By Thomas J. Farrell
Excerpted from Criminal Defense Tools and Techniques
- Summary of Significant Collateral Consequences of a Conviction
- Cooperation—Consequences & Procedures
- Form 17-1: ARD Application
- Form 17-2: Diversion Motion
- Form 17-3: Diversion Agreement
- Form 17-4: Diversion Order
- Form 17-5: Diversion Restitution Schedule
- Form 17-6: Sample Plea Agreement
Most criminal cases end with a plea of guilty. Before you advise your client on whether or not to plead guilty, you must consider and explain to him the collateral consequences of a guilty plea.
Different courts have different approaches to the issue of omitting or misinforming a client on such issues:
- Federal: United States v. Couto, 311 F.3d 179, 187-88 (2d Cir. 2002) (while counsel is not obligated to inform client of deportation consequences, “affirmative misrepresentation” to client about consequences is grounds for vacating plea; also suggests that standards of practice are evolving to require defense counsel to advise client of deportation consequences).
- California: [SeeCal.Penal Code §1016.5 (West 1993) (requiring that defense counsel advise client of deportation consequences of a conviction).
- Connecticut:Conn.Gen.Stat. §54-1j (1993) (requiring that defense counsel advise client of deportation consequences of a conviction).
- Florida:Fla.R.Crim.P. 3.172(c)(8) (1993) (requiring that defense counsel advise client of deportation consequences of a conviction).
- Georgia: State v. Patel, 280 Ga. 181, 183, 626 S.E.2d 121, 123 (Ga. Sup. 2006) (misstating effect of sexual battery conviction on doctor’s eligibility to participate in Medicare and Medicaid deprived client of his Sixth Amendment right to counsel justifying withdraw of plea).
- Massachusetts:Mass.Gen.L. ch. 278, §29D (1993) (requiring that defense counsel advise client of deportation consequences of a conviction).
- New Mexico: State v. Paredez, 136 N.M. 533, 101 P.3d 799, 803-804 (N.M. 2004) (holding as a matter of state law that failure to inform client of immigration consequences of guilty plea was ineffective assistance of counsel).
- Oregon:Or.Rev.Stat. §135.385 (1993) (requiring that defense counsel advise client of deportation consequences of a conviction).
- Washington:Wash. Rev. Code §10.40.200 (1993) (requiring that defense counsel advise client of deportation consequences of a conviction).
Once the client finishes his sentence, he needs to resume his life, and he deserves to know what impediments his conviction erects to his opportunities. Erroneous advice on these lines may not overturn the conviction, but it could leave you with bitter clients and a bad reputation.
The following are some of the more significant collateral consequences of a conviction.
The impact varies from state to state, but many states disenfranchise felons. [Seehttp://www.sentencingproject.org/pubs_05.cfm for a compilation of state laws on felon disenfranchisement.]
Conviction of certain offenses may have a grievous effect on your client’s present employment or hopes of future employment. You must explore not only your client’s present situation, but his aspirations.
Different occupations value types of convictions differently.
A conviction for a drug offense or crime of violence may mean most to child care employers, but may not matter much to a bank. However, a bank might turn down a potential employee with a record for theft offenses.
Debarment from government benefits and contracts.
[See State v. Patel, supra (doctor convicted of sexual battery prohibited from billing Medicare or Medicaid for ten years).]
Sex offender registration.
[See §17:54 and Chapter 23, Probation, Parole, Other Post-Release Supervision.]
Public housing and education loan and assistance eligibility.
A conviction for either drug trafficking or possession disqualifies an individual from receiving federal student assistance loans and from living in federally subsidized housing. [See 34 C.F.R. 668.40 (educational loan and assistance disqualification for one year for first conviction of possession, two years for first conviction for distribution); 42 U.S.C. §11901(3); HUD v. Rucker, 535 U.S. 125, 136 (2002) (upholding federal law which “requires lease terms that give local public housing authorities the discretion to terminate the lease of a tenant when a member of the household or a guest engages in drug-related activity, regardless of whether the tenant knows, or should have known, of the drug-related activity.”).]
Public assistance and food stamps.
A drug-related conviction may bar an individual from ever receiving government assistance or food stamps. [21 U.S.C. §862a.] However, many states have opted out of this restriction.
Suspension or revocation of driving privileges.
Not only do DUI convictions routinely warrant license suspension, but some convictions unexpectedly may result in loss of one’s license. [See, e.g., 31 Pa.C.S.A. (suspension of license for any drug conviction, whether or not related to driving).]
