As a white-collar criminal defense lawyer, I often think the only win is a “not guilty” verdict. However, recently, I have been learning that a win can come in many ways. A win can be a mistrial. A win can be shaving years off a prison sentence. A win can be beating the plea at trial. A win can be a non-jail sentence. For those of us who try white-collar cases on a regular basis, we know the hurdles faced when going against DOJ. Trust me, the only win is not hearing the words “not guilty”.
A couple months ago, my fellow blogger, Vanessa Johannes, and I represented two brothers in a complex, large-scale federal healthcare fraud trial. The government overcharged the case (even the Judge stated as such) and claimed $112 million in losses. That was not the amount paid out by insurance companies – but alleged billed amounts. The federal guidelines are brutal with such economic loss amounts. As a result of this alleged loss amount, our clients were facing life in prison. The plea offers previously made by the government were, therefore, the equivalent of a conviction at trial. This was one of the driving forces pushing our clients to make the hard decision to proceed to trial.
The trial was a tough one. We tore down the government’s evidence and in many ways, outlawyered the government. More importantly, strategically, through each witness, including their expert and insurance company reps, we fought the loss calculation, and exposed many holes in the government’s case. After a long-fought battle, our clients were convicted at trial. We surmise that a few text messages made it difficult for the jury to decide otherwise. The charges were all stacked. Vanessa’s client faced 26 counts. My client faced 9 counts. We knew we were before a rigid sentencing judge, who remanded immediately, and would need to fight equally as hard at sentencing as we had at trial.
When I received the PSI, I was so devastated I thought I would leave the practice of law. More than any other client, I got to know the true character of this one, a very young man who may have made mistakes, but was a genuinely good soul who strived to do the best at his company. The PSI did not reflect who he was at all. The PSI for Vanessa’s client suggested a total advisory guideline score of Level 43. Yes, life in prison. My client’s advisory guideline score was a Level 40. A long 25 years in prison. The PSIs recommended every enhancement imaginable. The PSI and government continued to persist that the loss amount was $112 million.
Vanessa and I prepared for sentencing just like we had for trial; long days and nights, chasing (literally) down witnesses, working with experts to pull comparable crimes, etc. Lucky for us, the day long sentencing hearings panned out. The Judge got it. The Judge agreed that the harm to victims was exaggerated, that the loss amount was grossly overcalculated, and that, no, the enhancements sought by the government were not warranted. Vanessa’s client was sentenced to a little over 13 years, $2,122,500 of restitution, and $594,514 was forfeited. My client was sentenced to a little over 7 years, $1,850,000 of restitution, and $76,195 was forfeited. While that day was still one of the saddest for us and our clients, we at least took comfort in beating the plea. At that stage of the game, yes, folks, it is a win.
If any of you have stories that are similar, we’d love to hear how you beat the plea at sentencing – even with the trial penalty attached. xoxo, Marissel