Plea Bargaining and Making Deals in Federal Felony Cases: Criminal Defense Overview
Posted on by Michael Lowe.
In both Texas prosecutions and federal criminal matters, many – if not most – arrests do not end up as a criminal conviction with formal sentencing after a full trial before a judge or jury, but instead are resolved out of the courtroom in what is called “plea bargaining.” This involves attorneys representing both the government and the accused entering into negotiations without formal hearings or judicial input.
What is Plea Bargaining?
Plea bargaining is akin to a civil lawsuit’s settlement talks. However, in plea bargaining the criminal defense lawyer and the state ADA (Assistant District Attorney) or federal AUSA (Assistant United States Attorney) work together to find a mutually acceptable plea deal regarding conviction and sentencing.
Essentially, the defense attorney will negotiate with the government in first, charge bargaining and thereafter, bargaining on the sentence. Plea negotiations initially focus upon the criminal charges filed against the accused. They will involve bargaining on what specific charges will be involved in any plea deal. Sentencing negotiations then focus upon the range of punishment in the form of imprisonment, fines, or alternatives to incarceration as part of a sentencing agreement based upon the agreed-upon charge bargain.
- For more, read our earlier discussion in 5 Things to Know About Plea Bargains.
However, plea negotiations are very different for state criminal matters and cases filed in the federal jurisdiction. Federal criminal law is not the same as Texas criminal law. Plea negotiations in federal criminal prosecutions will involve critical issues that are unique to the federal criminal justice system, including not only the involvement of the United States Sentencing Guidelines (USSG), but Congressional mandates for mandatory minimum sentences in some instances, and the protocols and practices instituted by the United States Department of Justice for all AUSAs to follow (e.g., the U.S. Dep’t of Justice U.S. Attorneys’ Manual.) For more, read:
- Felony Charges under Texas and Federal Law: Criminal Defense Overview; and
- Mandatory Minimum Penalties in Federal Sentencing.
A critical distinction between the two (state and federal) involves the end result of the plea negotiations. In Texas plea bargaining under state law, the ADA, the defense lawyer, and the accused work out a plea deal with the agreement ending up with concrete details: it is clear not only on the charge itself but the number of years or months to be incarcerated and subsequent probation time. This is not true for federal plea bargaining.
In federal plea negotiations, there is no concrete plea bargain agreement. The federal judge, pursuant to federal law, decides on whether or not to accept the charge as pled and the judge makes the ultimate decision on the sentence to be imposed pursuant to the USSG.
Key here is that at the federal sentencing hearing, the judge will enter the sentence after considering the government’s calculations as well as the defense’s arguments to mitigate against those calculations, as presented in the defense’s sentencing memorandum and oral arguments presented at the hearing itself. As an example of how the defense can mitigate against mandatory minimum sentences defined in the Sentencing Guidelines, read: Less Time for Federal Drug Crimes: When Safety Valve Defense Circumvents Mandatory Minimum Sentences Under Federal Law.
Still, successful plea bargains are made in federal cases all the time by defendants. Obviously, for those facing serious federal felony charges it is vital to understand the ability to negotiate a plea deal in a federal matter as well as the intricacies involved in federal plea negotiations and the need for an experienced federal criminal defense representation in these cases.
Not every criminal defense lawyer practicing in the State of Texas is licensed to practice in federal court. Not every lawyer licensed to practice in federal court is experienced in felony criminal representations.
Plea Agreements in Federal Felony Cases
Both federal substantive law and Federal Rule of Criminal Procedure 11(e) allow for the prosecution and defense to negotiate a plea agreement in a federal felony case. In a federal plea agreement, the AUSA is agreeing to a departure from the original charges and their potential sentencing in order to obtain a conviction and avoid a trial. The defendant is agreeing to entering a plea pursuant to the negotiations because a lesser charge or lesser sentence is a good result based upon the admissible evidence collected in the federal investigation. The plea deal, accordingly, has to pass muster with both the U.S. Constitution and the United States Sentencing Guidelines (USSG). Read, Colin Miller, Plea Agreements as Constitutional Contracts, 97 N.C. L. Rev. 31 (2018).
For more on the USSG, read our earlier discussions in:
- Money Laundering and Federal Sentencing Guidelines;
- Heroin Trafficking in Texas and Federal Sentencing Guidelines; and
- Methamphetamine Trafficking and Federal Sentencing.
Justice Department policy is to limit the government’s stipulation to facts that accurately represent the defendant’s conduct and to make no deal that will harm potential liability of the accused under other federal civil or tax laws. See, U.S. Dep’t of Justice, U.S. Attorneys’ Manual §§9-27.400, 430; 9-27.630 (2020).
What is a plea in federal court?
In federal cases, a defendant has three choices in responding to the charges filed against the accused by the federal government. This is called “entering a plea.” The options are to plead: (1) guilty; (2) not guilty; or (3) nolo contendere (with judicial approval). Fed. R. Crim. P. 11. These are the only three pleas available in federal law.
Nolo Contendere Pleas
Of course, most defendants enter pleas of either guilty or not guilty. The plea of “nolo contendere” is allowed only in unusual situations, where the AUSA obtains an approval from the Assistant Attorney General’s Office for the federal district where the charges have been brought. This is because there is an established federal policy regarding these types of pleas, where the government will agree to their entry only if the nolo plea is “in the public interest.” See, U.S. Dep’t of Justice, U.S. Attorneys’ Manual §9-27.500 (2018).
