After a criminal defendant pleads guilty in federal court, the judge will refer the case to the U.S. Probation Department for the preparation of a presentence investigation report (“PSR”). The PSR is a final report that reflects the defendants personal background, approximate sentencing guideline calculation, nature and circumstances of the offense, and it examines the defendants financial history to determine their eligibility to pay fines and fees.
The interim period between pleading guilty and a sentencing hearing is at least nine weeks. Once the judge refers the case to the probation department, it is assigned to a specific probation officer to conduct an investigation. A PSR is extremely important not only for a sentencing hearing, but also for the Bureau of Prisons consideration of prison level placement, the defendant's candidacy for ameliorative or rehabilitative programs, and even to whom can visit the defendant.
Both the prosecutor and defense attorney are usually notified via e-mail from the probation department about scheduling a presentence interview with the defendant. The probation officer requests from the prosecutor copies of the investigative reports, charge sheet, and their position on the case. The defense attorney is contacted to provide any supportive documentation that the probation officer should consider as well as schedule a physical interview with the defendant.
The Assigned Deputy U.S. Probation Officer
Jurisdictions may differ in the qualifications of the deputy federal probation officer. In Southern California, however, most deputy federal probation officers assigned to investigate the defendant are licensed attorneys. A presentence report can be very complicated and involve legal research and analysis. Thus, usually the most qualified to write a presentence reports are practicing lawyers who are employed with the department of justice.
The probation officer will request that the defendant fill out a probation packet prior to, or during, the presentence interview. It is better practice for a criminal defense lawyer to submit the probation packet to the probation officer well in advance of the interview to allow the officer to get a head start on their investigation. The probation packet is a detailed questionnaire and it contains waiver forms that are required for the officer to conduct their information. The questionnaire will consist of employment history, names and personal information of immediate family members, education level, and prior criminal history.
The probation packet also asks about a defendants income sources, expenses, tax information, list of assets including bank account information, property, vehicles, and any information that can be useful in determining the defendants worth.
It is important that a defendant be absolutely truthful about what they reveal and disclose in the probation packet and to the officer. Representing false information, or failing to disclose information, is grounds for additional charges and an allegation of obstruction of justice. It is best practice for the defendant and defense attorney to discuss the probation packet in advance of the hearing to determine if the defendant must invoke their Fifth Amendment right to certain questions.
Interviewing the Defendant
A defendant has the ability to waive the presentence interview. However, it should only be waived in very rare circumstances. The interview is ordinarily scheduled for 3-hours. But in most instances, the interview lasts under two-hours. The better practice is to submit the probation packet to the probation officer one week in advance of the interview allowing them time to digest the contents.
If a defendant is out of custody, then they typically appear with their lawyer at the probation officer's office. Interviews are held at the detaining jail when a defendant is in custody.
The probation officer will question the defendant about their responses in the packet. Namely, about their family members, personal information about their childhood, and finances. The probation officer often needs clarification in several areas involving finances and income and expenses. A defendant may offer more information than what was revealed in the probation packet to help the officer understand the defendant's background.
Submission of Mitigating Evidence to the Probation Officer
A defendant has the ability to submit mitigating information to the probation officer for their consideration. Awards, achievements, and other accolades can be very helpful for the officer to understand the defendant's character and personal background. Character letters from colleagues and close friends are often submitted because they give a telling insight as to a defendant's essential character. A defendant's accomplishments and character letters can be cited within the presentence report for the judge to read and consider prior to issuing an appropriate sentence.
Submission of Aggravating Evidence to the Probation Officer
The prosecutor has the ability to submit aggravating information or evidence for the probation officers consideration. Moreover, allegations of obstruction, a defendant thwarting the investigation, or a defendant's lack of acceptance of responsibility, may be noted by the probation officer. The probation officer will also contact the lead case agent and victim to ask whether they wish to give a statement.
Corroboration from a Third Person
After a defendant is interviewed by the probation officer, the information provided by the defendant must be corroborated by a third person. Often times, the probation officer will contact a defendant's parents, spouse, or close friend to corroborate what the defendant represented. It is also good practice to submit hard copies of corroborating evidence to the probation officer. For instance, copies of tax returns, photocopy of your high school degree, driver's license, and most recent pay check. Submitting corroborating documentation will alleviate the probation officer from expending time and resources to corroborate a defendant's representations in the presentence interview.
Purpose of the Presentence Investigation Report
The purpose of the presentence investigative report is to allow the judge to understand who a defendant is prior to issuing a sentence. Moreover, if a defendant grew up in an abusive home, has been homeless, or has low intellect, these may be factors a judge would consider in issuing a lenient sentence. The probation officer is not on the side of the defendant nor prosecution. The probation officer is a representative of the court assigned to objectively draft a report for the judge to consider. The report will also contain the officer's recommendation of an appropriate sentence.
Federal sentencing may be one of the most complicated areas in criminal law. The probation officer must undertake the tedious task of examining all mitigating and aggravating factors to determine what the federal sentencing guidelines call for. The probation officers recommendation of the appropriate sentence is after they consider all the factors listed in 18 U.S.C. § 3553.
Filing and Service of the Presentence Report
According to the federal rules of criminal procedure, the presentence report must be filed 35 days in advance of the sentencing hearing. The report is confidential and not publicly available for viewing. However, both the prosecutor and defense attorney will obtain an electronic copy.
Submitting Objections to the Presentence Report
After the presentence investigation report is filed, it is paramount that the attorney and defendant review the report for errors. Jurisdictions differ when objections to the presentence report must be filed and served. Objections can be both factual and legal. Namely, objections are lodged when it may affect the defendant's sentencing guideline calculation. For instance, the probation officer may have erroneously stated that the defendant embezzled $500,000 when the defendant actually only embezzled $50,000. These amount differences can be significant when calculating a defendants guideline sentence.
Federal Sentencing Hearing
A federal sentencing hearing is arguably the most important hearing. Prior to the hearing, the attorney for government and defendant have the ability to file sentencing memorandums arguing their sentencing position. The PSR is cited in support of either parties position. Importantly, the judge will ask the defendant whether they have reviewed the PSR and whether the defendant has had enough time to speak with their attorney about it. After each parties has argued their respective positions, the judge will issue a sentence in accord with the guideline while taking into account any departures or variances.
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If you are the subject of an investigation or you have been charged with a federal crime, then contact our office today to schedule a confidential consultation with an experienced Federal criminal defense attorney. We are prepared to intervene at all stages of the criminal process, including post-plea and sentencing hearings. Failing to secure competent federal representation may expose you to more time than necessary. Call us today for help.