Lesson Two: Presentence Investigation Report
Lesson Two: Presentence Investigation Report
The Presentence Investigation Report (PSI) is a document that will influence the life of every individual who has been convicted of a felony in the federal criminal justice system. Unfortunately, individuals don’t learn about the process that leads to the PSI until it’s too late to influence the outcome. Clients of White Collar Advice that successfully conclude this lesson will understand the following:
1. The process that leads to the PSI.
2. The steps an individual can take to influence the PSI’s outcome.
3. The PSI document and its ramifications.
1. Process Leading to the PSI:
After an individual has been convicted of a felony in federal court, the judge will order federal probation to complete a Presentence Investigation Report. This PSI will document the life history of the person who was convicted of a crime. In our nation’s system of justice, up until the time of conviction, there is an ostensible presumption of innocence. Once a defendant pleads guilty, or after a jury or judge finds an individual guilty, that presumption of innocence ends. From that moment forward, the individual becomes a convicted felon and those within the system consider the individual through a different lens.
Within a relatively short period of time after sentencing, a federal probation officer will contact the defendant. This meeting will likely take place within 30 days of the date of conviction. Sometimes, that initial meeting with a probation officer can take place within a week of the conviction.
Where does the investigation begin?
If the defendant was free during the “pre-trial process,” the judge may or may not allow the defendant to remain free after the conviction. If the defendant is in custody, the federal probation officer will visit the defendant inside the detention center or jail. If the defendant is in the community, the federal probation officer will likely visit the defendant in his residence. Alternatively, the federal probation officer may initiate the investigation at the office of federal probation, or at the office of the defense attorney.
At White Collar Advice, we’ve worked with defendants who’ve had their attorneys with them during that meeting with the federal probation officer. We’ve also worked with defendants who did not have counsel present when they met with the probation officer who initiated the presentence investigation report. A defendant’s financial resources may play a role in whether defense counsel will be present during the Presentence Investigation Report. At White Collar Advice, we recommend that individuals obtain competent legal advice at every stage of the criminal justice proceeding. At the same time, we want our clients to understand as much as possible about the entire process that follows conviction. We’ve worked with far too many defendants who describe horror stories about their being unprepared for the Presentence Investigation. As a consequence, their sanctions become much more severe than could have otherwise been the case.
Several reasons contribute to an individual’s being unprepared for the Presentence Investigation Report. Some of the more common reasons follow:
• Anxieties about the criminal justice process kept the individual in a state of denial. Intense and conflicting emotions can cloud an individual’s ability to reason logically. In many cases, the stress can paralyze an individual. Defendants who invest themselves in fantasies about prevailing during a trial with an acquittal do not think about the consequences that can follow a conviction until it’s too late.
• The Presentence Investigation happens so quickly after the conviction that the defendant didn’t have time to educate himself on the implications of this process.
• The defense attorney, who may have been an extremely skillful litigator or strategist at trial, failed to appreciate the magnitude of influence that the PSI document would have on the incarceration process.
White Collar Advice Excerpt:
In Earning Freedom: Conquering a 45-Year Prison Term, Michael Santos wrote in detail about all he observed as a long-term white collarer. At White Collar Advice, we teach from many of those lessons. After all, he served time in every security level. While in custody, he interviewed and wrote about the experiences of hundreds of others, including White Collar Advice founder, Justin Paperny. Many of those individuals, whether they were confined in high-security penitentiaries or minimum-security camps, cited their lack of understanding of the PSI as being a significant factor in their serving a sentence that was more complicated than otherwise could’ve been the case. Frequently, those individuals explained how and why the PSI report resulted in them:
• Being ineligible for participation in programs that could have led to their early release.
• Serving time in higher-security prisons than should have been the case.
• Serving sentences under harsher conditions than should have been the case.
• Having less access to telephone, email and visiting, thereby making the time in prison more difficult.
• Being misclassified in ways that brought unnecessary frustrations and complications while they served their sentence.
For example, Arnie had built a career as a mortgage broker. He was a skillful communicator, gifted at both sales and training. His expertise led to a thriving practice during the early 2000s. Later, when the economy collapsed, millions of people lost their homes to foreclosure. Authorities began to investigate mortgage fraud with a vengeance. They found that Arnie’s firm originated numerous mortgages under fraudulent pretenses. They charged Arnie with mortgage fraud. He accepted a plea agreement that would expose him to a maximum sentence of five years.