Another plea in federal court is technically a guilty plea, but it has come to be known as an “Alford Plea” based upon the Supreme Court case of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). In an “Alford Plea,” the defendant offers to enter a guilty plea but insists he or she is still innocent of all charges filed by the government. The AUSA will agree to an Alford Plea upon Attorney General Office approval as well as the filing an Offer of Proof, which delineates all facts known to the federal government supporting the state’s position that the defendant is guilty regardless of the accused’s assertions of innocence. See, U.S. Dep’t of Justice, U.S. Attorneys’ Manual §9-27.440 (2018).
Criminal Defense Concerns for Nolo Contendere and Alford Pleas
From a criminal defense perspective, both the Nolo Contendere plea and the Alford Plea must be carefully considered by the accused. The defense should be just as guarded about these plea alternatives as the Justice Department’s wariness in agreeing to them.
Why? In both situations, defendants who are maintaining their innocence, or denying their guilt, are nonetheless effectively entering a plea of guilty. While there are times when the particular case is best served by these types of pleas, the criminal defense strategy should never be to consider Alford or Nolo pleas except in extraordinary situations.
Why Negotiate with the AUSA for a Federal Plea Deal?
Some may wonder why consider negotiations on a plea deal in federal court when the federal jurisdiction is so much more complex and less concrete than the state plea bargaining process here in Texas. It’s a good question.
In federal felony matters, each case is unique. This is not only because of the person who has been accused but also because of the facts surrounding the arrest and the evidence gathered by the federal investigators to support the charges that have been brought. There will be times when going to trial is the best option for the defendant.
There will be other situations where, after a review of the government’s case and the defense’s independent investigation and legal analysis, it is advisable for the accused to negotiate with the government prosecutors on a plea bargain. For instance, if the case is strong, then it may be a good thing for the accused to agree to a lesser charge that does not come with a mandatory minimum sentence.
From a defense perspective, the main reason to enter into plea negotiations is to find the best possible outcome for the accused based upon the circumstances of the individual case. Can the defense lawyer, through zealous negotiations with the AUSA convince them that their case has holes or weaknesses which might sway a jury against a conviction? Are there procedural or legal issues that challenge the admissibility of certain documentary evidence, or might bar a witness’ testimony? See, e.g., Relevant Conduct in the Federal Sentencing Guidelines: Acquittals and Uncharged Conduct.
Charge bargaining avoids the trial on guilt or innocence. The result is a plea declaration which is filed of record.
The defense attorney and the accused must consider separately whether or not to enter into plea negotiations regarding sentencing that corresponds to that charge bargain. Again, the particular case must be meticulously analyzed from both a legal and evidentiary standpoint.
In some cases, the accused may have a past without any criminal history combined with significant mitigating circumstances that may be powerful when presented to the federal judge at a sentencing hearing. For more, read Fort Worth Federal Judge John McBryde Child Porn Downward Departure Sentence.
In other situations, the defendant may find it is in their best interests to enter into sentencing negotiations such as seeking a sentence reduction for assistance with the government. For more, read Federal Investigations: Target Letters, Proffers, and Plea Deals and watch Federal Drug Conspiracy Possession with Intent to Distribute: Safety Valve at Sentencing – New Video.
If the defense lawyer can convince the AUSA that a plea deal, rather than a trial, is in the government’s best interests, then a bargain can be reached. However, this does not mean that the judge will agree even if both sides appear before the bench with a negotiated plea bargain.
Usually, the federal judge will accept the negotiated plea agreement as presented by the AUSA and defense counsel. If the judge does decline to accept the plea bargain, then the case continues to trial.
Warning: Things Can Go Wrong in Federal Plea Bargains
Responsible criminal defense lawyers must warn their clients, as well as their loved ones, that there is always the possibility that things will go wrong down the line in plea negotiations. For instance, consider the case of Bill Cosby. He has been released after a successful criminal appeal because of prosecutorial misconduct regarding plea negotiations in his criminal matter. See, “The Power of Prosecutors,” written by Lili Loofbourow and published by Slate on July 16, 2021.
- For details, read: Prosecutor Deals, The Bill Cosby Criminal Case, And Probable Cause Examining Trials In Texas.
The plea negotiation process is only as sturdy as the individuals involved in the particular case. Sometimes, prosecutors have other agendas when making plea deals that may impact future matters. See, for example, my discussion of the Dennis Hastert case in Dennis Hastert Plea Deal: My Prediction Coming True And The Impact On Future Prosecutions.
Anyone facing federal felony charges in the State of Texas is wise to consider an aggressive criminal defense of these allegations, which should include the possibility of negotiating a plea on the charges that have been brought as well as the possible sentence (incarceration, fines, probation, and alternatives to incarceration) that apply to their case.
Federal plea bargaining is an extremely complex endeavor that requires professional expertise as well as psychological savvy in successfully swaying both the AUSA as well as the federal judge to the defendant’s position and perspective on things. This is particularly true in federal felony matters because these charges usually follow extensive law enforcement investigations where significant time and effort has been dedicated to building a case.
For more on criminal defense of serious federal felony charges and federal sentencing, read:
- Federal Prosecution: Commercial Sex Acts and Sexual Exploitation of a Minor;
- Guns and Drug Trafficking: Firearms and Mandatory Minimum Sentences under Federal Law; and
- Child Pornography Arrests: Lessons from The Ex-Subway Pitchman’s Sentencing.
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