On the Importance of Being Super Cautious When Attempting to Get a Downward Departure from the Fed’s, Mesa v. United States, 2021 WL 5501491 (11th Cir. filed 11/24/21)

This case is a cautionary tale about cooperating with federal investigators when you’re indicted for a criminal offense.  Truthfully, often it’s in the best interests of a criminal defendant to cooperate with investigators when the government has you dead to rights in your own criminal case (but not always!). The federal government absolutely loves cooperators and sometimes cooperation, in the hope the government will conclude you’ve provided “substantial assistance” in the prosecution of others, is the only thing you can do to protect yourself from a draconian federal sentence in the Bureau of Prisons. It’s a terrible system, but it’s the one we’re currently stuck with.

Here, Mesa engaged in some clearly illegal conduct relating to the sale of securities. He was released on bond, but one of the terms and conditions of his release was that he have “no employment [in] telemarketing or/and securities.”  Mesa’s wife had a job selling vacation packages and Mesa asked his lawyer if he could work for her while he was on bond.  His lawyer, without consulting either the government or probation, informed him that would not be a problem. Guess what? It was.  So, over the course of Mesa’s cooperation, he met with investigators “7 to 10 times” by the government’s own account (that, by the way, is A LOT of cooperation).  He also pleaded guilty and consented to a restitution amount over $22 million.  One of the investigators even indicated that Mesa was helpful and that additional investigations had been opened based on Mesa’s cooperation.  Objectively, it seemed that Mesa held up his end of the cooperator’s bargain.

Later, it came time for Mesa’s sentencing.  The government requested a downward departure based on his cooperation, but it was not as full-throated an endorsement as Mesa thought he deserved.  In arguing Mesa was not entitled to more, it argued to the district court that Mesa 1) had not been “completely forthcoming” in an early proffer session (remember, there were 7-10 of them so obviously the government found his information to be largely useful otherwise they would not have continued meeting with him), and then 2) that Mesa’s work for his wife selling vacation packages “adversely affected the level of cooperation credit” they thought he should receive, even though the government acknowledged Mesa relied on his lawyer’s advice. And then the government groused that Mesa shouldn’t be given credit for his cooperation against lower-level actors.  In short, Mesa did everything he was asked—he pleaded guilty, he agreed to restitution, he met with agents on multiple occasions, but the government withheld advocating for additional credit because Mesa took his lawyer’s bad advice.  In the end, the 11^th Circuit Court of Appeals found Mesa wasn’t prejudiced by his lawyer’s bad advice because the judge indicated he realized Mesa relied on his lawyer’s bad advice and did not intentionally violate the conditions of his bond and because the judge thought his 100-month sentence was appropriate in light of the 700 victims there were in Mesa’s fraud.

So this is a cautionary tale for defendants and lawyers alike.  In the federal system, the AUSA’s have enormous power over the sentencing of criminal defendants. And while there are policies in place (I guess, even though I’ve personally encountered varying approaches in just the District of South Carolina alone), often sentencing issues are controlled by individual prosecutors.  I once had a prosecutor tell the sentencing court my client, who had also engaged in numerous cooperation sessions, shouldn’t receive substantial assistance credit because his co-defendants had not pleaded guilty yet and his cooperation credit “was not ripe.”  This was the last time I will work with this particular AUSA to expeditiously resolve a case without some sort of assurances this won’t happen again. The takeaway is this—when cooperating with the government, you can’t take anything for granted.  It doesn’t matter how experienced your lawyer is, or how experienced the prosecutor is. Document everything that happens at a session.  If it appears the agents think your guy isn’t being forthcoming, address it immediately. If you don’t know whether some action might violate a condition of bond, find out. It’s very easy for federal sentencings to go sideways to the considerable detriment of your client, so be alert and proactive in protecting your client’s interests.