Advocating for the White Collar Defendant through Interactions with

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ADVOCATING FOR THE WHITE COLLAR DEFENDANT THROUGH INTERACTIONS WITH THE
UNITED STATES PROBATION OFFICE
Daniel G. Webber, Jr. and Matthew C. Kane
Matt Kane ([email protected]) and Dan Webber ([email protected]) are members and
directors of Ryan Whaley Coldiron Shandy (www.ryanwhaley.com). Dan is a former U.S. Attorney for the
Western District of Oklahoma, and Matt is a member of the Criminal Justice Act Panel for the Western
District of Oklahoma. Both devote a substantial portion of their practices to white collar defense, regularly
present on various federal sentencing topics, and co-teach a seminar on federal sentencing at the
University of Oklahoma College of Law.
Federal criminal sentencing is a practice unique unto itself, a separate analysis from any other aspect of
criminal proceedings. Sentencing is comprised of several different stages, each of which provides the
defense counsel with the opportunity to meaningfully advocate for his or her client. A well crafted defense
strategy throughout the process is essential, particularly in white collar cases, as the defendants often
have no violent past (and, generally, little if any criminal history), and have been convicted of only a
financial, and, in some cases, a victimless crime.
Guilt having been established, by plea or jury, the drafting of the presentence report, prepared by the
Office of Probation and Pretrial Services, represents the first stage of sentencing.1 Unfortunately,
defense counsel often fail to appreciate the opportunities for advocacy with the Probation Office.
Importantly, such advocacy should begin with the first contact with the Probation Office, when a probation
officer interviews the defendant for pretrial release purposes. The information obtained by the probation
officer during the interview is typically passed on to the probation officer who will conduct the presentence
interview, an exercise required to fulfill the officer’s service as an independent investigator for the
sentencing judge and a guardian of the sentencing guidelines.2 Importantly, truthful and informative
responses by the defendant set the stage for future arguments and positive interaction with members of
the Probation Office who are ultimate responsible for advising the court on a recommended sentence.
Rule 32(d)(2) of the Federal Rules of Criminal Procedure requires that the presentence report contain:
“The defendant’s history and characteristics, including any circumstances affecting the defendant’s
behavior that may be helpful in imposing sentence or in correctional treatment…” This requirement
nearly mirrors half of the first mandatory sentencing factor the trial court must consider under 18 USC §
3553(a)(1): “the nature of and circumstances of the offense and the history and characteristics of the
defendant.”
The U.S. Probation Office for the Western District of Oklahoma has recently begun utilizing a presentence
questionnaire to obtain such information.3 Many of the Western District judges embraced the procedure,
which would allow the court to obtain information relevant to downward departure and downward variance
factors that might not otherwise be provided until the eve of sentencing, if at all. The questionnaire seeks
the following information:
In 2006, the Probation Office released a revised version of Publication 107, entitled “The Presentence
Investigation Report,” available at http://www.fd.org/docs/select-topics---sentencing/the-presentenceinvestigation-report.pdf?sfvrsn=4 (last visited 10/10/12). This publication, while somewhat dated,
provides a wealth knowledge from the Probation Office perspective. It also includes draft presentence
reports and related exemplar documentation.
2 Nancy Glass, “The Social Workers of Sentencing: Probation Officers, Discretion, and the Accuracy of
Presentence Reports Under the Federal Sentencing Guidelines,” 46 No. 1 Crim. Law Bulletin ART 2
(Jan./Feb. 2010).
3 U.S. Probation Office Western District of Oklahoma, Presentence Investigation Questionnaire, available
at
http://www.ryanwhaley.com/Websites/ryanwhaley/images/Presentence_Invesitgation_Questionnaire.pdf
(last visited 10/10/12).
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What impact has your prosecution for this offense had on your family? What personal and or
financial impact would a possible term of imprisonment have on your family?
What experiences during your childhood or teenage years had a positive or negative impact on
you?
Please describe your childhood, places you have lived (with approximate time periods), your
relationship with your parents or guardian, siblings, etc.
Were you the victim of any kind of abuse as a child (physical, mental, sexual)? If so, please
describe.
Describe your current relationship with your family. Please provide contact information for a family
member who can verify your personal history information.
Please list all of the places you have worked (with approximate timeframes) over the last 10
years.
What special skills or training have you developed through formal education/training and/or your
work experience?
Are there any programs and/or treatment in which you would like to participate during a possible
term of imprisonment or community supervision?
Has drinking or drug use ever caused you to miss school or work, or neglect your children?
Have you ever participated in treatment for drug or alcohol abuse or mental health? If so, where
and for how long?
