ADVOCATING FOR THE WHITE COLLAR DEFENDANT THROUGH INTERACTIONS WITH THE UNITED STATES PROBATION OFFICE

Daniel G. Webber, Jr. and Matthew C. Kane

Matt Kane () and Dan Webber () are members and directors of Ryan Whaley Coldiron Shandy ( Dan is a former U.S. Attorney for the Western District of Oklahoma, and Matt is a member of the Criminal Justice Act Panel for the Western District of Oklahoma. Both devote a substantial portion of their practices to white collar defense, regularly present on various federal sentencing topics, and co-teach a seminar on federal sentencing at the University of Oklahoma College of Law.

Federal criminal sentencing is a practice unique unto itself, a separate analysis from any other aspect of criminal proceedings. Sentencing is comprised of several different stages, each of which provides the defense counsel with the opportunity to meaningfully advocate for his or her client. A well crafted defense strategy throughout the process is essential, particularly in white collar cases, as the defendants often have no violent past (and, generally, little if any criminal history), and have been convicted ofonly a financial, and, in some cases, a victimless crime.

Guilt having been established, by plea or jury, the drafting of the presentence report, prepared by the Office of Probation and Pretrial Services, represents the first stage of sentencing.[1] Unfortunately, defense counsel often fail to appreciate the opportunities for advocacy with the Probation Office. Importantly, such advocacy should begin with the first contact with the Probation Office, when a probation officer interviews the defendant for pretrial release purposes. The information obtained by the probation officer during the interview is typically passed on to the probation officer who will conduct the presentence interview, an exercise required to fulfill the officer’s service as an independent investigator for the sentencing judge and a guardian of the sentencing guidelines.[2] Importantly, truthful and informative responses by the defendant set the stage for future arguments and positive interaction with members of the Probation Office who are ultimate responsible for advising the court on a recommended sentence.

Rule 32(d)(2) of the Federal Rules of Criminal Procedure requires that the presentence report contain: “The defendant’s history and characteristics, including any circumstances affecting the defendant’s behavior that may be helpful in imposing sentence or in correctional treatment…” This requirement nearly mirrors half of the first mandatory sentencing factor the trial court must consider under 18 USC § 3553(a)(1): “the nature of and circumstances of the offense and the history and characteristics of the defendant.”

The U.S. Probation Office for the Western District of Oklahoma has recently begun utilizing a presentence questionnaire to obtain such information.[3] Many of the Western District judges embraced the procedure, which would allow the court to obtain information relevant to downward departure and downward variance factors that might not otherwise be provided until the eve of sentencing, if at all. The questionnaire seeks the following information:

  • What impact has your prosecution for this offense had on your family? What personal and or financial impact would a possible term of imprisonment have on your family?
  • What experiences during your childhood or teenage years had a positive or negative impact on you?
  • Please describe your childhood, places you have lived (with approximate time periods), your relationship with your parents or guardian, siblings, etc.
  • Were you the victim of any kind of abuse as a child (physical, mental, sexual)? If so, please describe.
  • Describe your current relationship with your family. Please provide contact information for a family member who can verify your personal history information.
  • Please list all of the places you have worked (with approximate timeframes) over the last 10 years.
  • What special skills or training have you developed through formal education/training and/or your work experience?
  • Are there any programs and/or treatment in which you would like to participate during a possible term of imprisonment or community supervision?
  • Has drinking or drug use ever caused you to miss school or work, or neglect your children?
  • Have you ever participated in treatment for drug or alcohol abuse or mental health? If so, where and for how long?

Originally, this process met some resistance from the defense bar; however, such concerns were generally alleviated when a process was adopted to ensure that counsel, and not the defendant, was provided with the form, thus, ensuring an opportunity for advocacy rather than entrapment. There is a definite benefit to having such an opportunity – information contained in the presentence report often appears to be treated with greater deference by courts than information provided directly from the defense counsel. In fact, this is precisely the type of advocacy that should be done, even if more informally, through calls and/or letters to the probation officer. Nonetheless, given the questionnaire is provided early in the process, it also poses a challenge, as it provides defense counsel with far less time to obtain the relevant information from their clients, who often do not understand what details could be helpful. If not included in the presentence report, defense counsel may well find that it is even harder to get the court to listen to variance arguments outside those contained in the presentence report, given the opportunity for such inclusion.