After Arnie pleaded guilty, the judge ordered a presentence investigation. Arnie’s attorney erroneously told him that since the plea agreement provided for a five-year term, the presentence report was simply a formality and that it would not influence the sentence. That bad advice had severe consequences for Arnie.
Although it was true that Arnie’s plea agreement would expose him to a sentence of five years, and the judge was likely going to adhere to that sentence, the presentence investigation report would have ancillary consequences. For example, Arnie was not prepared when the probation officer asked Arnie whether he had a history of substance abuse. Arnie reasonably believed that an acknowledgement to smoking marijuana would put him in a less favorable light with both the probation officer and the judge.
Arnie didn’t know the implications of making such a statement. By stating that he did not abuse illicit substances, Arnie immediately disqualified himself from participating in the Bureau of Prisons Residential Drug Abuse Program (RDAP). Although his judge did in fact impose a five-year sentence, if Arnie would have told the probation officer that he used marijuana within the past 12 months, he would have been eligible for the RDAP program. Successful completion of the RDAP program would have resulted in the Bureau of Prisons shaving 12 months off of Arnie’s release date.
But Arnie’s ineligibility for the RDAP program wasn’t the only problem with his PSI. Several of the mortgages that Arnie’s office originated went to individuals who were later convicted of organized-crime statutes. The probation officer who prepared Arnie’s PSI report erroneously suggested that Arnie, too, was affiliated with organized crime. When Arnie reviewed the PSI with his attorney, claiming the allegation of his participation in organized crime was preposterous, his attorney agreed. However, the attorney mistakenly told Arnie that such statements didn’t matter. The attorney advised Arnie that contesting the allegation would aggravate both the probation officer and the judge. Since everyone agreed that Arnie would receive a five-year sentence, Arnie’s attorney told him that he had to pick his battles. From the attorney’s perspective, the PSI would not have any relevance on the sentence.
Unfortunately, there is more to a criminal conviction than the imposition of sentence.
Not knowing better, Arnie shrugged and accepted his attorney’s advice. The subjective, unproven statement about Arnie having ties to organized crime became a permanent part of the record with the PSI. As a consequence, for the entire duration of Arnie’s sentence, prison authorities classified him as having ties to organized crime. Such a classification resulted in Arnie serving his sentence in a medium-security prison, where conditions were much harsher than inside of a minimum-security camp, where he otherwise would have served his sentence.
After Arnie’s judge imposed the five-year sentence, the Bureau of Prison (BOP) sent him to a medium-security prison. Arnie quickly learned how his PSI would influence his time inside. He tried to reason with officials in the BOP, but quickly learned the implications of being locked inside the barbed-wire bureaucracy. He served more time than was necessary, and he served that time in harsher conditions than necessary—all because he did not take steps to ensure the accuracy of the PSI.
2. Influencing outcomes of the Presentence Investigation Report
At White Collar Advice, we urge our clients to think about steps they can take to influence outcomes of the Presentence Investigation. Although it’s impossible to change the past, every individual has an opportunity to make decisions that will influence the future. First, individuals who’ve been convicted of a felony in federal court should broaden awareness of the process that follows. Every decision going forward will have lasting ramifications.
In the example cited above, Arnie made a decision out of ignorance. He did not understand the implications of the PSI and so he failed to take the appropriate actions at the appropriate time. That decision resulted in further difficulties for Arnie.
Influencing better outcomes of the entire post-conviction process requires strategic planning that should include advice from counsel. If an individual plans to appeal a conviction, the counsel may muzzle an individual from saying anything about the offense during the presentence investigation. After all, the probation officer who prepares the report is a representative of the court, and the PSI report that will follow is an official document. Accordingly, competent counsel must advise individuals on what they can or cannot say to the probation officer.
Nevertheless, defendants have opportunities to influence outcomes of the presentence investigation report. At the very least, they should ensure the report’s accuracy so they don’t suffer the unnecessary consequence that Arnie (and so many others) endured. Equally important, however, is for an individual to take proactive measures that may have a positive influence on the presentence investigation and post-conviction process.
