Prisoners are persons whom most of us would rather not think about. Banished from everyday sight, they exist in a shadow world that only dimly enters our awareness. They are members of a "total institution" that controls their daily existence in a way that few of us can imagine. "[P]rison is a complex of physical arrangements and of measures, all wholly governmental, all wholly performed by agents of government, which determine the total existence of certain human beings (except perhaps in the realm of the spirit, and inevitably there as well) from sundown to sundown, sleeping, walking, speaking, silent, working, playing, viewing, eating, voiding, reading, alone, with others. . . ." It is thus easy to think of prisoners as members of a separate netherworld, driven by its own demands, ordered by its own customs, ruled by those whose claim to power rests on raw necessity. -- Justice William Brennan, dissenting in O’Lone v. Estate of Shabazz, 482 U.S. 342, 354-55 (1987).

Tuesday, July 17, 2007

Contraband provided to federal inmates at Pensacola FPC

I was doing a search earlier today and found a news story I was surprised I hadn't heard about while I was in prison. This is going to be a really long commentary but I hope you find it entertaining, if not enlightening.

DOJ Press Release:

Four individuals charged with providing contraband to federal inmates at Pensacola Federal Prison Camp

This occurred last October, 6 months before I reported to prison.

As the title of the US Attorney Press Release suggests, four individuals provided contraband to federal inmates. The charges, as always, sound serious:

1. "conspiracy to accept a bribe, bribery and providing contraband" -> "thirty years imprisonment and fines of over $500,000"

2. "conspiracy to accept an unlawful gratuity, accepting an unlawful gratuity, making a false statement to an special agent of the Federal Bureau of Investigation, and providing contraband to an federal inmate" -> "twelve years imprisonment and fines of over $750,000"

3. "providing contraband to a federal inmate" -> "six months imprisonment and fines of up to $250,000"

Allow me to assist in reading between the lines and provide some context.

As I have described previously in my blog, Pensacola FPC is a workcamp. Most inmates work offsite among civilians. Indeed, they are supervised by civilians.

The BOP has a relationship with the Dept of Defense to use inmate labor to provide groundskeeping services for the local military installations. Regal Select Services has the contract to supervise Pensacola PFC inmates for the the Pensacola Naval Air Station which includes several locations (including Saufley field, where I worked). The primary location is NAS near the beach (see map below which shows the distance between Saufley Field and NAS and how large NAS really is). The majority of inmates ride a bus each morning 20-25 minutes to NAS. There are almost 30 separate work details -- some ridiculously easy, others quite demanding. The supervisor-to-inmate ratio is 12:1 (or so I was told by one of my supervisors). You can see pictures of the supervisors at the RSSI website link above, wearing their standard issue tan/khaki t-shirts and shorts.

With rare exception, inmates have no problem with the supervisors. Most RSSI civilian contract supervisors are regular guys -- this is their job and they have no interest in making it any harder than it has to be. Generally speaking there is a certain amount of work that has to be done each day and once it's done, they don't care if you take it easy. There is a fine balance that most of them learn... after all, there is only so much you can get out of a guy who is being paid $0.12/hr who you don't have the authority to fire. If you push too hard, inmates will push back and do less. If you don't push at all, no one will do anything. (If an inmate absolutely refuses to work, you can report it to the prison and they will deal with it.)

I suspect that most supervisors realize that inmates in a prison camp are also regular guys -- there are no violent sociopaths here. It is very easy to imagine that the line between civilian and inmate gets blurred so it seems like an ordinary employment relationship. An inmate, after working for some time with a supervisor, may ask the supervisor for a favor... and sweeten the request with a little incentive. They both know its against the rules, but it seems relatively harmless. I never personally witnessed any of this but I know it happens and can easily imagine it happening. This is not like bribing a guard to smuggle a skiv or chisel into a jail cell, although these people were treated as if that is what they did.

