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 Analyzing Your Legal Exposure 

Michael Santos

Michael Santos

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Written by: Lawrence Hartman

If you’re in fear of indictment, or if a grand jury has returned an indictment against you, consider the legal exposure. What are you facing?

The prospect is terrifying. Even just a short stint in prison can feel like the end of the world.  That’s understandable.  Many people want to proclaim innocence and put this whole chapter behind them.

Beating the Feds, however, is a daunting task.

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.

Consider two factors that may impact the length of sentence:

  1. The charge(s) that prosecutors may bring against you, and
  2. The potential scoring matrix of the Federal Sentencing Guidelines.

A criminal charge may stem from a business decision, or from a more calculated criminal act. Sometimes the charge could be the possession of contraband, distribution of an illicit substance, 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 specific number of years. Depending on the statute, the penalty can span anywhere a short time in prison to life in prison.  Charges themselves are often stacked, with multiple charges made for the same single activity. 

General guidelines govern how the prosecutors should charge. Generally, in the federal system, the Assistant U.S. Attorney (AUSA) will have discretion.

Larry’s Case:

In my case, just to give you an idea, prosecutors brought 35 separate charges. A different AUSA, prosecuting a different person in a different jurisdiction, may have faced one or two counts.

The number of charges can be unbelievably terrifying, especially when a person doesn’t understand the workings of the system.

Theoretically, the charges I faced carried a potential penalty in excess of 300 years. Judges, however, will almost always run sentences concurrently (at the same time) instead of consecutively. For this reason, AUSA may dismiss some charges as part of any plea negotiation.

A prosecutor only needs a single conviction to secure an extensive prison term. In my case, I agreed to plead guilty in exchange for the recommendation of a ten-year sentence.

Sentencing Guidelines

The second part of the analysis requires a review of the Federal Sentencing Guidelines. In my view, the Guidelines reflect a strict and onerous standard birthed during the law-and-order 1980s. Guidelines removed discretion from sentencing judges, creating hard and fast rules. In the beginning, the Guidelines tied a judge’s hands, with mandatory sentencing ranges. At the turn of the century, the Supreme Court made a series of rulings that removed the mandatory nature of the guidelines, making them “advisory.”

For more insight on the sentencing guidelines, please click the link below:

With the sentencing guidelines, the federal prison population bloated ten-fold and sentence lengths soared into the stratosphere.  

With the guidelines, the system considers the nature of the crime and also the history of the person convicted. Guidelines provide a scoring mechanism for each segment, on a vertical and on a horizontal axis. The intersection of the vertical score and the horizontal score provides for a sentencing range. Typically, a judge will sentence within that guideline range.

Yet a person can always work to advocate for a lower sentence. For this reason, we encourage people to learn as much as possible about how the system works, about the stakeholders, and about sentencing. The more a person understands, the better a person can work toward self-advocacy.

A person should learn more about the ways that other people went through the system. The more a person learns, the better qualified a person becomes to get a favorable outcome.

About the author:  Lawrence Hartman graduated from Columbia Law School. He is a principal with our company and we’re grateful to have his expertise. Larry 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.

      

Prison Professors, an Earning Freedom company, works alongside (not in place of) civil and criminal defense counsel to help clients proactively navigate through investigations and prosecutions. Our team also helps clients prepare mitigation and compliance strategies.


If you have any questions or are uncertain about any of the issues discussed in this post, schedule a call with our risk mitigation team to receive additional guidance. 

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