A defendant who anticipates a conviction could take the following proactive steps:
• Prior to meeting with the probation officer, a defendant could write a narrative that would explain, but not excuse, his current circumstances.
• The defendant could take steps to document any mitigating factors that might positively influence the way a probation officer or judge perceives his overall character.
• The defendant could reach out to individuals in the community who may offer character references and validate the defendant’s contributions.
• The defendant could prepare a list of references that might corroborate extenuating circumstances that led to the conviction, or show that the defendant is much more than what the criminal conviction may suggest.
• The defendant could document a record of good works that would be included in the finished PSI report.
• The defendant could prepare a response that would express remorse and demonstrate his commitment to living as a law-abiding, contributing citizen.
• The defendant can prepare his family members and friends for the reality that a federal probation officer may make unexpected and uncomfortable inquiries about the defendant’s character.
• The defendant can research possible alternative sentences and prepare a plan, or argument that might prove persuasive to the probation officer as a viable option.
• The defendant may improve his profile by engaging in some type of activity that would suggest his suitability for a less onerous sentence.
• The defendant may work with White Collar Advice consultants who to write an “alternative presentence investigation report” that the defense attorney could submit to the court for consideration.
At White Collar Advice, we encourage our clients to prepare. They begin those preparations by recognizing that they must deal with the world as it exists and not as they would like it to be. Although a defendant may be new to the criminal justice system, the federal probation officer who was tasked with conducting a presentence investigation is not new. Federal probation officers interact with individuals who’ve been convicted of felonies every day. Those interactions make many probation officers cynical about anything a defendant says. If a defendant can accept that reality, the defendant can take appropriate measures.
Those measures are going to be unique for every individual. Competent council may play a role in guiding the defendant through a presentence investigation. Defendants who are unfortunate to have lawyers that are indifferent to the journey through prison should be proactive. They should learn everything they can about the system before they surrender to prison. Defendants who know what lies ahead will be more capable of visualizing the best possible outcome given their current circumstances. Once they can define the best possible outcome, an individual should craft a plan that will deliver the desired outcome.
Those who want more personal guidance on preparing for the presentence investigation report may find value in working with White Collar Advice to craft an independent strategy.
3. The Presentence Investigation Report (PSI)
All federal probation officers who prepare Presentence Investigation Reports follow a uniform format. At White Collar Advice, we encourage our clients to review the following link so that they will have a better understanding of the report that will follow the investigation:
• Presentence Investigation Report
Federal probation officers gather information from a variety of sources. They review the charging instrument, the prosecutor’s notes, transcripts from the judicial proceedings, and listen to the prosecutor’s version of events. To an extent, they may also consider statements made by the defense attorney and the defendant. They will consider information provided by victims of the crime, or information they receive from individuals who have had some personal interaction with the defendant. Before meeting with the defendant, the probation officer likely will have the documented criminal history of the defendant. Probation officers will seek to verify everything in the report. Accordingly, wise defendants will refrain from saying anything that could be construed as misleading or a lie; such actions could result in either additional criminal charges or in sentencing enhancements for obstruction of justice. The report will conclude by suggesting an appropriate sanction for the judge to consider imposing.
Defendants should expect the probation officer to have familiarized himself with the case prior to the initial interview. The probation officer will have communicated with the prosecuting attorney, checked on criminal history, and possibly spoken with victims prior to the initial meeting. The probation officer will ask a series of questions. Prior to meeting with the probation officer, the defendant would be wise to anticipate how he would answer the following questions:
• What are the most important influences in your life?
• How would you describe your family?
o Think about favorable and unfavorable descriptions that might make an influence on the report.
• Where did you grow up?
• How would you describe that neighborhood?
• How long did you live at that residence?
• Where else have you lived?
• Tell me every city where you’ve ever lived.
• Describe your current living situation.
• What have been the conditions of your usual living situation?
In asking such questions, the probation officer attempts to gather information about early life influences. At White Collar Advice, we work with our clients in ways that will get them thinking about how responses could lead to downward departures from recommended sentencing guideline ranges.
• Tell me about your family, including your parents and siblings.
• Where do your family members live?
• How would you describe your parents?
• What type of occupation do your parents have?
• Was there any history of domestic disturbances in your childhood home?
• Tell me about the status of your relationship with your parents?
• What do your parents know about your current situation?
