17 APRIL 2021
Untitled, Watercolor, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
“Love is preserved by the link of obligation . . . Which is broken at every opportunity for their advantage; but fear preserves you by a dread of punishment which never fails.”
Jon Ryan Schaffer — heavy-metal guitarist and front man for the band Iced Earth, and founding lifetime member of the Oath Keepers — pleaded guilty this week to obstruction of an official proceeding and entering a building with a dangerous weapon on January 6, 2021, crimes which carry potentially hefty statutory penalties. As part of his agreement with federal prosecutors, the remaining four charges against him will be dismissed when judgment enters. He is looking at 42–48 months in federal prison. To reduce his potential sentence, Mr. Schaffer has agreed to cooperate with federal prosecutors by providing substantial assistance in the resolution of other crimes, presumably against other Oath Keepers, a dozen of whom are now charged with conspiracy to obstruct an official proceeding. Mr. Schaffer’s cooperation may allow the government to bring the more serious charge of seditious conspiracy against them and others. That law provides:
“If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.”
18 U.S. Code § 2384
Federal prosecutors recognize this is dangerous business for Mr. Schaffer because they agreed to consider recommending him for the federal witness security program.
The prior week’s news also brought the revelation that former Florida Seminole County Tax Collector Joel Micah Greenberg, who faces an interesting collection of crimes in a 33-count third superseding indictment, has also agreed to cooperate with federal prosecutors. Speculation is that Mr. Greenberg has the goods on a fish bigger than himself for the federal government’s catch and release (or reduce) program. In last week’s blog post, Is There No Honor Among Child Sex Traffickers, I addressed one component of the transaction by which criminal defendants seek to purchase a lesser intrusion on their personal liberty.
Entering cooperation agreements in any case, let alone these high-profile, closely scrutinized cases, is anything but haphazard. The Department of Justice would not enter such agreements unless investigators and prosecutors had done extensive homework, including debriefing targets and defendants, to learn whether they have anything of value to the government. And what would be of value to the government?
Assuming a target of a federal criminal investigation or someone who is charged with federal crimes enters a cooperation agreement with the government which includes criminal charges to which the defendant enters a plea of guilty, the court will eventually sentence the defendant. The cooperator’s sentence is often delayed until after fulfillment of the terms of the cooperation agreement are complete, including the prosecution of others which may require the cooperator’s testimony before a grand jury, at trial, or both. Thus, it makes sense to delay sentencing so the defendant continues to have full incentive to complete all terms of his agreement to cooperate and the government can make an appropriate sentencing recommendation to the court based on its assessment of the quality of the cooperation.
Federal sentencing can be very complex. Generally, the sentencing court’s discretion is constrained by Congress — statute — which requires consideration of seven factors. Those factors, listed below, have their own subsets of factors.
- Offense and offender characteristics;
- The need for a sentence to reflect the basic aims of sentencing, namely (a) just punishment (retribution), (b) deterrence, © incapacitation, and (d) rehabilitation;
- The sentences legally available or mandated;
- Sentencing Commission Guidelines [very complex mathematical calculation in months with a low end and a high end based on discrete sentencing factors. For example, a sentence range could be 110–121 months. The factors include criminal history, the types of crimes (e.g., fraud), the amount of money involved or quantity of drugs, aggravating factors, mitigating factors, and acceptance of responsibility];
- Sentencing Commission policy statements;
- The need to avoid unwarranted sentencing disparities; and
- The need for restitution.
The Eighth Factor
If the defendant agrees to provide the United States substantial assistance in the resolution of other crimes and fulfills that agreement, the government assesses the quality and value of that assistance and then recommends to the court some level of “downward departure” (shortening) of the recommended length of incarceration based on the Guideline range. What follows are portions of a typical cooperation agreement between the United States and a criminal defendant. This agreement, with which I have taken some liberties (the link is below), contemplates filing charges pursuant to an “information” rather than an “indictment” and only after the agreement is consummated.
