CRIMES AND PUNISHMENT 2021 Part Seven
Updated: Apr 29, 2021
Lots of $$$Ka-Ching, Ka-Ching$$$© !
After your arrest you will try to get bail set in an amount that you can afford. You or your attorney can do this at your Arraignment. All Arraignments must be held by the Court within 72 hours of your arrest unless you are being “detained." You will be Arraigned where the formal charges will be specified as well as any fines that are applicable. At the arraignment you will enter a plea. The amount of bail will be set at this time. You will either “bail out” or not depending upon your financial situation. If not, you will be held in a Detention facility which could be a County Jail, City Jail or other contracted facility such as a CCA (Corrections Corporation of America). You will be housed there in a unit which will have a number of other accused, those awaiting transportation after conviction. Your detainment can be an indeterminate period of time but generally less with an attorney. The Court must offer reasonable bail in accordance with your Bill of Rights but can also impose a prohibitively high bail of you are a flight risk or are extremely wealthy. Murderers and other heinous criminals such as terrorism will not be allowed bail to assure that the crime will be prosecuted.
Depending on the media attention that your arrest draws you will be subject to many changes in your life. Financially, you will begin to draw down your bank accounts to defend against the allegations brought by the Government. Personally, you will find yourself in a higher state of stress as the full import of what you are facing begins to register. You will see a change in attitude among family member and friends. Your business associates will be either supportive or aloof but there will be a significant change in how they interact with you. If you are out on bail and able to continue your job count this as a blessing. Many accused by the Government are terminated by their employer depriving them of income needed to support himself, his family and pay the ever mounting legal fees.
The Process through the Federal Criminal Justice System can take years. During this time you or your Lawyer will be conducting the “DANCE” with the Judicial system. This “DANCE” includes Motions, Discovery and Plea offers. During this time you will be given a number of hearings dealing with various motions by you or your attorney. These may occur in the court itself, in which case you will be transported to the Federal Court, in shackles, for the procedure. In some instances these motions or hearings can be conducted by video conferencing from the Detention facility to the Court. At some point you will decide whether to take a plea offer, if offered by the Prosecutor, or go to trial. This is the most critical decision that you can make throughout the process. If you are truly not guilty your first inclination is to vigorously defend your case in front of a jury. This could be a devastating mistake and should be carefully considered if a plea deal is offered by the Prosecutor. Juries are often easily persuaded by Prosecutors with even the most seemingly benign evidence or testimony. Remember, if you are found guilty in a jury trial your sentence and fine could easily be twice what the Prosecutor offered in a plea deal!
If you accept a plea you, in essence, have become guilty of the charges brought by the Prosecutor, whatever they may have been reduced to. This will set in motion a series of events which will move you to your final destination in the Federal Criminal Justice System, Federal Prison. That is, unless you have been turned to “Informant” or “Snitch” which can mitigate or even eliminate prison time altogether! Depending on the Crime or Criminal Enterprise and the role that you may have played surrounding this illegal action your testimony may be important enough to bring the Enterprise or one or more of the key figures involved with it to a conviction. Your cooperation with the Government may result in a lower sentence, probation or, if sufficient danger exists to you or your families safety, you could be eligible for the witness protection program.
After the guilty verdict has been rendered a Pre-sentencing Investigation Report will be compiled for the Court. The sentencing judge will review this report along with the Prosecutor’s plea offer (which you and he will have signed) and determine the sentence and fine he will impose. The Probation officer assigned to the case will interview you for this Pre-sentencing Investigation and ask a series of questions related to your education, work history, personal life, criminal record and finances. After this interview they will conduct a background check verifying all of your statements insofar as possible in the time allotted and their workload. Credit checks will be made, schools checked with your grade records, military record, if any and your work history will be confirmed. The IRS will be contacted to confirm that all taxes were paid and current. Any deviation from your statements to the Probation officer and their findings result in a blemish and the Probation Officer can and will note “Enhancements” to the report. These are points in categories (see the Sentencing Guideline later in this publication) which can add significant more time to your sentence, even after you and the Prosecutor have agreed on these through the plea offer!
