WHAT TO SAY AND WHAT NOT TO SAY TO CHILDREN

Being a parent is quite possibly the greatest responsibility  any individual will take upon himself or herself. There is no greater challenge than to be a parent. A person is literally responsible for both the physical and mental health for another human being. This responsibility is in no way abrogated when facing criminal charges, facing prison or even when serving time in prison. If anything a parent in these situations has to take extra steps to make sure that the legal issues he faces does cause him to become derelict in his responsibilities as a parent. Of course, since children will be affected by the trial and/or prison sentence and may be exposed to any potential media coverage of the parent under investigation it is important to understand how to talk yo you children and how how much to tell them. Regardless of how much is said, a child is being asked to grow up a little too fast when a parent is facing criminal charges. The key is to keep a constant balance by telling them enough too keep them prepared but not too much so as to create undue anxiety.

A lot depends on the age of your children. If the children are very young and nothing in the way of a trial or plea is imminent, there really is no reason to tell them very much if anything at all. They will most likely not understand and children are scared by nature. Nothing good will come from telling a child under the age of 10 or so information that he  won'y find out on his own anyway. With children that age, it is best to remember that they need to be insulated as much as possible and the legal troubles outside the home must never impact the ability to be a parent inside the home.

If the children are older, the approach is not as simple. Obviously, if there are articles written about the parent and if their friends in school will know it is important to let them know what is going on. Children need to be told that just because something is written in the newspaper or online does not mean it is true. Unfortunately, the reality is that 90% of the "facts" printed in the newspaper are at best inaccurate and the percentage is even higher for what is posted online. Children even when they are older tend to be scared of the unknown. The need to be reminded that their parents love them and that hopefully everything will work out for the best. It is important to convey to the children that you understand they may have questions and that they can ask them as well.

As the case progresses, kids need to be somewhat included in the developments. For example, if a child finds out on 24 hours notice that his father is going to prison he will be very scared, upset and will not have the time necessary to mentally prepare for what is going to be a cataclysmic change in his life. This does not bode well for trust between a parent and child post-incarceration. By the same token, if an indictment may or may not come or may not come for a couple of years, there is really no point in inserting needless anxiety into a child's life. My wife and I wrestled with how much to tell our children and when, all the while knowing that in the age of Google, they will most likely at some point of their lives research the case on their own anyway.

Once and indictment is imminent, and assuming the children are old enough to understand certain complexities, it is critical to let them know what is going on. Again, less is more. They do need to be told something, just not everything. The only thing worse than their children finding on the 5 o'clock news or from a friend that their parent has been indicted or arrested is the child realizing that the parents knew that this was happening and did not let them know. There obviously needs to be a careful balance here as it is important for children to hold their parents in high regard yet there is a need for honesty. Telling a child that nothing is going to happen, and the parent is not going to have to go away for a while is not advisable since it may not be true. If the parent does have to serve some time, in the eyes of the child he is not only a criminal but a liar as well. A better approach is to tell them that hopefully everything will be fine and just because someone is arrested does not necessarily mean that prison is in the future. It is obviously important to remind the children that you love them unconditionally and that no matter what happens that will not change.

Things get a little more complicated when a plea has been agreed upon. A child's reaction, especially a child who has already learned the basic legal concept of innocent until proven guilty, will be so confused as to why a plea is being taken instead of going to trial where the government will have to prove guilt "beyond a reasonable doubt". As I have discussed in previous blogs, when contemplating a plea, issues such a guilt or innocence are essentially irrelevant. This is the approach a parent has to keep in mind when explaining why a plea is being taken. If the child is old enough, he has had time to mentally adjust to the new reality and has at least contemplated the notion of a parent being gone for some time. Rather, than focus on the issue of guilt and innocence, it is better to reorient the conversation by focusing on what is best for the family. A child needs to understand, that this is what is best because in the even the parent does go to trial, there is a chance he will be found guilty and will have to spend more time in prison that he will by taking a plea. My taking a plea, a parent is doing what is best for the family because while he will be absent for some time in the near future, this is a temporary situation. Essentially, a parent is telling the child that "I want to make sure I am there to watch you grow up, and I am not going to risk missing that for anything even if it means I have to leave the family for a little while".  This approach accomplishes three goal. Firstly, it avoids exposing the children to the anxiety of a trial, secondly it provides a measure of closure for the children, and lastly and quite possibly most critically, it shows the children that you love them and that your decisions are being made because you care about them.

When a parent contemplates the types of conversations he will have with children of his lifetime, issues surrounding incarceration probably do not make the list. What makes it even more complicated is that a parent has to ensure his children are not neglected. At the same time, once the children do know what is going on, that they feel comfortable enough to talk to the parents with any fears they may have. Every child is different and there really is no magic formula. For some children, the knowledge that their parents are willing to listen to their concerns at any time, is comfort enough. For others, there may be a need to enlist an outside professional. My wife and I did not seek outside professional help and looking back, I think that was the right decision. Once I was indicted, we kept the children appraised of the major developments with the oldest knowing a lot while the youngest knew relatively nothing. As with any other issues a parent faces when raising children, what is said is just as important as what is not said.

ISN'T IT EUPHORIC?-REFLECTIONS ON FREEDOM AND PASSOVER

Well Friday was the big day, the day for which I had been waiting for what seems forever. Yes Friday, April 7 was my release date! And yes. It was.....euphoric! The ability to finally get back to some sort of sense of normalcy, the finality of a lengthy and incredibly stressful ordeal was quite possibly one of the best moments of my life. While in many ways it was anti-climactic simply because I was released from the actual federal prison camp over six months earlier, the end of this ordeal was significant in so many ways.
It is not lost on me that my release very closely coincided with the holiday of Passover, the time that celebrates the redemption of the ancient Hebrews from Egyptian slavery; the time of freedom. This got me thinking about what freedom really represents. Anyone who has read the Bible knows that the Jews, a small nation had to migrate from Israel to Egypt because of a famine that swept the region. Egypt alone had food and the Hebrews, invited by Joseph moved from ancient Israel down to Egypt. Over time, as outlined in the book of Exodus, Joseph was forgotten and the Hebrews were enslaved. The Exodus was simply a return the the status quo on being a free people. Yet, even upon their redemption from Egypt, the Jews were destined to wander in the desert for 40 years. And yet, this is considered to be one of the most important if not the most important holiday in the Jewish calendar, when all it really represents is a return to a state prior to oppression.
For someone who has been formally released, the reality is not much different. He was once a free person enjoying all of the liberties this great country has to offer. Often, because of an error in judgment or simply because he happened to be in the wrong place at the wrong time, or even if he knowingly committed a crime, he finds himself stripped of his rights and removed from society. Eventually, be it after a period of months, years or decades, he is released effectively restoring him to his status prior to incarceration. And yet, this date, for anyone who has just been released is a day to be celebrated. I find myself asking why this is the case. Why do we celebrate returns to normalcy more so that some of the most important events that take place in our lives. Why is the date of the Hebrews' freedom from bondage; the return to the status quo, celebrated more than the date 40 years later when they actually entered that land of Israel.
Anyone who has been incarcerated be it in a camp or a higher level of facility will tell you that prison is an extremely unpleasant experience, to say the least. Anyone who says that going to a prison camp was "easy',  or a "piece of cake" is either lying or has a miserable life outside of prison. Sure, most prisoners do make the best, but that is out of necessity. Someone who has been incarcerated has been removed from his wife, his children, his parents, his siblings and his friends. The longer he is away the more detached and forgotten he becomes.
True, camps are less restrictive than the other facilities, but at the end of the day, someone is prison is still in prison. He is not free to come and go as he pleases. He cannot have dinner with his family at night. He cannot watch his son's little league games. He cannot go to his daughter's ballet recitals. He cannot celebrate birthdays and anniversaries. He cannot go out with his friends. Even the time spent speaking on the phone is restricted. He is forced to leave the comforts of his home and share facilities with hundreds of other people. Gone is the big closet and in its places is a small 2 by 4 locker. Gone are the home cooked meals and in its place is the same semi edible food over and over again. Instead of sleeping next to his wife he is sharing a bunkbed with another inmate. Instead of seeing his friends and family every day, he is now limited to visiting days only. His bed time will probably be earlier than his teenage children.
In my time at the prison camp, I had the opportunity to speak to many inmates who came from all sorts of backgrounds. I often asked what do they miss most about being free and what they will do when they are released. Some of the answers were very surprising. One inmate, who had been inside for 10 years told me that he cannot wait to take a bath! Another said, he cannot wait to be able to just sleep in silence. Another said he wanted to be able to cry when he is sad instead of being afraid to get emotional. Yes, to an inmate, even the right to be sad is a luxury. Most of the answers focussed on how they want to just enjoy their families. Not one inmate told me that they cannot wait to finally buy a Bentley, buy a massive house, or even get the newest iPhone. They simply desire what most people consider to be boring and mundane. They desire normalcy.
Too often, those of us who are free are focussed on what comes next. We focus on what everyone else has instead of what we have. We do not appreciate what a luxury "normal" really is. We are enslaved to our own whims and desires and not free to enjoy what we have. For the newly released former prisoner, normal is something to be celebrated. The return to normalcy is a rebirth if you will an also represents the opportunity to once again celebrate all the blessings that were taken for granted when he was a free person. Similarly the message of the holiday of Passover is that yes, more so than the enhancements in life, the return to the status quo is to be celebrated. A state of normalcy is a prerequisite and therefore a precursor for all of the "bonuses" that life will offer us. This is why the prisoners celebrates his release and this is probably the true message of Passover.

