Federal Plea Agreement Review

Federal Plea Agreement Review

The Spanish American philosopher George Santayana wrote that those who didn’t understand history we’re doomed to repeat it. I write blogs and film videos with the goal of educating white-collar defendants who are immersed in the criminal justice system. Perhaps, my viewers and readers can learn from the experiences of others. If you choose to ignore the advice, at least you will not be able to say that you were not forewarned.

George Santayana

While I was traversing the criminal justice system, I foolishly ignored the advice or experiences of others. For example, I understood the importance of accepting responsibility sooner, but I delayed. I understood the importance of working openly and honestly with my lawyers, but I delayed. I understood the importance of nurturing and growing my network, but I delayed.

Yes, the record shows that I began to get it together in prison, but I totally regret not starting sooner. Consistent with Santayana’s wisdom, the missed opportunities to learn from others doomed me to repeat history, and to suffer through the lasting consequences of my bad choices.

The truth is I’m not the first or the last person to ignore history and to continue to make bad decisions. My blogs, videos, books, and consultations provide infinite lessons that others can learn from to make better decisions than others who spend their days in federal prison in regret. But despite the abundant resources that I create, others remain stuck in a pattern of bad decision-making. I have empathy for them. I was there, too.

This all leads to a phone call that I received yesterday from a defendant who had questions about his federal plea agreement. For some history, six weeks ago this defendant, a physician in Dallas, reached out to me. Like I once was, he was struggling with the ancillary effects that followed his bad decisions, and he felt that his choices would doom him to forever live with his own scarlet letter. He acknowledged that he just didn’t think some of his decisions would end so horribly. He didn’t consider them criminal, and he was determined to fight his way out of this mess. He did not consider how that fight could lead to a longer prison term.

Regardless of how long I do this, I always empathize when I meet good people who are struggling. As I once was, they constantly feel alone, hopeless and desperate. Sometimes just listening can help. They want do overs, but as we know, do overs do not exist.

Through this listening process, I learned that this defendant was buying into advice that wasn’t necessarily in his best interest. He was willing to give money to anyone who would tell him what he wanted to hear. Specifically, he was looking for advice that his federal plea agreement was too weak and could be improved upon. His lawyer told him he did the best he could and that it was in his interest to sign it. He disagreed. Hence, calling for guidance.

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On our call, I made clear that I am not a white-collar defense attorney. I am a former prisoner, senior executive, white-collar expert and federal prison consultant. Just like a lawyer should never give prison advice, I must never dispense legal advice.

“While I appreciate you reaching out, it would be totally irresponsible and inappropriate for me or any federal prison consultant to offer advice on your federal plea agreement right now. It is not our job to review plea agreements. That is what you paid your lawyer so much money for,” I was adamant.

“Look,” he told me, “I have a budget here. I’m looking to work with someone who can offer some advice that would work alongside my lawyers. I reviewed your work and I think you’re the most qualified. Are you telling me you don’t want my business?” he was polite, but direct.

“I would love your business and there is no doubt that I can help you and your wife Courtney, who I know is struggling. But I would never take anyone’s business under the idea that I am equipped or have the skill set to negotiate or even review your plea agreement. Further, anyone that tells you they can better negotiate the plea than your lawyer, is misleading you. You have invested hundreds of hours with your lawyers. They have spoken with the US attorney, the FBI, and other stakeholders within the government who are considering your case. No prison consultant is speaking to those stakeholders, nor are any of us in a position to offer advice. There is a reason that some lawyers loathe prison consultants. It is because some of them step over the line and try to do the job they went to law school for. I am not one of them. I would love your business, but I will not be reviewing your federal plea agreement.”

“I appreciate your honesty,” he told me. “I’m not sure my lawyers are negotiating the best plea, and I’m willing to pay for some advice to ensure it’s the best one,”

“Then I will help you find another lawyer to bring into your case. Only they are privy to all of the details. I’m happy to bring that responsibility into our scope of work, but it will not include a review of your plea agreement.”

Some federal defendants are looking for someone to buy into the reality they have created in their own mind. He was willing to hire anyone to feed into these delusions, including those who are ill-equipped to offer legal advice. For the right price anything is possible, I guess. Just not with me.

“I’ve had enough of lawyers for now. I’ll be in touch,” he told me.

“Whatever you do, my friend, do not hire any federal prison consultant to review your federal plea agreement. You will be flushing money down the toilet, and only make matters worse for yourself,” I was adamant.

Let’s fast-forward six weeks. Against my sage advice this Dr. gave $15,000 to a group of federal prison consultants to review his plea agreement. None of these consultants have law degrees. None of them have the skill set to negotiate a plea agreement. None of them have the true facts of the case. This defendant still does not believe what he did was criminal. Do you really think he is in a position to articulate the facts of the case to some former jail house lawyer?

“What happened?” I asked him, fearing the worst.

