A Blog About Current Issues in White Collar Defense
The Cliffhanger – Paul Manafort’s Sentencing Drama
A hit man walks into a restaurant where Tony Soprano and his family are eating dinner while the jukebox blares a Journey song. The last show of the highly successful series ends with an abrupt cut to black before the audience knows the fate of Tony and his family. The end of The Sopranos series was both ominous and frustrating. In a federal criminal court, when a judge determines that a defendant has breached his plea agreement, it’s as if the hitman has entered the restaurant but there’s another hour left of the show. Unlike the fictional mobster Tony Soprano, the fate of real-life political operative Paul Manafort will not be left to the imagination.
Yesterday, US District Judge Amy Berman Jackson ruled that Manafort had indeed breached his cooperator plea agreement, and she consequently relieved the government of its stated concessions in the plea agreement. But, as it turns out, more fundamental concessions will stay in place, and although the sentencing battle will prove significant, Manafort may have already won the war on his D.C. prosecution.
Breaching a plea agreement is an unusual, and often horrible, development for a client. When a plea agreement is struck between the parties, there are usually some obvious concessions from both sides. The defendant is admitting guilt to certain offenses. The government intends to let his or her sentencing guidelines be favorably adjusted because of the client’s acceptance of responsibility (e.g., plea of guilty). In a cooperator plea, the defendant agrees to provide honest and substantial assistance, and if he comes through with his end of the deal, the government frequently agrees to make a motion to reduce the applicable sentencing guidelines, so the judge can fairly credit the cooperation given by the defendant and impose a lighter sentence.
When the government alleges a breach of the plea agreement, an important criminal matter suddenly transforms, in part, to a civil contract dispute. The government gives notice of the breach, the defendant either concedes or disputes the allegation, and the judge has to decide whether there has been a breach of the contract (the plea agreement) by a preponderance of the evidence. There is an additional piece of nuanced procedure, which is that the government can withdraw from its obligations if it is operating “in good faith,” but ultimately the breach question is for the judge to determine within the framework of a preponderance of evidence standard of proof. Thankfully, from Manafort’s perspective, the government did not seek to rescind the agreement in total. There are some circumstances where the breach could be viewed as a trigger for rescinding the entire plea and letting the government proceed to trial. That outcome is more often seen when the plea agreement makes fundamental concessions to the defense, like removing the possible death penalty from consideration, but it was not totally out of play in this situation, as I address more fully below.
And note, a breach of a plea agreement is a much more pointed accusation then simply failing to provide substantial assistance. For example, Trump personal attorney Michael Cohen is alleged to have withheld information about his own criminal conduct, and the government did not move to reduce his sentencing guidelines based on cooperation. But no effort was made by the government to withdraw from the plea agreement and eliminate all concessions they had made. On the continuum of cooperating defendants, it is considerably better to be a “failed” cooperator who just did not come through, then a “breach” cooperator who stands to have a greater sentence than ever anticipated in the plea agreement.
In Manafort’s case, the government alleged that Manafort lied as to five specific areas of questioning. The Court, after a sealed hearing, determined that the government had not met its burden of proof on two of the areas—contacts with Konstantin Kilimnik and contacts with the current administration after the election—but she found that as to three other areas of inquiry, Mr. Manafort had made material and intentional misstatements to the government. Interestingly, from the questions posed by Judge Berman Jackson at one of the hearings, it appears that she largely was focused on determining whether the lies were “material” to the investigators. The case law in much of the nation is very friendly to the government in this regard – if the statement “had the potential” to affect a federal investigation, it is deemed material. Having myself represented a man who a) made a false statement that the government immediately knew was false, and b) corrected his false statement moments later with little prompting, I can tell you that the expansive definition of “material” is pretty maddening from a defense perspective. Coupled with a fairly low burden of proof – preponderance of evidence – the accusation of breach almost invariably leads to the finding of a breach, at least where false statements are the basis.
But for the D.C. federal case against Manafort, the devil is truly in the details. Manafort will not receive a cooperation-based reduction motion from the government under the sentencing guidelines (U.S.S.G. Section 5K1.1), and he may lose credit for accepting responsibility. His original stipulated sentencing guideline range was 210-262 months, and a 3-point upward swing for the breach would create a guideline range of 292-365 months. While not binding, Judge Berman Jackson would be starting from a presumptively reasonable guideline sentence of roughly 30 years. But a fundamental concession from the government remains in place—the plea agreement involved Manafort pleading guilty to two charges with maximum five-year sentences. Even if Judge Berman Jackson felt the guidelines are appropriate and Mr. Manafort deserves to have the (guidelines) book thrown at him, the most she can impose is ten years. Judge Ellis will still have a sentencing hearing in Alexandria, and one in which Mr. Manafort faces the potential of decades, plural, of imprisonment based on his trial convictions. But for the D.C. sentencing, the Sopranos hit man may have left his gun in the car.