Originally, this process met some resistance from the defense bar; however, such concerns were
generally alleviated when a process was adopted to ensure that counsel, and not the defendant, was
provided with the form, thus, ensuring an opportunity for advocacy rather than entrapment. There is a
definite benefit to having such an opportunity – information contained in the presentence report often
appears to be treated with greater deference by courts than information provided directly from the
defense counsel. In fact, this is precisely the type of advocacy that should be done, even if more
informally, through calls and/or letters to the probation officer. Nonetheless, given the questionnaire is
provided early in the process, it also poses a challenge, as it provides defense counsel with far less time
to obtain the relevant information from their clients, who often do not understand what details could be
helpful. If not included in the presentence report, defense counsel may well find that it is even harder to
get the court to listen to variance arguments outside those contained in the presentence report, given the
opportunity for such inclusion.
Additionally, these questions, while covering many topics, leave many issues unaddressed or at least
under explored. For example, listing out work history (which is generally included in the release interview
anyway) does nothing to address how exceptional an individual’s work history might be, and, in turn, why
that work history might bear some relevance to sentencing. 4 For example, a client who created their own
business may have made a significant impact on the community and may have multiple employees who
are dependent on that individual for their livelihood. A sentence of incarceration that closes the business
thus could have an impact far beyond what the court might originally anticipate. Similarly, family
relationships can play a dual role that requires more detail – strong family ties lead to less recidivism and
unique family circumstances (such as extraordinary dependence for medical or financial support) are
important issues for sentencing.5 There is no discussion of other important factors, such as age
4
United States v. Jones, 158 F.3d 492, 498 (10th Cir. 1998) (downward departure based in part on
employment history and consequences of conviction on future employment); United States v. Alba, 933
F2d 1117 (2nd Cir. 1991) (downward departure for various reasons including employment history); United
States v. Gaind, 829 F.Supp. 669 (S.D.N.Y. 1993) (downward departure where defendant would have no
opportunity to reenter profession and commit similar offenses).
5 “[T]he relevant inquiry is the effect of the defendant’s absence on his family members.” United States v.
Schroeder, 536 F.3d 746, 755 (7th Cir. 2008); United States v. Sclamo, 997 F.2d 970, 974 (1st Cir. 1993);
see also, United States v. Gauvin, 173 F.3d 798, 808 (10th Cir. 1999) (defendant the only support for his
wife and four children); United States v. Pena, 930 F.2d 1486, 1494 (10th Cir. 1991) (defendant only
support for three children); Charlene W. Simmons, Children of Incarcerated Parents, 7 Cal. Res. Bureau
no. 2, at 4 (2000), available at http://www.library.ca.gov/CRB/00/notes/V7N2.pdf (last visited 10/10/12).
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(particularly relevant where the defendant is older and with minimal or no criminal history), 6 physical
health,7 or community and charitable activities. 8 Thus, to the extent a presentence investigation
questionnaire is supplied, defense counsel would be well advised to add additional factors for
consideration by the probation office.
However, advocacy with the probation office is not limited to completion of a questionnaire or even to
provision of such information if a district does not formally request such information. Before the initial
presentence report is issued, the prosecution often shares key elements, potential enhancements and
related information with probation officers. Defense counsel must be prepared to do the same, providing
both arguments against issues raised by the prosecution and arguments and support for mitigating
factors. For instance, a co-defendant in a multi-million dollar Ponzi scheme recently provided information
of a history of childhood abuse that culminated in the conviction of the relative for the extended pattern of
abuse. This information, including appellate decisions relating to the case, was provided to the probation
officer and included in the initial presentence report, thus further legitimizing the request for mitigation and
resulting in a significant variance.
Probation officers are people and they are professionals. Our experience is that that they have usually
have an inner compass regarding what is fair and when the government may be overreaching if they are
presented with both sides of an argument. On close calls regarding the application of a particular
enhancement, we have found it helpful to update the probation officer with district court cases, even
unpublished ones, especially from their district or neighboring districts. Further, practitioners should
consider purchasing the reference book the probation officers use – Haines, Bowman & Woll’s Federal
Sentencing Guidelines Handbook (published annually by West).
Objections to the presentence report as well as the sentencing memorandum both provide further
opportunities to fully brief the court on mitigation issues, but rarely are they as compelling as those
embedded in the presentence report. Still, the defense’s objections can create a factual or thematic
toehold in the addendum that can be expanded upon in a later sentencing memorandum or motion.
