Each time I produce a new video someones asks if I can provide a transcript for their loved one in custody. For that reason (and for those who prefer to read rather than hear me speak), I am attaching the transcript from the video I posted on Friday, June 11, 2021.
The video, Personal Letter To Sentencing Judge (5 Faults and 5 Fixes), can be viewed here. For those that want the transcript, with some minor edits, please see below.
“If you’re new to this channel, you’ll know, and I have to acknowledge every now and again, I like to relive the glory days. Makes me feel better getting older, losing hair, losing muscle. It makes me feel good!
I’m going to share a glory days story to help all of you as we talk about sentencing mitigation, how to prepare for sentencing, crafting your letter.
Here’s the story:
My sophomore year in high school, Mike Gillespie, the now deceased baseball coach from USC visited my home; he was recruiting me. He had interest in my athletic career, and was going to come and watch me play the next day.
I was super pumped, super excited, yet I choked, choke, I tell you! I went zero for five with three strikeouts, two errors–you’d think I never played baseball before. As my best friend, Brad Fullmer, said to me after the game, “dude, that was horrific.”
Yet, at the end of my senior year, I still went to USC to play baseball, I still had an opportunity to play on the team and I did. Why? Because coach Gillespie chose to take my whole high school career, judge me on that whole career rather than one horrific, embarrassing game in front of a lot of people at Valley College in North Hollywood. But that’s it, the goal of sentencing mitigation, right? You’ve made one bad decision, but that doesn’t define your whole life. It doesn’t define who you are as a person.
Now, the government may not portray that message. That’s not their job. Their job is to hammer home extensively all day, every day in their sentencing memorandum, what they tell the judge, what they tell the press, why you’re bad, born bad and why you’re worthy of the lengthiest sentence.
A book I want all of you to read, it’s free, the book Prepare. We have it on our website. I actually broke up every chapter of this book on the website.
Before I transition into some tips on how you can write this letter to the judge, these same tips will apply to your probation officer or a case manager if you want to get off probation early, if you want to get out of prison early.
On page 42 of Prepare, we wrote, “it would be wise, I think, for those who become entangled with the criminal justice system to anticipate a system influenced more by Machiavelli pursuing victory regardless of methods, rather than a system influenced by teachings of more enlightened leaders that encourage forgiveness, compassion, and concern for the individual.”
I know many of you who reach out to me say, this is the first time I’ve ever been in trouble, please go read the chapters of this book. It’s free. It’s just your time, please.
I know many of you who reach out to me say, Justin, I didn’t have bad intent. I’ve never been in trouble before. I’ve never had a parking ticket. I’ve always given back. This isn’t who I am. My message is I agree with all of that, and it’s good that I know, but what’s more important is your judge knows, your case manager knows, and you’re able to articulate this vision that you were different than bad decisions you made, or coming back to the glory days that I’m better than one horrific, embarrassing game in front of my eventual college coach at USC.
How can you do that? Well, it starts with understanding the stakeholders. Do you have a judge, probably very cynical who has thousands of people processed in front of him or her throughout the year, who is desensitized to, I’m sorry, I didn’t mean to do it, to a degree the message gets discounted because it’s all they ever hear.
What you have to do is think creatively and determine how can you be extra ordinary in front of this judge who hears from so many people?
One very effective way you can manage this message is by creating this personal narrative to your sentencing judge. Personal narratives, a very big deal, I believe short of cooperation, pleading guilty, paying all the money back, working and building a new record as a law abiding citizen, the personal narrative written through your own words, your own efforts will be the most important thing you’ll do as a defendant. You’ve got to invest tons of time creating it, going about it the right way.
But what we don’t want is for you to invest all of this time to create the narrative and then have one word or one line derail all of the progress you’ve made. I’ve mentioned that in the video I filmed a couple of days ago on mistakes made in character reference letters. You can have a great letter, yet one line in the letter can really be off-putting to a very cynical federal judge or very off putting to a federal prosecutor who may use that one line to really buoy their argument that you’re worthy of a upper end guideline sentence, or even above the range. So every word matters.