Certain items are prohibited for inmates to possess -- "contraband." Many contraband items are not in and of themselves dangerous or illegal; they are just against BOP regulations. Typical examples in a prison camp would be money, cell phones, cigarettes, computers, and food supplements. While it is merely against BOP rules for inmates to possess contraband, it is a federal offense for someone on the outside to provide an inmate with contraband. These supervisors would have known that, I have no doubt.

The only contraband that I ever actually witnessed that would get someone in trouble was cigarettes, which were prevalent. There are minor contraband items that will merely get seized if discovered. For example, one friend, knowing I liked golf, brought me back a brand new ProV1 golf ball from his work detail with "Perdido Bay Golf Club" stamped on the side. Technically, this is contraband. Had a CO found it in my locker, he probably would have taken it from me. That would have been it. Fortunately, I still have it. (How I got it out is another funny story.)

To add a little more context, the current warden arrived about a year ago. Prior to that, I have heard that the prison was, well, pretty wide open. Cigarettes, cell phones, portable DVD players, computers, alcohol, and drugs. Even unofficial "furloughs" with the wife or girlfriend were common. The warden at the time was basically AWOL (I was told no one ever saw him there) and the staff didn't enforce the rules. That changed with the new warden. He cleaned house and cracked down. (Some may argue that the new warden has gone too far in the other direction -- shipping inmates for relatively minor offenses.) My point is that it seems that a "culture of contraband" existed prior to mid-2006, in which prison staff had a very relaxed attitude about enforcing contraband rules. This probably lulled some of the civilian supervisors into a false sense of safety about providing favors to certain inmates. After all, "everyone does it."

I don't think it is a coincidence that these four individuals were charged several months after the new warden arrived for conduct that occurred prior to that. I am sure he probably initiated an investigation into the source of all of the contraband that he discovered upon arriving. I also suspect that this was just the tip of the iceberg and that these poor individuals were simply made an example of. This kind of activity was probably very common. Again, I don't have any direct knowledge (after all, this was before I was there) but if as much contraband existed back then as I heard about, the most likely source was the off site work details. That doesn't mean that most supervisors assisted in importing contraband but it is hard to believe it was just these four.

OK, enough background. What exactly did these four individuals do? (By the way, it is not my intention to embarrass them. I wish I didn't have to identify them but the information I am providing is public record and I hope that I am actually providing a more sympathetic, not critical, view of their conduct.) You can click on the appropriate link to read each person's indictment and sentence.


England (read indictment)

There are 8 overt acts identified, but it basically appears that he received money and nutritional supplements from an inmate's family member and arranged for them to be transferred to the inmate. It is not at all clear that England even profited from this. Indeed, it specifically lists several transactions ($250, $500) in which England received the same amount he delivered. He also is accused of allowing inmates to leave their work assignment and make unmonitored cell phone calls.

In federal legalese, this "favor" translates into "conspiracy to accept a bribe, bribery and providing contraband to a federal inmate."

England is now a federal felon serving a 13 month sentence (along with $3000 fine, $300 special assessment, and 3 years probation). Ouch! Don't forget to tip the bailiff, thank you very much. England will be released in Jan, 2008.


Patterson (read indictment)

Five overt acts are listed. Actually, they can be combined into two.

1. He received unnamed contraband through the mail from an inmate's friend and delivered it to the inmate for an unspecified amount of money.
2. He received a laptop at his home via express mail for delivery to an inmate in exchange for $100. I assume a friend paid for the laptop and had it shipped to the supervisor.

He also is accused of allowing inmates to leave their work assignment and make unmonitored cell phone calls. Yawn.

In federal legalese, this translates into "conspiracy to accept a bribe and bribery."