Judges Matter

Decisions, decisions, decisions. From the time someone finds out they have been indicted or will be indicted there are new decisions to me made every day. Which lawyer should I hire? How will I deal with the stress? What do I tell my friends and family? Should I take a plea deal? Should I change careers? There are no shortage of decisions that need to be made during this time and each one can have lasting ramifications. Similarly, there are decisions made by others that can have an effect as well. Those decisions are generally made by the prosecutors and will include issues such as whether to indict or not, which charges to seek, and what kind of deal they wish to offer.

Ultimately, however there is one variable that is left completely to chance and yet may have the the greatest impact on not only how to proceed with a case but on the outcome of the case as well. It will even influence a decision as to whether to take a plea. That variable is.....the judge. I am not going to pretend to understand the system but the system by which a judge is choosen to preside over a trial is by some sort of lottery or rotation. In any event, from the perspective of the defendant, it is random and it will influence how the case progresses and the decisions that are made.

The first variable that will come up is the pace at which the case moves along. Some judges are happy to give the sides as much time as they need until a mutually acceptable trial date is chosen. Other judges like to move their cases along. It is important to point out that judges get paid the same amount whether a case goes to trial or if it gets resolved. To put that in simple terms, the more cases that get plead out, the less they have to work. Furthermore, if a judge does not have to preside over an actual trial, there is no chance that his decisions at the trial will get scrutinized on an appeal. For this reason, it would seem that judges are happy to wait around to avoid having to preside over a trial. On the other hand, some judges like to clear their calendars and move trials along. For a defendant, whose strategy may be delay, delay, delay, this is not the judge to get! Nevertheless, a defendant with one of these judges will generally have to get his affairs in order faster than someone who has a judge who is not is such a rush.

Each judge has his or her own sentencing tendencies. Remember that sentencing has two components; the maximum per count and a guideline range determined by the crime committed as well as a host of other factors that go into the Pre-sentence Investigation Report. Some judges, if a defendant is found guilty at a trial will stick to the guidelines applicable to the charges. Remember, that the counts in an indictment are usually much more severe and carry harsher sentences that the counts in a plea deal. There are some judges who will simply hand out the maximum allowable sentence if a defendant goes through trial and pleads guilty. There are other judges who are more liberal and lenient when it comes to handing out sentences in spite of a guilty verdict at trial. If a defendant has a judge who tends to not be overly lenient following jury trials, he will often have to give more serious consideration to taking a plea to avoid the risk of a high sentence following trial. Some judges are easy on some crimes but tough on others. It is important to be mindful of all of these facts, and hopefully the defense attorney involved knows enough about the judge so as to advise his client because it is a variable that needs to be taken seriously.

Even when it comes to sentencing the judge matters. There are some judges who view the sentencing phase is almost a mini trial and there are some for whom it is merely a formality. For a defendant who has taken a plea, he needs to be cognizant of these two types of styles. If he has a judge that is willing to give a full hearing, and who has a history of being lenient on white collar crimes, then the strategy is pretty simple. In that scenario, the defendant will simply show sincere remorse, and have his lawyers argue for a variance from the guidelines which in simple terms will mean that they will list the reasons for the judge to consider to give a sentence below what the guideline calls for. On the other hand, if the the judge is not inclined to go below the guideline or be interested in a full blown hearing, it is best to come to a joint recommendation with the prosecutors as to how much much prison time he is willing to serve. There really is nothing to be gained by asking for a downward variance as the judge is unlikely to grant it. Doing so would simply force the prosecution to argue for a harsh sentence and a defendant may end up with a harsher sentence that he would with an agreement.

Finally, there are some harsh judges. Anyone who has spent time in the system knows someone who is sitting in prison for longer than they would absent that judge. These judges' reputations precede them and any defense lawyer would know who they are. If they give variances it is generally to go above the guidelines and not below them. These judges pose the greatest risk when it comes to going through a trial. By the same token, there are judges who are notoriously lenient, especially when faced with a defendant who was willing to plead guilty and accept responsibility for his actions. It may seem counter-intuitive, but, if the goal is to end up with as little prison time as possible, a defendant should give more consideration to taking a plea when a lenient judge is involved. This is especially so when the judge has a record of going below the guidelines.

Another, albeit relatively minor issue to prepare for when speaking of judges is the issue of voluntary surrender or even remaining free on bail pending appeal. Most white collar defendants, whether they plead guilty or are found guilty are given time-anywhere from a month to a year in some cases-to surrender to their designated prison. This allows them to get designated to a prison rather than have to languish in a detention center while waiting to be designated and then have to potentially be transported in less than ideal conditions to the prison itself. For most defendants, this gives them time additional time to get certain affairs in order following the sentencing. Other judges, are not as flexible and will remand a defendant to custody immediately from sentencing. If a defendant gets one of these judges, as I did, he needs to make sure more things are in place before sentencing. There really is nothing a defendant can do about this but the knowledge does allow for him to prepare. The judge will, in all likelihood, make clear his policy at the time a defendant pleads guilty.

There is no point stressing over outcomes that cannot be controlled. This is true from a criminal defendant and holds true when dealing with any of life's difficult situations. The key is to be able to understand those outcomes and act accordingly. The outcome of who will be the presiding judge in a criminal case is no different.

The Plight of the White (Collar that is)

Anyone who has gone through the "system" comes out with a radically different understanding from what he believed when he went in. When I refer to "The System", I refer to someone who has actually spent in actual prison. While there are plenty of ideas floating around as to how we should fix the system, no one can speak with any expertise without having actually gone through  the system. Politicians can advocate all they want, but the reality is they are reacting to appease various competing interests and are not acting in a proactive manner  that focuses not only on the amount of time incarcerated but even on what happens after prison.

I am not going to go into the inherent flaws in our system of incarceration as I have already gone through many of them in a previous entry ( http://www.whitecollarguru.com/2016/12/does-prison-serve-purpose-and-for-whom.html ). What I am going to assert now is that the system of incarceration in our country is disproportionately discriminatory against the white collar felon. Sure, many will shake their head and say that I am biased and maybe they are correct. After all, there are no minimum mandatory sentences for white collar convicts and of course the average sentence served by a white collar defendant is much lower than that of other crimes. Most white collar felons do all of their time in a camp whereas other convicted felons start out in higher security facilities. Even non violent drug offenders will often start out in higher security facilities. On the surface, my assertion is not only wrong, but is offensive and arrogant as well.

There has been plenty of noise made about prison reform and the need to lower the prison population. Do not think for a second that this is because our elected officials have had an epiphany and realized that there are plenty of people in prison who are not threats to society (there are). No, they do not care about that at all! No, there is no altruism here at all. It is all about saving money. For the white collar felon,  all of the  talk of prison reform and news of presidential commutations brings little solace. President Obama granted 1715 sentence commutations, more than any of his predecessors, during his eight years in office. However, 98% of those commutations were granted to those convicted on drug offenses. According to the Bureau of Prisons, however, drug offenses only make up 46% of the total prison population. In other words, the white collar felon received virtually no benefit from the Obama commutations. Similarly, much of the ideas floating around to reduce prison population are geared to reducing the, albeit unjustifiably harsh, sentences  for drug offenders and are not all all focused on white collar inmates.

