Plea Agreements and Plea Negotiations in Federal Court

Want to learn about Federal court plea bargains and plea agreements? Contact Chicago federal court defense attorney Steven R. Hunter for legal advice on federal court plea bargains. We provide representation for Illinois federal cases. Call (312) 466-9466 to schedule an office consultation.

Obviously every defendant wants to be acquitted of all charges. Every lawyer wants to win a dramatic trial like Perry Mason.

But the reality of Federal court is that sometimes it is smarter to negotiate a plea agreement.

Plea negotiations in Federal court are full of risks, particularly since the rules of Federal Criminal Procedure ensure that the defense will not have possession of much of the discovery, (i.e. agents reports, witness statements, etc.).

The prosecutors in the Northern District of Illinois typically demand a great deal and often give very little in return. For example, frequently the prosecution will insist that a plea agreement contain a waiver of the right to appeal the conviction or sentence. Also, the prosecution may demand that the defendant admit not only to the crime charged but to conduct that can be used under the United States Sentencing Guidelines to increase a sentence. Also, prosecutors often insist that the defendant agree to a sentence within the advisory range under the Guidelines, and give up the right to argue for a lower sentence either under the Guidelines or under Section 3553 if the United States Code.

Sometimes it is smarter to plead guilty without an agreement with the prosecution. They will be free to argue for a sentence at the top of the Guidelines range, or possibly even higher, but the defense will be free to argue for a low sentence that is below the Guidelines range.

A sympathetic defendant with a compelling story, no criminal history, or other unique mitigating characteristics may want to plead guilty and fight about what the sentence will be at the sentencing hearing. That process involves writing and filing a plea declaration, which is a detailed description of the facts which the defendant is admitting and well as the defenses Guidelines calculations. It is filed with the court, and a change of plea hearing is held where the defendant admits he is guilty.

However, there are time when a plea agreement is necessary. For example, a defendant charged with a drug offense who has a prior drug conviction risks the prosecution filing a notice with the court under Section 851 of the U.S. Code. That filing doubles the statutory mandatory minimum. A defendant facing a mandatory minimum sentence of 10 years will see that minimum double to 20 years with an 851 filing. A defendant may have no choice but to agree to a plea agreement full of concessions If the prosecution refuses to withdraw the filing unless the defendant does so.

If a defendant must seek a plea agreement, it is often worthwhile to pursue a sentence reduction for substantial assistance to the prosecution under Section 5K1.1 of the Guidelines. This almost always involves a meeting known as a proffer.

Prior to the proffer, a diligent defense attorney will obtain a letter ensuring that the defendant's statements will not be used directly against him at trial or sentencing. It is important to note that this protection has limits and does not stop the government from introducing proffer statements if they are contradicted at trial by the defense or possibly even defense witnesses.

Once the proffer letter is obtained, the defendant and his attorney meet with the prosecutor and Federal law enforcement agents to discuss what he knows about the crime he is charged with and sometimes other crimes as well. If the defendant has information that is valuable to prosecutors, he can expect them to recommend a sentence reduction below the low end of the defendant's Guidelines range.

However, good intentions are not enough, and a defendant who has no information to offer should not engage in a proffer. A defendant who is charged alone, acted alone, and knows of no one else's criminal involvement should not agree to a proffer, because proffer statements undermine a defendant's ability to effectively defend himself at trial. In the Northern District of Illinois, defendants with information of value often receive a recommendation for 1/3 off. Some defendants receive of their Guidelines range, though that does not happen often. Any more than off is exceptionally rare. A defendant who cannot accept a sentence between 1/3 and off of his Guidelines range should not engage in a proffer.

The decision to engage in plea negotiations should only be made after careful consideration and consultation with an experienced criminal defense attorney well versed in Federal plea negotiation procedures.