Additionally, these questions, while covering many topics, leave many issues unaddressed or at least under explored. For example, listing out work history (which is generally included in the release interview anyway) does nothing to address how exceptional an individual’s work history might be, and, in turn, why that work history might bear some relevance to sentencing.[4] For example, a client who created their own business may have made a significant impact on the community and may have multiple employees who are dependent on that individual for their livelihood. A sentence of incarceration that closes the business thus could have an impact far beyond what the court might originally anticipate. Similarly, family relationships can play a dual role that requires more detail – strong family ties lead to less recidivism and unique family circumstances (such as extraordinary dependence for medical or financial support) are important issues for sentencing.[5] There is no discussion of other important factors, such as age (particularly relevant where the defendant is older and with minimal or no criminal history),[6] physical health,[7] or community and charitable activities.[8] Thus, to the extent a presentence investigation questionnaire is supplied, defense counsel would be well advised to add additional factors for consideration by the probation office.

However, advocacy with the probation office is not limited to completion of a questionnaire or even to provision of such information if a district does not formally request such information. Before the initial presentence report is issued, the prosecution often shares key elements, potential enhancements and related information with probation officers. Defense counsel must be prepared to do the same, providing both arguments against issues raised by the prosecution and arguments and support for mitigating factors. For instance, a co-defendant in a multi-million dollar Ponzi scheme recently provided information of a history of childhood abuse that culminated in the conviction of the relative for the extended pattern of abuse. This information, including appellate decisions relating to the case, was provided to the probation officer and included in the initial presentence report, thus further legitimizing the request for mitigation and resulting in a significant variance.

Probation officers are people and they are professionals. Our experience is that that they have usually have an inner compass regarding what is fair and when the government may be overreaching if they are presented with both sides of an argument. On close calls regarding the application of a particular enhancement, we have found it helpful to update the probation officer with district court cases, even unpublished ones, especially from their district or neighboring districts. Further, practitioners should consider purchasing the reference book the probation officers use – Haines, Bowman & Woll’s Federal Sentencing Guidelines Handbook (published annually by West).

Objections to the presentence report as well as the sentencing memorandum both provide further opportunities to fully brief the court on mitigation issues, but rarely are they as compelling as those embedded in the presentence report. Still, the defense’s objections can create a factual or thematic toehold in the addendum that can be expanded upon in a later sentencing memorandum or motion.

Somewhat contrary to district efforts to obtain more information on defendants prior to sentencing, there has also been a recent push on a national level to look for cost-saving options relating to the presentence report. On February 16, 2012, Judge Robert Holmes Bell, the Chair of the Judicial Conference Committee on Criminal Law issued a memorandum concerning cost-containment strategies relating to presentence reports, among other issues.[9] The memorandum notes Rule 32 requires a presentence report unless “the court finds that the information in the record enables it to meaningfully exercise it sentencing authority…” According to the memorandum, a full presentence report costs $1,546. However, under Rule 32, the court could waive the report, or if the defendant has at least nine months remaining on an imprisonment sentence, the probation office would prepare a Supplemental Report to the Bureau of Prisons for designation and classification which only costs $744. The court could also require a modified presentence report, also at an expense of $744, “designed to give the court flexibility in ordering shorter reports in appropriate cases,” such as a case involving a deportable alien facing little or no imprisonment. The memorandum’s third suggestion is the use of an expedited sentencing report, or “worksheet,” which is provided when the court waives the presentence report and requests only a calculation of the offense level and criminal history score, without any narrative or description of the defendant’s personal history. Such a calculation would cost approximately $335.

Such “cost-containment” options could potentially be appropriately in certain, limited cases. However, the provision of less information seems problematic, when more is typically necessary to provide the court with information supporting a downward departure or variance. In the event a court orders such a cost-cutting measure, defense counsel will need to ensure that objections to the process are made, if appropriate, and that well-crafted sentencing motions are prepared to provide the court with the information that is lacking.

Regardless of the procedure or even the timing of the advocacy by defense counsel, when a defendant is standing before the court waiting to hear their fate, they will wonder whether their defense counsel fully advocated on their behalf. The defense counsel, if fully exercising the opportunities presented throughout their interaction with the probation office, should not have similar questions.