Why is this the case? The answer, sadly enough is political. Wall Street bankers are demonized in the media. They are blamed for anything and everything that goes wrong in the economy. The are portrayed by the media, and even opportunistic politicians as greedy predators exploiting the lower classes. Individual defendants are paraded in front of TV cameras as they are arrested or walked into court. On the other hand, drug dealers, those who knowingly exploit their customers' addictions are treated with kid gloves by the media. How often does the media closely monitor the trials and outcomes of these indictments? As a result, legislation that benefits white collar felons is seen as favoring the rich whereas legislation benefiting drug offenses is seen as humanitarian and enlightened.

Just as importantly, and perhaps most importantly, truly reforming the system needs to include what happens after an inmate leaves prison. The system disproportionately penalizes white collar defendants. Let's look at the run of the mill drug dealer who has served five years. Having spent time talking with a few of these people, I am not speaking from the vantage point of a speculator. Drug dealers know exactly what they are doing. They know that they will likely go to prison for what they are doing and are well aware of the risks. Because of this, they are able to prepare more adequately for their time in prison and are able to even prepare for life after prison. Their 'business',  is conducted not via the banking system but strictly in cash. They are able to put money aside for when they are released into society if they desire. When they are released, they are not only allowed but are encouraged to pursue careers in white collar industries such as finance law and medicine. If they wish to resume their illegal activities and resume dealing drugs, there is nothing preventing them from doing so. For the released drug dealer, the opportunities are limitless if he is motivated.

The white collar felon faces a radically different set of circumstances when he is released however. Many white collar felons were unaware that they were violating the law and even if they were the odds are that most of their gains and their assets are easily traceable. In other words, they are usually not in a position to prepare for life after prison because, they usually are not even aware they will be going to prison. The next obstacle comes when he wants to go back to work. While he will have the same restrictions as any other felon, he faces additional restrictions as a white collar felon. For example, a doctor who is convicted on charges of insurance fraud is no longer permitted to practice medicine even though his crime had nothing to do with the practice of medicine. How is he supposed to sustain himself if he can't go back into the one industry he knows even if he is willing to not take insurance. A financial professional is effectively barred from the finance industry even if he wants to go into an area of finance that has nothing to do with the reason he went to prison if the first place. It is virtually impossible in most states for a for a former white collar felon to obtain any professional license. While a non white collar felon who wishes to find employment is one of those fields is viewed as reformed or rehabilitated, a white collar felon is viewed as someone who needs to be prevented from being in a position where he may commit a similar crime. In this backwards system, from the standpoint of starting over, it is sometimes better to have been convicted of a drug crime or even a violent crime than have been convicted of a white collar crime.

I write this not to vent, but to articulate another issue that faces white collar defendants. A white collar defendant will, when considering a plea, think that he serves his time and then it is over. Not so. He needs to be aware that agreeing to plead guilty to an offense is a life altering decision, one that will have a longer lasting impact than the time that he is incarcerated. Until there is real prison reform, the white collar felon will continue to be the one treated most unfairly by the criminal justice system. If the President truly wants to make America great again, he will certainly need to assistance and input of those white collar felons who have paid their debt to society.

KEEP YOUR EYES ON THE PRIZE

Talk to any current or former defendant and they will affirm that the pace at which the criminal justice system moves is completely different from what their impression were before he became embroiled in the system. Most people get their knowledge from TV programs, if which there are no shortage. Be it Law and Order, LA Law, The Practice or any of the other legal series that have been popular over the past 30 years or so, people have become conditioned to believe that the legal process moves at an efficient pace. Indeed, in the span of an hour and entire case is usually solved!

White collar defendants by in large come from the private sector. True, there are a fair amount from the public sector, but they are not the majority. Therefore, most defendants are used to working in an environment where efficiency is applauded. Suddenly being thrown in to the criminal justice system, which operates ate a radically different pace than what he is used to can be extremely frustrating for a defendant. True, defendants do have the right to a "speedy trial" but that is not an objective term by any stretch at all. Prosecutors need time to build their case and the statute of limitations will give them anywhere from 3-10 years to indict for white collar crimes. Just to give an example, from the time the investigation into me commenced until the time I ultimately indicted was over five years! I ultimately did plead guilty but had I con to trial, it could have easily dragged on another year or two.


The waiting game can often be as difficult or more difficult than the actual sentence. It also may actually be longer than the actual sentence. For someone who just wants to put everything behind him this is extremely frustrating. He wants to get on with his life and get out of this state of limbo. This is especially the case if he feels he is innocent but is suffering under a cloud of suspicion which is impacting his ability to find gainful employment and move on with his life. The cumulative effect of this frustration can potentially be a downward spiral where a defendant is left depressed and in a state of inertia where he cannot move forward. The prosecutors know this. They are well aware that for a defendant, stagnation is extremely difficult. Part of their strategy is that the longer a defendant waits, the more willing he will be to take a plea on their terms and not on his. Early on in the process every defendant is inclined to fight. Trial carries the risk of losing for a prosecutor. The longer a defendant has to wait, the more willing he will be inclined to avoid trial. At that point, they believe anyway, the defendant will negotiate on their terms on not on his own. Is this ethical? Well that depends on who is asked. Certainly, it is not illegal.

During these times it is important to focus on what a defendant's goal is. The goal, for any defendant, whether he is innocent or guilty is FREEDOM,  to be able to get out of the situation with as little suffering as possible; to be able to move on. That is the goal, plain and simple. During these times of frustration, rather than get angry at a system that he cannot control, he needs to look forward. There will be a time, be it in the coming months or years that this will be over. Yes, he may need to go to prison, to move that time closer but the time will come. There will be a life to lead when it is over and he will need to re-establish himself. He will once again be not only free from the custody of the custody but free of the mental baggage that he is carrying with him. He needs to focus on this at all times when he is not actively involved in his defense. Most critically, he needs to avoid the malaise that is the result from his own mental prison. He needs to start laying the groundwork now for when this is over. He needs to maintain healthy familial relationships so as to avoid being both physically and mentally absent from his spouse's and children's lives while he is not (yet) incarcerated. The worst thing that can happen is for him to serve 3 years in prison but have missed out on 6 years of family life. He needs to realize that for him to fully enjoy the benefits of freedom in the future, he needs to actually live his life in the present.

The criminal justice process is akin to a 162 game baseball season. You need to play well in April in order to better your chances of even making it to October. It is long, tituis, and often times boring but at some point it ends. However, the baseball player only looks forward to winning in October. The defendant looks forward to the rest of his life. Keep your eye on the prize Always.

No Good Deed Goes Unpunished

The social ramifications of becoming either formally or informally a white collar defendant can be wide ranging. Unlike violent offenders, white collar defendants will very often be members of various boards, donate heavily to charity, do volunteer work and even help their friends. They will very often, with good intentions only, bring on friends as business associates or as partners. They feature prominently in social circles and are often quite visible, especially when they are leaders of industry. Keeping in mind that white collar defendant often do not even realize they are ever doing anything that violates the law, their motives are almost always altruistic and come from a genuine desire to help others.

There is a story told of a wealthy man who served on the board of directors of a prominent organization. For many years his opinions were sought after and the board always heeded his advice. Whenever he spoke, other member were silent and listened attentively. Unfortunately, late in life, this individual made some bad investments and became destitute. While he remained on the board, his opinions were no longer solicited, his advice ignored and when he spoke no one bothered to pay attention. One day he got up an exclaimed "I may have lost my money, but I didn't lose my mind!" 

The same analogy can sadly be applied to white collar defendants. An individual may have given many hours of his time in serving on a non profit board. He may have given millions of dollars toward an organization. However, once he becomes a criminal defendant, those very individuals will abandon him and cast him aside. Suddenly, his opinions do not matter. The years of service that he will have given to that organization will be forgotten. Even worse, the organization, will often go to great lengths to disassociate itself from that individual, All the good that the individual has done will not only be forgotten but will be disavowed. He will have been better off, from a social standpoint never having given of his time at all. Whats worse, some will claim that he used his position of authority and his social status as a platform to deceive others and legitimize himself when nothing is further from the truth. They will say that the money he gave to charity was not done in the name of kindness but was done for the sole purpose of enhancing his stature. Of course, the organization is still all too happy to keep the money they have received over the many years!

