I previously wrote about the ever-declining number of federal criminal trials due to the trial penalty: the additional months or even years added to a sentence after a conviction at trial, as compared to resolving the case by a plea agreement. This article focuses on another factor contributing to the trial penalty: punishment based upon acquitted conduct.
Anyone facing a federal sentencing knows how difficult and daunting the U.S. Sentencing Guidelines can be for many types of crimes. For financial crimes, the amount of loss, number of victims, complexity of the scheme and the like can quickly ratchet someone with no prior offenses into the 10+ year range. With a system that does not allow for early release on parole, like most states, and that credits a defendant with only 54 days a year good time credit, sentencing in the federal system can be particularly harsh.
Much has been written about Paul Manafort’s conviction at his first trial, the potential decades long sentence, and his sudden plea and cooperation deal shortly before his second trial was scheduled to begin. This sequence of events alone is unusual as most defendants decide to cooperate in an effort to reduce their potential sentence well-prior to trial. Moreover, most federal prosecutors do not want to cooperate with a defendant who has contested charges, gone to trial and lost. Most unusual, and damaging to Manafort, is his apparent violation or beach of the cooperation agreement by his alleged lies to the government.
Rick Gates, Paul Manafort’s former business partner, is the star witness in the first trial resulting from the Special Counsel’s Russia collusion investigation in federal court in Virginia. Gates pled guilty to felony charges and agreed to testify against Manafort in an effort to receive a substantially reduced sentence. The government and defense agree on one thing – the cooperating defendant/witness is guilty of financial crimes, moral misdeeds and has lied repeatedly in the past. Despite that, Gates is on the witness stand, under oath testifying as a government witness in a highly publicized trial of great public interest.