It is imperative that you obtain a Pre-Sentencing Investigation Report before you accept any Plea Offer! This may affect your decision to accept the Plea offer or go to trial. If you take a Plea offer and find out later that there were a number of
“enhancements” because of the PSI, increasing the expected prison term, you no longer have the option of going to trial! After your sentencing hearing you will await disposition by the Bureau of Prisons as to which Federal Facility you will be incarcerated. This could take as long as six months during which time you will still be interred in the Detention Facility. At some point you will be transferred to Federal Marshals who are responsible for your transport.
The time for the entire process can be as quick as six month to two or three years! Of course, if you opted for a speedy trail or the Prosecutor was expeditious in offering a plea that you found acceptable the time would be shorter. During this time your finances are going to be seriously tapped and diminished. Your family’s needs still go on. Bills still have to paid; rent, car payment, food, utilities, clothing, fuel, education if children are in college, etc.. You will require some money in your account in Detention or prison for essential and non-essential items not provided. The Federal Criminal Justice System will financially break the back of nearly all convicted and wreak havoc with family and friends. Of course, the rationale is that “you committed the crime so it is all your fault and the results of your actions”! True, if you are really the “Criminal” the Government says you are. But if you are caught in the snare of the “War of Drugs” by marijuana being found in a baggie in your vehicle or person, or transmitted information or documents committing wire fraud and are serving upwards of 5 years in prison for these ”crimes” or others like them, your life is forever changed by the evil system that is totally out of control!
After you serve your time you will be released to a Probation Officer who is responsible for monitoring your activities. This includes where you live, where you work, where you travel, your regular Urine Analysis tests (UA), bank accounts, etc. You will report to him monthly for at least three years. He will conduct surprise visits to your residence and walk through to verify that no apparent illegal items (firearms, drugs) are laying about. He does not need a warrant to conduct this walkthrough! Such is the process of anyone indicted or arrested by the Federal Government and most local governments. The flow chart depicted below broadly shows the various steps through the System. Details are offered, sometimes repeated, for emphasis throughout this publication. This is to instill in the reader the pitfalls, sometimes lack of logic and how extensive the Government’s zealousness is to bring about a conviction, regardless of the circumstances.
JUDGES AND JUDGES AS LAWYERS!
Judges have the power, virtually unlimited power, to set sentences and penalties for any accused brought before them found guilty. Federal judges are appointed by the President for a lifetime position. They are nearly omnipotent in their position and are rarely removed. Most aspire to becoming a Circuit Court Judge or even a Supreme Court Judge. Federal Judges tend to become tainted with the constant flow of accused felons that come before them. Remember, the Federal Government (Assistant U.S. Attorney’s/Prosecutors) have a 97% conviction rate because they “stack” charges and demand a guilty Plea for reduced fines or sentences! Judges, in the back of their mind, sincerely believe that all who come before him accused of a crime are guilty.
Americans do not live under Constitutional Law any longer. The Courts regularly give lip service in many renderings about the Bill of Rights and your Rights under the Constitution. In actuality the Courts treat the Bill of Rights as if they were a privilege to be doled out, a granting or reneging of these “privileges” by the Court or the Prosecutor. The Criminal Code (Title 18) claims that Federally imposed “guidelines” are required to be used as a standard by Judges in ruling when, in fact, they are merely subterfuge to make you believe that the Judges are constrained to these “guidelines”. Judges always use the “guidelines” which are nothing more than another name for the Mandatory Sentencing Requirements overturned by Booker Vs. The United States in the late 2005. The government simply changed the heading, added an upward/downward departure clause and re-published.
SUPREME COURT OF THE UNITED STATES
UNITED STATES v. BOOKER
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 04—104.Argued October 4, 2004–Decided January 12, 2005
Under the Federal Sentencing Guidelines, the sentence authorized by the jury verdict in respondent Booker’s drug case was 210-to-262 months in prison. At the sentencing hearing, the judge found additional facts by a preponderance of the evidence. Because these findings mandated a sentence between 360 months and life, the judge gave Booker a 30-year sentence instead of the 21-year, 10-month, sentence he could have imposed based on the facts proved to the jury beyond a reasonable doubt.