Again, the purpose for the defendant entering such an agreement is to mitigate the consequences of his criminal conduct to the extent humanly possible by helping the United States prosecute others. Please focus on the Defendant’s Obligations and Government’s Obligations below. The broad power disparity is inherent in such agreements. A cooperating defendant faces many landmines for violation and gives the government many opportunities to back out. The defendant may be able to improve the terms of the agreement depending on who it is he can incriminate, the quality of his incriminating evidence, and whether the government has no other sources for such evidence.
A. Scope of Agreement: The Information to be filed in this case charges the defendant ______with ______ counts of participating in______ in the Southern District of New York, in violation of ______. This document contains the complete Plea and Cooperation Agreement between the United States Attorney’s Office for the Southern District of New York (the “government”), and the defendant regarding this case. This Plea and Cooperation Agreement is limited to the United States Attorney’s Office for the Southern District of New York and cannot bind any other federal, state, or local prosecuting, administrative, or regulatory authorities.
B. Court Not a Party: The Court is not a party to this Plea and Cooperation Agreement. Sentencing is a matter solely within the discretion of the Court, the Court is under no obligation to accept any recommendations made by the government, and the Court may in its discretion impose any sentence it deems appropriate, up to and including the statutory maximum stated in this Plea and Cooperation Agreement. If the Court should impose any sentence up to the maximum established by the statute, the defendant cannot, for that reason alone, withdraw his guilty plea, and he will remain bound to fulfill all of the obligations under this Plea and Cooperation Agreement. The defendant understands that neither the government, defense counsel, nor the Court can make a binding prediction or promise regarding the sentence he will receive.
A. Waiver of Indictment and Guilty Plea: The defendant will waive indictment by grand jury, waive venue, and plead guilty to a ______-count Information, substantially in the form attached hereto as ______charging him with ______. The defendant agrees that he is, in fact, guilty of those charges and that the facts set forth in the Factual Basis attached hereto . . . are true and accurate.
B. Restitution: The Mandatory Victim Restitution Act requires the Court to order restitution to the victims of certain offenses. Payment should be made at such times and in such amounts as ordered by the Court______. The government and defendant agree to recommend that the Court order defendant to pay restitution in the amount of______. The defendant understands that this Plea and Cooperation Agreement is voidable by the government if he fails to pay the restitution as ordered by the Court. Defendant further agrees that he will not seek to discharge any restitution obligation or any part of such obligation in any bankruptcy proceeding.
C. Agreement to Cooperate: The defendant agrees to cooperate fully with the government and any other federal, state, or local law enforcement agency, as directed by the government. As used in this Agreement, “cooperation” requires the defendant: (1) to respond truthfully and completely to all questions, whether in interviews, in correspondence, telephone conversations, before a grand jury, or at any trial or other court proceeding; (2) to attend all meetings, grand jury sessions, trials, and other proceedings at which the defendant’s presence is requested by the government or compelled by subpoena or court order; (3) to produce voluntarily any and all documents, records, or other tangible evidence requested by the government; (4) not to participate in any criminal activity while cooperating with the government; and (5) to disclose to the government the existence and status of all money, property, or assets, of any kind, derived from or acquired as a result of, or used to facilitate the commission of, the defendant’s illegal activities or the illegal activities of any conspirators.
If the defendant commits any crimes or if any of the defendant’s statements or testimony prove to be knowingly false, misleading, or materially incomplete, or if the defendant otherwise violates this Plea and Cooperation Agreement in any way, the government will no longer be bound by its representations to the defendant concerning the limits on criminal prosecution and sentencing as set forth herein. The determination whether the defendant has violated the Plea and Cooperation Agreement will be under a preponderance-of-the- evidence standard. If the defendant violates the Plea and Cooperation Agreement, he shall thereafter be subject to prosecution for any federal criminal violation of which the government has knowledge, including but not limited to perjury, false statements, and obstruction of justice. Because disclosures pursuant to this Agreement will constitute a waiver of the Fifth Amendment privilege against compulsory self- incrimination, any such prosecution may be premised on statements and/or information provided by the defendant. Moreover, any prosecutions that are not time-barred by the applicable statute of limitations as of the date of this Agreement may be commenced in accordance with this paragraph, notwithstanding the expiration of the statute of limitations between the signing of this Agreement and the commencement of any such prosecutions. The defendant agrees to waive all defenses based on the statute of limitations or delay of prosecution with respect to any prosecutions that are not time-barred as of the date of this Agreement.
