Live from Miami IV: Plea Bargaining Post Booker

I found this to be an excellent and well prepared panel probably the best of the conference to this point.

This panel features ABA CJS Committee chair on Sentencing and Incarceration Barry Boss
Hon Judge Downes (replacing Judge Lee of the ND VA.)
Jeff Sloman Chief of Criminal in SD Fl.
Les Zorn- US Dept of Probation

The panel begins with a review of the stats in the Courtroom: Beryl Howell USSC:
DoJ feared more trials govt would have less leverage to require snitches and less incentive to plea out early:

1 year later the stats show:
a. crim trials are up slightly to 5.5% from 4% of 70K+ cases this is statistically insignificant.
b. Gov't sponsered departs and substantial assistance motions is flat 14% same as before AND
c. early plea is still up at 68% well over 63 and 62 percent in 03 and 02 respectively.

Barry Boss Defense attorney:

Post Booker remains an uphill battle. There are 2 types of plea agreements: 1 where we agree on a sentence and 2 where we think it should be probation and they think it is life.
Often however you and pros agree but the guidelines stand in the way.

In the second situation we should be trying to get an opportunity to litigate our differences and so we may not want to sign the plea agreemt Post BOoker unless we can preserve our right to a Fatico hearing.

Barry spoke about waiving the right to appeal. He noted that Post Booker you may want to waive your appeal w/ the Prosecution. If you know your judge and if you are comfortable with the strength of your 3553a material you can waive appeal and a judge might be more willing to give you what you are looking for if he doesn't fear appeal.
Barry also warned that the Rights to victims act may have some very difficult results in sentencing.
18usc 1871 Rights to victims act which allows a mandamus by the victim against the court with in 72 hours of the sentence.

Zorn: PO needs to look to the plea agreement and digest but the PO cannot end there. POs must still must do an independant inquiry. Probation's main objective is to get information that we feel should go to the court. We prepare our reports for our judges not the Prosecutor or Defense lawyer or even the victim.

One element we deal with is 3553a factors do not appear in the plea agreement. Our job is to bring that information to the court as well. Def atty should Bring the issues to the PO Early on. We will make every effort to look into those issues.
Plea agreements are getting more detailed which include guideline calcs. We though have to check those and advise the application provisions to the court.

Sloman: DOJ Disagrees with what the stats show. AG Gonzolez says he is still supporting the topless guideline Proposal. There is also concern with the sexual abuse issues because of the rise in non guideline sentences.

(NOTE TO READERS: DoJ and Sennsenbrenner are saying that there is a 600% rise in non guideline sentences [variances] but the number went from 3 non guideline sentences to 24 which is again statistically valuesless given the thousands of sentences in the area. I will be posting about this and other Lies our Justice Dept. Tells Us next week at That Lawyer Dude.)

Judge Downs respectfully disagrees with AG Gonzolez on the sex crime issue. There is not a great disparity in sentences. Judge Downs is not a liberal judge especially on sex crime cases. (He gave a very powerful speech on guideline sentencing in sex crime cases earlier in the day in which he related his experience in a sex crime case he was involved in.)
There is a power struggle going on tween the DOJ and the A3 judges. Downes respects Gonzolezes job but it alarms judges that before we let dust settle on Booker
There is a need to get a "fix" before we know we need a fix.
A few Article III judges are doing goofy things, but the Ct of App will reach the right result and the Supremes will straighten out the conflicts.

SOme members ( of Congress) are pandering in certain types of crimes. Esp Sex Crimes. (Hmm Congressman Sennsenbrenner, could he be talking to you? I think he is.)
Relying on antedotal evidence to make policy is bad government.

Downes doesn't know of a signle mandatory mininimum sentencing study that says that a mandatory minimum not antithetical to sound sentencing policy. The experts are telling them that this (topless guidelines) will wreak real havoc and will undue the sentencing guidelines ultimately.
Judges don't have to accept FRCrP 11c1c agreements. But there is some sense in doing it if you look into the agreement and are assured everyone is doing their job.
Historical drug conspiracy cases are seeing alot of these C1c dispos.
Pleas that contained Stips as to relevent conduct and stips to a specific sentence guideline may be acceptable where the agreed sentence is within the guideline range or if outside the court is convinced the reasons for same is sound.
If I am going to reject then I must give notice and then deft can withdraw the plea. IF deft. doesn't withdraw, he has to be put on notice that he may not get the dispo he thought he'd get.
There will be more binding 11c1c agreements in the future. The court should not just reject them willy nilly but it should require the writer of the report to do the job of investigating both the guideline sentence and the 3553a basis for a variance where that is the agreed deal.