The same can be applied for friends and even worse so for friends that a defendant went out of his way to help with no personal gain whatsoever. Before he became a defendant, he was in all likelihood successful in one or in many business ventures. As is normally the case, friends will want to do business with him so that they too can receive the benefits from the proverbial golden goose. They will beg to be in business with him so as to enrich themselves. In truth there is nothing at all wrong with this as everyone is entitled to do whatever they can to accumulate wealth and to provide for their families.

Sadly, when the tide turns these friends are nowhere to be found. When the investigation starts, these former partners and associates will miraculously develop amnesia or will concoct a fictional revisionist history where they were not in business with the defendant at all. They will minimize their role. Whats worse, they will tell others that not only were they not partners, but they were in-fact, victims of their friend's lies and deceptions. All of the kindness given to them will be forgotten in the selfish endeavor to extricate themselves from they view as a dangerous association. The years of friendship will be erased. Sometimes a husband who did not bother to tell his wife about his business association will, in attempt to lessen his sin of not including her in a major decision will simply blame the defendant. Often times, if there was an investment involved, a defendant will have allowed his friends to invest and not take the normal fees to which he is normally entitled. He does this out of kindness only. Unfortunately, in the name of greed, his friend will invest more than he can afford. If he loses the money, he now needs to explain this to his wife. He will simply deflect the blame from himself for his own irresponsible behaviors and turn on his friend.  Whats worse, these "friends" will turn on him and will even speak to federal agents and offer fabricated "alternative facts". An act of kindness toward a friends has been repaid by his becoming a weapon of the prosecution. Families that have developed long lasting friendship will be torn apart because of a lack of appreciation for an intended kindness.

The social stigma surrounding white collar defendants is often unjustified. People are quick to rush to judgment and to abandon associations. It is times like these when the a person's true character is revealed. A defendant should not delude himself into thinking that all of the good he has done over the years will garner the amount of support deserved. Nor will  all of the people he has helped stand by him. Yes, he will have friends who will stand by him but to believe that they all will or even that most will is wishful thinking especially when he was kind enough to bring people into business with him. Sadly, all too often, for white collar defendants, no good deed goes unpunished.

Attitude is Everything (Kvetching Gornish Helfin)

There is an old yiddish saying that goes Kvetching Gornish Helfin. Simply translated it means that you can whine all you want, it isn't going to make a damn difference anyway! This is something that not only every defendant should keep in mind, but any person who is facing any sort of adversity.

For a defendant, and perhaps more so one who feels he is being unfairly targeted the temptation wo complain, to employ a "why me" or "woe is me" attitude is very real. As mentioned a few weeks back, he feels the system is supposed to be fair and yet feels he is not being treated fairly. A defendant will spend his days complaining to just about anyone who is listening about what his life has become as a result of his predicament. He will spend his day awash in self pity at the precarious set of circumstances that he is forced to confront. He will worry all day and all night about what will happen if and when he goes to prison. His fears will be with him all day and night and he will be unable to sleep. His legal troubles will cease to be a distraction and will become the main attraction.

This attitude is damaging for many reasons. Firstly, from a logical standpoint, it accomplishes nothing. The legal system is not a retail establishment where complaining gets the customer what he wants and therefore actually makes a difference, No, complaining, will have absolutely no positive bearing on the outcome of the case. If anything, it will have a negative affect on its outcome. It certainly will have a negative impact on the defendant's quality of life as well as on his family's.

Generally, we see whining as a symptom of a greater underlying problem. In this case, the whining is a manifestation of frustration over a predicament. To be sure, there is plenty of reason to be concerned over the predicament. But is whining and a defeatist attitude the answer? Any psychologist will agree that actions and attitudes affect out state of mind. For example, if someone believes that he is not a good math student, he will probably have a hard time studying for a math exam even if his belief is unfounded. In essence he creates his own reality. The same is true for whining. A defendant who is constantly whining and complaining  about his predicament, will view his situation with the ultimate despair even though that is not the case. He will cause himself to be constantly depressed and will exhibit behaviour consistent with depression. He will look for way to avoid his life and that can often turn into an addiction to drugs and alcohol.

His depression will have other damaging results as well. Most white collar defendant have families. In other words there are people for who he is responsible Often times this will include a spouse and children who a dependant on him. How good of a parent will he be if he is in a constant state of depression? As a parent, his responsibility is to care for his children and not to make them suffer along with him. A defendant who is in a constant state of despair will be unable to be a responsible parent. His children will not want to be around him. They will resent him for being such a negative parent and that will take years to repair. The same can be applied to a spouse. Your spouse is undoubtedly apprehensive enough as it is and it is the responsibility of the defendant to make this time less stressful, not more so.

A positive attitude is also needed because this is a long process. A defendant needs to be thinking straight at all times so that he can make proper decisions. He needs his head in the game. Many important decisions are going to be made in the coming months and years and a defendant must be in the proper state of mind in order to make them. Anything short of razor-sharp focus is inexcusable, Furthermore, since this is a long process, it is important to be able to go on with life while being engaged in a legal battle. If prison is in the future, that will be hard enough. There is no reason to make the time leading up to a potential prison terms difficult as well. There is no reason to serve to sentences when the government is only trying for one.

How someone views himself affects how others view him Someone who exudes confidence will undoubtedly be more successful than someone who lacks it. A defendant who walks around with his head down and in a constant state of depression looks guilty. The attitude of his friends will be "if he thinks he is guilty then he must be guilty". On the other hand, someone who walks around in a state of confidence and is constantly smiling will cause others to similarly view him positively. It goes without saying that defendants need their friends during this time but at the same time, no one wants to be around someone who is constantly depressed. Constantly complaining will only result in going through this time alone and nobody wants that.

Attitude really is everything. There will be ups and downs during this very difficult time. The key is to remember that a negative attitude will in no way ever help a case. It will only cause a defendant to squander what may be valuable time with his family and friends. When despair hits, always remember, Kvetchin Gornish Helfin!

Choosing a Lawyer (slightly worse than root canal)

At some point, usually early on, a defendant has to choose a lawyer. The process of choosing a lawyer ranks right up there with route canal and getting a colonoscopy. It is grueling, stressful and mentally taxing. A defendant is there not by choice but by necessity. It is going to cost, at least a moderate sum of money and the outcome is not even assured. It is also, quite possibly the most important decision a defendant has to make.

Before going into what to look for in a lawyer, it is important to realize what a lawyer is not. A lawyer is not a yes-man. Just because a defendant has a view of something that doe not mean the view is correct. If a defendant wants a lawyer who just agrees with everything he says, then he might as well save his money and hire himself. A lawyer is not a life coach who is there to help deal with personal problems. A lawyer is not a friend. A lawyer is not there to predict the outcome of a trial and say one way or another if a defendant will be found guilty or not guilty. A lawyer is none of these things.

What a lawyer is, is an advocate. A lawyer is there simply to put up the best possible defense for a client and look at the facts from all angles. A lawyer is there to lay out the defendant's position and explain to him what the prosecution is alleging. A lawyer is there to provide LEGAL (not personal) counsel. He is a mouthpiece for a defendant when it comes to the press and to the prosecutor. He is there to make sure that a defendant does not do anything to jeopardize his situation. One analogy I was once given is that someone in legal trouble has legal cancer and the lawyers are the doctors. He runs your life and coordinates with other lawyers if the case is complex, as mine was.

So how does one choose a lawyer? There are so many options and it can be very confusing. Does he choose the million dollar lawyer or does he choose the lawyer for a fraction of that. Does he choose the lawyer who goes to trial or the lawyer that always please out. Does he choose the lawyer with the nice office or the ugly office. Veteran or young lawyer. There are so many choices and there really is no right answer.

The first advice I would give is that there has to be a level of trust between a client and his lawyer, If a client dies not trust his lawyer then he will never be able to properly prepare for his defense. There needs to be some sort of rapport between a lawyer and client. Another must is to interview multiple lawyers and talk to people who have used them if possible, It is impossible to make an informed decision without comparing products. The same holds true for doctors and lawyers. A person who is in need of a criminal lawyer is often at his most vulnerable and will be inclined to hire the first layer he meets or the lawyer that someone sends to handle his bond hearing. Big mistake. A defendant needs to take the time-but not too much time-to meet with lawyers and decide which lawyer makes him feel the most confident.