The Seventh Circuit held that this application of the Guidelines conflicted with the Apprendi v. New Jersey, 530 U.S. 466, 490, holding that “[other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Relying on Blakely v. Washington, 542 U.S. ___, the court held that the sentence violated the Sixth Amendment and instructed the District Court either to sentence Booker within the sentencing range supported by the jury’s findings or to hold a separate sentencing hearing before a jury. In respondent Fanfan’s case, the maximum sentence authorized by the jury verdict under the Guidelines was 78 months in prison. At the sentencing hearing, the District Judge found by a preponderance of the evidence additional facts authorizing a sentence in the 188-to-235-month range, which would have required him to impose a 15- or 16-year sentence instead of the 5 or 6 years authorized by the jury verdict alone.
Relying on Blakely’s majority opinion, statements in its dissenting opinions, and the Solicitor General’s brief in Blakely, the judge concluded that he could not follow the Guidelines and imposed a sentence based solely upon the guilty verdict in the case. The Government filed a notice of appeal in the First Circuit and a petition for certiorari before judgment in this Court.
Held: The judgment of the Court of Appeals in No. 04—104 is affirmed, and the case is remanded. The judgment of the District Court in No. 04—105 is vacated, and the case is remanded.
Back to review the High Priest:
As rare as this remand was, the bottom line is that the Judge is the HIGH PRIEST of the Government, appointed for life by the Government to impose it’s will upon all who are brought before him. He sits at the “Bench” , an elevated platform with a gavel and flags behind him assuring you that he represents the Government in every rendering.
He wears a black robe like a HIGH PRIEST and the court room has the decorum of a sanctified church…….quiet, lots of oak or mahogany paneling and a near subservient demeanor, all but bowing before this HIGH PRIEST! No one dare to disrespect this HIGH PRIEST or he will reprimand any and all who do, with certain deference to the Prosecutor! After all , these two are in collusion and like-mindedness as far as all accused brought before them. The judge will fine any and all who he perceives has “contempt” for the Court (himself) and will even send them to jail indefinitely if he perceives that the “contempt” was egregious enough! While the Judge is to be the arbiter between the Prosecuting and Defending Parties he often acts as attorney from the bench. How does he do this? By offering advice and suggesting tactics, remedies or other charges that might be brought by the Prosecutor in the Courtroom venue! He, by law and ethics, is prohibited from doing this but Federal Judges regularly do this thus practice law from the bench. And no one, but no one challenges this! Why? The Judge nearly always makes his comments to the Prosecutor who is glad to have more ammunition with which to bring about a conviction and longer sentence. The Defense attorney is afraid to affect his standing with the Court.
Never forget, the Lawyer/Attorneys’ first obligation is to the United States Government. His second obligation is to the Court. His last and final obligation is to you, his employer, whom he is defending for your freedom. You are his last consideration and he will never jeopardize his standing in the court over you or anyone else. He, too, must lick the boot of the HIGH PRIEST JUDGE who can and will impose the harshest sentence he can get away with. No sitting Judge wants his rulings overturned on Appeal. Even though the Judge profession is the good old boys club and they usually look out for one another, they do want to follow a semblance of the letter of the law when proceedings are being conducted and when your “due process” is being carried out and when they impose sentences. The Court almost never revisits prior cases in an attempt to rectify past misdeeds!
Prosecutors aren’t satisfied that they were able to get a conviction. They want the longest sentence possible imposed unless they plead the defendant on some sort of “deal”. So, if the Judge doesn’t follow the “guidelines” by giving a lower sentence, the Prosecutor, yes the Prosecutor, can and will Appeal to the higher court for a more severe sentence! Of course, if the Judge gives a higher sentence the Prosecutor is delighted. Your appeal for the lower sentence will go on deaf ears even if heard later by the Appellate Court! Your case stays with the Court even after your incarceration and during Probation, which is always imposed by the Judge. It is not enough that you “pay your debt to society” by the sentence rendered, fines paid and time served. You are compelled to generally serve another three years of Probation under jurisdiction of the Court/Judge that sentenced you. While on Probation you will be under the direct Supervision of a Federal Probation Officer who reports to the Court.
MOTIONS AND BRIEFS
As time passes you or your attorney will submit a series of Motions to the court. A legal motion is a procedural device in law to bring a limited, contested issue before a court for decision. A motion may be thought of as a request to the judge (or judges) to make a decision about the case. Pre-trial motions are made by the prosecution and the defense before the trial begins, and can deal with a variety of issues. Common types of pre-trial motions include motions to exclude certain evidence from trial, motions to prevent certain witnesses from testifying, and motions that the case should be dismissed for some legal reason. Motions may be made in the form of an oral request in open court, which is then summarily granted or denied orally. But today, most motions (especially on dispositive issues that could decide the entire case) are decided after oral argument preceded by the filing and service of legal papers.
