Trial or Plea: How Federal Defendants Decide.

You need to make this decision based on your informed, count-by-count comparison of proof, statutory penalties, and sentencing exposure, while preserving your constitutional and statutory rights and assessing any potential collateral consequences. This is the decision that you (and not your counsel) need to make. If you do not take a case to trial, each count carries unique statutory penalties, each with unique requirements for consecutive sentencing.

Federal prosecutors generally cannot appeal if your case is not tried and ends in a judgment of acquittal. You need to weigh the possibility of an acquittal against the possibility of a hung jury, which results in a mistrial and provides the government another opportunity to retry the case.

To make an informed decision about your federal case, avoid relying on irrelevant and anecdotal information. The national conviction rate is a misleading statistic; it is not reflective of the strength of the evidence against any individual defendant. Similarly, the outcome of another case without the same charges, evidence, and sentencing factors is also not predictive.

The process for preparing and trying a federal criminal case differs from the process in state courts. Many federal judges conduct jury selection (voir dire), and federal rules of evidence, procedure, and criminal law have their own unique nuances and complexities.

Your defense team should take a proactive approach to build a defense based on the evidence the government has collected, while anticipating the government’s arguments. This means challenging how evidence was collected, working to limit the admissibility of prejudicial evidence, and preparing a compelling case for you to present at trial. Additionally, knowing that new trials are permitted under Rule 33 when justice requires one will be another factor to consider as well.

How Strong is the Government’s Proof on Each Count?

In federal criminal cases, the government bears the burden of proving every element of every charged offense beyond a reasonable doubt. Unlike the plaintiff in a civil case, who only needs to establish a preponderance of the evidence, federal prosecutors must meet the highest standard of proof in the legal system. This is a critical aspect of criminal law intended to ensure that no defendant is wrongly convicted and that the government fully justifies its pursuit of criminal sanctions.

Conversely, criminal defendants have no obligation to present evidence in their defense. While a defendant can always make an informed decision to present an affirmative defense, a lack of evidence from the defense is not an admission of guilt. The government must satisfy its burden regardless of what is offered by the defendant at trial.

Furthermore, juries return separate verdicts on each count charged in federal cases. This means a defendant can be found guilty on some counts and not guilty on others, regardless of whether they overlap. While some charges may involve the same conduct, they can constitute separate federal offenses with different elements. In the case of a guilty verdict on some counts but a not guilty verdict on others, this means a defendant may be sentenced based on the specific counts for which the jury found them guilty.

Additionally, the prosecution’s reliance on a witness can be a significant weakness in its case. If the government’s evidence is heavily dependent on witness testimony, then any inconsistency between what the witness said during the investigation and trial, or any inconsistency with other evidence, can be exploited to impeach their testimony. This means the witness’s credibility can be questioned, which can create reasonable doubt in the minds of the jurors.

Specialized prosecutions may require the defense team to seek the aid of a qualified expert. This is especially important in complex cases like those involving cybercrime, terrorism, fraud, and healthcare offenses, where understanding the government’s evidence in technical or scientific terms is critical to building an effective defense.

Even if a jury cannot reach a unanimous verdict on all counts, they can still reach verdicts on certain counts. Rule 31 of the Federal Rules of Criminal Procedure provides for the return of partial verdicts in cases where the jury has been in deliberations for a significant amount of time but hasn’t reached a verdict on all charges. The judge may accept a verdict on counts for which the jury has reached a unanimous decision and then order a mistrial on the remaining counts.

Finally, when cooperating witnesses are involved in a prosecution, their credibility is at stake. The government must disclose any deals or arrangements it has made with these witnesses, and this information can be used to attack their testimony by suggesting that they have a strong incentive to fabricate or exaggerate facts.

How Do I Compare the Plea Offers Actually Available?

Your defense counsel should provide you with any and all plea offers that are actually available. In Missouri v. Frye (2012), the Supreme Court emphasized that counsel’s failure to communicate a formal plea offer can violate the Sixth Amendment right to counsel. Similarly, Lafler v. Cooper (2012) recognized that deficiencies in communicating the benefits and risks of a plea deal can also lead to Sixth Amendment violations. At Spodek Law Group, we ensure that all offers and recommendations from the government are shared with clients and that these opportunities are fully discussed.

The type of agreement proposed by prosecutors also matters, as different types of plea agreements under Rule 11(c) of the Federal Rules of Criminal Procedure have different consequences. Rule 11(c)(1)(B) agreements include the prosecutor’s recommendation for sentencing, which binds the prosecutor but not the judge. In contrast, a Rule 11(c)(1)(C) agreement specifies a particular sentence or sentencing range. If the judge accepts such an agreement, the court is bound to impose the sentence agreed to by the defendant and prosecutor. However, if the judge rejects the agreement, the defendant is typically entitled to withdraw their plea.