Patterson is now a federal felon serving a 15 month sentence (along with $100 fine, $200 special assessment, and 2 years probation). Ouch #2! He will be released May, 2008, although he has an appeal pending (good luck!). Why did Patterson get a longer prison sentence than England for arguably lesser conduct? Just a guess, but 1) he is black (England is white) and 2) he had a public defender (England retained private counsel). They were sentenced by the same judge one month apart (England first) so difference in judges doesn't account for it. I don't want to imply racial motives or impugn public defenders, but it does make you wonder.


Nightengale (read indictment)

There are apparently 5 basic acts:

1. Delivered cash and a cell phone to an inmate from a family member in exchange for an item of jewelry as a gratuity.
2. Used an inmate to translate Spanish-English for another inmate concerning the introduction of contraband for the Spanish speaking inmate. Huh??
3. It appears she was set up by an undercover FBI agent posing as an inmate's relative to transfer a digital player (DVD, I would guess) in exchange for an item of jewelry.
4. Lied to a federal agent about providing contraband to inmates. Oops, I hate when that happens. (This is what sent Martha Stewart to prison. Lying to a federal agent, even if you are not under oath, is a crime. Don't do it. If fact, never talk to a federal agent without consulting your lawyer first.)
5. Allowed unmonitored cell phone usage.

She is now a federal felon sentenced for "conspiracy to accept a gratuity" and "making a false statement" to 4 months prison followed by 4 months home confinement (as well as 2 years probation, $500 fine, $200 special assessment). She must have been at 11 poinst which is 8-14 points with split sentence allowed. She will be released September, 2007.


Mayer (read information)

She provided protein powder and clothing to "E.J.," an inmate in March, 2004. Are you kidding me?

She was convicted of a misdemeanor and received a sentence of 1 year probation, 25 hours community service, $350 fine and $10 special assessment. At least they cut her a little slack.


When I first read this press release and, later, the indictments, I got flashbacks. Not that I was accused of doing the same thing, but I could relate to the way DOJ press releases and indictments have a way of making the conduct sound so much worse than it really is. You just get steamrolled by the system. And the media just prints what the government sends them.

It is hard to overstate how really minor these offenses are in the scheme of things. Yes, what they did was wrong. Yes, they should have been fired. But, unless the contraband they provided was truly dangerous or otherwise illegal (e.g. cocaine), it really is not that big of a deal. Will someone please tell me who was hurt by this? To turn 3 of them into federal felons and send them to prison for 13, 15, and 4 months, respectively is just sick. It is wrong, wrong, wrong. (It also makes me that much more grateful that I somehow got a 3 month sentence. That seems like a miracle now.) Can you imagine being in prison and telling your fellow inmates that you are there for providing them with contraband?!

One of my frustrations with the federal judicial process is its seeming inability to make proper distinctions and use discretion. Where has wisdom gone? Can't we have just a little perspective?

I am sure the judge and prosecutor took the nature of the contraband into consideration at sentencing but the judge is practically constrained by the statutes and the plea deal (yes, I know the guidelines are officially only advisory but they are practically mandatory), which the defendants had no choice but to accept once the prosecutors chose to charge them, otherwise they really would have been punished by the judge. (Roughly speaking, their sentence would have at least been doubled had they gone to trial. In many cases, defendants risk sentences 4-5 times greater if they exercise their right to a jury trial. I will provide an example in a future story.)

What happened to the inmates? It doesn't appear the inmates did anything illegal. That is, they did not face additional criminal charges. Of coure, they violated BOP rules and I am sure were disciplined. Given that this corresponded with the advent of the new warden, I am sure their punishment involved transfers to other prisons (as he did to probably 200 other inmates for various contraband violations... mostly cigarettes).

What about the family members that were the actual source of the contraband? It doesn't appear that anything happened to them either. They may have been banned from future contact or correspondence with the inmate for a period of time but they don't appear to have faced criminal charges.

No doubt this strong action against these supervisors probably had the desired effect on the other supervisors, many of whom were probably just as guilty but didn't get caught. This is what judges call "general deterrance;" that is, one of the purposes of sentencing is to deter others from committing the same crime, especially when the crimes are difficult to catch. You "slam" the few you catch in order to scare the others straight.

Well, that is, as Paul Harvey might say, "the rest of the story." Actually, there is a whole lot more "reading between the lines" and speculation than I normally allow myself (which means a good bit of it might be fiction) but I was hoping I might be able to provide a little more insight into the dynamics of how something like this might happen as well as how unyielding federal law can be when seemingly minor offenses in which no one was really hurt can yield life-altering consequences for the perpetrators.

(click to enlarge)


Anonymous said...

Bill: Would you agree that the best way to sum up a federal camp experience for a white collar person is that you lived in a YMCA and participated in a boys club or summer camp? A fitness club maybe? A run down university dorm?I mean the whole purpose is to punish you and to deter others per say make an example of you. I don't see much constructive rehabilitation for a white collar offender. How many white collar executives or business owners are at FPC Pensacola? I would suspect the vast majority would be drug offenders and other petty criminals.

Second note when I saw the original above press release it could give someone a heart attack, 30 years in prison, 250,000 fine etc...then you see the actual real sentence of 4 months and $ 10 fine, it makes you wonder was it worth the work (AUSA & FBI) or wasting tax dollars. USA is the number 1 country in the world with the highest incarcerated people in the system. Its a business and justification on how to tax the people to keep the money circulating. This blog has really brought to the forefront a major flaw in the system. We can now experience first hand what these family members go through. It is truly a very brutal system, more a slow psychological death since physically they cant conduct inhumane treatment like some 3rd world prisons do...

Bill Bailey said...

Well, the YMCAs in Charlotte are pretty nice. I'm not sure they would want their facilities compared to a prison... even a prison camp. A run-down university dorm would be the closest of the 3 examples you list.

The amenities (e.g. recreational opportunities) are better than you would expect but they are all basically "hand-me-down." The closest thing I can compare it to is buying everything you own from a Salvation Army thrift store... everything is adequate but worn out and second rate.

I would guess that 15-20% of the inmates were white collar, the rest being drug offenders. Some of the white collar guys are probably financially destroyed for life and are going to have a difficult time recovering or getting a job when they get out; others retained most of their assets and earnings capabilities and will be ok (like me).

The prison camp experience is more emotionally suffocating than physically uncomfortable. You are stuck in rather crowded accommodations with 700 very diverse guys away from home. There is always an underlying "edginess" that wears on you. It is not physically demanding. You just can't ever relax like you can when you are home among people who know you for who you are.

As for the difference between the press release sentences and the actual sentences, you make a good point. I was going to comment on it but my post was already running way long, but now you give me a good opportunity.

As an example, I was indicted on 11 counts of computer intrusion. The original DOJ press release announced that I was facing 55 years (5 years per count) and $2.75 million fine ($250K per count)!!! Yikes.

Of course, this story was picked up by other media outlets who repeated the same possible sentence along with their own spin if they had a special interest in the story (seach Google for "william bailey acp" for examples). In reality there was zero chance that I would face anything remotely close to what the government reported.

This is an example of what I call true lies. The facts are accurate as far as they go (i.e. the statutory maximum sentence for each count is 5 years) but they create an impression that is so misleading that it is worse than useless information. The press release was, for all moral purposes, an outright lie, as was the press release about the 4 individuals in this story I have reported on. There was ZERO chance that they were going to get a sentence anywhere close to what the govt announced and the govt knew it. I am not even sure why they do it; it just makes them look silly.

By the time I was indicted the government already had an initial plea offer on the table for 18-24 months, which is a tad bit less than 55 years. We ended up reaching a plea offer several months later for 10-16 months with the possibility that it could go to 15-21 months depending on how a couple sentencing arguments went.

