What does a defendant need to know before agreeing to a plea deal?

     Most criminal cases - close to 90%  at the state and federal level - resolve by way of a plea agreement or "plea bargain."  Typically the prosecution gives up the right to seek conviction on more charges, or mores serious charges, or a more severe sentence.  In exchange, the defendant gives up a host of procedural rights including as discussed below, and subjects himself or herself to the consequences.

     Specifically, before accepting any plea agreement between the prosecution and defense, the judge is required to make sure -

1.  That the defendant understands the nature of the charge and the elements of the offense to which he/she is pleading and the effect of his/her plea;

2.  That the plea is voluntary on defendant's part and is not the result of undue influence or coercion on the part of anyone;

3.  That the defendant understands the right to trial by jury (if applicable) and that he waives his right to trial by jury on all issues;

4.  That the defendant understands the possible penalty or penalties;

5.  That the defendant understands that the court will not be bound by any representations made to the defendant by anyone concerning the penalty to be imposed or the granting or the denial of probation, unless such representations are included in a formal plea agreement approved by the court and supported by the findings of the presentence report, if any;

6.  That there is a factual basis for the plea. If the plea is entered as a result of a plea agreement, the court shall explain to the defendant, and satisfy itself that the defendant understands, the basis for the plea agreement, and the defendant may then waive the establishment of a factual basis for the particular charge to which he pleads; and

7.  That in class 1 felonies (i.e. the most serious level felony), or where the plea of guilty is to a lesser included offense, a written consent shall have been filed with the court by the district attorney.

    Defendants must understand their rights and what they give up before agreeing to any plea deal.  Good defense lawyers, like Sanderson Law, P.C., 303-444-8846, can help.

Defending against white collar criminal charges.

Defending “white collar” crimes – when taking money isn’t stealing

White collar crime is defined in Black’s Law Dictionary as “law violations by corporations or individuals including theft or fraud and other violations of trust committed in the course of the offender’s occupation (e.g., embezzlement ….).”  It defines embezzlement as “willfully to take … another’s money or property, of which the wrongdoer acquired possession lawfully, by reason of some office or employment or position of trust.”

Colorado’s embezzlement statute - “embezzlement of public property” - is at CRS 18-8-407 and requires proof of knowing conversion by a public employee of public monies or property (note fraudulent intent is not required). 

Charges of embezzlement at the state level in Colorado not involving public employees are incorporated into the theft statutes at CRS 18-4-401 et seq., per CRS 18-4-403.  It’s a felony if it involves $2,000 or more.

Embezzlement is a form of theft historically based on the relationship between the wrongdoer and the victim.  That relationship is not as significant now, nor are any of the historical distinctions involving what used to be known generally as “larceny.”

Defense firms don’t like the phrase “white collar crime.”  It’s not much of a definition.  It’s really a media, editorial or political phrase.  It’s a way to put a bad spin – a negative label – on the accused.  People, jurors, even judges, may sympathize with a robber (guy robs a liquor store to get money for his drug habit, food, rent, etc.) versus the guy who allegedly steals millions as part of a mortgage scheme and supposedly lives it up somewhere.

In any event, so-called white collar crimes are defended best like most serious criminal cases - by identifying and attacking the “seams” of the prosecution’s case.  One of the most obvious is intent, or lack of it.  Others include defining the conduct away from criminal conduct, hammering the definitions and elements of the charged offenses, putting forth other plausible non-criminal explanations, minimizing amounts involved (to reduce the severity of the charge), focusing on the lack of evidence.  Every case is different.

A good defense team – lawyer, paralegal, investigator – learn the business of the accused, the documents, the players, the details, better than the prosecution (we have the benefit of talking directly with the accused).  Federal cases are tougher because they have more prosecution resources, longer investigations, shorter trial dates, more severe consequences.

One of the biggest issues – biggest seams - with white collar crimes is the discretion in charging them - what the prosecution thinks is criminal intent may not be.  If you can get the case looking more like a civil matter – as many of them really should be - good things can happen.

 Why are some “theft” cases prosecuted criminally and others not?  If a person doesn’t pay his doctor or his lawyer for services, is that theft?  If you run out before paying for a meal at a restaurant, is that theft?  If you pay a contractor and he only does half the job, or a half-decent job, is that theft by the contractor?  If someone misses a mortgage payment, is that theft?  Is the amount involved relevant?  The social status of the person accused, or the victim?  Ending up with someone else’s money isn’t always stealing.  Each case is different - fact-specific - and facts make the difference. 

The legislative/political trend is to make it easier to convict at both the state and federal level, starting with lumping “embezzlement” and other historically different forms of larceny together under the theft statutes, to increasing efforts to water down the need to prove a mental element like intent, aka mens rea.  The National Association of Criminal Defense Lawyers issued a report in 2010 focusing on “shoddy lawmaking that is systematically diminishing the criminal intent requirement – a moral anchor of the American criminal justice system,” citing among others a Florida statute that removed the mental elements of intent and knowing from drug possession (admittedly not the stereotypical white collar crime but alarming nonetheless).

This trend makes it even more important that defense firms continue aggressively to stand up for the accused and make the prosecution prove their cases.

 

(Excerpted from a recent talk given by lawyer Dave Sanderson to the Boulder County Bar Association, discussing defense of white collar criminal charges).

Enforcing plea agreements.

Most criminal cases are not tried, resolving instead via plea agreement.  Typically criminal charges are reduced or dismissed, or sentencing concessions given, in exchange for a plea of guilty or similar.  Negotiating agreements with prosecutors is an art form, requiring patience, nuance and knowledge.