If it is determined that the defendant has violated any provision of this Agreement or if the defendant successfully moves to withdraw his plea: (1) all statements made by the defendant to the government or other designated law enforcement agents, or any testimony given by the defendant before a grand jury or other tribunal, whether before or after this Agreement, shall be admissible in evidence in any criminal, civil, or administrative proceedings hereafter brought against the defendant; and (2) the defendant shall assert no claim . . . that statements made by the defendant before or after this Agreement, or any leads derived therefrom, should be suppressed. By signing this Agreement, the defendant waives any and all rights in the foregoing respects. . . .
E. Payment of Fines: . . .
THE GOVERNMENT’S OBLIGATIONS
A. Incarceration Range: The government will recommend that the defendant be sentenced to the bottom of the applicable Guideline range for his offense, as determined by the United States Probation Office.
B. Acceptance of Responsibility: The government agrees that a two-level reduction in defendant’s offense level for his full and clear demonstration of acceptance of responsibility is appropriate . . ., will not oppose such a reduction, and will so move so long as the defendant pleads guilty, meets with and assists the probation officer in the preparation of the pre-sentence report, is truthful and candid with the probation officer and the Court, and does not otherwise engage in conduct that constitutes obstruction of justice either in the preparation of the pre-sentence report or during the sentencing proceeding.
C. Reduction of Sentence for Cooperation: The government agrees to recommend at the time of sentencing that the defendant’s sentence of imprisonment be reduced to reflect his substantial assistance to the government in the investigation and prosecution of others, pursuant to U.S.S.G. § 5K1.1. The defendant understands that he must comply with paragraph II. D. of this Plea and Cooperation Agreement. The defendant understands that the government’s recommended reduction in his sentence will depend upon the level of assistance the government determines that the defendant has provided. The defendant further understands that a motion pursuant to U.S.S.G. § 5K1.1 is only a recommendation and is not binding on the Court.
Other than as set forth above, the government agrees that any incriminating information provided by the defendant during his cooperation will not be used in determining the applicable Guideline range in his case, pursuant to U.S.S.G. § 1B1.8. . . .
A. Statutory Authority: The defendant understands that the Court must consult the Federal Sentencing Guidelines (as promulgated by the Sentencing Commission pursuant to the Sentencing Reform Act of 1984, 18 U.S.C. §§ 3551–3742 and 28 U.S.C. §§ 991–998, and as modified by United States v. Booker and United States v. Fanfan, 543 U.S. 220 (2005)) and must take them into account when determining a final sentence. The defendant understands that the Court will determine a non-binding and advisory Guideline sentencing range for this case pursuant to the Sentencing Guidelines. The defendant further understands that the Court will consider whether there is a basis for departure from the Guideline sentencing range (either above or below the Guideline sentencing range) because there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines. The defendant further understands that the Court, after consultation and consideration of the Sentencing Guidelines, must impose a sentence that is reasonable in light of the factors . . . .
ENTIRE PLEA AND COOPERATION AGREEMENT
Other than this Plea and Cooperation Agreement, no agreement, understanding, promise, or condition between the government and the defendant exists, nor will such agreement, understanding, promise, or condition exist unless it is committed to writing and signed by the defendant, counsel for the defendant, and counsel for the government.
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com. Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway, dropped on November17, 2020. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. The Contortionists, however, is not for the faint of heart.
**Richard J Van Wagoner is my father. His list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in a number of traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father’s art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers