This is a copy of a letter we sent to a defendant that could be useful to other defendants facing narcotic charges.
The defendant had been in detention in Colombia and in the United States. He asked us what his options were:
Go to trial.
If you go to trial and win, excellent. If you lose, you will receive the mandatory ten-year minimum that applies to your drug trafficking charge involving the more than five kilos of cocaine your conspiracy is accused of possessing. You might receive more time depending on the facts, or a lower time if you are able to qualify for “safety valve” consideration that eliminates mandatory minimum sentences. If you qualify, the judge could give you the “time you served” in Colombia and in the United States.
Plead guilty without cooperation and without “safety valve” consideration. You will get the mandatory sentence of ten years or more depending on the facts of the case.
Plead guilty and receive the benefit of the “safety valve.” The judge can impose the sentence he wishes including giving you “time served.”
Plead guilty and cooperate. The judge can sentence you as he wishes, including giving you “time served.”
Based on what you have told me, you wish to plead guilty with the benefit of the “safety valve” presuming you qualify.
This is what you should know:
In New York, the prosecutor will not give the judge a recommendation except for telling her what sentencing guideline applies to you. Since the guidelines are “advisory, ”few judges, at least in New York City, will follow the guideline preferring to sentence below the guidelines.
The Guilty Plea:
The guilty plea will consist of admitting your guilt before the judge. You will, describe your particular conduct, and you will acknowledge that there are no promises or agreements regarding the sentence you will receive. Some judges will even go so far as to tell a defendant that “if anyone has told you that there is a promise or understanding, it is a lie.” And finally you will have to tell the judge that you are pleading guilty because you are in fact guilty so you cannot come back and say that you aren’t really guilty. You have to take responsibility for your words.
Afterwards, a probation officer will interview you about your personal, educational and work history. You and your family will take responsibility for gathering the material that supports a favorable sentence. That includes photos, documents and letter of support.
The letters should be informative and even interesting. It is not useful for a letter writer to say that you are a good person, or a good father or mother, or a hardworking person, or a good friend without giving reasons for saying so. If a letter says, for example, that you are a good father, then it should cite an instance of good fathering. The same holds true for alleging that the defendant is a good friend, or a good brother or sister. What the judge does not want to see is a pro forma letter that is meaningless saying:
“I, Richard Jones, know the defendant, John Smith, to be a very good person and meets all his responsibilities.”
That tells the judge nothing.
As for photos, they are key. One picture is indeed worth a thousand words. Send me as many as you wish and I will select the best letters and photos. With few exceptions, judges like to see pictures of your parents, your spouse, your children, your modest car, your modest home, your unpretentious neighborhood, and your hometown, all the things that humanizes you. There should be pictures of you at parties, at celebrations, and at graduations. You want a judge to get to know you, to know how you were reared, and how you came to this point in life. After all, you were not always a “defendant” or an “inmate.”
If possible, those who write letters should attach a passport-size picture of themselves to let the judge see who is writing the. Presentence reports. Everyone, even a judge, likes a good story.
If you do not wish to plead guilty, then your only option would be to go to trial because, given the amount of drugs and your role in the conspiracy, you will get a steep sentence even if you plead guilty without cooperation.
Regarding trial, do not believe the fable that everyone who goes to trial loses. No one is better than his or her evidence and that goes for the prosecutor too. And, contrary to popular belief, the government does not fabricate evidence. And the rumor that all informants accuse innocent people is also not true. You wouldn’t accuse an innocent person. So why do you think others would? Look, an informant becomes an informant because he finds himself between a rock and a hard place, and wants to get home. He is not some devil incarnate. You may hold it against him for cooperating, but that is a different story.
If you do not wish to go to trial, that’s fine. But don’t base your decision on these rumors. Base it on the evidence against you.
David Zapp & Johanna Zapp