Somewhat contrary to district efforts to obtain more information on defendants prior to sentencing, there
has also been a recent push on a national level to look for cost-saving options relating to the presentence
report. On February 16, 2012, Judge Robert Holmes Bell, the Chair of the Judicial Conference
Committee on Criminal Law issued a memorandum concerning cost-containment strategies relating to
See also, Institute Justice Policy Center, Returning Home: Understanding the Challenges of Prisoner
Reentry
at
103,
125,
(2004),
available
at
http://www.urban.org/UploadedPDF/410974_ReturningHome_MD.pdf (last visited 10/10/12) (addressing
the importance of strong family ties to avoid recidivism).
6 Gall v. U.S., 552 U.S. 38, 128 S.Ct. 586, 601, 169 L.Ed.2d 445 (2007) (upholding variance based in part
on youth of offender); United States v. Vaquera-Juanes, 638 F.3d 734, 735 (10th Cir. 2011) (varying
downward based on defendant’s age and other factors); United States v. Jarvi, 537 F.3d 1256, 1263
(10th Cir. 2008) (courts can consider age, even though it is a characteristic disfavored under parts of the
guidelines); United States v. Sells, 541 F.3d 1227, 1237-38 (10th Cir.2008) (same).
7 U.S. v. Rausch, 570 F.Supp.2d 1295 (D. Colo. 2008) (departure to time served of one day where
defendant required kidney transplant), citing U.S. v. McFarlin, 535 F.3d 808 (8th Cir. 2008) and U.S. v.
Ruff, 535 F.3d 999 (9th Cir. 2008), among others; U.S. v. Martin, 363 F.3d 25 (1st Cir. 2004) (health
concerns merited downward departure); U.S. v. Pineyro, 372 F.Supp.2d 133(D.Mass. 2005) (placing
burden on government to show it can provide the defendant with needed medical care in the most
effective manner); U.S. v. Gigante, 989 F.Supp. 436, 442 (discussing long history of lower sentences for
physically infirmed).
8 Jones, 158 F.3d at 492 (good works a factor for downward departure); United States v. Tomko, 562
F.3d 558, 571 (3rd Cir. 2009); United States v. Canova, 485 F.3d 674, 678-679, 682 (2nd Cir. 2007); see
also, U.S. v. Cooper, 394 F.3d 172, 177 (3rd Cir. 2005) (stressing “hands on personal sacrifices” over
monetary contributions); U.S. v. Greene, 249 F.Supp.2d 262 (S.D.N.Y. 2003) (focusing on time over
monetary charitable contributions).
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presentence reports, among other issues.9 The memorandum notes Rule 32 requires a presentence
report unless “the court finds that the information in the record enables it to meaningfully exercise it
sentencing authority…” According to the memorandum, a full presentence report costs $1,546.
However, under Rule 32, the court could waive the report, or if the defendant has at least nine months
remaining on an imprisonment sentence, the probation office would prepare a Supplemental Report to the
Bureau of Prisons for designation and classification which only costs $744. The court could also require
a modified presentence report, also at an expense of $744, “designed to give the court flexibility in
ordering shorter reports in appropriate cases,” such as a case involving a deportable alien facing little or
no imprisonment. The memorandum’s third suggestion is the use of an expedited sentencing report, or
“worksheet,” which is provided when the court waives the presentence report and requests only a
calculation of the offense level and criminal history score, without any narrative or description of the
defendant’s personal history. Such a calculation would cost approximately $335.
Such “cost-containment” options could potentially be appropriately in certain, limited cases. However, the
provision of less information seems problematic, when more is typically necessary to provide the court
with information supporting a downward departure or variance. In the event a court orders such a costcutting measure, defense counsel will need to ensure that objections to the process are made, if
appropriate, and that well-crafted sentencing motions are prepared to provide the court with the
information that is lacking.
Regardless of the procedure or even the timing of the advocacy by defense counsel, when a defendant is
standing before the court waiting to hear their fate, they will wonder whether their defense counsel fully
advocated on their behalf. The defense counsel, if fully exercising the opportunities presented throughout
their interaction with the probation office, should not have similar questions.
9
Committee on Criminal Law of the Judicial Conference of the United States, Memorandum regarding
Cost-Containment Strategies Related to Probation and Pretrial Services Offices, February 16, 2012,
available
at
http://www.jensendefense.com/images/Cost_Containment_Strategies_in_Federal_Sentencing.pdf
(last
visited 10/10/12); see also, The Third Branch News, Committee Oversight Supports Work of Probation
and Pretrial Services (discussing a number of cost cutting measures), available at
http://news.uscourts.gov/committee-oversight-supports-work-probation-and-pretrial-services-officers (last
visited10/10/12).
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