The Motor Carrier Safety Improvement Act of 1999 [49 U.S.C. §§31310 et seq.] requires states to suspend the commercial driver’s licenses for a wide variety of convictions and counts as convictions even acceptance into alternative disposition programs. [See 49 C.F.R. 384.226.]
Eligibility for union office.
[See 29 U.S.C. §504(a) (persons convicted of certain crimes barred from holding union office for 13 years).]
The right to bear arms.
The Uniform Firearms Act, adopted by many states, makes it a crime for defendants convicted of enumerated crimes to possess firearms.
Check federal law as well. Many states classify as misdemeanors nonviolent crimes punishable by up to five years in prison. Convictions for those crimes do not disqualify a person from possessing a firearm under state law. However, the federal firearms statutes make it a felony, punishable by up to ten years imprisonment, for anyone convicted of a crime punishable by more than one year in prison to possess a firearm. [18 U.S.C. §922(g)(1).]
There is an exception for crimes classified as misdemeanors under state law, but only if the maximum possible sentence (not the sentence actually imposed) is two years or less. [See 18 U.S.C. §921(a)(20)(B).]
Therefore, there will be many situations where a person can possess firearms under state law, but not under federal law. Either seek a plea to a different offense or carefully advise your client of the consequences of his plea.
Loss of professional licenses.
This will vary from profession to profession and jurisdiction to jurisdiction. You must check local law and may be required to ask specialists in the field how often the licensing board takes action against persons convicted of certain types of crimes. [For a 50-state survey of employment consequences, see Margaret Colgate Love, “Relief From the Collateral Consequences of a Criminal Conviction: A State-By-State Resource Guide,” Table #6: Consideration of Criminal Record in Licensing and Employment (August 2007) (available at www.sentencingproject.org).]
Prosecutors, especially local ones, may agree that many of these collateral consequences are unfair and may cooperate to avoid them. (Many result from federal law and federal prosecutors may feel beholden to uphold them.) For example, a conspiracy to possess drugs plea may carry the same sentence as a simple possession plea, but not the same suspension and revocation consequences. Check your local and federal statutes to explore such pleas.
§17:60 Advantages of Cooperation
The best deals await those who cooperate or turn state’s evidence against their confederates. Cooperation is the only way your client can avoid imposition of a mandatory minimum sentence in most federal drug cases. [See 18 U.S.C. §3553 (e).] If your client’s involvement in a conspiracy is marginal, his cooperation may even convince the prosecutor not to charge him.
§17:61 Risks of Cooperation
Cooperation entails serious risks. [See Chapter 18, Representing Victims and Witnesses.]
Delve into the possibility of harm and make sure that the prosecutor and agents or police take those risks seriously and are capable of protecting your client.
Besides risk of harm, your client may not be able to live with the knowledge that he betrayed former friends. Take this concern seriously. Explain to your client that his friends put him in this mess by enlisting him as a criminal conspirator and had they the chance, they probably would cooperate against him without hesitation. Still, your client may refuse to turn against his associates. You must respect that decision so long as he makes it knowing the consequences.
§17:62 The Carrot and Stick to Cooperation
Most prosecutors take a “carrot and stick” approach to cooperators. The carrot is a substantial sentence reduction. The stick is a surrender of rights and plea to a serious charge such that if the cooperator betrays the prosecutor, the prosecutor easily can impose a crushing sentence as punishment.
Thus, you may find your client forced to plead to more serious charges and stipulate to more weighty sentencing guidelines if he cooperates than on a straight plea.
Prosecutors do this not only to enlarge their “stick,” but to persuade a jury that the cooperator is not to be treated so leniently that the jury finds offense. Further, the prosecutor will want to use the cooperator’s stipulation to the scope of the conspiracy and the amount of drugs or money involved to set a high benchmark for the rest of the defendants. The prosecutor will claim that the reduction for your client’s cooperation will make up for the plea to more serious charges, but this is not always the case.
Some prosecutors specify the degree of the sentence reduction that they will recommend in the plea agreement while others leave the extent of the reduction entirely up to the judge. In the latter case, a rule of thumb often develops among local judges to reduce sentences by a relatively uniform percentage for cooperation (e.g., one-half, one-third, or two-thirds). Ask experienced practitioners and the local public defender to determine the local metric.
§17:63 Prosecutor’s Discretion to Assess the Value of the Cooperation
Most cooperation agreements vest in the prosecutor, not the judge, nearly unreviewable discretion to assess the truth and value of the defendant-witness’ cooperation and to decide whether to ask the judge for a sentence reduction.