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[1] In 2006, the Probation Office released a revised version of Publication 107, entitled “The Presentence Investigation Report,” available at (last visited 10/10/12). This publication, while somewhat dated, provides a wealth knowledge from the Probation Office perspective. It also includes draft presentence reports and related exemplar documentation.

[2] Nancy Glass, “The Social Workers of Sentencing: Probation Officers, Discretion, and the Accuracy of Presentence Reports Under the Federal Sentencing Guidelines,” 46 No. 1 Crim. Law Bulletin ART 2 (Jan./Feb. 2010).

[3]U.S. Probation Office Western District of Oklahoma, Presentence Investigation Questionnaire, available at (last visited 10/10/12).

[4]United States v. Jones, 158 F.3d 492, 498 (10th Cir. 1998) (downward departure based in part on employment history and consequences of conviction on future employment); United States v. Alba, 933 F2d 1117 (2nd Cir. 1991) (downward departure for various reasons including employment history); United States v. Gaind, 829 F.Supp. 669 (S.D.N.Y. 1993) (downward departure where defendant would have no opportunity to reenter profession and commit similar offenses).

[5]“[T]he relevant inquiry is the effect of the defendant’s absence on his family members.” United States v. Schroeder, 536 F.3d 746, 755 (7th Cir. 2008); United States v. Sclamo, 997 F.2d 970, 974 (1st Cir. 1993); see also, United States v. Gauvin,173 F.3d 798, 808 (10th Cir. 1999) (defendant the only support for his wife and four children); United States v. Pena, 930 F.2d 1486, 1494 (10th Cir. 1991) (defendant only support for three children); Charlene W. Simmons, Children of Incarcerated Parents, 7 Cal. Res. Bureau no. 2, at 4 (2000), available at (last visited 10/10/12). See also, Institute Justice Policy Center, Returning Home: Understanding the Challenges of Prisoner Reentry at 103, 125, (2004), available at (last visited 10/10/12) (addressing the importance of strong family ties to avoid recidivism).

[6]Gall v. U.S., 552 U.S. 38, 128 S.Ct. 586, 601, 169 L.Ed.2d 445 (2007) (upholding variance based in part on youth of offender); United States v. Vaquera-Juanes, 638 F.3d 734, 735 (10th Cir. 2011) (varying downward based on defendant’s age and other factors); United States v. Jarvi, 537 F.3d 1256, 1263 (10th Cir. 2008) (courts can consider age, even though it is a characteristic disfavored under parts of the guidelines); United States v. Sells, 541 F.3d 1227, 1237-38 (10th Cir.2008) (same).

[7]U.S. v. Rausch, 570 F.Supp.2d 1295 (D. Colo. 2008) (departure to time served of one day where defendant required kidney transplant), citing U.S. v. McFarlin, 535 F.3d 808 (8th Cir. 2008) and U.S. v. Ruff, 535 F.3d 999 (9th Cir. 2008), among others; U.S. v. Martin, 363 F.3d 25 (1st Cir. 2004) (health concerns merited downward departure); U.S. v. Pineyro, 372 F.Supp.2d 133(D.Mass. 2005) (placing burden on government to show it can provide the defendant with needed medical care in the most effective manner); U.S. v. Gigante, 989 F.Supp. 436, 442 (discussing long history of lower sentences for physically infirmed).

[8]Jones, 158 F.3d at 492 (good works a factor for downward departure); United States v. Tomko, 562 F.3d 558, 571 (3rd Cir. 2009); United States v. Canova, 485 F.3d 674, 678-679, 682 (2nd Cir. 2007); see also, U.S. v. Cooper, 394 F.3d 172, 177 (3rd Cir. 2005) (stressing “hands on personal sacrifices” over monetary contributions); U.S. v. Greene, 249 F.Supp.2d 262 (S.D.N.Y. 2003) (focusing on time over monetary charitable contributions).

[9] Committee on Criminal Law of the Judicial Conference of the United States, Memorandum regarding Cost-Containment Strategies Related to Probation and Pretrial Services Offices, February 16, 2012, available at (last visited 10/10/12); see also, The Third Branch News, Committee Oversight Supports Work of Probation and Pretrial Services (discussing a number of cost cutting measures), available at (last visited10/10/12).