There are of course many types of lawyers. Some cost a large fortune and some cost a small fortune. Some charge hourly and some charge a lump sum for the case. Clearly, not everyone can afford the million dollar lawyer. More importantly, not everyone needs the million dollar lawyer even if he can afford it. Obviously, if a defendant is a major player in a high profile case, and is determined to fight charges at trial, then yes, ny all means, hire the best trial lawyer money can buy. Aside from possibly giving him the best chance at trial, the hiring of the best sends a signal to the prosecution that a defendant is not just going sit back and take a plea. If the prosecution wants him to plea, it send the signal that it better be enticing. Similarly, if someone is a minor player in a low profile case, and knows that he is going to plead out, there really is no reason to hire the most expensive lawyer that money can buy. Often times a second or third tier or even public defender will be able to accomplish the exact same result at a fraction of the cost. Prosecutors will attest that they often offer everybody in a case the same deal whether they hire the top tier or a lower tier. One guy get the deal for $50 thousand and the other guy gets it for $500 thousand.

Of course, a defendant also has to know what he can afford. Is it worth spending an exorbitant amount of money in order to get slightly better deal. For some people the answer is yes and for some it is no. Another misconception is that price equals quality. Nothing could be farther from the truth. True, higher quality lawyers usually do cost more. but there are plenty of outstanding lawyers who are not at the same price point. On the other hand one advantage of hiring the high priced lawyer is that they usually take less cases per year so they are much more accessible than a lawyer who charges less but takes more cases.For some defendants this is important, for some it isn't. Nevertheless, budgetary concerns need to be taken into account. If the worse case is minimal time in prison, for most people it does not make financial sense to spend everything he has (and more) on attorneys fees.

One thing to always keep in mind is that is that just because a lawyer was used for the initial court appearance does not mean that he is the lawyer for the rest of the case. Obviously, they first appearance and immediately afterward is usually when a defendant feels most vulnerable, His head is simply not in the game as he is dealing with so many cross currents. I know of many people who made this mistake and cost them dearly. As I mentioned, trust is critical between a client and his lawyer. At no point should a defendant feel obligated to stay with an attorney with whom he is not comfortable.

Something to consider is trying to use the public defender. There are some very good public defenders at the federal level. The state level, unfortunately is an entirely other matter. Federal public defenders, deal with federal crimes which are much more "sophisticated" crimes than the run of the mill state crime. These are individuals who are trying to get as much experience as possible as before they head into private practice.  This is especially so in the white collar arena. If a defendant is resigned to plea sometimes this can be the best option, provided a defendant qualifies for the use of a public defender. There are plenty of good ones so it really is a viable option that a defendant should explore when there are overriding financial concerns. Unfortunately when dealing with a public defender, he cannot be "fired" absent a conflict.

Choosing a lawyer is never easy. However it is important. It is critical that a defendant understands his predicament in a case when choosing a lawyer. Obviously, when fighting for his life the knee-jerk reaction is to retain the best lawyer money can buy. What a defendant needs to understand is that it does not always make sense to buy the Bentley when a Ford will get him to the same destination at a fraction of the cost.

No One Ever Said It Was Going To Be Fair!

Another fallacy of the of the criminal justice system is that it is "fair". We are told that we are going to get a "fair" trial. The whole process is supposed to be "fair". But what is "fair"? One would assume that it means we are dealing with a level playing field. That the prosecutors, as officers of the court will take an unbiased view of the case and would never prosecute if they think a potential defendant is innocent. We believe the process, from the beginning of the investigation through trial is "fair". Well guess what? It isn't, and the sooner a defendant accepts that reality, the sooner he can effectively plan a defense.

The real question should ask ourselves is why do we think the system should be fair and what would a fair system look like. As we all know, there are effectively five parties in any trial; the defendant, his lawyer, the prosecutor, the jury, and the judge. Each of these individuals has a role. One would hope that as officers of the court that the prosecutors would vet their case and only prosecute those they knew with 100% certainty were guilty. If a prosecutor did not know with absolute certainty that you are guilty, then one would hope they would not prosecute. However, if we go down that road, what were are really asking the prosecutors to do is fill the roles of the judge and the jury. Asking a prosecutor to do that is akin to asking a defense lawyer to not put together a credible defense for a client he believes is guilty. However, the job of a defense lawyer is to provide for an adequate defense and not to judge his client. Obviously he needs to advise his client as to the likelihood of success at a trial, but at the end of the day he has a job to do and a role to fill. The prosecutor is no different. The prosecutors job is to bring cases not to judge them. Of course this leads to a potential major problem whereby the prosecutors care less about guilt or innocence and more about their ability to win, but that is a discussion for another day.

Now that we have dispelled the notion that prosecutors are not, nor are they obligated to be  open minded, one would hope that the rest of the process be "fair". Sorry, wrong again. From a logical perspective, it is important to realize that a defendant is never fighting from a position of strength. The reason is simple. As I mentioned before, if you lose at trial, you go to prison, if they lose at trial, they go home and move on to the next case. Defendants have more to lose. By definition, you have to be operating from a position of weakness. Imagine sitting at a poker table and you get raised $500 which is exactly the amount you are willing to lose. Your opponent; however sitting with $1 million. If you lose, you are done for the night; if he loses he moves on to the next hand. Clearly, you are playing from a position of extreme weakness. This is not going to be a fair fight.

Using the poker analogy, lets take it a step further. You opponent, the gentlemen with the $1 million in chips will naturally be very aggressive. He will taunt you, bluff you and do whatever he can to win since he is operation from a position of strength as even if he loses the hand, he just moves on to the next hand. You are going to be relatively cautious as you play your hand and will be forced to withstand all of the mind games that he throws at you. The same is true for the prosecutor. They will bluff you, harass you, scare you and berate you because they are holding all the chips. From the get go you are sitting there with a tremendous disadvantage and that is just from a risk/reward standpoint. From there it only gets worse.

Now lets talk about money. Even if a defendant has millions to spend on a defense, it pales in comparison to what the government has to spend, Remember, defense lawyers, at least the good ones get a massive fee that covers only a certain amount or they get paid a handsome hourly rate. Either way, the longer the case goes on, the more it costs a defendant. The government on the other hand is at the exact opposite end of the spectrum. Prosecutors get paid the same amount whether they go to trial or not; whether then win or lose. They are also getting paid a lot less then most defense lawyers. One would think that this would incentivize them to cut deals so that they can do less work. However, quite the opposite can be true, Many prosecutors are using their position as a stepping stone to one day cross over and become defense lawyers. In-fact, many defense lawyers do come from the opposite side. Often times, a federal prosecutor is motivated to succeed because he has an eye on higher political office. Remember that Rudy Giuliani was a federal prosecutor in New York before he became the mayor of New York City. His record established him as being one who was tough on crime. Some prosecutors believe in"the cause". They believe that their job is to enforce the law. Of course there are some prosecutors that are just spiteful people who will stop at nothing to win.

No matter what their reason for working as a federal prosecutor, they are not going to role over easy. The main reason is that they have an unlimited amount of resources. They can throw as many lawyers as they need on a case. They can keep it going as long as they need to to wait out a defendant, provided of course that charges were filed within the statute of limitations. They can hire all the investigators that they need. In essence, not matter how wealthy a defendant is, a prosecutor can outspend him.  To say that the prosecution has an unfair financial advantage is an understatement. Even if a defendant is found not guilty, the government does not reimburse for legal fees that were needlessly incurred.

The next unfair advantage is the toolbox that is at the prosecutor's disposal. As mentioned in a previous entry, the guidelines are extremely harsh on white collar crimes. A conviction on one count of Wire Fraud can potentially result in a 20 year sentence. Prosecutors will use the leverage to try to force the hand of a defendant. I remember sitting in a meeting with the prosecutors where they told me "If you go to trial an lose you will never live with your children again". Can you imagine? Is it fair to play with someone's emotions like that to try to cajole them to take a plea? Of course it isn't! But they have the tools and they can hardly be blamed for using all of the tools at their disposal. A defendant has no leverage here. The prosecution is not obligated to charge a defendant on the charges that they would allow him to plea to. Logically, of course, as officers of the law, they should be quite content prosecute a defendant on the lesser charges that they are willing to let him plead guilty to. But that is not the case.