Here are some common flaws that I’ve seen in letters that our team has read over the years. It doesn’t appropriately focus on the victim. In some cases, there are no victims, I understand, yet it takes thought, and to be extraordinary, to understand how your actions have impacted people, whether they’re perceptible or not, whether you can identify them or not. Too many letters in my experience, whether there is or is not a victim, doesn’t properly focus on the people who have been hurt, or it doesn’t in kind of a matter of fact, they’re more involved tangentially, the victims. I’m so sorry for what I’ve done. This has really impacted my career and my reputation and my children. By the way, I am apologetic for creating victims. They’re kind of on the outside. They’re not the focus.
Let’s understand that these victims as was the case at my sentencing may be at a sentencing hearing. They’re going to speak. They’re going to write letters. If you don’t identify with them, if you don’t put them first and recognize how your actions have impacted them, you’re going to get crushed at sentencing. Okay? If you’re not focused first and foremost on the victims, I don’t care if you have the best lawyer in America or you have a federal public defender, it doesn’t matter.
As articulated to us, the federal judges, no disrespect to lawyers because we work with the best lawyers and we get referrals from some of the best lawyers, to a degree, what is articulated to a judge from a lawyer, what is articulated to a judge from a lawyer is somewhat discounted, because they’re paid to articulate why you’re worthy of leniency, and I pray your lawyer does it well. You’ve got to do it better. You’ve got to invest. You’ve got to work full time on creating this message, including this narrative. A big fault is not focusing first and foremost on the victim.
A second fault is focusing on how awesome you are, all the great things that you do in life, whether it’s cooperating, all of the community service work you may do, which is important, and of course it’s important and you should do it. If you want to learn more about measurable specific ways you can create a community service project to impact tens of thousands of people, reach out, we can help you. But it shouldn’t be the whole focus of your narrative. It should be a snippet. The typical narrative is probably 8 to 10 pages. Some lawyers I know will tell you that’s too long. Totally disagree. It should be as long as it needs to be to answer all the questions the judge may have.
If your lawyer is going to turn in a 30 to 40-page sentencing memorandum, why then could you not turn in a 7 to 10-page letter? We’ve had clients like Jerry Lundergan hold up his book while speaking to the judge for 20 minutes at a sentencing hearing. It’s not too long if it’s conveying what federal judges tell us they want to hear conveyed to them by defendants. I do not believe that it’s too long. It should be a snippet of your charity worker or you’re paying back the money.
But to a degree, I think you do good cop, bad cop with your lawyer, you accept responsibility, you’re deferential, you’re humble. You focus on the victims. Your lawyer then can focus on a lot of these issues that I think only a lawyer could argue, your cooperation, all of the money that you’ve paid back, your role perhaps relative to other defendants, really trying to nuance and parse out why you should get a shorter sentence relative to others in your case. Let your lawyer do what the lawyer is paid well to do. You’ve got to focus on the victims and avoid this fault of talking about how great and awesome you are. I, I, I, I did this, I did this. It doesn’t move the needle. Why? The more Is you write, the fewer focusing on the victims, the people that were hurt.
Now, another fault, you don’t share an appropriate vision moving forward. How many of you if you’re a federal defendant, you’re sitting at home and you’re wondering, well, what do I do? Many of you already feel like you’re in federal prison. You’re just not getting credit for it. So when I’m asked, “Hey, my sentencing was delayed three or six months or a year. Is that a good thing?” My message is always, well, maybe. What do you do all day? How do you spend your days? Are you looking for work? Are you building a new record? Are you creating a vision that will be persuasive to a federal judge that you can articulate in your narrative or sentencing video or community service project?
Many of these letters in my experience doesn’t show that vision moving forward. Why is that relevant? Well, you want to be able to articulate to the judge that you’re beginning to build a new record as a law abiding citizen, that despite your conviction and loss of license and career and all of the ancillary consequences that accompany this process, that you’re able to overcome it. Here’s the beauty of it, if you’re working on creating a vision moving forward and you’re hitting a lot of roadblocks, document it. Why? It articulates and shows that this is a consequence of your conviction.