• How would you say that your parents feel about your current situation?
• Will your parents be available for an interview?
• What type of relationship do you have with your siblings?
• Would your siblings be available for an interview?
• What is the name of your spouse?
• How old is your spouse?
• What is the present status of your relationship?
• What are the names of your children?
• How old are your children?
• Do you have any involvement with social service agencies?
At White Collar Advice, we help our clients understand how their responses to such questions could bring lasting complications. For example, information about the individual’s family relationship or obligations could lead the probation officer to conclude that the defendant could afford to pay a heavy fine. The Bureau of Prisons certainly will take such factors into account when determining how much money to seize from the defendant’s commissary account every month. Likewise, family dynamics could potentially be a reason to request a downward departure from sentencing guidelines. We encourage our clients to think through the ramifications of every answer, as those answers will have lasting influences.
• Tell me about any tattoos or scars that you have.
• What significance do those tattoos have to you?
• Describe any history you may have of significant medical conditions?
• When were you diagnosed?
• Who was the attending physician?
• What current medical conditions do you have?
• What is your treatment plan?
• What medications are you taking?
• Describe any challenges you face concerning health.
• How would you describe your general physical condition?
• Describe any medical conditions you have that may influence your employment.
At White Collar Advice, we teach our clients how their responses to such questions may influence their time in prison. Defendants should remember that staff members in the BOP rely upon the PSI as a resource whenever they classify an individual. If an individual can document health complications in the PSI, he will advance possibilities of receiving appropriate treatment while in custody. Further, information that is documented in this section could influence the prison where an individual serves his time, the housing unit in which he is assigned, and the job assignment he receives in prison. Every response could have lasting implications.
Mental and Emotional Health:
• Describe your personality traits (positive and negative)
• Tell me about your history of mental or emotional problems.
• Would you say that a history of mental or emotional problems exists in your family history?
• Have you ever received treatment for a mental or emotional problem?
• What diagnose did you receive from that treatment?
• Have you taken any medication for emotional problems?
• Tell me whether you’ve had any history of suicide attempts?
• How would you assess your state of mental or emotional health?
We advise our clients to use extreme caution in how they respond to such questions. Prison administrators will rely upon the PSI document for the entire duration of the sentence. Although a defendant may be at an emotional low immediately following a conviction, it’s important that the defendant not provide the probation officer with information that might suggest emotional instability. Bureau of Prison officials and future probation officers could rely upon such documentation to mandate the defendant participate in so-called “treatment programs” that would aggravate his adjustment.
• Tell me about any history you have with substance abuse.
• When did your drug use begin?
• How frequently would you say that you’ve abused drugs?
• How much did your drug habit cost you?
• What types of drugs have you used?
• When did you last use an illicit substance?
• Tell me about any history of treatment you’ve received?
• What history does your family have with substance abuse?
We advise our clients to understand the implications of how they respond to the questions above. In the federal system, only one program exists that can potentially lead to a reduction of sentence. Answers to the questions above have an enormous influence on whether defendants can become eligible to receive a reduction of up to 12 months from a release date. Individuals who are not in custody during the presentence investigation should not be surprised if the federal probation officer requests a urine sample.
Educational, Vocational, and Special Skills:
• What schools did you attend?
• What level of education did you attain?
• What professional training have you received?
• What licenses do you currently hold?
• What languages do you speak?
• What is your employment status?
• How long have you held the current position?
• What salary do you earn?
• Is your employer aware of your current legal situation?
• How would your employer respond to questions I ask about you?
• Will you be able to return to your employment?
• If you’re a business owner, will your business survive if you’re incarcerated?
• Do you have any military experience?
We want our clients to understand how staff members in the criminal justice system will interpret responses to these questions. Literature in the field of criminal justice suggestions a relationship exists between employment, education, and recidivism. The more education, training, and employment history an individual has, the less likely that individual becomes to engage in future criminal activity. Therefore, defendants advance their potential for favorable outcomes when they can show their commitment to education. At the same time, statements about employability can have an influence later in the process, when prison officials are determining need for halfway-house placement. Responses should strike the right balance, which we endeavor to teach at White Collar Advice.