As I have pointed out, they prosecutors have insurmountable advantages when deciding to prosecute an individual. Even an innocent citizen would be rightfully frightened at the prospect of going up against a behemoth that the the US government. The tactics they employ are certainly withing their rights and certainly not fair. A defendant has to know that no matter how much he kicks and screams that he is being treated unfairly, that it will make no difference because the system, as it is set up in inherently not fair. But, none one ever said it was!

NOTE: I am not a lawyer and none of this should be construed as legal advice. All legal questions should be addressed with your lawyer. These are merely my opinions based on my experiences.

Innocent Until Proven Guilty or Guilty Until Proven Innocent

As Americans we are all taught that a fundamental tenant of our criminal justice system is that we are all innocent until proven guilty. Where exactly did this come from? When I told my children, the oldest of whom was 12 at the time, that I was going to be indicted they told me that I have nothing to worry about because I was innocent until proven guilty and that "they" would have to prove, at a trial what they claim I did wrong. Until the writing of this actual entry, I took for granted that this was written somewhere in the constitution. Keep in mind that I did not go to law school!

I was fascinated to find out that this is not a constitutional right. To be sure the Constitution does provide for the right to remain silent, the right to not incriminate oneself and the right to a trial by jury. From my small amount of research, I have been able to surmise that this is an ancient concept and that the Supreme  Court did rule in 1894 (Coffin Vs US). Without getting into the details of the case, as this is not a law blog, the decision states:

"The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law. … Concluding, then, that the presumption of innocence is evidence in favor of the accused, introduced by the law in his behalf, let us consider what is 'reasonable doubt.' It is, of necessity, the condition of mind produced by the proof resulting from the evidence in the cause. It is the result of the proof, not the proof itself, whereas the presumption of innocence is one of the instruments of proof, going to bring about the proof from which reasonable doubt arises; thus one is a cause, the other an effect. To say that the one is the equivalent of the other is therefore to say that legal evidence can be excluded from the jury, and that such exclusion may be cured by instructing them correctly in regard to the method by which they are required to reach their conclusion upon the proof actually before them; in other words, that the exclusion of an important element of proof can be justified by correctly instructing as to the proof admitted. The evolution of the principle of the presumption of innocence, and its resultant, the doctrine of reasonable doubt, make more apparent the correctness of these views, and indicate the necessity of enforcing the one in order that the other may continue to exist." -Wikipedia

This in theory, is supposed to protect a defendant. A prosecutor is supposed to have to "prove" you guilt. If a defendant is innocent, he should have nothing to fear! Truth be told my children's' questions were not wrong. If the system is so fair, and so just, then the truth should prevail. If a defendant is innocent, he should never even get to trial. And yet, as anyone who has been to prison will tell you "You can't fight the feds, when they want you, they got you". 

In my opinion, one of the major flaws of our criminal justice system lies in the jury system itself. Defense lawyers will tell you that this is an amazing benefit to a defendant, and I do not disagree. The issue with juries is two fold. Firstly, we, as Americans are conditioned to trust the authorities. We are trained that the government is here to protect us. Sure, we have the right to challenge injustices, but we are taught to believe that the government is right, that the government is, at the end of the day good; and compared to many other countries it most certainly is. Even challenges to the government are generally limited to local issues and government employees such as police officers and local politicians. Prosecutors and the DOJ seem to be be surrounded by an aura of infallibility who are here to protect us and can do no wrong. Therefore, to a juror, when in doubt, in condition trust the prosecutor. And they know it. The problem is that prosecutors are sometimes wrong. 

The second inherent problem of our jury system reminds of an old axiom that states "Would you want a jury deciding you fate when they were not smart enough to get out of jury duty?" I am sure that there are some jurors who feel they are serving their "civic duty" but sadly, for most jurors this is not the case. Unfortunately, in white collar cases, this can create an extreme bias against defendants. White collar cases are extremely complex. The laws themselves are complex and are all open to interpretation. Often times, the lawyers themselves have to educate themselves on these laws and the interpretations for weeks or months before trial. Add to that, the world of finance is extremely complex. How is a jury, made up of individuals most likely not from the financial industry able to understand the alleged crime and interpretations of complex laws much less be able to decide innocence or guilt! Defense lawyers and prosecutors will spend months or even years trying to understand the complexities of these laws and yet we expect a jury of laymen to be able to learn these laws, understand these laws, and be able to judge a defendant all during the course of a 2 week trial. How is a juror who may not have a brokerage account, who has never even traded a share of stock be able to judge a defendant accused of insider trading! How is a juror who is not employed in a field remotely connected to the financial industry able to decide what is considered wire fraud. How is someone who has never even billed an insurance company  able to determine what constitutes insurance fraud or medicare fraud. I have been in the finance industry for 17 years and would not feel comfortable as a juror in such a case. (Luckily as a convicted felon, this will never be a problem). To illustrate this point, I know of someone who went to trial for mortgage fraud and during the deliberations, the jury sent out a question asking for the definition of a mortgage! And this was the jury tasked with coming up with a verdict that would alter his life.

The sad reality is that once a juror is not able to truly understand the nature of the laws and the crimes at the center of a white collar criminal trial he will fall back on his inborn trust of the prosecutors. Prosecutors, in my opinion know this as well. Yes, it would make more sense to have industry insiders fill the role of jurors; people who actually understand the laws, charges and can make an informed decision as to the level of innocence or guilt. It would probably make sense to have Wall Street veterans serve on the jury for an insider trading case. Unfortunately, it is virtually impossible to arrange for that type of a jury. Defense attorneys are then faced with the impossible task of trying to simplify extremely complex issues, a nearly impossible task. Is it any wonder that so many of these verdicts when compared to non white collar convictions are appealed? Of course, unless your judge allows you to stay out of prison pending appeal, you may end up spending more time in prison waiting for the results on your appeal than you would have had you taken a plea deal. Is it worth it?

It is wishful thinking to think a white collar defendant, can get a truly fair trial. The mechanism simply doesn't exist and I highly doubt that when the framers of guaranteed us the right of trial by jury that they were envisioning white collar crimes. A defendant faced on white collar charges needs to keep this in mind when deciding how to proceed with his case. He may have to face the reality that he is in-fact, guilty until proven innocent.

NOTE: I am not a lawyer and none of this should be construed as legal advice. All legal questions should be addressed with your lawyer. These are merely my opinions based on my experiences.

How To Lessen Time Spent In Prison - Residential Drug Abuse Program (RDAP). If You Ever Will Consider A Plea, Read This First!

One of the most important questions a defendant who is contemplating a plea must ask is "How much time am I willing to spend in prison?" For some people the answer is five years, for some it's 10 years, for some it is one year and for some it is no time at all. Like most defendants who viewed himself as innocent, my initial position was "not five years, not five months, not five minutes!". However, as time goes by and the realities of the risks associated with a trial become a reality, positions change. This is where the real challenge comes in. The goal is to figure out what the maximum sentence a defendant will allow himself to get in order to reach his maximum tolerance of time inside the prison gates.

Let me just make one point right before I start. Unlike the state prison systems, there is no concept of parole in the federal system Parole is the method by which inmates of State prisons are let out early if they have been "rehabilitated". Unfortunately, parole in the federal system was eliminated in 1987.

The first item that gets taken into account the the amount of "good time" associated with a sentence. There is supposed to be a good time credit of 54 days per year that kick in at a year and a day. In reality, because of some complicated math used by the Bureau of Prisons, this actually comes out to 47 days or so. Another quirk in the system is that since good time is only given for sentences of over one year, someone sentenced to one year will not get any good time credit. However, a sentence of a year and a day, will get the good time credit. What is even more insane is that because someone with a shorter sentence most likely will not need any time in a halfway house, it is quite common for someone with an 18 month sentence to spend less time in the actual prison than someone who has only 11 months. The reason is simple. If someone has 18 months, he will get say 70 days or 2 months and 10 days off his sentence. this reduces it to 15 months and 20 days. From there, he will get 1.8 months off home confinement as home confinement is usually 10% of a sentence. This will reduce his time inside to prison itself to about 13 months. From there he could very well get additional time in a halfway house. If he gets only 2 months of halfway house time, he will spend the same 11 months in the actual prison. I will go more into the halfway house in a later blog.