I understand that the media has no simple way of knowing what the likely sentencing range is at the indictment stage and the govt is not going to generally lock themselves in by predicting a sentence so early because the situation is still somewhat fluid, but some general statement to the effect that the likely sentence will be substantially less than the maximum sentence would be a helpful and responsible thing to announce.

Of course, at the end of my process, I ended up with a 3 month prison sentence, far below the original 55 years announced just 8 months earlier.

As for wasting tax dollars, I don't think the govt had to spend much in these cases (I'm sure they spent far more on my case than all four of these combined). The indictments were in October, 2006 and the first guy was sentenced on Jan 31, 2007. That is lightning speed. Almost unbelievable actually.

I suspect they all knew there was an investigation ongoing and were ready to plead as soon as the indictments came down. In fact, the plea deals may have already been done for all I know. In my case, we knew they were going to indict two months in advance and tried to work out a deal beforehand.

These cases were, according to the law and facts, pretty much open and shut. That is why I think this prosecution was done to send a warning to all the other supervisors that importing contraband will no longer be tolerated. I'm sure they got the message. And it didn't cost the govt much to do it.

It's just sad that 3 individuals were tarnished with the label "federal felon" for the rest of their lives as well as spent time in prison for conduct that really was not that serious and indeed was probably quietly tolerated by the prison staff at the time. I doubt that they were "bad" people. They just happend to be the unlucky ones who got singled out. I am not suggesting that contraband was not a problem that needed to be addressed. However, a federal prosecution is a pretty heavy-handed way to do it.

Anonymous said...

I googled your name and wow I was shocked to see the amount of coverage you received in the press, I mean even small websites blasted the press all over the internet. How do you deal with this? and does this not affect your work and reputation your business credibility etc....?

Bill Bailey said...

How do I deal with the publicity?

I don't deal with it.

Four days after my home was raided by the FBI (which I will write about someday), a TV news crew showed up at my door step. I couldn't comment so they parked down the street and interviewed neighbors as they came home from work. It was so "over-the-top" surreal that I couldn't stop laughing. My wife, on the other hand, was horrified. I talked about my case all the time with my golfing buddies; my wife never talked about it with her friends. I guess it is just the way I deal with things like this.

For the same reason that I have no problem blogging about my experiences (well, actually it was a little strange at first but I am used to it now), I didn't seem to be affected by the press coverage. I have really learned not to concern myself with what strangers think about me. My friends and family know me and know my situation.

I understand that for many, something like this could impact their business/employment opportunities. I am self-employed and operate an internet marketing business where I can stay more or less in the background. As far as I know, no customer ever says anything about my case.

If I have to explain, I explain. Generally, most people ask the same thing I did: "They put people in prison for that?" They are more shocked by the government's response than the underlying conduct. Though they agree that what I did was wrong, they are capable of putting it in perspective, just as the judge did when he gave me a 3-month sentence.

I am no longer in the physician list business. I dissolved my company and sold the website (but not the data) before I was sentenced to someone else who is using the website and domain name to sell separately acquired data. (Although I must say that the physician data I sold on the site was all acquired legally; I never integrated the illegally acquired data into the list I was selling. That is, I never profited from the data I was prosecuted for acquiring illegally.)

Anonymous said...

Bill: The original DOJ Press stated a $ 1.7 million FINE. What did you end up paying in terms of a FINE?

Also please explain the circumstances and process when you received the first plea deal, which you obviousely declined to accept, did they indict? and then why did they offer a second deal and finally budge? Was a trial not in their best interest? What I dont understand why make 2 deals? why not lower the first deal and not even bother with an indictment...

Bill Bailey said...

I believe the original press release said 55 years and $2.75 million dollar fine. This is based on 5 years and $250,000 maximum per count. There were 11 counts. Do the math.

My house was raided on July 21, 2005. After a court hearing to get my computers returned in early September, we did not hear from the government again until early April, 2006.

OK, you want the whole plea negotiation story? Here it is.

