He Faced 70–87 Months. He Got Probation.

WATCH LIVE HERE!

A few weeks ago, John Spivey walked into federal court in Louisiana to be sentenced for conspiracy to commit health care fraud.

John described his exposure as 70 to 87 months in federal prison. He received five years of probation, twelve months of home detention and 350 hours of community service.

Thanks for reading White Collar Advice ! Subscribe for free to receive new posts and support my work.

No prison.

Naturally, people (like everyone!) want to know what he did, how many character letters he had, what he wrote in his sentencing narrative, what his lawyers argued. Was there one thing that convinced the judge, one specific line in his narrative? It must have been something!

I understand the questions, but I think they can lead people toward the wrong lesson because there was no one thing.

I cannot tell you why John’s judge imposed probation, and I would distrust anyone who pretended they could isolate one thing and tell you, “This is why.”

John had excellent lawyers, there were sentencing guidelines, offense facts, a probation report, the government’s position, his history and conduct after the offense, and ultimately a federal judge making the decision.

John believes the work he did before sentencing changed his outcome. He wrote that publicly afterward and was very generous to our team.

But there is another line from his review I kept thinking about last week in the Bahamas, when I started to write this.

When John first began preparing, he said he was doing what a lot of defendants do:

“Waiting, talking to my lawyers, assuming my history would speak for itself.”

That last part is one of the biggest problems: Your history does not speak for itself!

You may know you have been a good father for twenty years, that the crime is inconsistent with most of your life, how ashamed you are and that you think differently today than you did two years ago.

The person making a decision about you doesn’t automatically know that.

And this problem does not disappear or go bye bye after sentencing.

Someone in federal prison may believe his case manager knows how hard he has worked, or someone preparing for release assumes everyone can see that he is ready to return home.

Someone who has successfully completed two years of supervised release may believe the court obviously knows he no longer needs supervision.

Maybe. But how?

That is the question I have been working on for our live webinar this Tuesday, and it led me somewhere I did not expect: a famous economics paper from 1970 about used cars. (Note, my good friend, Steve, sent me this paper from some instagram post and I thought it was helpful, so I wanted to build in. I am not trolling the internet looking for obscure economics papers!)

Economist George Akerlof wrote about information asymmetry, the problem that exists when one person knows something important the other person cannot easily observe.

A used-car seller knows far more about the car than the buyer. In our case, a defendant knows far more about what is going on inside his own head than a federal judge ever can.

You say you are remorseful, you get what you did, have changed, and this will never happen again. Fine, but it leads me to ask, Why should someone else believe you?

That is much harder than asking how to write a good sentencing letter, and it also exposes some uncomfortable problems.

A defendant can genuinely believe he accepts responsibility while writing four pages explaining what everyone else did wrong.

Someone can say family comes first even though every current decision is still driven by protecting money or status. Someone else can use AI to produce an extraordinary paragraph about accountability and then be completely unable to explain what accountability means in his own life.

And someone can collect thirty letters, write a beautiful narrative and a beautiful release plan without building much of a record at all.

I have become increasingly skeptical of the idea that mitigation is primarily about “just creating documents.”

The document should describe something. What did you do, what changed, who saw it and how long did it continue?

And what evidence contradicts the story you are telling about yourself?

That last question is a useful one, I think. If not useful, why would I have written it?!

Most of us are very good at collecting evidence that supports the conclusion we want. According to my wife I may the king of this, the king I tell you.

Looking for evidence against ourselves is harder and more humbling.

If I say I have become transparent but I am still hiding things from my wife, I should know. If I say I accept responsibility but every conversation eventually returns to what the government did wrong, I should know that too.

If I say federal prison changed me, I should be able to explain what I do differently instead of repeating words like growth, rehabilitation and accountability.

This Tuesday at 11:00 a.m. Pacific / 2:00 p.m. Eastern, I am going to spend our live webinar on this question:

Why should anyone believe you?

We will look at federal sentencing and John Spivey’s case, the Supreme Court’s decision in Gall v. United States, (two words from that ruling) and why people remain perplexed after sentencing while asking, “Hmmm, what could i have done differently? Not sure the judge was a buyer. He just does not get me, who I am.”

I am also ask a question: What do you desperately want a decision-maker to believe about you, and what exists today that would give that person a reason to believe it?

If you are awaiting sentencing or preparing for federal prison, I think our weekly live webinar is worth your time. If not, you have permission to yell at me and or unsubscribe from our community!

Join me live Tuesday at 11:00 a.m. Pacific / 2:00 p.m. Eastern.

Go Blue, off to the Dodger Game.

Justin Paperny