However, courts have authority to review whether this discretion is exercised in good faith. Examples of bad faith include:
- Refusing a reduction based on the defendant’s religion, ethnicity or political beliefs, or refusing to ask for a reduction based on conditions or conduct of which the government already was aware at the time of the agreement. [United States v. Roe, 445 F.3d 202, 207-08 (2d Cir. 2006).]
- Basing a refusal on a belief that the guideline sentence before a reduction is sufficiently lenient. [United States v. Floyd, 428 F.3d 513, 517-18 (3d Cir. 2005).]
- Refusing because the defendant provides truthful information that the government does not want to hear. [United States v. Knights, 968 F.2d 1483, 1488 (2d Cir. 1992).]
If the defendant had no cooperation agreement, he has a remedy for the prosecution’s refusal to seek a reduced sentence only if the prosecutor acts from an unconstitutional motive, such as race or religion. [Wade v. United States, 504 U.S.181, 185-86 (1992).]
§17:64 Practical Protections
Prepare for the Interview
Prosecutors want to interview a defendant and evaluate the truthfulness and utility of his information before they make any promise. The most useful cooperators are those who unhesitatingly fess up to their own culpability and who have detailed first-hand knowledge of wrongdoing because they personally participated in it.
You must carefully prepare for that interview both by interrogating your client to see that he is forthcoming about both his own and others’ crimes (those charged and those uncharged) and by previewing your client’s information, in your own words, for the prosecutor to see if it will satisfy him.
Evaluate Queen-For-A-Day Agreements
Prosecutors will demand that your client waive the protections that FRE 410 and its state counterparts offer against the evidentiary use of statements made during plea negotiations, often in a so-called “Queen-For-a-Day” agreement.
This authorizes the use of the statements to cross-examine or rebut any defense your client later may offer if he goes to trial. [See Chapter 12, Grand Jury Practice.]
Cooperating and giving a proffer generally rule out any chance of success at trial, so choose the cooperator’s path only if you are relatively certain that it will be fruitful and your client does not have a more attractive option.
Give an Attorney Proffer Before Prosecutor Meets Your Client
Consider giving a written proffer, signed by you rather than by your client, and seeing if the prosecutor will agree to a cooperation agreement or immunity on that basis, without speaking with your client.
Preface the letter with a few lines claiming for it the protections of FRE 410. Otherwise, the statements can be used against your client as agent-admissions under FRE 801 (d)(2)(C). [See §17:33.]
Prosecutors often reject this option because they want to size up the defendant in person and grill him before agreeing to anything.
Attend the Debriefing Session
Attend at least the first few debriefing sessions to assure that it proceeds smoothly, to avoid misunderstandings, and to serve as a witness as to what is said.
The prosecutor and police will seek vengeance against your client if they come to believe that he misled them or withheld evidence in the debriefings. Not infrequently, though, they simply misunderstood, mis-transcribed, or forgot what your client said or they just did not ask for the missing information.
Make an Accurate Record
To assure an accurate record while keeping yourself from becoming a trial witness, consider bringing an audiotape recorder or stenographer to the session. The stenographer is the better choice because the sounds of you, your client and the agents yucking it up might prove to be embarrassing.
If the prosecutor refuses these options, be cautious about what you include in your notes, for it later may become discoverable to the defendant against whom your client testifies. [See United States v. Paxson, 861 F.2d 730, 735-36 (D.C. Cir. 1988) (denying defense access to witness’ lawyer’s notes of federal agents’ debriefing of witness); United States v. Arias, 373 F. Supp. 2d 311 (S.D.N.Y. 2005) (same); but see In re Grand Jury, 282 F.3d 156 (2d Cir. 2002) (quashing grand jury subpoena for defense attorney notes as protected work-product, but suggesting that result might be different if the subpoena were a trial subpoena and the government could show substantial need).]
Download theARD Application in Microsoft Word.
Download theDiversion Motion in Microsoft Word.
Download theDiversion Agreement in Microsoft Word.
Download theDiversion Order in Microsoft Word.
Download theDiversion Restitution Schedule in Microsoft Word.
Download the Sample Plea Agreement in Microsoft Word.
Thomas J. Farrell’s practice focuses on criminal defense, ranging from Congressional hearings, pre-indictment investigations and negotiations and the representation of witnesses and victims, to appeals and post-conviction petitions, from white collar matters such as mortgage fraud, health care fraud, tax evasion, securities frauds, and environmental crimes, to capital murder. He is a partner with Dreier LLP in Pittsburgh, PA (www.dreierllp.com). Mr. Farrell was selected as one of The Best Lawyers in America in 2006 and 2007 for white collar and non-white collar criminal defense. Mr. Farrell is the author of Criminal Defense Tools and Techniques, from which this article is excerpted.