For example, we have a client in New York, smart guy, educated guy, went to an Ivy league school, really struggling to find work, any work, even work that is well beneath his skillset. Been very upfront about his conviction and everything that has accompanied it. He went to his probation interview. In a few minutes, I’m going to talk about the right content at the right time. He went to his probation interview, and when she asked him, “Are you working?” He said, “No. Unfortunately, as a consequence of my bad conduct, I have not been able to get hired. I really hurt my victims. I’ve destroyed life-long relationships. I brought this upon myself, but I want to do better and create a new record moving forward both to repay my victims and also to prove that I can overcome this and build a better life, and not let this become a life sentence.”
She said, “Really, what have you been doing?” He handed her, here, these are every place I’ve gone for interviews. These are people that I call. I cold call all day looking for interviews. I’m trying to leverage off every relationship I’ve had. I’m not getting anywhere.” She applauded him, lauded him for looking for work, for trying, rather than sitting home all day and playing… I was considered Mr. Pac-Man, to live the glory days for my ’80s, but I guess Fortnite, or there are these new games that I don’t play that apparently are very addictive, which is what some defendants do. They sit at home all day. Some work is beneath them. They won’t do it. So they complain and they bitch and lament over the unfairness of their life, and they don’t work to create that record or that vision.
Also, be authentic in these letters. If you’re able to articulate a vision, you can articulate that you don’t have it all figured out today. I certainly didn’t have it figured out until I went to federal prison and began working alongside Michael Santos. I’m not saying you have to have it all figured out, but you can articulate a vision. What it is you hope to do, what you hope to become. Why is that relevant? Someday you may go back in front of that federal judge to get off probation early, or perhaps request an early release or something. If you can articulate in your narrative that I wanted to do this, and now I have begun to do it, it shows that you’re authentic, because most people ask the judge for something, if they get it, they don’t really follow through. Or the judge may say, you’re asking me to do this only because you want the best outcome. I don’t suspect you’ll do it if I give you what you want. So you are authentic in your narrative if you can actually articulate this vision moving forward.
Moving on to another fault in the letter, writing that it wasn’t your fault, having your cake and eating it too. A lot of defendants will articulate their remorse and shame, but say, however, but, it doesn’t work. If there is anything in there that reeks of a rationalization or an excuse, remove it. That’s why some defendants, even very good writers, lawyers who are very good writers have retained our team and said, “I’m an accomplished writer. I’ve written a lot of briefs. I have a degree from Harvard and Yale, and I’m very smart. I don’t think I could write this letter to the judge because I fear in so doing, I’m going to offer an excuse.” Right? A physician probably doesn’t operate on himself. A dentist doesn’t go in and do his own root canal. Even experts, people who are trained and skilled in this space say, I need some help. I need an outsider or an observer to come in and make sure that my message is on point.
The last fault before I get into some of the fixes is that you shouldn’t be going to prison. The judge knows you don’t want to be going to prison. Judges don’t like to be told what to do. Now, before I get into some of the fixes, let me remind all of you, and this is really something that Michael Santos helped me understand both in prison and now for the 12 or 13 years since I’ve been working with him and our team as we grow, the right message at the right time. The message that you convey in a personal narrative to a federal judge may be different than the message that you convey to a probation officer when you sit down for your probation interview.
We will have clients write their narrative for the probation officer. They may get sentenced six months later, maybe a slightly different narrative. The narrative that you give to a case manager in custody may be slightly different than what you gave to the sentencing judge. For example, if you give a narrative to your probation officer, which is what you should do and what I did upon my release from prison, it had some of the makings of the personal narrative I gave to Judge Wilson, but it also included what I did in custody. Why I was more worthy of liberty on probation? Why I created a record that enabled me to work with convicted felons the first day that I was released, rather than going to get a $15 an hour job, which is what most defendants are forced to get when they’re home from prison, because they haven’t created a record that demonstrates why they’re worthy of doing what it is they’d like to do.
So the right message at the right time is key, and the message will be different for each stakeholder. If you have questions about that, reach out to us, we’ll help you articulate. Let me give a specific example of how a message may be different. If you’re pursuing the drug program, for example, that narrative to a judge or a probation officer may articulate your history of drinking or substance abuse, which documents it, it could be a mitigating factor, of course, help you get into early release program.