While a plea offer may indicate an estimated Guidelines range or sentencing range, it is important to remember that this is not the same as a sentencing recommendation. Sentencing recommendations made by prosecutors under a Rule 11(c)(1)(B) agreement bind the prosecutor to request the specific sentence or sentence range. They do not bind the judge to accept the recommendation. The actual sentencing range will be determined based on specific factors, including the nature of the offense and the defendant’s characteristics.

Plea offers may also expire under certain deadlines, especially if the offer came as part of a specific government tactic. If a defendant does not accept the offer by the specified deadline, it could be off the table. While federal law establishes no universal minimum period for defendants to consider plea offers, the amount of time a defendant has may vary depending on the individual case and the prosecutors involved.

When deciding on a plea, you should consider the risks and benefits of both pleading guilty and going to trial. Your defense team can help you assess this by looking at the evidence and analyzing the risks involved. This should include discussing:

• The government’s case
• The weaknesses in the government’s case
• The risks of going to trial
• The likelihood of a guilty verdict
• The likely sentencing exposure

Which Rights Can I Preserve if I Plead Guilty?

In many cases, a guilty plea waives a defendant’s right to appeal. However, this does not have to be the case if the defendant enters a conditional plea under Rule 11(a)(2) of the Federal Rules of Criminal Procedure. With the consent of the government and the court, a defendant may enter a conditional plea that admits guilt while still preserving the right to appeal certain pretrial rulings. This allows the defendant to challenge those specific rulings while avoiding the uncertainty of a trial.

Otherwise, entering a guilty plea waives challenges to earlier nonjurisdictional errors committed during the pretrial and trial process. Any challenge to the validity of the conviction or the defendant’s sentence must instead focus on the underlying grounds for the appeal. Furthermore, many plea agreements include specific waiver provisions. Defendants who plead guilty usually waive their rights to appeal their conviction and sentence or seek other form of collateral review.

The Supreme Court in Class v. United States, 583 U.S. 174 (2018) clarified that an unconditional guilty plea does not foreclose a defendant’s right to challenge the statute underlying the criminal charges on which he was convicted. Even an unconditional guilty plea does not preclude the defendant from challenging his conviction for purposes of challenging the constitutionality of the law that criminalizes his conduct.

A waiver in a plea agreement cannot foreclose the defendant’s right to challenge the waiver as being unknowing or involuntary. However, even after accepting the terms of a plea agreement, a defendant may still withdraw his or her plea before sentencing, though this requires more than mere buyer’s remorse.

Prior to sentencing, the judge conducts a plea colloquy with the defendant, in which the judge confirms that the defendant knowingly relinquishes his or her trial rights. The defendant personally answers the judge’s questions, confirms understanding of the plea agreement, admits to the conduct alleged in the plea agreement, and consents to the plea agreement’s terms.

One final factor that the defendant must consider is whether to testify at trial. While the defendant must decide for himself or herself whether to testify, the decision should be informed by his or her attorney’s advice based on the specific circumstances involved in the case.

Spodek Law Group, led by managing partner Todd Spodek, defends clients in federal criminal and white collar matters.

How Much More Sentencing Risk Does Trial Create?

Sentencing risk in federal cases generally increases when defendants choose to go to trial. This is primarily due to two factors: the potential loss of the acceptance-of-responsibility reduction under USSG §3E1.1(a) and the potential for an obstruction-of-justice enhancement under USSG §3C1.1.

The United States Sentencing Guidelines recognize “acceptance of responsibility” as a mitigating factor, typically resulting in a two-level reduction in the defendant’s overall offense level. Pleading guilty without attempting to contest factual guilt allows a defendant to qualify for this reduction, which directly impacts the length of a sentence. If the defendant chooses to go to trial, this opportunity is lost.

While not losing acceptance credit is not categorical, it is extremely rare. Most judges will not award this credit after the trial, especially if a defendant’s chosen defense was to contest factual guilt. As a result, the advisory range under the Guidelines generally will be significantly higher if a defendant chooses to go to trial.

Another risk associated with going to trial is the potential for an obstruction-of-justice enhancement under USSG §3C1.1, which adds two levels to the overall offense level. Perjury at trial, while a classic form of obstruction of justice, is also common, and it can trigger the enhancement if a defendant’s testimony is considered to be untruthful or if it is considered to be a false denial of guilt or complicity.

As of November 1, 2024, the sentencing guidelines have been amended to clarify the circumstances in which acquittal on certain counts can affect sentencing. Under USSG §1B1.3, acquittals on some charges generally exclude the underlying conduct from sentencing calculations, even if the conduct contributed to the committed offense. However, if the acquitted conduct is necessary to establish a conviction for a different offense, it may still be considered.

