Here are the hypothetical facts: An individual, who is not in custody, learns he is in the cross hairs of the U.S. government. He hires an attorney who approaches the prosecutor. The prosecutor tells the attorney that he intends to indict or has already indicted the individual and the individual can either 1) surrender, 2) surrender and cooperate, or 3) live in hiding and face the risk of arrest in his own country to await extradition.
If the defendant chooses to cooperate, the parties make an arrangement to meet in a secret location, often in another country, like Aruba or Panama, and if all goes well, the defendant signs on to cooperate, but must eventually surrender and go to prison or sometimes, if circumstances warrant, remain free to cooperate proactively, and then surrender for sentence.
The individual—now officially a “defendant”– will eventually have to plead guilty but may not be sentenced for a number of year,s or, as in Miami, may be sentenced before his cooperation is complete, and await the prosecutor’s “reduction of sentence” motion after. I don’t like that procedure because a lot of things can happen between the time the defendant is originally sentenced and the time a motion for reduction is made. The prosecutor can take his sweet time about filing such a motion. The prosecutor might have left the office and been replaced by another prosecutor that is less enthusiastic about filing a reduction motion or the cooperation and sentencing policies in the office may have changed. Things happen. But if all goes well, after a few years, the defendant is released and gets on with his life. Very seldom are you going to find “bad faith” in these negotiations.
But if that scenario doesn’t play out, that is, if the individual doesn’t want to cooperate or cannot cooperate for safety or moral reasons or just has nothing to cooperate about, then all hell breaks loose. Things start to go very bad. The defendant will flee, but trust me, he will be apprehended sooner or later and will then have to make the following choice, plead guilty or go to trial. A high profile defendant can’t plead guilty without cooperating because a high profile defendant especially one with a history of violence will receive a very harsh sentence. You only have to look at the case of the son of the president of Honduras who could or would not cooperate, pled guilty and received 24 years.
If that defendant chooses to go to trial and wins, well g-d bless him. But if the high profile defendant loses, he will be looking at spending at least 15, or even 20 years in prison. For most defendants that would mean losing the better part of their lives without a visit from home, if they are from a foreign country, and their families cannot get visas.
The defendant will get no relief appealing his sentence. Virtually all convictions are affirmed, especially in narco-trafficking and money laundering cases, and while sentences may be appealed, the only sentence I have ever heard of being modified is one where the court thought the sentence was too low!
And no defendant should think that he or she can go to case agents and “clear up his/her case” by showing them that this is just one big misunderstanding. Agents have already anticipated that and found that unlikely beyond a reasonable doubt. If the U.S. government can indict you, it believes it can convict you. Prosecutors are overly risk adverse. I’ve seen cases that they have dismissed that they could have easily gotten a conviction on.
I am not giving this information to scare anyone or promote cooperation. I am just alerting people to the facts of life. If you don’t know all this, maybe these words will help save your life.
David and Johanna Zapp