Many federal criminal cases are resolved through plea bargaining rather than at trial. See Lafler v. Cooper, ___ U.S. ___, ___, 132 S. Ct. 1376, 1388 (U.S. 2012). A plea is when the defendant admits to the crime, and agrees that they may be sentenced by the presiding judge. Plea bargaining is an important part of the criminal justice system because it allows the case to be settled outside of the courtroom prior to trial and helps to keep the criminal justice system from getting bogged down.
The plus side of the plea agreement for the Government is appropriate punishment with less time and resources, while the plus side for defense is the ability to know what you’re getting and the opportunity for a more lenient sentence.
The Government is authorized to offer the defendant a deal where in exchange for the defendant’s plea, the prosecutor will recommend a specific sentence or sentence range to which the defendant agrees. See Fed. R. Crim. P. 11.
In criminal tax cases, the AUSA handling the case is permitted to enter into a plea agreement with the defendant even prior to the indictment, and pursuant to the Tax Division’s Major Count Policy, they do not have to get tax division approval before entering a plea to the major counts on a tax case indictment. See USAM 6-4.310. The major counts are determined by the Tax Division on a case by case basis, but are generally the most serious charges with the most severe possible punishments. See id.
If the major count is a felony tax crime, the AUSA is not permitted to plea the defendant out to a lesser included charge (a secondary offense underlying a more serious offense) or misdemeanor offense. See id.
For example, if the charge is felony tax evasion, the Government can’t accept a plea to the misdemeanor offense of failure to pay a tax. However, the Government is permitted to dismiss lesser counts of the indictment in exchange for the defendant’s plea to one or more of the major counts. See id.
Plea discussions occur between the prosecutor and the defendant’s counsel. The judge should not have a hand in any plea discussions, but will ultimately be the person who accepts the plea. See Fed. R. Crim. P. 11(c)(1).
While the Government can recommend the sentence negotiated in the plea, if the judge feels as if the plea is not in the “best interest of justice” he or she may reject the plea agreed on between the Government and the defendant. See H.R. Rep. No. 94-247, 94th Cong., 1st Sess., 6 (1975). See also United States v. Reasor, 418 F.3d 466 (5th Cir. 2005).
While this is not the norm, it is a possibility that the defendant should be aware of. If the defendant’s plea is accepted, there will be no trial, and the defendant will be punished in accordance with the law.
What Are the Types of Pleas?
The defendant may plead guilty, not guilty, or nolo contedendre (no contest). See Fed. R. Crim. P. 11 (a)(1). The defendant can also enter into a negotiated plea agreement or a plea to the bench. See Fed. R. Crim. P. 11 (c).
Anyone who has watched a crime television show has probably heard of a negotiated plea. This is an agreed plea between the Government and the defendant, which we discussed above in What is a Plea Agreement supra.
If, however, the defendant does not like the offer made by the government, but would still prefer to plead guilty to the offense charged rather than go to trial, the defendant has the option to plead to the bench, sometimes referred to as an open plea.
This generally occurs if the defendant is guilty of the crime charged, but does not believe the Government is being fair and they have a weak case. Open pleas can sometimes be like rolling the dice. Some judges will inform the defendant of the sentence before the defendant enters a plea, but some judges will require that the defendant plead guilty without prior knowledge of the sentence that the judge will impose.
For a defendant to plead guilty, they must admit that they have actually committed the crime for which they are charged. If the defendant does not want to admit guilt, but agrees that the Government has sufficient evidence against him or her, they may be allowed to enter a plea of nolo contendere or no contest. See Fed. R. Crim. P. 11 (a)(3).
This has the same immediate effect of resolving the case without trial and moving to sentencing, but can have different future consequences. For example, a plea of nolo contendre may not be utilized in civil proceedings. Fed. R. Evid. 410(2).
However, the defendant does not have the right to a no contest plea. See Fed. R. Crim. P. 11 (a)(3). Some judges do not accept no contest pleas, or will accept them with certain conditions.
In fact, it is the Government’s policy to strongly object to no contest pleas, and they may not accept them unless it is an extreme circumstance and only after formal written approval by the Assistant Attorney General of the Tax Division. See U.S.A.M. 9-16.010 and 9-27.500
How Is a Plea Accepted?
Once a defendant pleads guilty, the presiding judge will go through a series of questions called a plea colloquy to ensure that the plea is made in the best interests of justice, and to preserve the record for appeals. (We will discuss the appeal process in another article.)
The plea colloquy is different from judge to judge, but they will all have the same basic concepts. The judge will ensure that there are proper facts to support the guilty plea, ensure that the defendant is aware of their rights and the consequences of pleading guilty, and ensure that the defendant is voluntarily pleading guilty and is mentally able to enter a plea. See Fed. R. Crim. P. 11(b)(1).
If the prosecutor has recommended a sentence or sentence range, the judge will also decide if the sentence is fair and in accordance with the sentencing guidelines. If all of these criteria are met the presiding judge will accept the defendant’s plea and either proceed to the sentencing phase. Once the court sentences the defendant the plea can’t be withdrawn unless it is by motion or appeal. See Fed. R. Crim. P. 11(b)(e).
Plea bargaining “is not some adjunct to the criminal justice system; it is the criminal justice system,” a quote Justice Anthony Kennedy made famous during Missouri v. Frye, 2012.
Guilty pleas can often open the door to reducing punishments to a less severe level than if convicted at trial. In addition, plea agreements shield defendants from a public display of potentially negative information, and from things they might not want the public to know, which could surface during a trial.
In most of my criminal tax cases I’ve succeeded in avoiding trial. My client’s best interests are always mine and I know how important it is to make a plea and then get the punishment lessened, sometimes a lot. Working together with the evidence during pre-trial often helps me to stop a trial from proceeding altogether.