The truth about Federal Plea Agreements

What is a Federal Plea Agreement?

Before we dive into plea agreements, let’s clear up some common misconceptions. Federal defendants plead guilty and most do so pursuant to a Rule 11 plea agreement. Most defendants think that in order to plead guilty they have to enter into a plea agreement - this is simply incorrect. One of the only areas of leverage a federal defendant who is guilty of a crime has is the ability to plead “open” meaning without the “protection” of a federal plea agreement. Why is “protection” in quotes? Because a modern plea agreement is as much of a shield as it is a government sword. The modern plea agreement has grown in a frankenstein-esqe manner adding government favored clause after government favored clause and now most don’t offer anything of value to the federal defendant. I’ll explain further.

A Plea Agreement is a Contract

A plea agreement is a contract. The federal defendant agrees to give up their right to trial, to call witnesses, to contest the charges in exchange for something. That “something” used to be the certainty of a particular sentence. So plea agreements offer certainty? Hardly.

Most plea agreements contain an agreement as to the applicable sentencing guideline range which is the recommended sentence that the judge should impose. But guidelines are advisory not mandatory and the judge can sentence a defendant higher or lower. Many plea agreements prevent a defendant from arguing for a sentence lower than the guidelines but do not impose the same restriction on the federal government. To make matters worse, in most jurisdictions a federal defendant must give up their right to appeal the sentence. This is important because a federal judge is not bound by the plea agreement. The judge can accept the plea agreement, determine the guidelines, and impose a sentence up to the statutory maximum of the offense if he or she wishes - and most offenses carry a statutory maximum of 20 years (bank fraud, wire fraud, drug distribution etc).

The Promises Exchanged

So in federal cases, the government generally requires the defendant to agree to certain guidelines, their description of the relevant conduct at issue, and waive their right to a jury trial, to call witnesses, and contest the charges in exchange for an uncertain outcome. And if that outcome is a bad outcome the government prevents the defendant from filing an appeal. This often isn’t a good deal. But it can be, if counsel properly fashiones the plea agreement and uses their leverage of a potential open plea to obtain an agreement. This will be discussed more thoroughly below.

What is the Purpose of a Plea Agreement?

The Purpose is Different for Each Party

For the government, its purpose is to ensure a conviction and a range of punishment that the government finds acceptable. For the defendant the purpose of the plea agreement is a life raft of certainty in a very dark and uncertain arena. For the court, a plea agreement is a way to ensure the parties come together to a reasonable solution and avoid the time and expense that a trial in every federal case would cause. But at its very heart, a plea agreement is a contract. Giving up something in exchange for something after a bargain is struck. But at its heart it’s a bargain.

Why Enter into a Federal Plea Agreement?

So let’s examine the leverage on either side of this deal. All criminal defendants have leverage, even guilty federal criminal defendants. They can still contest the charges at trial, call witnesses, testify, subpoena evidence and require the government to prove their burden. In my experience, the closer a federal defendant gets to trial the better the plea offer is. The government simply doesn’t like taking cases to trial. They indict with the expectation that 97%-99% of federal defendants will enter a plea of guilty. Imagine a world in which the federal government had to take the thousands of cases it indicts to trial in a given year. The wheels of justice would come to a halt, favorable plea agreements would be flying off of government printers - the government simply couldn’t keep up. They had created a system in which only 3% of federal cases plead and they need to keep it that way. The leverage of the trial right is solid leverage for any federal defendant.

Another piece of leverage a federal defendant has is the ability to plead “open” - to not enter into a plea agreement and instead plead guilty to one or more charges. This triggers what we call a “contested sentencing hearing” in which the sentencing guidelines and all other factors of sentencing are up for dispute and not wrapped neatly into a federal plea agreement. The Government doesn’t like this either because it takes time to prepare for a contested sentencing case and the government prefers the certainty of a plea.

So we have all of this leverage, why plead guilty and enter into a federal plea agreement? This is the right question. Plead guilty only to a plea agreement that makes giving up these substantial rights worth it. The defendant must plead guilty to an offense only if her or she knows he is guilty and is willing to admit their guilt and the waiver of rights that come with a plea agreement are worth entering into in order to obtain some certainty or a lower sentence than the defendant would receive if going to trial or pleading open.