What follows is a real life account of what real plea negotiations are like and the type of calculations that go into them. At least in my case. (I am currently writing an article on the whole issue of plea negotiations.)

The original plea deal offered (click here to download) was as follows, for those who understand the US Sentencing Guidelines (for those who don't, please bear with me):

6 pts Base Offense
2 pts Special Skill Enhancement
2 pts Sophisticated Means Enhancement
8 pts $70K-$120K Damages
-2 pts Acceptance of Responsibility
-1 pts Assistance to Government

That put me at 15 points. If you look at column 1 in the sentencing table, that translates to 18-24 months. Yikes!

In addition, they wanted a $40K fine and $80K in restitution.

You have to understand how shocking this offer was. I simply could not get my head around the idea that the govt wanted to send me to prison at all, let alone 18-24 months, for making a copy of a doctor list that was comprised of non-copyrightable, purely public facts, especially since I had not caused any damage to their system in doing so.

Of course my lawyers tried to explain to the prosecutor that this case was de minimus and not the kind of conduct the statute was intended to apply to. We also had serious questions about how they came up with $70K in damages. (As it turns out, the physician association spent $52K on a mailing to their members to notify them of the intrusion and the govt wanted to count that as "damages" that I caused. Most of the rest of the dollars was labor hours they spent investigating and fixing their security issues.)

I retained a lawyer in Philadelphia who continued the conversation. She was able to persuade the prosecutor to drop the damages range to $30-$70K which got me back 2 points. (This wasn't much of a concession because the claimed damages were $72K, barely over the $70K threshold.) In addition, he was willing to remove the sophisticated means as part of the plea I agreed to and make it an issue that we argued in front of the judge. However, he also intended to add a new enhancement to raise my criminal history category from I to II (that would put me in the 2nd column of the chart) based on a lawsuit I had settled a couple years earlier (in effect treating a lawsuit settlement in which neither party admitted liability the same as a prior felony conviction!).

So the new offer basically put me at 12 points with a possibility of 2 more points added for sophisticated means and a criminal history adjustment from I to II:

Agreed Points

6 pts Base Offense
2 pts Special Skill
6 pts $30K-$70K in damages
-2 pts Acceptance of Responsibility
-1 pts Assistance to Govt (however, this only applies if the govt wins the sophisticated means argument below)

Disputed Points

- 2 pts Sophisticated Means (however, as I noted above, I will get a 1 point credit for "assistance" making this really only a 1 pt issue)

- Adjustment for Criminal History Category from Column I to II

What does this mean?

It means the best I could do is 12 points, which translates to 10-16 months. If we win 1 of the 2 disputed issues with the judge, it puts me at 12-18 months (either 13 pts column I or 12 pts column II). If we lose both disputed issues, it puts me at 15-21 months (13 pts, column II).

So, 10-16 month split sentence is best case; 15-21 month sentence is worst case.... assuming the judge sentences within the guidelines, which are almost mandatory, but not quite.

We considered their criminal history argument to be a longshot at best; the sophisticated means was 50/50 although sophisticated means had never been applied to a computer trespass case before.

The big advantage of 12 points (Zone C) however in that the judge can make it a split sentence, with half of the time served at home. Anything over 12 points is all active time, no home confinement.

While this was slightly better, I again rejected the deal because I couldn't see how I could do any worse with a straight plea (i.e. simply plead guilty with no plea deal) in front of the judge where all sentencing issues were on the table.

By rejecting the deal I also retained my right to appeal (which you basically give up with a plea agreement) your sentence as well as the right to file a suppression motion (mine was pretty strong... the govt's conduct in my case was pretty embarrassing from a 4th amendment perspective) and a dismissal motion (mine was pretty weak though not frivolous). In particular though, we thought $30K-$70K was a worst case scenario and we stood a good chance at getting the $52K mailing thrown out which put me well below $30K in damages and at the 10 pt range which is 6-12 months in Zone B, which means the judge could make the sentence all home confinement or even probation. This is what we really wanted... the possibility of getting to Zone B and a fighting chance at probation.

