The demise of the mandatory federal sentencing guidelines in 2005 has given rise to amazing opportunities for skilled federal criminal defense attorneys to achieve tremendous results for their clients. Nowhere is this truer than in federal bank fraud, mail fraud, and wire fraud investigations and prosecutions. Federal “white collar” fraud prosecutions typically involve persons with little or no criminal background and with substantial ties to the community and strong family support. Surprisingly, many federal criminal defense attorneys do not take advantage of these factors in defending their clients. Under the old mandatory federal sentencing guidelines, family circumstances, family support, and community ties were generally prohibited as bases for sentencing reductions. Such circumstances were only to be considered if they were “extraordinary” and, even then, federal judges were hesitant to reduce sentences by any significant amount based on these factors.
In 2005, the United States Supreme Court, in United States v. Booker invalidated the mandatory federal sentencing guidelines and changed the federal sentencing dynamic forever. In the Booker case, the Supreme Court made it clear that federal judges must impose sentences that are “reasonable” and consistent with the goals of federal sentencing as set forth in 18 U.S.C. 3553 (a). Many federal judges have come to realize that the protection of a defendant’s family is, in the right situation, a proper basis to impose probation instead of incarceration. But yet many federal defense attorneys are unaware of this powerful and emotional weapon to fight off prisons sentences in federal courts.
I handled a case recently where my client had stolen over $1 million dollars from his employer in a fairly sophisticated fraud scheme. He had no real need for the money. He had a nice home. His kids were in school and doing well. The F.B.I. was tipped off to the scheme by a co-worker and they were able to build an airtight case in rather short order. The battle to be fought was not whether my client did something wrong, but rather what should be done about it.
In court, we did not focus on the theft or the fraud scheme. We focused completely on the fact that the client had three children with whom he had a great relationship and a wife with no job skills. We also focused on the client’s elderly parents, both on the verge of needing assisted living and neither with significant resources. We argued that any significant prison term would have disastrous consequences for the client’s family and parents and could lead to the loss of the family home, which would destabilize all facets of his family’s life. We gave the court family pictures, wedding pictures, short vacation videos and copies of the children’s school report cards and class photos. We highlighted the fact that the client’s father had served in the invasion of Omaha Beach in WWII. We argued that a long prison sentence would inflict too much damage on the client’s children and parents.
In short, we based our presentation to the Court solely on family matters and the impact of a prison sentence on these innocent people.
Despite the fact that the client faced advisory sentencing guidelines of between 4 – 6 years, we convinced the Court to impose a sentence of six months to be served at a prison camp near the client’s home. The Court based its sentence entirely on the collateral consequences of imprisonment on the client’s wife, children, and parents. The client is now working again and supporting his family. It was a great result.
Courts across the country are now accepting the notion that a client’s family situation can be the primary factor in determining a reasonable sentence. But the key to success is the effective use of the client’s family situation and the skilled presentation of this information to a federal judge. Persons charged with federal white collar crimes such as bank fraud, mail fraud or wire fraud need to consult a skilled federal criminal defense attorney who knows how to get results.
The attorneys at STSW represent white collar clients nationwide every day and we have extensive federal court experience in all types of criminal cases. Please contact us for a complimentary consultation.