Well, now that you’re home from prison, you can modify and edit that out and focus that portion of your narrative on new content, like, what it is you did while in custody, updating your vision for the rest of your life. The right message at the right time is crucial. It’s just not content, content, content. The right content at the right time will really help move the needle for these very cynical Machiavelli thinking-type stakeholders.
Now, let’s go to some of the specific fixes. You’ve got to focus first and foremost and fully appreciate and understand the victim’s pain, suffering, and the loss that they have gone through. Even if all of the money is repaid, it doesn’t mean they haven’t suffered or then hurt or lost some of their faith in humanity. So in an authentic manner, first and foremost, you’ve got to focus on the victims. Before you write I, I, I, I’m awesome, I’m great, I paid it back, I do community service, I didn’t mean to do it, I didn’t have bad intent, before you do that, first and foremost, show an appreciation for the victim’s pain and suffering. Do so in an authentic way.
Additionally, you want to show the influences that led you to be involved in this offense. This is something I did terribly as a defendant. I didn’t understand my crime. I couldn’t fully articulate what I did. Therefore, I was not in a position to write it though I tried. I have shared this story when I lectured at the FBI academy, March 11th, 2011. Is this glory days now that I’m home from prison? I think this relates to our work. March 11th, 2011, I lectured at the FBI academy, and Paul Bertrand, my friend, the FBI agent that arrested me, they’re good dudes, FBI guys are great unless when they’re arresting you.
He invited me to the academy to speak. Before I spoke, he said, Justin told us the truth, we wouldn’t have sent him to federal prison, one. Two, at the end of my story, the two-hour lecture at the FBI academy, he came up to me and said, you didn’t take kickbacks. You didn’t take kickbacks, I get it. You didn’t take kickbacks. Man, that really influenced your case. And I said, “I know.” “And so what happened?” I said, “I didn’t have anyone to talk to. I couldn’t get through to my lawyers. I didn’t fully understand what I did, but if you were to read my plea agreement, it says in there I took kickbacks, I had to agree to it. I thought, or else I was going to go to trial and lose. So there was parts of my plead that were not true.”
He said again and again, “You didn’t take kickbacks.” He said, “What happened?” I said, “Dude, I went to prison. I worked all day, every day to try to build a new record, learn how the hell I felt so far, the pressures, rationalizations and opportunities I seized that got me here. So now years later, books later, blogs and everything, now I’m in a position to tell my story. I wasn’t when I was a very fat, lazy, cynical, arrogant, naive defendant many years ago.” He said, “I see a lot of value in what you do.” You have got to talk about the offense, not in a way that excuses, but certainly share some of the pressures you faced, how you rationalized them, and the opportunities you see, and then articulate in this narrative, I think that regardless of the pressures you face, regardless of how you rationalized it, it’s no excuse to break the law.
I’ve seen and read some letters where defendants will too heavily blame these pressures, blame the corporate pressure, blame the financial stress. And then I go to a sentencing hearing where the judge says, “You know what, maybe there’s a lot of people in America who face a lot of pressures. There’s a lot of people under stress right now, and they didn’t cheat like you did. That’s not an excuse.” So you’ve got to be able to articulate that despite those pressures, it was no reason for you breaking the law.
Another fix. What have you learned from this experience? What have you learned? I think you should articulate that. Is it, I didn’t fully understand how one decision could impact the rest of my life? I didn’t fully understand how thinking selfishly, thinking how the ends justify the means could derail the life I was supposed to live, and in so doing, I hurt people. What have you learned from this? Is that in your narrative? What have you learned from this? Can you articulate that? If someone were to ask you, if you ran into somebody while walking down the street and they said to you, “I read about your case. I’m sorry. What are some takeaways? What have you learned?” If you cannot articulate that to a federal judge or a probation officer, do not write your own narrative, I beg you.