At some point the Statute of Limitations for any crime that you are accused of that occurred long in the past may become an issue, except for murder. Seven years is usually the median time where a charge cannot be brought against you for a crime committed in the past. The Statute of Limitations for some crimes are as low as three years in the past up to ten years. A "motion to dismiss" could be filed because the Prosecutor filed charges after the Statute of Limitations has past on the charge. The court can Dismiss without any evidence having been presented by the Prosecution.
Your Pre-sentence Investigation, should you accept a guilty plea to a charge for reduced time or are convicted by a jury, may look back over your criminal history and determine whether or not “enhancement” points or categories will be considered to increase your sentence from the guidelines.
Motion for Change of Venue
A motion for Change of Venue would be made to move the Defendant to another location far from the current jurisdiction. This would be filed in the case of a notorious crime, local celebrity or where media attention is so profound that a fair and unbiased jury could not be selected.
Motion to Quash
This motion would be made by the Defense to prevent witnesses, certain evidence and documents from being used by the Prosecution , either contained in the filing of deciding whether the defendant is guilty or not guilty of committing that crime. It is at this time your attorney should pay close attention to the judges instructions. It is possible for the Judges instructions to be so restrictive that the jurors have no choice but to convict.
legal documents with the court or at trial.
Motion in limine
A "motion in limine" asks the court to decide that certain evidence may or may not be presented to the jury at the trial. A motion in limine generally addresses issues which would be prejudicial for the jury to hear in open court, even if the other side makes a timely objection which is sustained, and the judge instructs the jury to disregard the evidence. For example, the defendant may ask the court to rule that evidence of a prior conviction that occurred a long time ago should not be allowed into evidence at the trial because it would be more prejudicial than probative. If the motion is granted, then evidence regarding the conviction could not be mentioned in front of the jury, without first approaching the judge outside of the hearing of the jury and obtaining permission. The violation of a motion in limine can result in the court declaring a mistrial.
There are three types of Motions in Limine:
1. Inclusionary - A motion asking the court to have something included in the trial.
2. Exclusionary - A motion asking the court to have something excluded in the trial.
3. Preclusionary - A motion asking the court to have something precluded in the trial
Motion for a directed verdict
A "motion for a directed verdict" asks the court to rule that the prosecutor has not proven their case, and there is no need for the defense to attempt to present evidence, prior to the defense presenting any evidence. If granted, the court would dismiss the case.
Motion for judgment n.o.v.
A "motion for judgment n.o.v." (non obstante veredicto, or notwithstanding the verdict) asks the court to reverse the jury's verdict on the grounds that the jury could not reasonably have reached such a verdict. This motion is made after the jury's verdict. If granted, the court enters a new verdict. Typically, this motion can be used in a criminal case only to reverse a guilty verdict; not guilty verdicts are immune to reversal by the court.
Motion for nolle prosequi
Motion to compel
A "motion to compel" asks the court to order either the opposing party or a third party to take some action. This sort of motion most commonly deals with discovery disputes, when a party who has propounded discovery to either the opposing party or a third party believes that the discovery responses are insufficient. The motion to compel is used to ask the court to order the non-complying party to produce the documentation or information requested, and/or to sanction the non-complying party for their failure to comply with the discovery requests.
Motion for new trial
A motion for new trial asks to overturn or set aside a court's decision or jury verdict. Such a motion is proposed by a party who is dissatisfied with the end result of a case. This motion must be based on some vital error in the court's handling of the trial, such as the admission or exclusion of key evidence, or an incorrect instruction to the jury.
Generally the motion is filed within a short time after the trial (7–30 days) and is decided prior to the lodging of an appeal. In some jurisdictions, a motion for new trial which is not ruled upon by a set period of time automatically is deemed to be denied.
Briefs are filed with the Court citing case law(s) related to the defendants case in an attempt to obtain a favorable ruling. These are usually filed to challenge charges, allegations, evidence and other finer points of law used against the defendant.
Rebuttals are submitted to the Court from the Prosecutor on Motions and Briefs filed by the Defendant. Based upon the Judges understanding of the law and his interpretation as to the relevancy of these citations to the case at hand he will rule. His ruling is final and can only be set aside during the Appeal Process if the Defendant is convicted and if he wins his Appeal.
