It will be on the short list of things your mind will immediately focus on once the federal prosecutors inform you that they intend to charge you. “How do I stay out of prison?” Deferred prosecution having been removed from the table; probation now becomes the golden ticket.
At this point, if they haven’t informed you already, your lawyer will update you on the federal government’s ever-present prosecution success rate of 99%. You are likely to plead out. Everyone knows it. The government knows, your lawyer knows. If you haven’t come to it yet, you will. Nearly no one fights. I didn’t fight.
My case was as likely winnable as any you would encounter. I was charged with one count felony conspiracy to sell counterfeit electronic components. The government acknowledged that the entirety of their case was based on the testimony of ONE individual, who himself had taken a plea and was claiming that I was his co-conspirator. After three years of an intensive investigation no other evidence was produced to support the government’s case. If I had chosen to go to trial their case would likely fall to pieces upon cross examination.
Once I made my decision to enter a plea agreement it was incumbent upon me to prep for my plea hearing and sentencing, and to explain to family and friends why there was no point in fighting. That by going to court, and even with the possibility of winning, the result would likely have a prospectively more damaging outcome than to plea. The continuation of a heated investigation by the government would decimate my still somewhat intact finances along with any prospect of saving our family business (a reasonable probability that drove most of my decisions).
All of this is by design. The prosecution seeks victories, regardless of whether it is for justifiable cause, political pressures, pure careerism, or a mix of all three. There is no other instance in life, in business, in relationships, or in any organizational entity that entails decision making, where the margin of error is nil. As I experienced it, in our US criminal justice system, regardless of fact, and or contingency, one party is always right, and it has the power to ensure that it always is.
Almost everyone pleads out. There is nothing else to be done.
Once you have reached a plea agreement with the prosecution you will know the sentencing guideline that you will be subject to. I was looking at a maximum of twenty-four months. The conditions surrounding my case made it unlikely that I would receive a sentence for the maximum. I was also informed by my lawyers that depending upon the judge, the stance of the prosecution and the perspective of the PO writing my PSR, that I stood a reasonable chance of receiving a non-custodial sentence. Probation.
As it happened, everything aligned and I was sentenced to three years’ probation, 100 hours of community service and a restitution and fine amounting to just over half a million dollars.
It was as good an outcome as I could have hoped for. I wish that it had been otherwise.
No one seemed enthusiastic to have me receive a custodial sentence. The prosecution put up a half hearted, pro forma argument for why they believed justice would be served in my spending at least a minimum of time within a low security federal prison. In the end they raised no objection to my receiving a sentence of probation. The prosecution had what it most needed, a successful conviction, a dramatic press release and the advancement of careers and reputations of the participants in my case.
The most jarring aspect following my walk as a conditionally free man from the Hartford courthouse was the immediate switch that came after my sentencing. It was a curious moment where I went from being the focus of ongoing, intense scrutiny on the part of the government and the subject of near continuous urgency on the part of my legal representation; to becoming a closed case with a bit of cleanup to follow along. Everyone moved onto the next pressing item on their agendas. I was on my own to sort out the aftermath.
Strange as it might seem and as much as bringing the matter to a swift resolution was at the forefront of everyone’s thoughts while the ordeal lasted; I was suddenly left with a distinct emptiness in my sense of purpose. The removal of the three year fight to prevail in battle; the adapting of strategic imperatives and formulating tactical responses to each move on the part of the government had now abated into a sudden and despairing sense of my being at loose ends.
In conjunction with the sudden and distressing winding up of the three year fight for survival was the surprising way in which those outside of my wife and children saw my sentence as an outcome that seemingly would have no lasting implications upon my future. The Judge at my sentencing was the first to voice this perception. Having seen the PSR, the pile of letters of support from friends, prominent community and business leaders and a detailed view of my personal finances at the time of my sentencing, he stated confidently from the bench that I was “going to do just fine”.
He may have overstated the case.
No one, no place, no where, tells you to prepare for your supervised release. Everyone who knows the drill has thoughts about how one should prepare for prison and how one can transition back to community and family after incarceration. No one as far as I know has thoughts about how you should prepare if you get to walk.
I am telling you: Get ready.
Jeff Krantz is a member of the White Collar Support Group that meets every Monday evening on Zoom.