Also, with regard to education, all individuals who anticipate that they may serve time in white collar should know that receiving the maximum “good time” credits is predicated on an individual’s ability to document that he has earned either a high school diploma or a GED. If he has not, administrators will require the inmate to participate in classes that are designed to lead to high school equivalency. Some clients of White Collar Advice could show that they had earned a university degree, but did not have a high school diploma. As a consequence, BOP administrators required the individual to attend the GED classes. We succeeded in assisting our client’s efforts to reverse that decision. Those who can document that they have a high school diploma in the PSI will avoid some bureaucratic frustrations in prison.
• Have you reported all of your assets, liabilities, net worth, necessary monthly expenses, and monthly cash flow?
• How can I verify the financial information you provide?
• What ability do you have to pay a fine or restitution?
• How would do your assets measure up when compared with your sources of income?
• How would you describe your expenses as relating to your income?
• Have you made any attempts to conceal an asset?
• Have you made any recent attempts to transfer assets out of your name?
At White Collar Advice, we want our clients to understand the implications of every response they provide. All responses should harmonize with one another, because many officials who review them with a cynical eye. Individuals prepare well when they consider all ramifications of the answers they provide to financial questions during the presentence investigation.
Questions that the probation officer may ask others:
• How would you describe the defendant?
• What is the status of your relationship with the defendant?
• What influence has the defendant’s offense had on your relationship with the defendant?
• How has the defendant’s offense influenced your family?
• What knowledge do you have of the defendant’s substance abuse?
• What knowledge do you have of the defendant’s mental stability?
• How would you describe the defendant’s proclivity for violence?
• What do you know about the defendant’s financial condition?
• How has the defendant’s offense influenced the family’s finances?
• What influence would the defendant’s incarceration have on family?
• What would you like the court to know about the defendant?
Questions defendants should anticipate that the probation officer will ask the Assistant US Attorney:
• Has the defendant cooperated with the government?
• Has the defendant obstructed the investigation in any way?
• Should we consider any aggravating or mitigating circumstances?
• Does the defense contest any issues not identified in the plea agreement?
• Do you know of any other jurisdictions that may be investigating the defendant?
• Who is the victim in this case?
• How can I contact the victim?
• What is the amount of loss in this case?
• What exposure to loss was possible in this case, even if there wasn’t any loss?
• Was any of the loss recovered?
• How much did the defendant profit from this offense?
• How much did the defendant intend to profit from this offense?
• Do you have any personal or business financial statements that the defendant provided?
• What level of culpability would you say the defendant had in the offense?
• How long was the defendant involved in this offense?
• How and when did the government start its investigation of the defendant?
• How did the defendant respond at the time of arrest?
• How has the defendant adjusted during pretrial supervision?
• Has the defendant made efforts to repay the victims or make restitution?
• Has the defendant engaged in any programs that the court would want to know about?
• What do we know about the defendant’s criminal history?
• What do we know about the defendant’s history of bail jumping?
• Does any documentation exist about the defendant’s involvement in domestic violence?
• Does any documentation exist to suggest sexual misconduct?
• What allegations exist about the defendant’s use of weapons?
• Does the defendant have any ties to gangs or organized crime?
• Do we know of any threats the defendant has made against government officials?
After the Probation Officer has completed his investigation, he will write a report that adheres to a template. Some salient points of the template follow:
Part A: The Offense: This section provides information necessary to understand the offense, to assess its impact on any victim, and to calculate the offense level that the judge may use when imposing sentence. It also offers information with regard to elements of the offense that readers may want to take into consideration.
1. Charges: A brief, clinical, overview of the charges.
a. This is objective information, a snapshot of the past that the defendant cannot influence.
2. Codefendants: Descriptions of anyone else charged in the same document.
a. This information can have some influence on the defendant, as Bureau of Prison officials may choose to separate codefendants from serving time in the same facility. At White Collar Advice, we encourage our clients to understand implications this area of the report. It could lead to the individual serving a sentence in a prison that is thousands of miles away from family.
3. Related Cases: Descriptions of any other cases that may be connected to the defendant’s case.
a. If other cases are involved, the defendant may want to work with counsel to prepare a statement of explanation. Remember the case of Arnie, described in the example above. As a consequence of related cases, authorities branded as an affiliated member of organized crime, which complicated his prison adjustment.