If a Plea offer has been refused by the accused or if none were offered by the Prosecutor you will go to trial.
DEAL OR NO DEAL! RISKS!
“Feds Often Give Leniency For Guilty Pleas, Especially When Paid For!”
Federal prosecutors often cut deals with serious criminals, including murderers, drug dealers and gang members, offering leniency in exchange for a guilty plea and testimony in court, The Baltimore Sun reported (baltimoresun.com).in the first quarter of this year, 96% of federal cases garnered guilty Pleas, the newspaper said, citing data from the U.S. Sentencing Commission. Defense attorneys say it gives Cooperators (read snitch) incentive to lie. “Their testimony is essentially bought and paid for “, John Wesley Hall, president of the National Association of Criminal Defense Lawyers, told the Sun. Prosecutors tell the Sun that the deals are necessary to get information about criminal groups. “ Often the people who are in the best position to be witnesses in a case are the people who, themselves, have been involved in criminal activity”, Maryland U.S. Attorney Rod Rothstein said.
Regardless, the Judge may or not accept any plea offer made by the Prosecutor and agreed upon by the accused. Unless the Judge signs a legal document sometimes called an 11(c) prior to any agreement between the parties he is under no obligation to honor the agreement! By accepting any Plea offer you will plead guilty and will not go to a jury trial. Your case will be disposed of forthwith. The Pre-sentence Investigation will commence and your Sentencing Hearing will be scheduled. If your “Deal” consists on informing on others whom you had conspired with or have knowledge of their criminal activity and the Judge still sentences you to serve time in a Federal Facility the knowledge of this “cooperation” with the Feds will follow you into Prison. It will not take long for your fellow convicts to find out that you have been a snitch or informant. This does not bode well for anyone incarcerated. No one, but no one cottons to informants and great bodily harm comes to those who are.
TRIAL BY JURY: RISKY BUSINESS!
Rejecting any Plea offer and going to trial is always an option but carries with it some risk, sometimes substantial risk. In a criminal trial the judge or a jury decides whether the defendant committed the crime. The standard used in criminal cases is "beyond a reasonable doubt" - that is, there is no reasonable doubt in the judge or jurors' minds that the defendant committed the crime. A speedy trial may or may not be to your benefit. If, for example, the Prosecutor obtained an Indictment against you with little or no solid evidence, it may be in your best interest to go to trial as quickly as possible. You or your lawyer can determine from the Discovery Process whether the Prosecution has sufficient evidence to win a conviction if your charges were brought before a jury. Discovery will also determine whether or not you want to waive your right to a speedy trial in the hopes that, over time, witnesses may move or disappear, evidence is lost or tainted in some way and that flaws can be found in certain potential testimony . You may want to accept a Plea offer from the Prosecution or, even that your attorney suggest one to the Prosecutor. To plead guilty without a plea offer is foolhardy unless there is no other option available.
A criminal trial has several phases:
Jury selection - A pool of potential jurors is gathered, and asked a number of questions. The prosecution and defense each can choose to exclude a certain number of people from the jury. This process is called voir dire. Questions to potential jurors are submitted in writing to the Judge, by the Prosecutor and the Defense attorney prior to questioning of the jury. The Judge must approve all questions to jurors by the parties. Potential jurors with criminal backgrounds, relatives in Law Enforcement or Government, biases or prejudices are generally excused from serving. Questions designed by both sides are, naturally, structured to select the most likely candidates on the jury to favor their case. While not an exact science, questions can be framed in such a way to give some indication as how the juror may behave in his thinking as evidence and “facts” are presented.
Opening statements - Each side presents an overview of the case, from their perspective. The prosecution goes first, followed by the defense. Each side will make claims that should be proven as the trial proceeds.
· Witness testimony - Each side can call witnesses and ask them questions about the case and/or the defendant. First, the prosecution calls their witnesses, who can then be cross examined by the defense. Then, the defense calls their witnesses, who can be cross examined by the prosecution. The Prosecution often uses informants or ‘Snitches” to testify against the accused. This has been cover in other chapters.
· Closing arguments - The prosecution, and then the defense, make a brief statement summarizing their side of the case. All defects in the Prosecutions case should be emphasized at this time to place the notion of Reasonable Doubt in any one of the jurors thinking.
