Thursday, May 11, 2017
Is It OK To Snitch??????
A typical white collar criminal case will have multiple defendants as even the most sophisticated crimes rely on at least the complacency of more than one individual. Sometimes everyone is charged in one indictment covering multiple defendants, sometimes each defendant is indicted in a separate case, and sometimes certain individuals are charged while others are not even though their conduct was essentially the same. Understanding why some cases are separated while some are joined is a question for prosecutors. On the question of who is charged and who is not, I have taken a cynical view on it and come to believe that those decisions are dictated on the basis on who they can get and who they do not think they can get. I also have come to believe that the more publicity a potential defendant has in a case, the more likely he is to be charged. Public perception can be a motivating factor and given two potential defendants who committed the same alleged act, the one with the greater public exposure is more likely to get charged. Does anyone really think Martha Stewart would have been indicted in a case that only prevented $45,000 in losses if she would not have been such a public figure?
As previously discussed, most cases are settled not by going to trial but by pleading guilty to a lesser charge than what would be decided at trial. The goal of every person in that situation is to get as short of a sentence as possible. Prosecutors, will often dangle incentives to "help" shorten the sentence. Almost always this entails testifying against another defendant or giving them information to help them build a case against another defendant or even giving them information that they can use to induce another defendant to accept a plea. These mechanisms are known by rule 35 or 5k1 letters and have to be submitted by the prosecution. Essentially, they both ask the judge to reduce a sentence based on cooperation. In the interest of full disclosure, I did receive a rule 35 for what the prosecution says was my assistance in helping them extract a plea out of another defendant. I will tell you that for the most part, people who receive such reductions are not looked upon kindly in prison especially if their testimony resulted in someone going to prison who otherwise would not have and who really did nothing wrong.
I take a somewhat unconventional view on the matter as you will see. Obviously, someone facing prison has to do whatever he can to minimize the impact on his family and therefore has to do whatever he can to make sure he gets out as soon as possible. On the other hand, is it really fair to do so at the expense of another family by helping to send someone to prison who never wronged you and who would otherwise not be sentenced? Is it fair to send someone who did wrong you but without you testimony would not go to prison? Is there a justification to lie to get someone else sent to prison if it means you will serve less time? Is it fair to aid the prosecutors if the person is going to prison but did not wrong you but you do have damaging information? Finally, is it alright to tell the prosecution to go after someone else whose actions were similar to yours but for some reason was not charged? These are such ethical dilemmas that most defendants confront when the prospect of incarceration move from possibility to probability.
While the need for revenge is often innate, it is also a terrible characteristic. Someone who is vengeful is unable to focus on moving forward as he is always trying to avenge what happened in the past. He does not have peace of mind. If someone was complicit and wronged you was not charged, the odds are that he will get caught up in something else anyway. Similarly, someone who sends someone off to prison even if it is to lower his time is simply a selfish individual. There is nothing worse than a liar. The reality is that if a defendant is giving untruthful testimony, it will be discovered at trial anyway thereby eliminating any chance for a sentence reduction.
We are therefore left with the dilemma of cooperating against someone who is likely to go to prison anyway. Does it make a difference if he wronged you or is it fair to reason that since he is going to prison anyway, there is nothing inherently wrong about giving the prosecution some additional information? I can only base my opinion on my experience. If someone did wrong a defendant during the case, for example if he made misrepresentations to him and he is going to go to prison, in all likelihood anyway, I do not see any reason not to share any information with the prosecution if it means you will lessen your time. Yes, you are taking revenge to a degree, but your testimony is not necessarily the reason this person is going to prison; the prosecution had other information anyway. Furthermore, in many ways you are going to prison because of this other person. As far as giving information when there is no malice toward the other person, I am somewhat conflicted. I was not given such an opportunity so I cannot say for certain what I would have done, but I probably would not have gone out of my way to share that information. At the same time, I do not begrudge someone who would do so. The person who I did cooperate against was someone who was going to prison anyway and had certainly wronged me as well.
Karma is a bitch. I mentioned before that offering someone up who otherwise would not have been prosecuted, is selfish and vengeful. The universe tends to catch up with these types of people. These are people who manged to do something that resulted in your indictment which resulted in your taking a plea. Just because they escaped an indictment this time does not mean they will next time. I had such people in my case. Without going into detail, there were a few individuals who caused me to end up in my case and could have, if they wanted to taken steps that would have prevented my getting indicted. I certainly had information that may have resulted in these individuals being indicted, but I did not snitch. Imagine, my surprise when over seven years later I was sitting in the prison camp, reading the Wall Street Journal and came across an article where the leader of the group that got me into this jam was indicted in a massive kickback scheme and was actually being snitched on by someone who helped him carry it out. He was being indicted on charges that he bribed the head of a union to invest funds into he fledgling hedge fund. While I am not proud of it, I felt no small measure of glee when I read this article. The point is, he did it to himself, and I did not have to employ the repugnant mechanism of revenge to make it happen. Incidentally, over the next six months the fund filed bankruptcy and more individuals were indicted.
The opposing goals of minimizing prison time but also no becoming a government witness is one of the hardest balancing acts a defendant has to perform. The fact that the government uses this as a tool can often be seen as unethical. Someone who wronged him will eventually get caught up in something else. Leave it to G-d to handle that! What a person has to realize is that while the prison term will end, decisions he makes will remain with him for the rest of his life.
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