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Pleading Guilty to a Federal Criminal Case: Pitfalls and Problems

Kish Law LLC

In some of my federal criminal cases, my client decides to plead guilty in order to reduce his or her exposure to a harsher sentence.  This happens in cases all around the country, Atlanta to Anchorage, no surprise.  However, in the past 36 years I’ve come across some problems and pitfalls that can make a guilty plea actually worse than fighting the charge.

In the federal criminal justice system, we all know about the Sentencing Guidelines.  This is a point-based system that leads to a range of punishments.  Most issues add points to the calculation, but pleading guilty can lead to a 2 or 3-point reduction for “acceptance of responsibility.”  One pitfall is when the Defendant does or does something that leads the Judge to feel that the Defendant has not really accepted responsibility, even though the person plead guilty to the crime.  Such a client loses on both ends, they still get a longer sentence and lose their right to fight the case.  That is why it is so important to go over in detail everything that happens leading up to, during, and after the guilty plea proceeding.  The lawyer and the client need to be on the same page and script, so to speak.  While I never want to tell my clients exactly what to say, it is important that they know what will happen so I can advise them how to answer certain questions.

Another guilty plea pitfall happens in some of my economic crime or white collar cases. Most federal prosecutors now work closely with what is often called the Financial Litigation Unit or “FLU.”  Among other things, the FLU has the job of litigating and possibly collecting any monetary judgment against a Defendant in a criminal case.  I did a post recently about these different kinds of money issues.  Most prosecutors now require that the Defendant in an economic crime case fill out a whole lot of financial paperwork before the sentencing hearing.  Then, one of the FLU lawyers schedules a deposition to go over all the financial information.  It is almost like a miniature IRS audit.  However, the biggest pitfall is that the Defendant is under oath, talking about his or her financial life in a case involving their financial life.  I do not like it when somebody makes my client testify under oath, because a false statement can be another crime, and can also lead to the client losing the reduction for acceptance of responsibility.  I had a stockbroker client one time think he was real slick, and could hide some assets when he was in the financial deposition with the FLU attorney.  You guessed it, they caught him, and the lie basically doubled his time in prison.

Another problem criminal defense lawyers have to deal with when the client pleads guilty is that there are sometimes parallel civil cases out there where people are or plan to sue the client for money.  The guilty plea usually is a waiver of the client’s Fifth Amendment right to remain silent, at least up to the point when he or she has been sentenced.  After that, any lawyer out there who has sued my client can try to force him or her to make further statements under oath concerning the lawsuit.  As I’ve mentioned before, some bad things can happen when clients are forced to testify under oath, no matter how many times I remind people that they have to tell the truth.

Pleading guilty is a crucial step in a case.  We all need to remember the problems that go along with the benefits.

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