Blog Article 

 Analyzing Legal Exposure 

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Lawrence Hartman

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In this post, written by our team member, Lawrence Hartman, we learn about the dangers that follow a criminal charge.

So, you’ve either been indicted or are in fear of indictment.  The prospect is terrifying, with even just a short stint in prison feeling like the end of the world.  That’s understandable.  Most people, therefore, feel a strong desire to proclaim their innocence and put this whole chapter behind them.  Beating the Feds, however, is a daunting task, and most people are better served by trying to minimize the damage.  After all, there’s a huge difference between a long and short sentence, both personally and professionally.  To that end, it’s critical to understand exactly how this process works and how to best navigate it to suit your purposes.

There are two things that impact how much time you’re looking at: (1) the charge(s) that may be brought against you, and (2) the level at which you score out to on the Federal Sentencing Guidelines.

A charge is something like possession, distribution, money laundering, wire fraud or conspiracy to commit an act, for example.  It’s basically a claim that you broke the law.  Each specific charge carries a maximum sentence for a set period of years, typically 5, 10 or 20, depending on the alleged law broken.  Charges themselves are often stacked, with multiple charges made for the same single activity.  While there are certain general guidelines governing how the prosecutors should charge, the reality is that there’s no rhyme or reason behind how that works.  It’s at the discretion of the AUSA assigned to your case.  My case, just to give you an idea, involved 35 separate charges, while someone else might only get hit with one or two for the exact same activity.

The number of charges can be unbelievably terrifying, especially when you don’t understand how all this works.  Based on my situation, you’d think I was looking at 350 years and, theoretically, I was.  Judges, however, will almost always run sentences concurrently (at the same time) instead of consecutively.  That’s why AUSA’s are prepared to drop numerous charges as part of any Plea Deal, because all they really need is one.  Still, just that one charge does a heck of a lot of damage.  10 years for me, 20 to 30 for others.  

The second part of the analysis requires a review of the Federal Sentencing Guidelines, a strict and onerous standard birthed during the law and order 1980s, designed to take decision making away from the liberal judges deemed too soft on crime.  It created hard and fast rules leading to extreme results, but no one paid much attention at the time since so few people were affected.  Well, thanks to these changes, the federal prison population bloated ten-fold and sentence lengths soared into the stratosphere.  

You start off in a Category, depending on your criminal history.  These Categories range from 1, for someone with no criminal history, all the way up to Category 6.  As you can imagine, a prospective sentence gets progressively harsher, depending on your history.  You’re then assessed points based on the relevant factors of your case.  These include such things as the alleged dollar amount or volume of drugs, number of victims, and whether you used sophisticated means or a firearm was involved, among numerous other variables.  The rules for this exercise are vague, overly inclusive, arbitrary, subjective and open to manipulation, ensuring they can add up quickly.  The Guidelines also recommend obscenely longer sentences the higher up you go.  So, one extra level at the low end, from 16 to 17, let’s say, will result in just 3 extra months, while that same one level at the high-end, from 35 to 36 tacks on an additional 22 months.  This helps to explain how even first-time offenders can get ridiculously long sentences.  Anyway, you then total those points and it corresponds to a recommended sentencing guideline range (i.e. 57-71 months, or 110-121 months).  This analysis is done by the Department of Probation which then sends it to the judge who exercises the ultimate decision but requires a solid presentation to sentence below the Guidelines, out of fear of being overturned on appeal.

So, the question then is, how does this all interact?  Well, when all is said and done, after a Plea Agreement has been signed, or you’ve had and lost your day in Court, there is a Sentencing Hearing before the judge.  That’s where all this gets fleshed out for good and I’ll cover that later in greater detail in subsequent articles. 

About the author:  Lawrence Hartman, is a Columbia Law School grad who has done deals worth hundreds of millions of dollars over his lengthy career as a Wall Street attorney, General Counsel of a publicly traded REIT, internet entrepreneur and international financier.  He also, found himself on the other side of the process as a defendant and then inmate, learning all too well that things don’t work how they teach in law school.  He served 7-1/2 years utilizing his legal background to gain unique insights and perspectives vital for mitigating criminal legal exposure.      

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