For those whose eyes have glazed over let me summarize in simpler terms.

The first plea deal was for 18-24 months.

The second plea deal was for 10-16 months best case, with 12-18 or 15-21 months possible based on the outcome of two "enhancement" issues to be argued before the judge.

After rejecting the second plea deal, I was indicted on June 16, 2006, about two months after we began negotiations.

Unfortunately for me, as it turns out, I ended up ultimately accepting this second plea deal at the end of September and entering my plea on October 13, 2006.

The final plea agreement can be downloaded here. The final deal did not include a fine or restitution amount but I settled with the association at the same time as my plea hearing for $150K and the government agreed to count that as restitution. The possible fine range was $3-$30K I believe.

We had pretty much completed (which means I had pretty much PAID FOR) our suppression and dismissal motions when I had a change of heart. Why?

It is no secret that I collected data from a lot of sources. (We acknowledged this at the sentencing hearing.) However, this is the first time the statute had been applied to the type of conduct I was accused of and we weren't sure how much further the statute could be stretched based on its broad language (what does "unauthorized access" or "exceeding unauthorized access" mean?). That potentially exposed me to more counts and more damages. The govt basically threatened to expand their investigation of my conduct based on information they had, in our opinion, illegally obtained from my computer.

While I think we could have eventually won on these additional investigations, it would have been a long, ugly, and expensive battle and the downside risks for me were too great.

Before this point, I was fighting to basically gain 2 more points (to get to 10) with the additional possibility of even winning my suppression or dismissal motion and getting the whole case thrown out. There appeared to be no downside risk because we could not envision a scenario in which damages could go over $70K. That is, the government's offer appeared to be the worst we could do in front of the judge anyway so why take it and give up the chance of doing better?

However, with the threat of additional investigations (and the time, expense and risk associated with that), there was now a substantial downside. The 2 points we were attempting to gain no longer seemed worth it so I took the deal, as hard as it was to swallow.

At sentencing, as I have described elsewhere, we won both of the disputed enhancement arguments, which left me at 12 points. Furthermore, the judge, stating the need to keep things in "perspective" (I loved that!), chose to sentence me below the guideline and give me a 6 month split sentence instead of the 10 months recommended by the guideline. I was fined $10K.

The irony is that had the government made me a reasonable offer from the outset, I would have taken it and saved a few hundred thousand dollars. For example, had they offered me 12 points and not wasted everyone's time with the sophisticated means enhancement and criminal history category adjustment, I probably would have taken it. It is very unusual for a defendant to end up getting a sentence less than he would have accepted at the beginning. If I had been offered 5/5 (i.e. 5 months prison, 5 months home confinement) at the outset of negotiations, I probably would have taken it. As it turns out, of course it was a lot of time and money later, I ended up with 3/3.

I sometimes wonder if the government would have ever taken the case had they known that this is how it was going to end up. Did it really end up being the best utilization of their resources?

Bill Bailey said...

One more point. Depending on your perspective, the prosecutor was either principled or stubborn. There were many times we thought we had convincingly made the same points to him that we were successfully able to make to the judge at sentencing and that he would lower his plea offer. He did not, despite the fact that this case was taking up more time and resources than he probably wanted.

The only explanation I have is that he genuinely believed the plea he was offering was the right thing to do. He didn't seem to be a prosecutor that played games. He did not end up coming down much from his original offer. He pretty much put on the table what he thought was reasonable and only conceded a one-level adjustment in the damages (while adding an adjustment for criminal history category). He agreed to argue two of the issues at sentencing in order to lock in the damages amount and hoped to win one of them.

He probably thinks I got off a little light but, at the end of the day, I don't think it bothered him that much because he seemed to think I wasn't quite as bad a person as he originally thought.

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