Defendant: What is a “Pimentel letter” and what is the difference between that letter and a regular plea agreement?
David Zapp (DZ): The “Pimentel Letter” (called that after the case that talks about the responsibility of the prosecutor to send a letter to the judge when there is no plea agreement but the defendant is pleading guilty to the indictment) requires the prosecutor to tell the judge what he thinks would be the Guidelines in your case, nothing else. However, that does not bind you and the judges tell defendants that that is only what the prosecutor thinks, not what the defendant agrees upon. On the other hand, if you sign a plea agreement you are saying that you agree with the terms of the agreement. Given that the terms of the Pimentel letter in your case are the same as those in the “Pimentel letter,” you would not gain an additional advantage by entering into a plea agreement. For that reason, we should take the “Pimentel” path.
Defendant: So that means that the Pimentel letter is to plead guilty to the indictment before the Judge.
DZ: Yes.
Defendant: But we would explain to the Judge the things we disagree with?
DZ: That is understood; however, I reiterate it to the judge in your presence so you won’t have any worries. We actually don’t have to explain anything. We don’t have to discuss role or quantity. In order to enter a plea of guilty before the Judge, one only has to acknowledge the legal elements of the crime. If the crime is trafficking in five or more kilos of cocaine and one kilo or more of heroin, the defendant only has to admit that—nothing more—even if the quantity was 5.1 kilos or even 5,000 kilos. You will say “I plead guilty of conspiring with others to trafficking in excess of 5 kilos of cocaine and in excess of 1 kilo of heroin. That is all. The prosecutor, for his part, will also present a letter to the Judge advising him of the Guidelines.
Defendant: Would he also present the evidence against me?
DZ: No. He won’t discuss specific evidence. When discussing role, for instance, he will do it in the context of the Guidelines (e.g. “in our opinion, the defendant was an organizer, so he deserves a 3 point increase.”)
Defendant: I would agree to the Pimentel as long as there isn’t what they call a mini-trial or a Fatico hearing. I would like for the parties just to submit to the Judge documents regarding our view of the case.
DZ: Both the Judge and the prosecutor would love your position. For them, it’s a relief from having to bring witnesses, preparing them beforehand, and having to waste time combing through evidence. And your position is reasonable. A Federal Judge once said in a lecture that the Fatico hearing and mini-trial almost always favor the government.
Defendant: And I think that we would have to accept responsibility for the quantity they claim.
DZ: We won’t have to say it. It’s before sentencing but we have from 6 to 8 weeks after entering the plea to decide the quantity we would acknowledge.
Defendant: But what if I don’t want to accept the points for role?
DZ: The hearing to plead guilty is nothing more than a series of questions regarding the rights you are waiving (your right to trial, for example) and the meaning of a guilty plea (which is the same as if a jury had found you guilty). You will also enter your formal plea of guilty through a brief statement of why you are guilty (“for conspiring with others for trafficking drugs and importing them to New York”). If you have the book ACUERDOS/CONVENIOS (Agreements used in federal courts), read the transcription of a plea without cooperation and you will know exactly what will transpire.
Defendant: After the plea agreement, I understand there is some time to file a report concerning what we disagree with. I also understand that at the plea hearing one does not have to speak, other than to accept responsibility for the crime. However, 6 to 8 weeks later we have to say what we agree with and what we don’t. How is that proceeding? Is it done in a different court?
DZ: No. It’s the same sentencing court.
Defendant: And in that case what happens in that court? In other words, I get that the next step is to acknowledge what one agrees with and what one doesn’t agree with. How is that done?
DZ: After you plead guilty, the judge will postpone sentencing for two months and will advise you the day that we enter the plea that you will be interviewed by a probation official, who will ask you some questions regarding your schooling, family life, marital and legal status in this country, and work history. It is very important to cooperate with the probation official, because your sentence will be influenced by that report. After a week, I will receive a call from the probation office asking me when I can attend an interview with my client and we will schedule a date. On that day we will meet and he or she will interview you and will ask me if I can provide them material to confirm what you are saying such as a diploma, proof of employment, etc. He or she will then draft a preliminary report and send it to me. I will go over it with you and we will have two weeks to object or add information. The official will read our objections as well as those of the prosecutor and will prepare a final report in which he or she will inform the Judge what our objections are and whether he or she agrees or not. The prosecutor also has a right to submit objections. Afterward, we will prepare a report, in your favor of course, and will submit it to the Judge.
When the day of sentencing comes, the Judge will ask us if there are changes in our positions. The prosecutor will say that he thinks that under the Guidelines you played a role of supervisor and will verbally present evidence to buttress his position but won’t bring any witnesses. We will do the same and the Judge will decide the matter of the correct guideline, because he, by law, has to determine what is the correct guideline in his opinion. That doesn’t mean that the Judge has to follow the Guideline because the Guidelines are not mandatory and he is obligated to follow all the factors in the sentencing law, Law 3553(a). Afterward he will ask us what else we wish to say, including you, because you have the right to speak before the sentence is pronounced. If the prosecutor wants to speak, he also has the right to add whatever he wishes to say. It’s a type of dialogue. After all of us have had the chance to present what we want (the Judge also has to state everything he has received from everybody so we can be sure that he has seen everything we have submitted, and that nothing was overlooked) and everyone has spoken, the Judge will pronounce the sentence.
Defendant: It would be great if you could come tomorrow so we can talk in advance.
DZ: Why? We will have as much time as we want. No one will sentence you for a minimum of 2 months or more if you don’t feel ready. The prosecutor will give you plenty of time and the Judge won’t object. I sense by your question that you believe that you will have to know all this BEFORE you plead guilty, but that is not the case. The entering of a plea is quite simple and will only take 20 minutes in which you simply say that you are guilty and waive your right to a trial. That’s all.
Defendant: After reading this I do think it isn’t necessary for you to come before the hearing on Friday, for what you wrote is all I wanted to know. But I do ask that on Friday, before entering the courtroom, please speak with me for a moment. I would appreciate that.
DZ: Of course. It’d be my pleasure.