Plea agreements are interpreted according to contract principles.   Normally, when the prosecution fails to adhere to a plea agreement, the trial court will enforce the prosecution's promise.  Promises a prosecutor makes that are integral to plea dispositions must be kept. 

 

A plea agreement is more than merely a contract between two parties, and must be attended by constitutional safeguards to ensure that a defendant receives the performance that he is due.  These safeguards are embodied in due process principles that require the enforcement of almost all plea agreements in which defendants reasonably and detrimentally rely on prosecutorial promises and fulfill their side of the bargain. 

Determination of the meaning of a plea agreement and whether a party has breached it are matters of law for the trial court (subject to appellate review).  Ambiguities must be construed in favor of the defendant and against the government. 

 

Where there is detrimental reliance on the prosecution’s (or other government agent’s) promise – i.e. where the defendant has lived up to his or her side of the agreement - the defendant may be entitled to enforcement of the agreement (known as specific performance). 

 

Procedurally, if the prosecution fails to live up to its end of the agreement, a written motion to the court explaining the agreement, the prosecution's failures, and asking that the agreement be enforced, is in order.  Call Sanderson Law, P.C., 303-444-8846, when you or someone you know needs legal help.

Responding to an SEC Investigation.

The federal Securities and Exchange Commission oversees the nation’s securities markets.  It is well-funded and has the resources aggressively to investigate and enforce alleged violations of the numerous and complex securities laws and regulations.  It has offices around the country including Denver.

Investigations typically start with a letter requesting documents and other information, or (eventually) a subpoena compelling the production of that material and possibly testimony.  Subpoenas can also go out to third-parties, like accountants, former employees, customers and others who may have relevant information. 

 As with most government regulators, the SEC should not be considered merely a neutral fact-finder as it also has enforcement powers – including for example fines, the payback of monies, and far-reaching injunctive relief.

Though typically civil in nature, SEC proceedings can lead to criminal charges at the state and federal level.  The SEC usually gets involved by way of a referral from another law enforcement agency, a tip from some other person, computer-monitored trading practices, and even media reports.  Most cases with the SEC are settled.  However, the closing of an SEC investigation does not in itself preclude the possibility of other civil or criminal actions by other state or federal agencies.

Responding to SEC (and most any regulator) investigations and related proceedings requires a prompt, careful and global strategy.   Experienced, reliable and responsive legal counsel can make a huge difference.  Count on Sanderson Law, P.C., 303-444-8846, to help.

Latest Changes to DUI Driving Penalties

Starting January 1, 2014, the Colorado DUI-related driver’s license consequences have changed (again).  Here are some highlights:

- First offenders (no prior DUIs) over 21 with breath or blood test results under 0.15 face a 9 month revocation and after one month are eligible to drive up to the remaining 8 months with the interlock device installed (requiring a breath test to start the vehicle);

- first offenders over 21 with a result 0.15 or higher face similar consequences except the interlock period is two years and cannot be shortened. 

Cases involving breath/blood test refusal, prior offenses, people under 21 years old, and/or commercial driver’s licenses, implicate additional consequences not readily summed up and can be very fact-specific. 

These days, DUIs are being treated more seriously than ever by MVD, prosecutors and judges.  It is best to retain an experienced lawyer to help you navigate the license and criminal consequences.

Lessons from Sandy Hook.

Remember last year's shooting at Connecticut's Sandy Hook Elementary School?  20-year old Adam Lanza shot and killed his mother, and then 26 people (plus himself) at the school.  Recordings from various 911 calls were released yesterday.  Some of the lessons to be learned (again):

- The recordings include anguished people inside the school describing the killer continuing to fire.  Apparently three of the 911 calls to state police went unanswered (there were seven recordings released).  Police arrived within 4 minutes but it took them another 6 minutes to enter the building.  Lesson?  Calling 911 won't save you from a determined killer.

- The first priority of police is to protect themselves.  Of course there is nothing inherently wrong with that most natural instinct, but it did delay their entry into the building (they thought there might be a second shooter nearby).  Similar concern apparently also delayed entry into Colorado's Columbine High School shooting scene a decade earlier.  Lesson?  The police can't save you either.

- By now it should be obvious that "gun free zones" aren't necessarily gun free.  And surely they make tempting targets for determined killers.  Lesson?  Laws only deter the law-abiding.

Dealing with Contractors.

New house construction, remodels, kitchen updates, new flooring, roof repair?  If you've dealt a lot with contractors you've probably run into problems with the work they did, or were supposed to do and didn't.  Here's how to minimize problems:

1.  Put everything important in writing - start and end dates, changes, amounts due and when, estimates, who pays for the materials, any guarantees.  Email is a good way to memorialize such things so craft them accordingly.

2.  Include an attorneys' fee and legal cost provision - for example, if you have to take the contractor to court, you want him/her to pay your legal fees and case costs if you win.

3.  Try to deal only with a reputable and established business - is it bonded and insured and if not, how long has it been around, does it have local offices?  Get references and check them beforehand.

4.  If you get in a dispute, have another (reputable and experienced) contractor take a look and give you a written opinion on what went wrong, who caused it, and what it'll take to fix or repair.

5.  Save a big chunk of the fee payment until the very end, only when it is all done to your satisfaction according to the written agreement above.  This is especially advisable if its a relative, or friend, someone without much experience, or not an established business (see #3 above).

6.  Before filing a lawsuit (best to have a good lawyer do that), try in writing to lay out the problem to the contractor and give him/her a reasonable chance to fix, repair or refund.  If not, take 'em to court; you (or they) can always try again to negotiate a resolution later.