Recently, the New York Times reported that the government has been released from the plea agreement with Defendant Paul Manafort. What happened, and why? And could this happen to you?
There are many types of plea agreements. Paul Manafort entered into a written plea agreement in which he was to cooperate with the government and provide information that he knew. While we are not privy to the details, it is clear that he did not live up to his end of the bargain.
Now Paul Manafort will be sentenced without several benefits:
(1) Prosecutorial recommendation of a downward deviation from the guidelines.
The guidelines are not mandatory but rather a recommended range that the judge follow when he/she sentences a defendant in a criminal trial. In every sentencing recommendation there is a low end (example 5 years), a mid-point (example 10 years), and high end (example 15 years). This means that the judge may choose to sentence a defendant below the low end, or above the high end. In Federal Court if a criminal defendant lives up to his/her end of the bargain the Government, aka the prosecutor, will recommend that a certain percentage of time be subtracted from his sentence, normally resulting in years being subtracted. If a defendant, like Manafort, fails to live up to his end of the bargain the prosecutor will not recommend that the court make such a deviation; and
(2) The benefit of the government not bringing every single charge they could have against him.
In almost every case the prosecutor could bring additional charges against a defendant. The criminal code, both in state and federal court, is set up to allow several charges to be brought for something you would often think of as one crime. Because of this almost every plea agreement includes the prosecutor either dropping charges that were already brought against a criminal defendant, or agreeing not to bring a number of charges they otherwise could; and finally
(3) The benefit of the judge's goodwill.
This one is self-explanatory. If you agree, in writing or verbally, in front of a judge that you will do something you better do it. Failing to do what you told the court you would do is certain to anger any judge. And since the judge will be the one sentencing you, this is not something you want to do.
When Agreements Fall Apart
When a plea agreement falls apart, defendants are subject to the full weight and power of the prosecutor, and it exposes the extreme power that the prosecuting attorneys have over defendants. The prosecutor is not the judge. Yet the allegation that the defendant had not fully cooperated with the Government after entry into a plea agreement could mean decades more in prison.
So why risk it?
Why bother to plead guilty and then not deliver the dirt on the co-conspirators? You would imagine that Mr. Manafort's lawyers hammered him privately on the importance of transparency and cooperation with the Government. When this plea fell apart, defense attorneys everywhere shook their heads in disbelief. It's hard to watch a client have a good plea agreement in the palm of his hands, and then lose it.
For some defendants, they may want the benefit of the plea bargain without the willingness to “accept responsibility” for the offense. There are specific plea agreements, like Alford pleas where you do not have to accept responsibility for the offense. However, this must be agreed to in advance with the prosecutor. If part of the agreement is that you enter a guilty plea that defendant must accept responsibility for the offense he is pleading to. If you don't accept responsibility, you minimize, you omit details, you lie, and these things are tantamount to shooting yourself in the foot.
For some, they simply forgot details that didn't seem important at the time (i.e., who was cc'd on an email, what kind of envelope is used in the office).
For others, they are protecting innocent parties. This includes omitting people present for crimes (no one wants the wife to find out the identity of the paramour in a court filing) or not identifying the source of funds ($10,000 from Grandma's 401(k) went to transporting lower-tax cigarettes across state lines).
Finally, some omit details to protect other guilty parties. In Manafort's case there has been speculation as to whether he did so because he believed that he had a vested interest in protecting a certain party with the power to pardon federal crimes. Whether this is true or not is a matter of opinion and speculation and will be left up to the reader to decide.
Other defendants may have a more run of the mill reason for wanting to protect a guilty party - fear of retaliation against family members, monetary incentives, or a desire to return back into the fold after serving the sentence.
Whatever the impulse, it is never the right call to lie during a proffer after entering into a plea agreement.
The Government is a step ahead, and purposefully lays these traps to get information without being bound by the promise of a lower sentence recommendation. Always be careful when entering into a plea agreement and make sure to discuss any questions you have with your attorney before acting.