Is it possible to persuade the prosecutor to change his or her mind and not prosecute you after you have been charged with a crime? If you suspect that you may be charged, is it possible to persuade the prosecutor not to bring charges? The answer is “yes” to both questions, but don’t count on it. However, I am convinced that in many cases a major effort to convince the prosecutor not to proceed is worth the effort. Herbert’s case is an example of a case in which a full court press to convince the prosecutor not to continue a prosecution paid off.
Gambling and racketeering
United States v. Herbert Billson (not his real name) is an example of a case where the United States was persuaded to not pursue a case against the defendant. The Organized Crime Section of the Justice Department in Washington, D.C. had a task force investigating gambling in the District of Columbia. After a lengthy undercover investigation, a number of people were arrested and charged with violating laws governing gambling and racketeering. Reading the indictment, you would think that the Justice Department had caught Al Capone, Jr. and his gang operating in the Nation’s Capital. However, the facts weren’t quite as evil as the Government made it seem.
Herbert was the manager of a local big box store and one of his customers ran the gambling operation. The “gambling” was for people who wanted to bet on sports games. The bookie, Herbert’s friend, would lay the bets off in Nevada, where gambling is legal, and there was no allegation in any of the charges against any defendants that the bookie had cheated anyone. Herbert was going through a divorce, and did not want to go home on weekends; so his friend offered him a job on weekends taking sports bets over the phone. Herbert was paid about $10 per hour for his work in the gambling business.
Herbert’s first lawyer told him that the evidence against him was overwhelming and that he needed to plead guilty. In a surprising twist, FBI agents told Herbert that if he decided to consult a lawyer and contest the charges that he would go to prison. Herbert did not feel good about his choices and sought another legal opinion.
After analysis of Herbert’s case, it seemed clear to me that the bookie was operating a harmless gambling operation in D.C that catered to the desire of sports fans to bet on sports games. I suspected that some of the very lawyers who were prosecuting Herbert had at one time betted in office pools that ended up with legal Nevada bookies – possibly with Herbert’s bookie. If Herbert pled guilty to racketeering, he would lose the good job that he had. Instead of paying a hefty tax bill that made him a contributing member of society, he would likely need government support. A conviction for racketeering would almost certainly mean that his earning capacity would be cut about 80% when he became a convicted felon.
There was no real issue about whether or not Herbert was working with the bookie, so there was not much chance of a successful defense on the merits. But what about the true interest of the Government in bringing such a case? Did society benefit from making Herbert a felon? The law gives prosecutors the power to exercise, or not exercise, their power to prosecute – regardless of the guilt or innocence of the accused. It seemed to me that Herbert was an example of a guilty defendant that should not be prosecuted. The problem was how to convince the prosecutor to come around to my way of seeing the case.
Preparation, preparation, preparation
Here is what we did: I had Herbert work with our law clerk and prepare three large binders that documented the productive life that he had lived up to that time. I contacted the Justice Department attorney handling the case and made Herbert available to tell everything that he knew. We gave the prosecutor the binders on Herbert’s life and asked him to consider whether the mistake that Herbert had made justified the consequences that would surely follow from his being branded as a convicted felon.
A threat from the FBI
It is interesting to note that when Herbert and I were at the Justice Department and I was talking with the prosecutor outside of Herbert’s presence, an FBI agent told Herbert, out of my hearing, that he was warned not to contest the charges, and since he had gone against what the FBI told him, he was going to go to prison. That threat from the FBI really shook Herbert up and made him doubt the course he was taking, but he stuck with the plan we had made to make our presentation to the prosecutor.
Eventually our request that the Government abandon its case against Herbert led to a conference call with a senior attorney in the Organized Crime Section. My argument on Herbert’s behalf was to ask them what harm had Herbert done to the United States? I asked them to compare that harm to the harm they would do to the United States if they removed Herbert from society as a contributing member and made him a dependent member.
Finally, I told them that I had a strong testimony of the wisdom of using prosecutorial discretion in appropriate cases, and that I felt this was such a case. At the end I told them that since the United States was the prosecutor, and since Janet Reno, the then Attorney General, spoke for the United States in matters of prosecutorial discretion, I desired to appeal any adverse decision to the Attorney General.
Common sense sometimes prevails
The end result for Herbert was that the Attorney General decided to forego prosecution. Herbert is not a convicted felon, and he is still a valuable contributing member of society. Herbert also learned a valuable lesson about the danger of getting involved in questionable activities, no matter how harmless they may appear.