Moderator asks:
How do you insulate a stip from the court and PO?
Boss: On C1c pleas, both sides want to get stability and predicability. ON C1c pleas you must look at guideline 6B1.2, however while it applies to C1C pleas, it is antiquated and not adjusted for Booker. It is no longer accurate. So you can get the court to accept a departure or a C1c agreement now even if the departure would not be a justifiable departure in the guideline book. This is an especially good place to waive the right of both sides to an appeal.

Stipping factors of 3553a material into the factual portion of the plea agreement. Covering these factors in the agreement
with Regard to particular stips will maximize the chance it sticks.
Word the stip to say that the prosecution cannot prove the fact of an upward adjustment beyond a preponderance of the evidence. Unless the judge holds his own hearing you're good.

Sloman: Deft.s looking for a slant on a case can be dangerous. There may be a witness who can hurt your stip. However in a case say where a witness can't be cooberated, you can keep your stip without being intellectually dishonest by getting on the record that the case can't be proved beyond a preponderance (if the AUSA can't cooberate the wits fact then he can honestly say both that there is some proof of XYZ but that he as the prosecutor doesn't feel he can prove it Beyond a Preponderance of the evidence, hence the stip is not intellectually dishonest.)

Moderator: DoJ has a long standing fear of 5k1 adj being given without a govt motion. Have you seen situations where the judge has granted a downward departure where the govt hasnt sponsored it because the cooperation provided didn 't rise to the level of substantial assistance.

Boss: Booker will not affect the cooperation numbers because someone who wants to cooperate will go down the government's road. The 5k departure will only count with "imperfect cooperation"

Sloman: My concern is not with the guy who tried his best and goes as far as he can go but with the guy who is in a long term cooperation agrerement has done a lot of really good stuff and maybe has stuff he is working on but comes to sentencing and says let me tell you what he has done. With work out there to be done it is not a full picture of the defendant and he fears the health of his last few cases. He then tells an anticdote about a guy who turned and indicted 14 other guys. 13 plead guilty the other one went to trial and exposed the Snitch as a liar. Now that guy would have gotten the benefit of the 5k1 had Booker been the rule. (He failed to say if the other 13 got to take their pleas back...)
Of course where a guy is only facing 36 months and your in your 19th month with 2 trials to go then maybe you have no choice but to push it/ and the court should hear that under Booker but the AUSA has to also consider that in his decision to grant the 5k1 also.

(Note there are only 28 cases system wide where 3553a variances were given just on cooperation issues alone.)

Crime Victims Rights Act of 2004.
Grants victims a rt to be heard (ussg 6A1.5 reflects the act)
How is CVRA playing out in the courtroom and in plea barginging.
Barry Boss: you have to know the victim has significant rights you may want the AUSA have them sign off on the agreement not to participate in the process. This is especially true where the victim has an attorney (think in a corporate setting)
Sloman:
Crime vic is not always the prosecutor's best friend. A Botox posioning case (fake botox) victim thinks the death penalty was too good for the deft. but the AusA did come to an agreement. The victim came in and railed against the pros and the deft! Fortunately the judge ignored them.
Prosecutors must remember that they can face disiplinary charges for willful and wanton disregard for the victims rights.

Zorn spoke to the PO as a victims voice in the probation report, We see there is another level of reporting. Probation thinks it adds to the information the court has and likes the new law.

Boss: Under the circumstances where you think the victim is going to not go with the plea, you should seek out a C1c plea. C1c is not only good as to the actual sentencing but to the sentencing factors. Maybe the thing to do if you can't agree on the actual sentence is to get the facts in a stip to protect from the victim.

As I said earlier this was one of the best of the breakouts I saw. I think there were some real learning experiences here especially in trying to sell C1c pleas and using them to insulate the sentence from the Probation report and from the new rights Congress has given to crime victims.