Lets Take a Look at a Sample Federal Plea Agreement

To understand a plea agreement and its contents, let’s take a look at a sample federal plea agreement - the plea agreement of Michael Flynn. For those unfamiliar on the General Flynn case, I cover his conviction, withdraw of plea and subsequent dismissal of his case very thoroughly in my book. But to recap, General Flynn was appointed by president trump to be the National Security Advisor and served for a whopping 22 days before being forced to resign due to allegations he lied to the FBI during an investigation. He plead guilty and then withdrew his plea after further information was disclosed. AG Barr then dismissed his case after revealing that agents violated policy in pursing General Flynn. But we would be safe in assuming that his plea was negotiated by high profile white collar counsel and it was about as good as it was going to get for Flynn - so it’s a good example to look at now.

Click Here to Review the Plea Agreement

Charges and Statutory Provisions

The Agreement begins with a recitation of the charges and statutory provisions associated with the case. This is to ensure that the defendant knows the specific charges and maximum sentences he or she may face when pleading guilty. In Flynn’s case he plead to a violation of 18 U.S.C. 1001 for making a false statement to the FBI which carries a maximum term of imprisonment of 5 years. It is important that this portion reflect the actual charges and maximum sentences that the defendant is pleading guilty to - especially where the defendant is pleading guilty to a lesser charge.

Factual Stipulations / “Relevant Conduct”

The next portion of the plea agreement is the factual stipulations portion. This is sometimes also called the “relevant conduct” section. This is the most important portion of aspect of the plea agreement because it is the agreement of the conduct that the defendant is pleading guilty to and will be used to increase or decrease the federal sentencing guidelines by probation, the prosecution or the judge. If the case involves theft of money, fraud, or drugs the amount of money (loss to the government or victims) and the amount of drugs are a crucial figure in the plea agreement as they will have a direct bearing on the sentencing guidelines. An untrue fact in this portion can negatively impact the defendant at sentencing and each word of this section must be carefully negotiated.

Additional Charges

The next section in Flynn’s plea agreement is the government’s agreement to dismiss all other charges that Flynn is not pleading guilty to. Its very common for the government to offer a plea to one count of the indictment and dismiss the remaining counts. The reason why this is common is because the government will use the conduct charged in the other dismissed counts to enhance the sentence during sentencing regardless of whether they were the subject of the plea. Caselaw permits the government to do this and its a routine tactic of federal prosecutors to make defendants believe they are getting something of value in exchange for pleading when in reality they are not.

Sentencing Guideline Analysis

This is the second most important portion of the plea agreement and contains the calculation under the United States Sentencing Guidelines. The guidelines are more fully explained in the section on federal sentencing. They were created to prevent disparity in federal sentencing cases and utilize a scoring system to determine how severe a defendant’s sentence should be. First probation calculates the base offense level - for General Flynn it was a 6 (relatively low score) because he plead guilty to a simply lie. General Flynn also gets a reduction of two levels because he “accepted responsibility” by pleading guilty early in the case. Thats right, you get credit for pleading early, that’s never sit right with me. Therefore his offense level was 4. In other cases, the Government can enhance the base offense level based on special aggravating factors such as being the “leader or organizer” of a conspiracy, obstruction of justice, or use of a special skill or government trust in commission of an offense.

Next, the agreement calculates the criminal history category. For those with no convictions or a simple misdemeanor the history is I. For repeat offenders it may be higher and will result in a higher sentence. General Flynn obviously had no prior convictions and therefore had a history category of I.

Applicable Guideline Range

The next section sets forth the applicable guideline range in months. This is done by taking the total offense level (for Flynn a 4) and comparing it with this chart to determine the total recommended sentence. Flynn has a level four and therefore a sentence of 0-6 months. Now, Flynn’s plea agreement contained a few special provisions that we see in many plea agreements. Flynn agreed that he would not request a “downward departure” and the prosecution agreed that they would not request an “upward departure”. This means that Flynn can’t argue for a lower sentence than the guidelines and the Government can’t argue for a higher sentence. If the judge accepts the plea agreement the most time General Flynn could do in jail is 6 months and the least is zero.

An additional more troublesome provision was also included in the agreement. This is a common provision and strips the defendant of substantial rights. If the judge determines that a different federal guideline level applies, General Flynn is still bound by the agreement.