The next and most popular way to get time off a sentence is by completing the Residential Drug Abuse Program (RDAP). Unfortunately, it is also the most complicated and will make a prison sentence a little more restrictive. RDAP is a 500 hour course that takes about nine and a half months to complete. It is a voluntary program designed to tackle substance abuse issues. Those inmates in the program live in a separate dorm and have class every day. After being released from the prison, the inmate must go through four months of TDAP which is designed to make sure the inmate does not fall back on his addiction. It also basically guarantees at least four months of halfway house time followed by home confinement.  In return for going through this process, up to a year will be taken off a sentence. The Good Time Credit, oddly enough, is still based on the sentence before the reduction. The theory, I assume is that if the inmate does not attend TDAP, his year off will be revoked and he will then have to go back to prison.

As I mentioned, the rules of RDAP are relatively complex. One very important rule is that a candidate for RDAP must exhibit patterns of abuse during the year prior to indictment. If you conquered drug addiction five years ago, you are not eligible.What is even more interesting is that if you became an addict post indictment as a result of the stress associated with your case, you a similarly not eligible, I cannot stress this point enough: IF YOU THINK YOU ARE GOING TO BE INDICTED, YOU ARE TO CONSIDER YOURSELF AN ADDICT! It does not matter if you are an alcoholic or are addicted to any sort of drug or pills. From here on out you are an addict. To be sure, I am not advising dishonest; quite the contrary, I am advising you to be honest with yourself and face your addiction. When you get arrested or you surrender, before your bond hearing, you will be interviewed by an officer of the court. He or she will ask you if you are dependent on drugs or alcohol. Yes, you are.

So how does the time off work. Like everything else in the BOP, this is not simple. A sentence can be reduced by up to a year. However, a certain minimum sentence needs to be given to get a year off. As of now, in order to get a year off, a defendant must receive a sentence of 37 month or more. In order to get up to nine months, the sentence must be at least 31 months. From 30 months on down a sentence can be reduce by a maximum of six months. Now this is where it gets complicated, because once again, we have a situation where a higher sentence can result in less time in prison. Lets take two individuals; one has a 30 month sentence and one has a 37 month sentence. For the purpose of this example I am going to assume they both are admitted to RDAP before they get to prison and start the day they get there.

The individual with the 30 month sentence will get good time credit of around 117 days or around 4 months. He will then get an additional 6 months off for the RDAP credit. From there he should get at least 4 months of halfway house time to complete TDAP. And from there he will get 3 months of home confinement. The total time off therefore is 17 months out of his 30 month sentence, which means he should serve a maximum of 13 months in the actual prison.

The individual with 37 months will receive 145 days off for good time or around 5 months. He will then get a full 12 months off for RDAP. He will likely get 3.7 months of home confinement and should get at least four months in the actual halfway house. His total time off is therefore 24.7 months resulting in actual time served of 12.3 months, slightly less than the inmate who received a 30 month sentence. If we are to apply the calculations to a 60 month sentence, it should come out as follows. 60 months is actually about 51 months after the Good Time Credit. From there, RDAP will reduce the sentence to 39 months as 12 months will be deducted. Since the sentence was originally 60 months, he would be eligible for up to 6 months of home confinement, taking him down to 33 months. From there if he can manage 5 months of halfway house time, he will be at 28 months. Essentially, a five year sentence can amount to a total of less than half of that in the actual prison.

Going back to the defendant deciding how much time he can tolerate in prison, he just needs to use these calculation. If he is willing to spend up to a year in prison to avoid a trial, he should be able to accomplish this with a sentence of between 30 and 37 month. I personally know people who have spent less than a year in prison with sentences in this range. For a defendant this tool is critical. Viewing this from the standpoint of a prosecutor, it is very easy to understand how from a public relations standpoint a sentence of 37 makes for a much better headline than 11 month does.

The final two issues are relatively minor but need to be considered when contemplating the length of time that one is willing to serve. The first of these two is the issue that RDAP is not given in every prison and certainly not in all of the camps. There are only 90 RDAP programs at 77 different locations. Of those 90 around only 20 are at prison camps. There are only 2 Spanish RDAP programs and only 10 for women. The list can be found at https://www.bop.gov/inmates/custody_and_care/docs/RDAP_locations.pdf
When contemplating a plea and putting RDAP into calculations, it is important to consider that it may be necessary to be incarcerated at a facility that is not close to home, making it more difficult for friends and family to visit. This is especially important considering there is not a single RDAP program in a camp in the New York and New Jersey area. On the other hand, the Miami camp where I spent my time, does have RDAP and plenty of people are more than willing to forego the benefits of serving time near home in exchange for reduced time  and a favorable climate. Since most people are designated to serve near their homes, it is all the more important to establish an addiction early on in the process if the closest facility does not have an RDAP program.

The next issue involves a little bit of planning. Considering that RDAP lasts 9 months and there are only 3 classes going at the right time it is critical to try to arrange a surrender near the start of a class especially when dealing with a sentence of 37 months or less. The reasoning is simple. It is possible to get total halfway house time, inclusive of home confinement of 9 months. After the RDAP reduction, the total sentence before halfway house time is 20 months after deducting good time of 5 months and RDAP reduction of 12 months. If someone is able to start RDAP the day he gets it or even withing a month of surrendering, he can essentially complete RDAP and then be released to the halfway house almost immediately after if he gets 9-10 months total halfway house and home confinement. If, on the other hand, he surrenders in right after a class has begun, he can potentially sit around for 3-5 months waiting for RDAP to start. In that scenario, this same 37 month sentence will go from 10 months to 15 months. Timing is critical when trying to maximize the RDAP benefit.

Plea deals are complicated and unfortunately there are competing interests at play; none of which really involve applying the "appropriate" punishment. Clearly, the prosecutor, is looking for the best headline, especially if the case is relatively high profile. The defendant, and his lawyer, wants to get the best possible deal so as to avoid a trial. During these times it almost a team effort between defense lawyers and prosecutors to come up with that magic number that satisfies everybody's interests. Once the sentence is handed down, the prosecutors really do not care how much time is actually served. They got their headline, and the defendant hopefully, managed to stay at or below his level of tolerance. Next time you hear that someone was sentenced to five years, done be surprised if you see him walking around in less than half that!

Oh No! My Friend Is In Trouble!

Last week, I wrote about how one should handle the exposure he gets embroiled in a criminal probe. This week I will focus on how you should act if you know someone who has been indicted or has been publicly linked to an investigation.

So it seems one of your friends has gotten into a little bit of trouble. You want to be there for him, but you do not know what to say. You do not want to ask too many questions, but you want to show you are concerned. What do you do?

First, I am going to focus on what NOT to say because it is usually better to say nothing than say something that is completely inappropriate. You would be surprised at the dumb things people have said to me over the years. I am sure they meant well and just did not know better. Just as there is a way to speak to someone who is in mourning or one who is ill, there is a way to speak to someone who has recently become part of the the criminal justice system.

The first thing you should never say is "Wow, I don't know how you are handling it, it really is amazing, I could never handle it like you are." You probably think that you are paying your friend a compliment and telling him how much you admire his resilience. Your intent is probably sincere. However, what you are really saying is "Your life sucks buddy, I could never handle such a thing. It really is terrible, and I am glad it isn't me." Think about it, your friend probably struggling with the stress every day and is trying to manage a very complex situation and here you come and tell him that his situation is terrible. How do you think he is going to feel after you say that? Would you walk up to a cancer patient and say, "If I had your cancer, I wouldn't be able to handle it, Cancer is terrible, I am glad you have it and not me". I do not mean to minimize cancer; quite the contrary, you cannot put a price on health. I am just making the comparison to illustrate that just as there are certain things you do not say to a friend who is ill, you should similarly not say those same types of things to your friend who is dealing with this type of situation. This is his cancer. He does not need you reminding him of how bad it is.

The next thing you should never say is "I feel so bad for you". Just like the above situation, your friend does not need to be reminded of his predicament. He does not want your pity. Does he want your support? Yes. Does he want your pity? Absolutely not! Empathy is an admirable trait. I am sure you mean to be supportive making someone feel like a sad homeless puppy is not the way to do it.

The next thing you definitely should not say is "We were all talking, and we really would like you to know that we feel bad that you have to go through this. So basically, what you just told your friend is that he has become a topic for gossip. You are telling him that at some event, that mind you he was not invited to, you all decided to discuss his situation and by the way, thank you for pointing out how dire it is that he needs your sympathy. Again, this is something that on the surface seems like a caring comment but from receiving end, it is really doing more harm than good.