One juror can deadlock a verdict, result in a mistrial or “hung jury”. At trial, unless there is clear and compelling evidence that you, the accused, are innocent your only hope of an acquittal or dismissal is REASONABLE DOUBT. This is the strategy your attorney must take when there is any doubt of the outcome of your trial.
· Jury Instruction - The judge addresses the jurors, explaining to them the crime the defendant was charged with, and the legal standard they must apply when deciding whether the defendant is guilty or not guilty of committing that crime. It is at this time your attorney should pay close attention to the judges instructions. It is possible for the Judges instructions to be so restrictive that the jurors have no choice but to convict.
Jury nullification- A jury can acquit a defendant despite the weight of evidence against him or her. It is any rendering of a verdict by a trial jury which acquits a criminal defendant despite that defendant's violation of the letter of the law—that is, of an official rule, and especially a legislative enactment. The jury may find that the law is too vague, too severe for the offense or some other mitigating factor to render this decision. In the rare instances where this occurs the Judge will generally overrule the verdict or may declare a mistrial.
After months, sometimes years, of Detention or free on bond the trial phase usually lasts a few days or a couple of weeks. Highly visible personalities or notorious crimes can result in trials lasting several weeks. The O.J. Simpson trial is one case in point.
THE VERDICT. NOW WHAT?
The jury weighs the evidence presented, applies the proper legal standard, and decides whether the defendant is guilty or not guilty. In a criminal trial all jurors must agree on the verdict whether guilty or innocent. If the jury renders a verdict of NOT GUILTY you will be released immediately from custody and from bail. Of course, you will receive no compensation, apology or any other such platitude from the Court or the Prosecutor for the terrible inconvenience or financial losses that you suffered. This does not mean that you are free and clear from future charges that the Prosecutor may levy against you. He may gather or find new evidence, pay or locate an informant or file slightly different charges so as not to place you in DOUBLE JEOPARDY. It depends on how much the Prosecutor wants a conviction and, especially, how badly he wants to convict YOU!
Human nature, being what it is, will still leave lingering doubts from some family members, co-workers and friends about any role you MIGHT have played in whatever crime you were charged with. No amount of explanation or rationale will stem this. Unless you have had the full support of these individuals throughout your ordeal it will take time to reduce or eliminate these doubts.
If you are found guilty and have been free on bond the judge may or may not revoke the bond to have you in custody awaiting sentencing. You will be required to an interview with the Probation Officer for the Pre-sentencing Investigation. You must attend any and all hearings that the Court may require. Sometimes your attorney may attend for you. Any remission on your part could result in a bench warrant issued by the Court and further charges brought against you or your bond revoked. If you have been in custody, after the verdict you will be immediately returned to Detention until the PSI is conducted and the sentencing hearing scheduled. This entire process usually takes two month to six months, depending on the severity of the crime. Wait, wait and wait!
THE PRE-SENTENCING INVESTIGATION
While it may seem to be anti-climatic to the entire ordeal that has just been concluded, the PSI is a very important phase of the Process. It is during this time that you will be gauged on the truthfulness of the information that you provide during the interview by the Probation Officer assigned to your case by the Court. Your prior criminal record plays a very crucial role in how the judge will sentence you to the Guidelines. The crime that you were convicted of carries with it a certain number of “points” . These points will place you at a sentencing level (see Chart in next chapter). That may not be the only time that you will serve!
Based upon your prior activities you will “enhanced” with additional prison time. If there are no outstanding blemishes on your record or, even, in your life, you will not be “enhanced”. If there are, you could receive additional time amounting to several years.
Those designated “Career Criminal” who have a sordid and extensive past committing various crimes are especially enhanced and can have 10 or more years added to their sentence. As few as four or five instances of “crime” can place someone in the Career Criminal category. That is why it is imperative to press for the Pre-sentencing Investigation before you accept any plea offer from a Prosecutor. You may have nothing to lose by going to trial and hope for a hung jury or reasonable doubt acquittal verdict. Moreover, you can derive some consolation and pleasure that you are tying up the System and its resources for some period of time while the Prosecutor and his team prepare their case and the Court itself is losing many other opportunities to process other individuals though motions and hearings! Of course, if you are paying a lawyer you are going to incur unbelievable costs going to trial!