Additionally, a fix. You have to show what steps you’re taking to reconcile with society, the victims, and to make things right. Many defendants are really unable to do that beyond saying, I’m sorry. Reconciling with victims include paying some money back before sentencing, working to create a new record where you can earn a law abiding wage and pay the victims back, demonstrating that you’re not remorseful and excusing others. You’ve got to be able to create a path. That was very influential for me when I not just paid money at sentencing for my restitution, which to a degree I know it helped me kind of keep me out of prison. In retrospect, I regret that. I wish I kept the money because I needed it when I came home. I had served a few months longer in prison because I didn’t have a wife or children, but everyone’s case is different. You probably want to get out as quickly as possible.
But getting back, when I came home, it was very impactful that I paid all the victims back in full. That was influential to my probation officer, gave me more liberty influential to the judge. I’m sure I could have got off probation early, but frankly, I didn’t care. I saw no need to pay a lawyer $1,500 from the day to try to get off early. I didn’t want to. But in your narrative, you got to fix and address the reality, show what you’re doing to reconcile with victims.
I guess the last thing, point number five for fixes, the most important thing perhaps is you have got to articulate in this narrative why you’re never going to return to another courtroom beyond just saying, “Your honor, I’m never going to return to another courtroom.” It’s like saying, your honor, “Give me probation,” without evidence of showing why, or my telling Mike Gillespie, the baseball coach at USC, that I want to go play baseball there. He would have said, “Oh great. What are your numbers? What are your stats? Are you worthy of playing here? We were number one in the country last year.” So it does no good to say it. You’ve got to articulate through your actions and then express it in your narrative why you will never break the law again, ever.
What are some ways that you can do that as I wrap up this video? Because the reality is we send too many people to prison for sentences that are far too long, and our team gets too many calls from defendants who were sentenced, who googles us, then calls us, oh my goodness, I got five years. I was expecting two. I got two years. I was expecting probation. My lawyer told me there’s nothing that I could do. That he was a former AUSA. He has it all covered. I didn’t do this narrative. My letter sucked. My statement was awful. How can we undo it?
We cannot change the past. We can try to do better moving forward. I want you to learn from people who’ve made bad decisions, and I want you to take appropriate action and invest, if it’s 30 hours, 50 hours, 100 hours, 500 hours, whatever it takes, because what you do not want to be is standing for count in federal prison listening to other dudes lament about their lawyer, their judge, their life, their case, and wondering, not even wondering, stating openly what they wish they could have done differently, and that’s what I heard all day in federal prison. I did 90% listening, 10% talking, and I heard these stories and I related to a lot of them.
You have an opportunity to be different, to be better, but only if you do the work, only if you invest, only if you invest the time, only if you have this great desire to prove through your own efforts why you are absolutely worthy of a different and better outcome.
The last thing I’ll say is if you’re going to try to create a record that shows why you’ll never break the law again, how? Work, make money in a law-abiding way. Collect character reference letters that demonstrate that you’re a person of character, how you’ve helped people. You’ve got to use this delay before sentencing wisely. Of course, that leads to post-defense conduct, making the right decisions, being compliant on pretrial supervision, being honest with your financials, fully accepting responsibilities. You kind of have to stop making matters worse.
Lastly, again, I’ll say it, the most important, I think, fix to a narrative is articulating this personal letter to the judge or a probation officer or a case manager. Some of the content will remain the same throughout why you will never return to the courtroom as another defendant.
Hope you found a lot of value in this video. Of course, if you’d like to work with our team on your letter or available, if you think you should create it, you should. Like this video, comment, you found value in it, then go write the narrative immediately. Whether we do it or you create it on your own, it’s the most important thing you will… notice how I got a little closer to the camera to really accentuate the point. I’m doing this for a fact right now. I read some marketing stuff, I should really get up in front. It’s the most important thing you’re going to do as a defendant.
We want all of you to have productive journeys. We want you to crush your time in prison if you go. We want you to live knowing you did everything you could possibly do to prepare for sentencing. If this video helped you, awesome, go get to work, go write that narrative. I’m really grateful that you take some time out of your day to learn from our team of White Collar Advice, and I look forward to returning soon with more valuable content. Go get Prepare. It’s free. All 27 chapters are on the White Collar Advice site. Read it and put it to work.
Thank you so much.
Justin Paperny