“Not good. They told me exactly what I wanted to hear. They told me they could review my federal plea agreement and find loopholes in the system that could reduce the possible sanction, and possibly get me out of this altogether. They gave me instructions on how I should demand the US government modify my plea. They told me to say that I’m willing to accept a play agreement, but not without major modifications. They convinced me that the last thing the U.S. attorney would want to do is take my case to trial. They told me defendants don’t fight strongly enough to negotiate their pleas. They told me my lawyer wasn’t really fighting for me, and that his relationship with the U.S. Attorney’s Office was more important than fighting for me.  I bought it all hook, line and sinker.”

“Go on.”

“Because I didn’t sign the plea agreement fast enough, I think the US attorney is going to pull it. They haven’t liked my approach. They think I’m smug, arrogant and not fully accepting responsibility for what I did. In trying to push and push and push for a better agreement, together with all of my unnecessary delays, I have upset them terribly.”

“Go on,” I was seething at myself for not doing more to convince this Dr. not to call anyone. I am not pushy. Maybe I could have done more.

The Dr. continued, “Now when I call this prison consulting firm to tell them how things are imploding they are quick to remind me that they are not lawyers. Now, I’m begging my lawyers to try to get the original plea back on the table. They are not sure if they can do it. They are furious with me as well. I haven’t followed any of the advice that they or you have given me. I just want to go back to the original plea agreement and sign it and move on with my life.”

I have repeatedly said that defendants have three options: embrace reality, deny reality, or ignore reality.

This white-collar defendant was ignoring the reality and honest advice that was being given to him from his lawyer and me. His lawyer was a U.S. attorney for more than 10 years, and has extensive experience cutting deals with this office in Dallas. Only this lawyer has the skill set and background to negotiate this plea agreement. I begged him to listen to me. Instead, he allowed himself to be exploited and get taken advantage of. Now, he’s enduring even more consequences as a result of his bad actions.

While I’m not a lawyer, I can tell you that his original plea agreement had a max of 60 months. If this plea agreement gets pulled, there might not be a higher statutory maximum in the agreement. That could pose many problems.

This doctor and I have reached an agreement to move forward. The first order of business is making sure that he works fully, openly and honestly with his lawyer. Many lawyers do not respond to prison consultants or even their clients. This lawyer, however, is different. He is engaged, and is totally welcoming of my advice.

Next we’re going to turn to finding a new perspective through this experience. I do not want to diminish the challenges that await him, but as I learned in prison, he’s going to meet incredible people who have endured much harder and longer prison terms. I’ll remind him that he’s got choices to make: The perspective and action he takes each and every day moving forward will determine how well he and his family emerge from this experience.

Too many defendants take the view that because they are trapped in the system their life will be filled with immeasurable suffering and misery. That might be true for prisoners who only cling to such negative and disastrous views, For those people every day in prison can feel like a month. Each month will feel like a year and so on.

Consistent with Santayana’s wisdom successful prisoners must embrace the experiences of others, and embrace the reality that if done well this experience can lead to new levels of tolerance, perspective and happiness that some would consider impossible. These are lessons I learned while traveling the criminal justice system and their lessons I’m proud to share with my clients, including this wonderful physician, who is a father, grandfather and community leader.

I’m not delusional. I’ll admit it can be tough at times for defendants to find perspective while their life is being torn asunder. In some cases their children’s lives are totally uprooted. They feel the government is ripping their life apart. They feel that they have no choice and others are making decisions that will influence the rest of their life.

Some of those facts maybe indisputable. What I’m trying to convey is that avoiding reality, and staying stuck in a negative mindset in perpetuity, will only bring more instability to the defendant and everyone that loves and supports the defendant.

The reality is this defendant has a wife that it is standing confidently beside him. His children are supportive. He has a community that loves him. He has an education and a will to succeed. Indeed, IF HE DOESN”T FIND some perspective and meaning through this experience, it will truly be a nightmare of catastrophic proportions.

White-collar defendants who are reading this need to make decisions rooted in reality, and build a team that has your best interest at heart. Sometimes that will mean getting advice that will be tough to hear. That might mean doing some things that are uncomfortable. But it’s all geared towards a desirable end: serving the shortest federal prison sentence and emerging better and stronger than when you read the words: United States of America V. (insert your name).

I beg all white-collar defendants reading this to build your team properly. Recognize what lawyers are paid to do, and learn what federal prison consultants, like me, are paid to do. We all have our role. Do your homework, be diligent and ask tough questions. And please be ready to here the honest answers, as tough as it might be to accept.

Justin Paperny

P.S. When defendants schedule a call with me, they often ask how much information they should share. If a defendant has yet to go to trial or plead guilty, I don’t yet need details about the case. I remind them that whether they plead guilty to securities fraud, mail fraud, wire fraud, insider trading or any white-collar crime there is only one approach to prepare for the best outcome. Indeed, I’ve worked with a number of people and began preparing them without knowing any details of the case