will draft the description of the offense and all the related conduct that the judge will use as the basis for the sentence. Flannery stated that an important document is the written factual basis for the plea that is agreed upon between the prosecutor and defense counsel. Even though the probation officer will draft the statement of the offense, the guilty plea memo should be examined closely by defense counsel, as the probation officer will use it as a major part of his or her report. Once the plea is entered, defense counsel is pretty much bound by its language. Schenck urged counsel to iron out what is agreed upon, and what is to be a fact to be left to be argued before the judge. These matters should be set out in that guilty plea memo filed by the prosecutor. Flannery said that if there are unnecessary facts in the memo, deal with the prosecutor to remove them ahead of time. Don't give the probation officer information that might affect the adjustments to the sentence, and add points to the overall calculation. Nail down what is the relevant conduct, those acts not charged in the offense, but that can be used by the probation officer to increase the sentence.
Engle emphasized that dealing with the probation officer is one of the most important aspects of the sentencing procedure. Engle pointed out that the probation officer is the first person who gets to see the real defendant, and will make the determination whether the defendant's version of the offense is credible, and if the defendant has accepted responsibility, and will decide initially if there are any credible mitigating circumstances. Engle said that defense counsel should ensure that the defendant does not attempt to explain his or her version of the offense. Defense counsel should inform the probation officer at the meeting with the probation officer that counsel will submit a written version of the offense. Quite often, the defendant will attempt to qualify certain facts that are well known, thus casting the defendant as incredible.
Discovery at sentencing is an odd stepchild of the process. U.S. District Court for the Eastern District of Pennsylvania's Local Criminal Rule 32.3.2 provides that the attorney for the government will make available to the probation officer all investigative and file material relevant to the case. A problem with this provision is that material that the defendant's attorney has not seen may be supplied to the probation officer, which will increase the sentence calculation, and the defense attorney may not see it until the probation officer files his or her report. Then, the defense counsel is swimming upstream, and forced to seek a continuance in order to comment on it. This material may be statements of accomplices that the defense counsel has never seen, especially if there has been a guilty plea without a trial. The Middle District of Pennsylvania has adopted a local criminal rule that requires the prosecutor and defense counsel to serve each other with any matter they file with the probation officer. Defense counsel on the panel urged the court to formally adopt such a rule in the Eastern District. Eastern District Judge Mitchell Goldberg, from the audience, stated that the court has worked out an agreement with the U.S. attorney to make such service on the defense attorney. Schenck said the agreement obviates the need for a formal amendment of the rule.
Engle and Flannery suggested that in certain situations, counsel should request the statements that would have been produced pursuant to the Jencks Act, even though those people would not testify at the sentencing hearing. There are often mitigating statements contained in those otherwise prosecution statements.
The panel agreed that Brady requests at sentencing are underused. It was a suggestion that a very specific Brady request should be made immediately following the guilty plea or finding of guilt after trial, requesting favorable material on all the relevant adjustments to the basic sentencing calculation. Defense counsel should ask that the request also be directed to the investigating agency, which has in its possession all the statements and material obtained during the investigation. Quite often, the prosecutor may not have seen them. The standard for determining what is favorable at sentencing is far less stringent than at trial on the merits. The standard at sentencing is whether the statement or document can affect the preponderance of evidence necessary to prove an adjustment to the initial guideline calculation, i.e., reduce the proof of 51 percent to prove the adjustment to 50 percent, which is not a preponderance.
The panel discussed the nuts and bolts of the sentencing hearing. Contested issues such as role in the offense, breach of trust, more than minimal planning, loss in a fraud case, or personal matters regarding family responsibility or some physical problems of the defendant must be presented as if at trial. McLaughlin said that she wanted to see more preparation and forethought as to what was going to be presented by defense counsel. She felt that the court should be aware that there was going to be a presentation that would last an entire morning when she expected an hour. Engle said defense counsel should give the court ample notice of what is coming. Submit pre-hearing memoranda to the court, as if you were preparing for trial. Exhibits should be marked, and witnesses prepared. Let the prosecutor know what is coming. Flannery said to put all your detail in the memo to the judge. McLaughlin said the sentencing is the most difficult part of the criminal process for the judge. She said if you are going to need additional hearing time, let the judge know in advance of the hearing date. She said, "I have as much time available for the defense counsel as needed. Just let me know." If there is going to be a complicated presentation in which the court must make findings, ask for a separate hearing ahead of the final sentencing. She often grants such requests. Schenck said defense counsel should attempt to make agreements with the prosecutor ahead of time of what can be stipulated and what must be litigated.
The overall summary of the program: The sentencing hearing is very important, and serious preparation is essential.
Peter F. Vaira is a principal shareholder in the Philadelphia law firm of Vaira & Riley. He is the author of Eastern District Federal Practice Rules, Annotated (Gann Law Books). He can be contacted by email at firstname.lastname@example.org. Vaira has a blog devoted entirely to Eastern District practice at http://petervaira.wordpress.com.