Prosecution/Defense and Sticking to the Plea Deal

Not sure if you followed the thread but the opposite is true in this case. The first document was the more expansive one - if you could prove that one then you could certainly prove the plea story.

On a related note, my brother (the afformentioned lawyer who has been pursuing the big time swindler for years) thinks the first version - which charges John Doe with being part of the entire conspiracy - is the more accurate one. Besides for some knowledge of the broader situation (he claims everyone involved with the big time swindler knew all his deals were fraudulent) he also says that in plea agreement stipulations the government likes to formally allege the minimum facts that will sustain the charges that they’ve settled on, in order to preserve to the extent possible the defendent’s credibility as a cooperating witness for other cases they want him to testify about.

yeah, that would be an important detail. Plea deals in multi-defendant cases from what I’ve read, usually involve finding one involved party to testify about the others. The less they are “guilty of” the more credible they are. I wonder how that works - the defense in the other cases can’t really accuse the witness “you were up to your eyeballs in it” without admitting his own client’s guilt. (Unless he can twist the facts to pin the entire mess on the witness)

There’s a whole game theory IIRC about first to sell out gets a much better deal, but if nobody sells out they all gamble between nothing and a long sentence.

I don’t know any details of federal criminal procedure, but since it seems nobody else here does either, I can make a decent guess at what happened.

My guess is that as one stage before a trial, prosecutors have to file a document laying out the crime and the facts --basically what they will prove at trial and why it is a crime. I further suspect that ‘Information For Plea’ may refer not to a plea bargain, but to the proscutors pleading (in the old-fashioned sense of ‘asking’) the judge to punish the defendant. They’re going to be expansive in this, since there’s not a huge downside in that – if they include too much, worst case the judge (or jury) decide some of charges weren’t proven, but the prosecutors aren’t much worse off than if they hadn’t alleged those charges.

Now, I suspect that in this case the prosecutors wrote this document but sat down and negotiated the plea bargain before the document actually needed to be (or was) filed with the court. So the prosecutors file everything they need to finish the case, all on the same day because they’re just trucking everything down to the courthouse once. As part of that they still need to file that ‘here’s what we’re alleging’ document in order to finish the case, even though there’s not going to be a trial. It’s not surprising the prosecutors decided to just use the old version, rather than write a whole new one because it doesn’t matter – they already have a sentence agreement, there won’t be a trial, so who cares that the charging document is more expansive than the final plea agreement?

That’s my guess, although, again, I am not a lawyer and don’t know much of anything about Federal Criminal procedures. But it’s a plausible reason to me for seeing two different, contrasting documents filed on the same day.

A defendant can waive indictment by grand jury in federal court, which would be a reasonable thing to do if you have a plea agreement lined up.

EDIT: See Rule 7(b), FRCP.

In some states, like Texas, the charging instrument is called an “information”, in misdemeanors. (In felonies, it’s called an indictment.) They both serve the same purpose: to inform the defendant what he’s done wrong. Or anyway, what the prosecutor says he’s done wrong. The charging instrument is just an allegation. It’s not proof of anything. It’s not unusual for defendants to plead to a lesser charge, particularly if the evidence is weak, or otherwise fails to support the prosecutor’s charge. Or if the defendant agrees to testify against co-defendants. It’s called plea-bargaining.

Also, an indictment requires a Grand Jury. An information does not.

Bricker, I am intrigued by the implications of this. It suggests that in US jurisdictions, it is possible to indict on a lesser offence, but still rely for sentence on elements that might make the case a greater offence, even if those elements can only be proved to the PoE standard. Have I misunderstood? If I have not misunderstood, and there is a simple authority for the point, I’d very much like to see it, but only if you know it off the top of your head. Don’t go squirrelling through the books on my account.

You tend here to overlook the fact that most people who are arrested are in fact guilty of most of the charges brought against them. While there is a presumption of innocence, this places the burden on police and prosecutors to prove guilt. Those who have no evidence against them are not arrested or tried, which is why the vast majority of (petty) crimes are unsolved. It is rare that an innocent and inculpable person get sucked into the system, and the results can be tragic when they get steamrolled.

Sort of. Part of the problem was that I wasn’t completely clear.

The federal system differs substantially from most state systems, in that the federal system has sentencing guidelines, a mandatory framework which assigns points for various mitigating and aggravating sentencing factors. To use those factors at sentencing, they must either be proved to a jury or admitted by the defendant.

So in the federal system, or in any state system in which sentencing guidelines are mandatory, the answer is that the government CANNOT do as you describe: sentencing factors must be proved, or admitted in allocution, before being considered. The only exception to this is the facts of prior convictions and sentences.

But in state systems in which there are no or merely advisory sentencing guidelines, the state can, at sentencing, present evidence not proved beyond a reasonable doubt without offending the Sixth Amendment.

My state adds another layer of complexity to the situation in that practices vary between court districts. We have both “open” and “closed” pleas. An open plea means there is no recommendation as to sentence from the prosecution, and the Judge is free to impose up to the maximum penalty allowed by law. A closed plea comes with a sentencing recommendation from the prosecution as agreed between the parties, but the Judge remains free to ignore the recommendation and impose a more or less severe sentence as desired. Some districts routinely follow the prosecution’s recommendation with almost “rubber stamp” predictability. Other districts usually follow the recommendation but may deviate up or down (usually up) for particular cases, or even particular classes of cases. Still other districts don’t do closed pleas at all. Every plea is considered an open plea. (Shudder). Thankfully, my home district and the neighboring ones usually follow the prosecution’s recommendation.

Thanks, Bricker and Oakminster.

How is it possible to allege an element of a greater offence and use it to the detriment of the accused charged with a lesser offence without proof BRD? Or does the principle only apply to “ordinary” facts that are not elements of other offences, such as an assertion (in an assault case) that the accused was motivated by cruelty rather than fear, or the like.