The process of grouping counts under USSG Chapter Three, Part D complicates the assessment of sentencing risk. Defendants who are convicted on multiple counts must have their offenses grouped into a single combined offense level based on established rules. The combined offense level then determines the sentencing range under the Guidelines. Grouping is particularly important for defendants facing multiple charges that are related or arise from similar conduct.

If a defendant pleads guilty to some charges while going to trial for others, it can be difficult to determine how this affects the sentence. While a defendant may receive credit for accepting responsibility for the charges he or she pleaded to, it remains uncertain if this credit will extend to the remaining charges as well.

Once the trial or plea is concluded and the judge requests a presentence report, the probation officer will conduct an in-depth assessment of the offense and the defendant’s characteristics. The probation officer will then make a recommendation as to the defendant’s appropriate sentence. The judge reviews the report and makes the final sentencing determination based on the Guidelines, sentencing factors, and the report’s recommendations.

Can a Plea Avoid a Federal Mandatory Minimum?

In federal cases, a plea offer typically requires the defendant to plead guilty to at least one charge carrying a statutory mandatory minimum. Mandatory minimums establish a floor that sentences generally cannot drop below, whether obtained through a plea or after a trial. While a plea agreement may allow the defendant to plead guilty to a charge with no mandatory minimum, this is not uncommon, especially in cases with multiple offenses.

The sentencing reduction under USSG §5K1.1 alone does not allow a sentence to drop below the statutory minimum. A §3553(e) motion is required to authorize a sentence below the statutory minimum based on the defendant’s assistance. Conversely, a §3553(f) motion is available for qualifying drug offenses, which allows a defendant to avoid a mandatory minimum sentence if the government determines that his or her conduct is minimal.

Additional options for reducing a federal sentence include Rule 35(b), which allows for a government motion to seek a sentence below the mandatory minimum for substantial assistance provided after sentencing. This means that even if a defendant is sentenced to a mandatory minimum, they may still be able to seek a sentence reduction if they assist with the investigation or prosecution of another individual.

Mandatory sentences include those that are required to run consecutively. This means the defendant must serve the sentence for each offense rather than the term for one offense serving concurrent with others. Similarly, advisory Guideline ranges cannot be used to override statutory minimums or statutory maximums. These statutory provisions are mandatory and cannot be overcome by the judge unless the court finds that it has the authority to depart from them due to certain exceptional factors.

In many cases, two federal offenses will fall under the same §3559 felony class, but will carry different mandatory minimums. The offense may also produce different sentencing Guidelines calculations. Examples of such offenses are money laundering and narcotics conspiracies; each of these can carry a variety of different statutory and Guideline consequences.

What Consequences Matter Besides Prison Time?

Beyond the potential for imprisonment, entering a guilty plea or being convicted at trial carries a range of other consequences. In Padilla v. Kentucky (2010), the Supreme Court affirmed that defendants are entitled to advice concerning the clear and certain immigration consequences of entering a guilty plea. Specifically, this applies to both U.S. citizens and noncitizens.

The most common collateral consequence of a criminal conviction is the associated criminal record. A conviction for a federal offense will produce a criminal record regardless of whether the sentence includes imprisonment or probation. Additionally, defendants convicted for federal offenses owe a $100 special assessment for each count. Defendants will also face probation or the imposition of a prison sentence, as well as various additional conditions of confinement such as supervised release.

Sentencing penalties beyond imprisonment include fines, restitution, and forfeiture. Restitution is mandatory under 18 U.S.C. §3663A for many of the offenses covered by the federal criminal statute, provided that the offense caused a loss to a reasonably identifiable victim. Fines are imposed under 18 U.S.C. §3571 in multiple cases in which a defendant is sentenced to imprisonment and/or probation. Forfeiture is available upon a motion by the government under 18 U.S.C. §3564(a).

With regard to forfeiture, 18 U.S.C. §3564(a) also requires that the government seek forfeiture in the charging documents. Rule 32.2(a) of the Federal Rules of Criminal Procedure establishes the procedural requirements for notifying defendants of a forfeiture claim.

Noncitizens face additional consequences. Certain convictions make a noncitizen deportable under 8 U.S.C. §1227(a)(2). These include offenses involving moral turpitude, offenses for which the maximum sentence is one year or more, and certain drug and violence-related offenses.

If a defendant is sentenced to imprisonment, the Bureau of Prisons (BOP) will use his or her presentence report (PSR) to make informed decisions about classification, placement, and other aspects of his or her confinement. The PSR is an extensive and highly informative document and, despite the defendant’s lack of access to some information within the report, the fact that the BOP will be reviewing a substantial portion of the report is worth considering.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.