Part 4. BETWEEN INDICTMENT AND TRIAL
A. Whether And When To Plead Guilty
There can be certain advantages to pleading guilty before, rather than after, indictment. In many federal districts you will never get as good of a plea offer from the government as the offer you get pre-indictment. Also, by pleading guilty at the earliest possible time, that is, at the pre-indictment stage, you may increase your chances of obtaining a 5K1.1 downward departure recommendation from the government under the Guidelines.
On the other hand, if you have the resources to mount a defense, you will often find the most weaknesses in the government’s case after indictment. This is because you will learn more about the government’s case once you start filing motions and obtaining discovery. The government is under no obligation to provide you with discovery materials until after you have been indicted. More importantly, the government is under no obligation to provide you with exculpatory information under the Brady doctrine until the post-indictment phase. The weaker the government’s case is, the more likely you are to prevail at trial or to force the government to offer a better deal. In addition, with respect to the issue of downward departures, now that the Guidelines are advisory, the trial judge has the ability to hand down a sentence significantly lower than the recommended Guidelines range. In effect, the judge can give you his or her own downward departure even without a government recommendation. So, if you decide to wait until after indictment and the obtaining of discovery to enter a plea agreement you can still cooperate with the government and have a shot at a downward departure from either the prosecution or the judge.
B. The Risk Of Going To Trial
Even in our era of advisory Guidelines, there is a tremendous risk for the federal white-collar defendant in going to trial. As noted earlier, most federal judges can be expected to follow the recommended Guidelines range most of the time. Federal prosecutors, through the selective handing out of 5K1.1 downward departures and the manipulation of Guidelines “amount of loss” figures, can dramatically reduce the potential sentence of a cooperating witness. A white-collar crime defendant who opts for trial and loses can easily wind up with a real-time sentence of 10 to 20 years more than that of a cooperating defendant in the same case.