Pre-Indictment Plea Agreements
There are two different times when the United States Attorney’s Office (USAO) will offer a plea agreement. If you are under investigation and have been contacted either by a federal law enforcement agent or by the United States Attorney’s Office, you or your attorney will oftentimes be offered a pre-indictment plea agreement. This settles the case even before it goes before a grand jury for indictment. The USAO loves this type of early disposition of the case as they get everything they want without even having to present their case to a grand jury. As you know, the Constitution of the United States provides that no man or woman need stand trial in a federal court on a felony charge unless he/she has been indicted by a federal grand jury.
In the pre-indictment stage, you or your attorney is presented with most of or all the evidence against you that the government has in its possession and intends to use at trial to convict you. If the evidence appears overwhelming, an early plea agreement could be in your best interests. However, only a qualified federal criminal defense lawyer can tell you as these matters are extremely serious, are complicated and require a great deal of experience to determine if sealing the deal at such an early stage is in your best interests. Assuming that it is in your best interests according to your attorney and yourself, once a plea agreement is signed, the United States Attorney’s Office, rather than seeking an indictment, simply prepares what is called an “information.”
An information has the same force and effect as an indictment in terms of a vehicle by which the case is brought into a federal court with you as a defendant. Of course, a defendant must first waive his right to be indicted by a grand jury before an information can be used to charge him or her with a crime. Once there is an agreement for an early plea agreement, an information will be filed in a hearing before either a United States magistrate judge or a district court judge, and the case will be scheduled quickly for what is known as a “change of plea” hearing.
At a change of plea hearing, the district court judge or the magistrate judge will have you sworn in and, under Rule 11 of the Federal Rules of Criminal Procedure, you will be asked a lot of questions about both the plea agreement and your desire to enter a guilty plea. Any untrue or false material statements made during the change of plea hearing may, and probably will, result in an abrupt withdrawal of the plea offer by the United States attorney. Also, a person can be charged with perjury for any material false statement made under oath.
After a change of plea hearing, the only thing remaining to be done on the case is sentencing. The sentencing date will be approximately 70 days to 80 days later. That period of time is necessary for the United States Probation Department to interview you, investigate your background and prepare what is known as a presentence report, oftentimes referred to as a PSR. The PSR is basically a document that tells the federal judge your entire life story from the day you were born until the day you are set to be sentenced. This covers your family, health, educational and work background, tells the court essentially the nature of the offense you committed and, finally, recommends a “base offense level.”
All federal sentences use the United States Sentencing Guidelines (USSG). Every federal court must first determine what the USSG recommends, what your base offense level is and what your criminal history category is to determine how many months you should spend in prison. Although they still carry weight, the USSG recommended sentence is no longer the sentence that the federal judge MUST impose. Since 2005, the USSG recommended sentence and criminal history category are advisory only. Theoretically, the court should consider the USSG as just another factor under the primary sentencing statute 18 USC Section 3553.
Post-Indictment Plea Agreements
This follows basically the same procedural pathway as the pre-indictment plea agreement, the only difference being that it is made after your case has been presented to a federal grand jury and after you have been indicted for a federal felony offense. Prior to your federal trial, the chances are overwhelming that you will be offered some type of plea agreement whereby you give up all your rights and admit your guilt in exchange for the USAO giving you some type of quid pro quo in exchange. This allows you to, at least partially, lock in your maximum exposure.
As with the pre-indictment plea agreement, the agreement itself is strictly between you and the United States government, and the court is not a part of it unless and until the court accepts the plea agreement. The court may accept it either at the change of plea hearing or may defer consideration and acceptance of the plea agreement until the actual sentencing hearing. Contrary to popular belief, they defendant’s signature on a plea agreement does not, in and of itself, force him to plead guilty. Even after the government signs the plea agreement, it is essentially a fairly meaningless document until it is approved and accepted by the court. Of course, it is rare that a court will reject or refuse to accept and approve a plea agreement as it obviously indicates what both sides, the prosecution and defense, deem is fair and appropriate.