Branden’s  

If you’re like Branden,

• You’re well educated,
• You’re a business professional,
• You know that you’re not a criminal.

Yet your good intentions did not stop government investigators from going after you. And it did not stop a prosecutor with threatening you with a criminal indictment. In Branden’s case, the criminal charge of conspiracy to commit healthcare fraud exposed him to multiple decades in prison. Why would “decades in prison” even be a discussion for someone with zero criminal history and a previously excellent track record in the business community? Simple! The U.S. Federal Sentencing Guidelines are where the problem begins. Those guidelines start with a grid that provides judges with a sentencing range. That sentencing range has a vertical scale and a horizontal scale. The vertical scale measures offense severity, while the horizontal scale measures other factors, such as criminal history. A presumptive sentencing range exists where those two lines intersect. This intersection creates a number or an offense level – the higher the level the longer the prison term. Although the guidelines for fraud start at a level six, other factors can exacerbate the offense level. One of those factors includes amount of loss. In Branden’s case, had he not accepted the plea deal, the government was willing to allege that the proceeds from the misconduct involved tens of millions of dollars. As a result, his sentence could be significant.

Case Study:

Branden could have chosen to bury his head in the sand. Defense attorneys are usually happy to represent a person who deludes himself with arguments such as:

• I didn’t do anything wrong
• The government’s evidence is weak at best
• There is no way they can prove this actually occured
• It’s not my fault
• I’m not a criminal

A defendant may find comfort if he has director and officer insurance to indemnify him against legal fees. In some cases, white-glove law firms may bill in excess of $1,000 per hour, and assign multiple attorneys to the case. It’s not uncommon for lawyers in a white-collar case to burn through more than $10,000 per day in billable hours. After the resources are gone, the defense attorneys then recommend a guilty plea. Or in Branden’s case, his counsel was adamant that the government’s burden of proof was not met, therefore dragging out the process.  That was until it was time to decide to go to trial. Like other leaders, Branden didn’t build his career by burying his head in the sand. Instead, he chose to live in the world as it existed. When it comes to criminal justice for white-collar crimes, justice isn’t blind. Statistics show that when the federal government brings a criminal charge, the chance of a conviction and sentencing hearing exceed 75%. Branden is a businessman. He understands risk and reward. He understands that sometimes an investment goes bad through no fault of his own. When he makes an investment that goes bad, he can choose to mitigate losses and move on – as he has done in the past when things don’t work out. Another option would be to continue the fight—exposing himself to massive legal expenses, a more significant sentence, and greater post-trial financial obligations. The math simply didn’t make sense to Branden. As a private equity investor with ample financial resources, he understood that prosecutors would salivate at the prospect for the conviction of a young man with his pedigree. Afterall, Branden architected a strategy that led a business to go from startup to a $65+ million valuation at exit in less than four years. Despite his not having any involvement with operations, which were the source of the government’s arguments, prosecutors  considered him a trophy and were prepared to paint him in the most negative light possible to execute their agenda.  Unfortunately, this is how it works. Had Branden chosen to litigate through trial, he might have prevailed. But what would be the cost? What would be the risk?

Possible Downside:

Let’s figure out the potential risks of litigating through a criminal trial for charges related to conspiracy to commit healthcare fraud:

• Litigation expense: $1 million plus
• Stress: Incalculable
• Likelihood of success: Unknown, given jury assumptions and bias against wealth
• Potential downside if he lost: Sentencing guidelines  of  15-20 years
• Post-Trial Financial Burden: Potentially tens of millions in fines and restitution

Despite assertions of innocence, such risks would be too high. The risks would not only implicate Branden. A loss carrying such a significant sentence could decimate his marriage and cause more suffering to his family.

Strategic Decisions:

Realizing the odds are stacked against him, Branden chose to invest in a comprehensive mitigation strategy that included working directly with our team of mitigation experts. Together, we adhered to the same plan that a businessman could understand:

• Identify the problem: Massive risk to loss of liberty and financial resources
• Identify solution: Create strategy to mitigate risk
• Document strategy: Work toward building a comprehensive record to persuade prosecutors to exercise restraint in the charging instrument and influence the judge to grant mercy
• Create tools, resources, tactics: Create a tangible record of community contribution. Build a story that would profile Branden’s accomplishments and efforts to reconcile with society for the alleged poor decisions. Provide a mechanism for the prosecutor to claim victory with conviction, but minimize Branden’s exposure to the downside.
• Measure Progress: Work on a clearly defined timeline that Branden could follow.
• Result: Sentence of 37 months, with documentation that would lead to release from prison in less than 18 months.

Analysis:

Branden’s wise choice led to an outcome he could accept. No one wants to go to prison. But it’s important to live in the world as it exists—not as we would like it to be. We would like to see a world where justice prevails, but in this era of mass incarceration, when the federal government brings a case, all stakeholders aspire to convict, placing less importance on justice and truth.

Takeaway:

If you’re facing a criminal charge, consider steps that you may take to begin mitigating your exposure to the downside.