NEVER EVER say, things like "So is it true?" or "It's too bad you got caught." or "I am sure you didn't mean do commit a crime but then you got to the point where there was not turning back." or "hopefully you hid the money". It seems obvious, but you would be surprised at how many times I have heard these very comments or comments similar to these. Your friend may very well believe that he is innocent and the last thing he wants is his friend assuming he is guilty. Of course, if he is guilty and did not make financial preparations, you are not exactly helping by pointing out that he is going to be having serious financial troubles on top of his legal issues. And if he did hide the money, do you think he is telling you?

Some people ask questions that focus on bad outcomes. The will ask things like "Do you think you wife is going to leave you?" or "How will your kids handle it when you go away?" Clearly questions like these are not helpful. Sure, internally your friend is dealing with some if these issues, but he does not need you reminding him that in addition to his freedom being in jeopardy, his family may come apart as well. Unless he brings these concerns up to you, Lastly, never say "Don't worry, everything is going to be fine", You do not know that everything will be fine so don't make predictions that you do not know will come true.

Often times, friends feel the need to give advice-whether asked for or not! Aside from the arrogance involved in giving unsolicited advice, it usually proves to be completely useless and flat out wrong. This can apply more often to clergy members, but it applies to friends as well. Telling someone that you think it is a good idea that he moves to another neighborhood is an example of something that should never be said. What you are telling him is that his reputation is so destroyed where he is that he should just leave town. Also, as I mentioned last week, the most important thing for you friend is to keep things as normal as possible so that he gives off an aura of confidence. Leaving town hardly makes someone look innocent.

Now that I have mentioned what not to say, the question is what you should say. The first thing you need to figure out is how good of a friend you are. Friendships are complicated under the most optimal of circumstances. Even then friends do not always view their friendship in the same light. Just because you think the two of you are good friends does not mean you friend feels the same way. Do not try to fill the role of a close friend when in reality you are nothing of the sort. The last thing anyone wants is someone who he doesn't feel so close to acting as though you are.

Once you figure out what kind of friend you are, the question is what to say. As a general rule is that it pays to offering words of encouragement. Sometimes simply saying, that if they need anything or someone to talk to that they can call you that is enough. Saying something to the effect of "I am sure you have a lot on your mind and if you want to talk about it, I am here" will let him know that you sympathize with the situation but it doesn't convey the same level of pity and graveness as pointing out how dire a situation may seem to be. It is OK to say things like, no matter what I am there for you". Simply pretending that things are normal is sometimes support enough. Believe me, your friend who is in trouble knows you know about it. When he is ready, he will talk to you. Sometimes the best support you can give is by simply asking how he is doing and then keep the relationship going as though everything is normal.

As far as giving advice goes it pays to err on the side of humility. In other words, do not give advice unless your opinion is asked. If you do not know enough to give advice, then say that you really can’t give advice because you do not know enough. If your friend is accused of insider trading and you work in a completely different industry there really is not for all practical purposes what advice you can give him from an industry knowledge perspective. Unless you have gone through a similar experience, there is no way you can possibly know what he is going through so do not pretend to.

Someone going through the grueling process that is the criminal justice system, no matter how big or small the case is undergoing an enormous amount of stress. In many ways he feels as though he is fighting for his life. He is spending lots of time dealing with his lawyers and thinking about how this will play out. Friends want to be supportive, but sometimes less is more.

Handling Your New Found Fame

When I was doing my time, someone commented to me that the only people worth knowing inside a camp are those that show up on the first page of Google. Unfortunately, what can give you "prominence" inside can have the opposite affect when the news hits.

Most targets of federal investigations will find that the press will decide to become judge, jury and executioner before any actual indictment has been filed. Individuals, who either lived a life of relative obscurity or who were only known only to industry insiders may suddenly be vaulted into unwanted fame. You do not have to go any further than the last month to find individuals who are suddenly famous. Even someone as notorious as Bernie Madoff was only known to industry insiders until 2008, at which point he became a household name. Just think about Bernie Ebbers, Jeff Skilling, Ken Lay and Dennis Kozlowski. To be sure, these were well known individuals in the corporate world but virtually unknown outside of corporate America. On a smaller scale, this will happen to almost anyone who is involved in a high-profile case or even in a not so high-profile case. Your name will. in all likelihood, be in the local newspaper and quite possibly in a national publication. Your neighbors will know you got indicted. The challenge is how will you deal with your new-found fame.

As one whose named appeared early on, I dealt with many of these challenges. The first piece of advice I will give you is use your lawyers. There will be an urge to "set the record straight", to try and let the reporters know that they have it wrong. You are going to want to plead your case so that the news source writes a favorable article. Big mistake. Exonerating you does not sell newspapers. At the very least, they will twist your words and use the lines that serves their purpose and at worst, you will say something that the prosecutor will be able to use against you at a later date. My advice is if you do pick up the phone so simply hang up or say no comment. Any half decent reporter will be able to find out who your lawyer is, or you can simply instruct the reporter to contact your attorney. If you do not have an attorney yet, then simply hang up or say no comment. No good can come from speaking to the press. As noble and innocent as your intentions may be, your words will likely be misconstrued and twisted to shed you in the most unfavorable light.

Once your name is in the press, you have to figure out how to deal with it. Some people decide that the best approach is to simply become a hermit. This is a bad idea. The best way to try to show people that you are innocent is to go about your life as normally as possible. Hold your head high. How you project yourself will influence how others see you. If you disappear from public eye, you will simply look guilty to those around you. If you go out to eat regularly, continue to do so. If anything, increase the amount of time that you are in the public eye so that you exude an air of confidence. Aside from the impression left on others, barricading yourself at home will cause you to feel depressed, impairing your ability to focus. If you are about to embark on a lengthy legal battle you are going to have to focus and think clearly.

Do not be surprised if there is some social backlash from your newly found fame. You will find out who your real friends are. Your real friends will stand by you no matter what is printed in the daily paper. Anyone who decides to shun you because of what they read in the paper was never really your friend; they just pretended to be because you had something to offer them. The one positive of negative press coverage is that you can find out who your real friends are. At the same time your friends may ask you about your case. You need to handle this delicately for a few reasons. Firstly, your friends may tell others what you say and that may not be conveyed accurately in spite of the fact that it will be attributed to you. Furthermore, anything you tell a friend is not protected by any legal mechanism and if this friend ceases to be one then there is nothing preventing him from reporting what you said to the prosecutors. Often times cases do not hinge on facts; they hinge on interpretations of law. Just because you don't think what you did broke the law doesn't mean the prosecutor will see it the same way. A good friend will respect your reluctance to speak about the controversy surrounding you.

As far as your professional life is concerned, things may not be so simple. Many clients and business associates will cease to be associated with you because of your new-found fame. You have to appreciate their predicament of course. Some of your best friends may be there for you socially but may need to dissociate themselves from you professionally, do not take this personally. When you are faced with it, you may simply ask if there is anything you can do to allay their concerns and then be gracious. If you are not guilty of any crime they will come back and if you have to go away for a bit then they would have had to stop doing business with you anyway, Is it fair? No. It is important to understand the perspective of your business associate. The last thing anyone wants is to needlessly get embroiled in a legal battle,

How you handle the press will affect your family as well. Depending on their ages, they may see the stories online or in the paper. The best approach is to firstly, tell your kids that just because something is written online or the newspaper does not mean it is true. At the same time, you you handle yourself will affect how your family handles themselves. If you exude confidence, they will gain strength from your resilience.  If you get depressed, so will they. Always remember that you have a responsibility to make sure that your family does not needlessly suffer.

Sometimes the best approach is to simply not read the paper or any articles on your case. This is really hard but is likely the healthiest approach. The less you focus on the news, the more mentally healthy you will be. If you are constantly checking Google to find out the latest articles written about you, you will end up driving yourself, and everyone around you, completely crazy. Yes, it is important to know what is going on in your case but unfortunately, most articles these days are simply rumor and innuendo. Believe me, the amount of time you spend reading about yourself online will in no way affect the outcome of your case.

If I may offer a word of comfort, unless you are a truly notorious personality, this will be relatively short lived. Thankfully, the news changes daily and there is always a new, better story. You really are not that important in the overall scheme of things and pretty soon, most of the stories about you will not even be newsworthy enough to print. People also have short memories. Eventually, when this is all over, people will actually have to google you to found out who you are.

*As always, this blog is not meant to dispense legal advice. Any legal questions should be directed toy your attorney.