4. The Offense Conduct: Assessment of the defendant’s crime.
a. The probation officer uses this section to report what happened in the offense. He bases this narrative on what the presentence investigation revealed, so it doesn’t necessarily reflect the same information in a plea agreement or what took place during the trial. Many probation officers will rely upon what others alleged rather than what was proven. White Collar Advice advises clients to pay particularly close attention to this section to ensure its accuracy. This section can have lasting ramifications and enormous implications, including sentencing enhancement that would extend the sentence. If the probation officer alleges “leadership” in this area, prison officials will take that information into account when assessing whether the individual is suitable for minimum-security placement.
5. Obstruction of Justice: Descriptions of any effort to impede the investigation.
a. White Collar Advice advises its clients to understand that probation officers can allege obstruction of justice for any type of misstatement. Accordingly, defendants must speak deliberately, measuring their words precisely when participating in a presentence investigation. A defendant doesn’t have to say anything to the probation officer. If the defendant chooses to elaborate, the defendant should ensure that the probation officer doesn’t perceive him as being deceitful or manipulative. Such accusations can lead to a sentencing enhancement for obstruction of justice.
6. Acceptance of Responsibility: A favorable factor that would lead to a downward adjustment in the sentencing range.
a. Some factors that can lead to this favorable-adjustment mechanism include: payment of restitution, timeliness of the defendant’s admission of guilt; statements of remorse; engagement during the presentence investigation; and documented efforts at post-arrest rehabilitation.
7. Offense level computations: Mathematical formula that determines sentencing guideline range.
a. This is the section where the probation officer applies a combination of his findings from the investigation and the sentencing range that federal sentencing guidelines recommend. On occasion, the probation officer arrives at a sentence that differs from the range agreed upon by the prosecution and defense. The sentencing judge makes the final decision.
8. Offense Behavior Not Part of Relevant Conduct: Potentially damaging area of the report.
a. Sometimes, the parties agree to dismiss specific counts in order to secure a guilty plea. But the probation officer may discuss those dismissed counts in this area, even though there was not a finding of guilt. Unfortunately, the Bureau of Prisons may rely upon this section when classifying an individual. At White Collar Advice, we advise our clients to pay close attention to this area. They should make every effort to ensure that descriptions do not malign the defendant in ways that can cause potential problems during the prison sentence.
Part B—Defendant’s Criminal History: This section provides historical data that can influence the manner in which Bureau of Prison officials classify an offender.
• This entire section may or may not influence the judge at sentencing, but prison officials will scrutinize it closely when classifying an offender. The information it contains may influence crucial factors, including:
o Whether the individual qualifies for programs that can reduce the sentence.
o The security level where an individual will serve his sentence.
o The access an individual will have to opportunities in prison.
o The types of programs that prison officials will mandate for the individual.
o The type of job where prison officials will force the individual to work.
o The amount of time an individual may have access to telephone.
o The amount of time an individual may have access to visiting.
o The prison location where an individual will serve his sentence.
o The amount of money an individual may spend in the commissary.
o The amount of money an individual may have to pay toward financial sanctions while in custody.
o The possibility of being sentenced to a “Cost of Incarceration Fee,” meaning that he would have to pay thousands each month toward his cost of confinement.
At White Collar Advice, we urge our clients to understand the relevance of the Presentence Investigation Report. Attorneys who lack experience with the Bureau of Prisons fail to appreciate the magnitude of this document’s influence on the individual’s journey through the prison system. Individuals who would like more personalized guidance in preparing for the Presentence Investigation should contact White Collar Advice immediately. Time is of the offense in preparing for these documents. Our consultants are busy working with others who, like you, want to have the best possible outcome from their experience with the criminal justice system.
If you’re working with an attorney who is preparing you to understand the relationship between your answers to all of the questions above, then you should be well prepared for the best possible outcome from the presentence investigation. If not, then we encourage you to make sure that you prepare yourself independently, or that you work with a consultant who can guide you.
• What steps have you taken to prepare for your PSI interview?
• What have you learned from your defense attorney about the role the PSI plays in your journey through prison?
• What response do you have planned in the event that your Probation Officer makes inaccurate statements in your PSI?
• How will your PSI influence your life after you conclude your obligation to the Bureau of Prisons?
• What influence do you perceive your PSI will have on your journey inside?