-5 departure provides federal prosecutors with an enormous range of options in the course of plea negotiations. Although this departure, like all others, requires court approval, prosecutors who bargain in good faith and who state reasons for recommending a departure should find that judges are receptive to their recommendations. stipulations of Fact If & The Department's policy is only to stipulate to facts that accurately represent the defendant's conduct. prosecutor vishes to support a departure from the guidelines, he or she should candidly do so and not stipulate to facts that are untrue. Stipulations to untrue facts are unethical. If a prosecutor has insufficient facts to contest a defendant's effort to seek a downward departure or to claim an adjustment, the prosecutor can say so. - If the presentence report states facts that are inconsistent with a stipulation in which a prosecutor has joined, it is desirable for the prosecutor to object to the report or to add a statement explaining the prosecutor's understanding of the facts or the reason for the stipulation. Recounting the true nature of the defendant's involvement in a case will not always lead to a higher sentence. Where a defendant agrees to cooperate with the government by providing information concerning unlawful activities of others and the government agrees that selfincriminating information so provided will not be used against the defendant, section 181.8 provides that the information shall not be used in determining the applicable guideline range, except to the extent provided in the agreement. The existence of an agreement not to use information should be clearly reflected in the case file, the applicability of section 181.8 should be documented, and the incriminating information must be disclosed to the court or the probation officer, even though it may not be used in determining a guideline sentence. Written Plea Agreements In most felony cases, plea agreements should be in writing. If they are not in writing, they always should be formally stated on the record. Written agreements will facilitate efforts by the Department and the Sentencing Commission to monitor compliance by federal prosecutors with Department policies and the guidelines. Such agreements also avoid misunderstandings as to the terms that the parties have accepted in particular cases. Understanding the options A commitment to guideline sentencing in the context of plea bargaining may have the temporary effect of increasing the proportion of cases that go to trial, until defense counsel and defendants understand that the Department is committed to the statutory sentencing goals and procedures. Prosecutors should understand, and defense counsel will soon learn, that there is sufficient flexibility in the guidelines to permit effective plea bargaining which does not undermine the statutory scheme. For example, when a prosecutor recommends a two level downward adjustment for acceptance of responsibility (e.g., from level 20 to level 18), judicial acceptance of this adjustment will reduce a sentence by approximately 25%. If a comparison is made between the top of one level (e.g., level 20) and the bottom of the relevant level following the reduction (e.g., level 18). it would show a difference of approximately 35%. At low levels, the reduction is greater. In short, a two level reduction does not mean two months. Moreover, the adjustment for acceptance of responsibility is substantial, and should be attractive to defendants against whom the government has strong cases. The prosecutor may also cooperate with the defendant by recommending a sentence at the low end of a guideline range, which will further reduce the sentence. It is important for prosecutors to recognize while bargaining that they must be careful to make all appropriate Chapter Three adjustments -- e.g., victim related adjustments and adjustments for role in the offense. Conclusion with all available options in mind, and with full knowledge of the availability of a substantial assistance departure, federal prosecutors have the tools necessary to handle their caseloads and to arrive at appropriate dispositions in the process. Honest application of the guidelinės will make sentences under the Sentencing Reform Act fair, honest, and appropriate. On May 15, 1989, the President outlined a comprehensive program to combat violent crime. In it he noted that to ensure the objective that those who commit violent crimes are held fully accountable, plea bargaining procedures must be uniformly and strictly applied. Accordingly, he has directed me to issue and fully implement guidelines for federal prosecutors under the Sentencing Reform Act to ensure that federal charges always reflect both the seriousness of the defendant's conduct and the Department's commitment to statutory sentencing goals and procedures. This means that, in all but exceptional cases such as those in which the defendant has provided substantial assistance to the government in the investigation or prosecution of crimes by others, federal prosecutors will seek conviction for any offense involving the unlawful use of a firearm which is readily provable. This will implement the congressional mandate that mandatory minimum penalties be imposed by the courts upon violent and dangerous felons. As you recall, in my March 13, 1989 memorandum to all federal prosecutors on the subject of plea bargaining, I stated (at pp. 2-3): *** The Department will monitor, together with the Once prosecutors have indicted, they should find the identity of a particular witness until he Department policy requires honesty sentencing federal prosecutors are expected to Identity for U.8. District Courts departures when they agree to support them. For example, it would be improper for a prosecutor to agree that a departure is in order, but to conceal the agreement in a charge bargain that is presented to a court as a fait accompli so that there is neither a record of nor judicial review of the departure. In sum, plea bargaining, both charge bargaining and sentence bargaining, is legitimate. But, such bargaining must honestly reflect the totality and seriousness of the defendant's conduct and any departure to which the prosecutor is agreeing, and must be accomplished through appropriate guideline provisions. (Emphasis added.) On the subject of minimum mandatory penalties for violent firearms offenses, the Department's November 1, 1987 Prosecutors Handbook on Sentencing Guidelines provides (at P. 50): 18 U.S.C. 924 (c) (minimum The specific affirmation of these policies by the President requires that you be especially vigilant about their full implementation in your district. Any questions about these matters will continue to be handled by the appropriate Assistant Attorney General. SPECIAL DEPARTMENT OF JUSTICE OFFICE OF LEGISLATIVE AFFAIRS CONTROL DATA SHEET From: BIDEN, JOSEPH B. JR., CIMN. SENATE JUDICIARY COMMITTEE H.123 To: AG Date Received: Subject & Date 04-16-90 Date Due: Control #: LOQ41701916 04-16-90: LETTER FROM CHAIRMAN SENATE JUDICIARY COMMITTEE ON (2) REPORTING DIVISION: OPD (JONES) ADVISORY UNITS: FBI Other Remarks: Remarks: OLA ATTORNEY: GREG JONES, 633-2113 #900005814/PAM THIS DOCUMENT MUST BE DISPOSED OF BY SHREDDING |