The following blog was written by a colleague on our team:
Justin Paperny discusses the investigation process with Mike Berlon. Based on what Justin heard from a retired FBI Agent, a criminal investigation is ninety plus percent complete by the time law enforcement approaches or questions you. Discovering you are under investigation puts you under tremendous stress. Immediately you have important decisions to make. You must decide whether to go to trial or plead guilty to the charges. The insights provided in the video can help you make better choices about your case. The information I learned from the video would have made an impact on my case. Although it would not have alleviated the charges, it would have led to a better understanding of my situation and the consequences I faced.
At the outset of an investigation, the government has the means to interview and collect information without allowing the target of the investigation to become aware of its investigation. The discussion in the video reveals most federal investigations start because of information obtained by law enforcement from an ongoing civil lawsuit. Depositions can be tricky. Inadvertent disclosures can lead individuals to disclose illegal actions and events opening the door to future criminal liability. The other most common triggering event for an investigation results from an informant reporting legally questionable actions or events.
I was a licensed attorney at the time of my arrest. My criminal case was initiated by a confidential informant and not by civil litigation. My history and background as a contract attorney in Hollywood did not prepare or provide me with the knowledge I needed to face this harrowing challenge. Watching this video gave me new insight into steps I should have taken upon discovering I faced a formal federal indictment and criminal charges.
Justin and Mike emphasize the effectiveness of preparation in planning a strong and efficient sentencing mitigation strategy. The first step Mike recommends upon discovering you are under investigation is retaining a reliable and competent defense attorney. The process of vetting an attorney requires asking pertinent questions about the experience and results obtained by the attorney. You should verify the attorney’s record by obtaining relevant references from previous clients. Importantly, you should ask about the attorney’s experience in reaching settlements with the prosecutor, as the majority of federal cases result in a negotiated settlement.
In my experience understanding the necessity of negotiating a settlement is the most important criterion for a defendant to understand. My attorney was a well-known Hollywood defense attorney. He had won several notorious criminal cases and was regularly featured in the mainstream media. He failed to inform me ninety-seven percent of federal cases resulted in a conviction. He allowed me to dictate the settlement negotiations. It was a major mistake. I went to trial, and I ended up with six times the federal prison sentence I would have received in a negotiated plea settlement.
As my case shows, reaching a settlement agreement, an agreement to plead guilty is not a resignation of the battle. Reaching a plea agreement is only the first step in your battle to ensure you get a fair and just sentence. In the video, Mike points out how important the steps between the plea agreement and the sentencing are to the defendant. There are significant legal documents required prior to the sentencing hearing. The defendant will need to diligently work to ensure the Judge not only understands who you are but why you deserve leniency and mercy. For you to convincingly influence the Judge requires you to understand the perspective of the Judge and on what basis he will determine his judgment.
The Judge will rely on several documents in making his determination. A United States probation officer conducts an interview to prepare and draft a court document called the Pre-Sentencing Report. Your attorney should thoroughly prepare you for this interview and it is helpful if the attorney attends the interview with you. The document, labeled the PSR, outlines for the Judge your childhood history and the circumstances of your life. It provides a detailed record of your medical status and conditions both physical and mental. Once you go to prison the PSR will become the sole document relied on by prison officials and administrators. Additionally, both the Prosecutor and your attorney will prepare an opposing Sentencing Memorandum. The Sentencing Memorandum lays out for the Judge each side’s position on the length and duration of your incarceration.
White Collar Crime Case: The Judge’s experience in the criminal justice system and his reliance on the PSR, the prosecutor’s Sentencing Memorandum, and victim impact statements provide him with a negative picture of you and your actions. Only by mitigating these perceptions can you have a meaningful effect on how you are perceived by the stakeholders who determine your fate.
Mike and Justin finish the video by stressing how important the time leading up to the sentencing hearing is for you to plan and prepare the necessary groundwork to influence the Judge’s decision. You need to provide substantial examples of how you have accepted responsibility for your actions and how you are not just sorry you were found guilty, but consciously remorseful for the harm you caused the victims of your actions. Exhibiting a convincing case provides you the opportunity to properly influence how the PSR and your Sentencing Memorandum are presented. As Justin points out in the final minutes of this video, be careful not to act against your interests. In the final stages of the pre-sentence period any illegal acts, the hiding of assets, any deceptions or lies to officers of the court, including the probation office will result in deleterious consequences.
As someone who has been through the criminal justice system, I know how hard it is to influence a Judge. The Judge is accustomed to hearing pleas for mercy and clemency. Standing out before the Judge requires you to show actions demonstrating the remorse you feel toward the victims. Acting in a manner solely to benefit yourself, shows a negative demeanor and a criminal attitude.
The most important statement of Mike and Justin from this video to remember once you are under investigation is, “Do no harm”.