SENTENCING AND THE "GUIDELINES"
Beware of the “Enhancements”!
If a person is convicted of a crime, either by a plea bargain or by a trial, the term "sentencing" refers to how they are punished. In some cases, sentencing occurs after the plea bargain or verdict. In more complicated cases, a separate hearing is held on the issue of sentencing, and the judge hears arguments from both sides as to what the proper punishment should be. For some crimes, sentencing is explicitly stated by the law, and the judge has limited discretion (Not necessarily so. He has full discretion!) For other crimes, the judge has wide discretion in determining the proper punishment. Types of punishments can include fines, prison time, and restitution (paying back money that was stolen, or compensating the victim for property that was damaged or destroyed). Fines and restitution are often so high that they can never be paid by the “criminal”. The Government has billions of dollars owed by convicted felons that they use as collateral for securities that they issue through the Federal Reserve Bank and the Department of Treasury.
The law says that Judges cannot take into consideration character references, favorable career, life or good things that defendant has accomplished, military record or any other favorable factor when sentencing! Even though your attorney may want to bring in character references, letters of recommendation and military record into any hearing or pleas to the judge for leniency it will fall on deaf ears. The judge is only interest in the here and now, the crime and you as the perpetrator!
The entire time that you were detained in a facility awaiting disposition of your case may or may not be applied to the time of sentence you must serve. Sometimes the Court and the BOP takes the position that your time starts the moment of your sentence, not when you were arrested and placed in Detention. Remember, you could spend as long a two years in Detention awaiting disposition of your case. It seems as though the Court and the BOP have equal authority to determine the time that you must serve and what the “start” time is.
If you have accepted a Plea offer from the Prosecutor, it usually comes with a “point” reduction of three (3) “points” for taking responsibility for your crime. When you are sentenced at your hearing you will allocute your guilt to the judge thus sealing your point reduction. Often, the point reduction is offset by the enhancements applied through the criminal history category, a zero sum game. Criminal History can include such minor traffic violations such as speeding, eluding and driving while suspended. Others, such as domestic violence, soliciting, writing a check on insufficient funds and failure to file an income tax return can result in points added to the Criminal History moving you up a category or two thus adding time to your sentence.
Downward and Upward Departure awards are simply applying either the minimum or maximum time under the offense level to the sentence. These are sometimes negotiable with the Prosecutor or Judge. Negotiate all that you can to get what you can! If you had several charges brought against you and you were found guilty on more than one of them the Federal Government may elect to sentence you consecutively for each charge. This could result in a significant number of years in prison. You will serve the sentence on one charge before the term begins on the other charge(s)! If, however, the Feds sentence you to concurrent sentences for multiple charges you will serve the longest of them while the others are served within that term. How that determination is made is somewhat of a mystery from case to case. If you are sentenced and/or serving in a state case while your Federal case is pending the Feds will usually take jurisdiction and remove you from the state system where you will then serve Federal time while the state sentence becomes concurrent with your Fed time. Either the state or the Federal Government can file new charges against you at any time while you are incarcerated. These may be prosecuted while you are serving time or when you are released.
Good Time Out Date
After sentencing, the Department of Justice will determine a Good Time Out Date for each convicted felon. There is no longer parole in the Federal system. All inmates must serve 85% of their sentence unless overturned on appeal. The good time out date is determined from when the Court ruled that your sentence actually began. For example, you may have been arrested and detained for a number of months before the disposition of your case. The Judge or the BOP may rule that all or part of that time will apply to your sentence. If you have been free on bail/bond awaiting disposition of your case none of that time will be allocated to your sentence.
If you had been held or convicted in another jurisdiction or had state charges pending you may or may not have any detention or jail time allocated to your Federal sentence. The Federal Government trumps the States so you may be able to serve State and Federal prison sentences concurrently in the Federal system if the Feds take you from the State. If you have state charges pending you must serve your Federal sentence before the state can take you for their sentencing term of prison. You can only lose time on your good time out date. You will not get any more. It is not difficult to lose good time. Infractions can take as many as several months from that time.
Prisoners having very long sentences naturally have more good time potential in the number of days or months that is applied. Good time out date becomes more important to convicted felons as that date begins to arrive. Inmates serving time in a high security facility due to the severity of their crimes often lose all of their good time because of fighting, assault or disobeying rules.