Cooperation

Most federal plea agreements contain a cooperation clause in the agreement or a separate document. This is because the government wants federal defendants to fully and completely cooperate in further federal investigations and want to use their plea agreement as the glue that binds their cooperation. If a defendant fails to fully cooperate or fails to tell the government or jury the “truth” then the government reserves the right to strip the defendant of their plea protection. Flynn’s cooperation agreement permits the government to demand interviews, sworn statements, polygraph examinations, and participation in covert law enforcement activities. Its not likely that the former National Security Advisor could ever be covert but this is boilerplate language and included in most agreements. The agreement also requires that Flynn disclose all crimes that he is aware of and turn over all contraband and assets that are the proceeds of criminal activity. This is not a significant task in Flynn’s case but is a very difficult undertaking in a drug plea where the defendant has lived a life skirting the line between permissible and impermissible conduct.

Interestingly, Flynn’s cooperation agreement waives the right to have counsel present during further federal interviews.

Waivers

Flynn’s plea agreement also includes waivers of certain rights. Obviously he waived his trial right. He also waived the right to appeal, any arguments that the indictment violated the statute of limitations, and he waived the right to collaterally attack the conviction on any grounds other than newly discovered evidence or ineffective assistance of counsel.

Let’s take a look at the magnitude of Flynn’s waiver. Flynn waived the right to appeal his conviction. But between entering the plea and sentencing the government released newly discovered evidence regarding misconduct by the FBI Deputy Director and agent assigned to the case. Flynn moved to withdraw the plea and that was granted. However, had the information come out after sentencing his appeal would have been summarily kicked out of court because of his waiver of rights. Appeal waivers are very dangerous for a defendant the defendant puts themselves at the mercy of the court to accept the plea and calculate the guidelines and if there is error in this process the defendant is denied the ability to appeal because of the waiver.

common Misconceptions Surrounding Pleading Guilty

The “Trial Tax”: I have a bone to pick here with defense attorneys, prosecutors and maybe even some judges and I hope every federal defendant reads this. Why? Because there is a lie floating around the federal criminal justice system called the “trial tax” and it simply isn’t true. Many defense attorneys tell their clients that if they go to trial the sentence will be greater. This is stated by defense counsel as if there is some rule in a judges handbook somewhere that demands a higher sentence if the defendant is convicted at trial. This isn’t true. Law is a contest of specifics and not generalities. If a defendant is obviously guilty and the trial shows overwhelming proof of guilt could a judge sentence higher because of the immense waste of time? Sure. Judges are people too. But in a case where the conduct is a close call and raises interesting questions of fact and law judges will respect the right of a defendant to go to trial and force the government to put on evidence. The judge may also hear mitigating evidence during trial that results in a lower sentence.

The Promise of No Jail Time: Only the judge can promise a certain sentence. Under the federal rules only the judge has that power. “Promises” or insinuations of a light sentence or no jail time are often false and fail to pan out. This false practice of suggesting to a client that they will receive no jail time or a specific sentence has become so common that many judges require a defendant to state that they haven’t been promised any particular sentence by their attorney or the prosecution.

Guaranteed Cooperation: Often, a federal defense attorney will inform their client that its ok to plead to a charge carrying significant jail time because they will be able to cooperate with the government and receive a motion for downward departure (a lesser sentence) after cooperating with the government. This may be true but its a crapshoot. Many times the government has not determined their use for the particular defendant and even if they suggest that the defendant can cooperate the prosecutor may not ultimately use the defendant’s cooperating - leaving them sitting with a long sentence and no hope of “downward departure”. It is unwise and dangerous to accept a plea deal on the basis that the sentence will be reduced by cooperation. To do so, puts the defendant at the mercy of the federal government whose interests and tactic frequently change.

ABOUT THE AUTHOR

Ron Chapman has spent his career defending federal defendants in high-profile federal criminal cases. He is also the author of the Amazon best selling book Fight the Feds: Unraveling Federal Criminal Investigations. During his career he has learned that many federal defendants facing the power of the federal government lack resources and understanding of this complex field of law. The book and this companion website and guide were designed to close the informational gap between the federal government and federal criminal defendants by providing tactics and tips learned during my career fighting the federal government and its immense power. If you haven’t already, go to the beginning of this guide and review sections that are relevant to you and consider purchasing Fight the Feds to grow your knowledge of federal criminal law and investigations.