Busted by the Feds?? What to do? How about a book telling you how to handle the situation? What if you’re not a lawyer? No problem according to the book! Good idea? Um…nope. Why?

Larry Fassler, the author, explains that he spent many years helping “clients” in various federal prisons with their cases. What he fails to mention is that he was an inmate himself. Essentially, Mr. Fassler was incarcerated on a drug offense. Once he completed his sentence and was released, he wrote the first edition of Busted by the Feds. Later, he returned to prison where he ultimately died. Despite an exhaustive search, I am not able to find any information that establishes Mr. Fassler as an attorney, so his comment about “clients” is sus, as my daughters would tell me (no cap!). It appears, particularly after reading Busted by the Feds, that Mr. Fassler is not an attorney and, instead, believes he, through his own experiences, has sufficient knowledge of the law to aid others. Yes, as a criminal defense attorney, I bought the book and read it. Why? Because clients read it.

It should be no surprise that many clients charged with federal crimes are incarcerated while their case progresses. In fact, if they are charged with a gun or significant drug offense, federal law actually creates a presumption that they should be detained. Having a judge order the release of anyone so charged requires the DEFENDANT overcoming the presumption and convince the judge that they should be released. That is, while the United States must prove the charged individual committed the offense(s) charged beyond a reasonable doubt when the case gets to the trial stage, federal criminal law specifies that the charged person should remain in jail until the case is resolved and the onus is on the accused to convince the judge otherwise.

Clients in jail are supposed to have access to a law library. Yet, many jails fail to provide one. At best, some offer limited internet access for them to do their own legal research. Not only is it rare to find a jail with a halfway decent law library, but almost all of them don’t even make much of an attempt. Instead, I regularly find that the jail purchased Busted by the Feds and consider that a law library. Thus, I am constantly having to deal with the advice Mr. Fassler espoused throughout the book. Now, if his advice was accurate, the book could be very helpful both to clients by helping them understand some of the complexities of the federal criminal justice system, and for lawyers as their clients would be informed about criminal procedure through the eyes of someone who has lived it. Sadly, as will be discussed, it offers a very skewed version of our criminal justice system and works to convince clients to work against their attorneys.

I can always tell when a client has read Busted by the Feds as they all tend to say the same thing, ask the same questions and act as the book suggests. In all fairness, the book is informative and there are parts of it that explain the sentencing guidelines and criminal procedure better than I have heard some lawyers explain it. However, much of the book has Mr. Fassler providing his opinions, suggestions and advice as to how an inmate should approach their defense. For example, Mr. Fassler, when discussing ‘Plea Bargain Strategies,’ takes the approach that, “[l]awyers, including public defenders, regularly exaggerate the possible penalty to their clients in order to scare them into accepting plea bargains.” This advice relates to Mr. Fassler opining about an inmate with multiple charges, (counts) against them. He details that lawyers (including public defenders (who are lawyers so this is a bit redundant)) will only provide clients with the maximum possible sentences for each count and then tell clients that the judge will stack them consecutively should the client proceed to trial and lose. While I suppose some lawyers could conceivably act this way, I’ve never seen it at the federal level in the 25+ years I’ve been in private practice as a federal criminal defense lawyer.

Other parts of the book offer incorrect information and then base advice on it. “Always keep this in mind: in the vast majority of cases the judge has to sentence you within your sentence [sic] guidelines – he cannot go above or below the guidelines unless there are special reasons to do so.” While an accurate statement from 1987 until approximately 2001 when the guidelines were mandatory, since they no longer are, this statement is not only false, but the advice that follows could result in devastating consequences. After making this statement, Mr. Fassler offers an example of ‘Happy Harry’ who was caught with 200 pounds of marijuana. The story, not based on any actual case, has a defense lawyer representing Harry who constantly tells him that he could get 40 years (as before to get him to plead), In an effort to avoid this possibility, Mr. Fassler indicates Harry’s lawyer would likely come to him with a plea bargain for 5 years. Mr. Fassler again assumes the attorney is lying and working to pressure Harry to plead guilty. Accordingly, the advice given is for the client to calculate the guideline range for his offense. Mr. Fassler explains that the guideline range (assuming Harry has no prior charges) would be 51-63 months. Thus, he concludes, since the judge is unable to sentence him above the 63 month high-end of the guidelines, Harry could have gone to trial in an effort to beat the case with the only consequence being an additional three months on his sentence if he were to lose. Unfortunately, Mr. Fassler couldn’t be more wrong. Federal judges are NOT bound by the guideline range – ever! In fact, during any guilty plea, every federal judge explains that not only are they not a party to any plea agreement, but they are also not bound to the guidelines and can chose any sentence within the available range of punishment. Like Mr. Fassler explains, the range for the drug offense can be as high as 40 years. While the judge in Harry’s case would need to calculate the guideline range, he or she is not bound to it and can sentence Harry anywhere within the range, up to the 40 years. Accordingly, the advice that Harry proceed to trial likely would have a nightmarish effect. Additionally, Mr. Fassler misses the mark with respect to his guideline calculation as he deducts points for ‘acceptance of responsibility,’ a valid deduction but one not available to someone who proceeds to trial and loses. Thus, the advice given not only is inaccurate, but if an incarcerated individual were to read the book and follow it (as many do), the consequences would be horrible.

Other parts of the book explain that clients should never accept the first offer to plea conveyed to them from their lawyer. While this advice does apply sometimes, based on the circumstances of a particular case and the offer provided, to make it a blanket rule that should be followed in all cases is terrifying. Indeed, often the first offer is higher than what a client or I would expect. Often I find myself telling clients not to accept the initial offer as I believe we can negotiate for something better. However, a client taking this advice regardless of the facts of their own case as well as against the advice of their lawyer could be catastrophic.

It isn’t that the book has no merit, it is that the advice portion is dangerously incorrect. I always tell clients to feel free to read the book to learn about the guidelines and procedure of a federal criminal case. Mr. Fassler does do an adequate job explaining all of that although he does miss some likely enhancements that would apply at times. However, the advice he provides, while at times accurate, can not possibly apply across the board to everyone with a criminal case. Each case is different, each U.S. Attorney is different as is each judge. The facts against one person may be airtight while another similar case may have witness problems that results in a better deal. Thus, if clients use the book for its advice, they will put themselves in a terrible position.

As a former state public defender, I am not one to bash them. In fact, nearly all state public defenders I worked with took the job (and the lower pay) because they wanted trial experience and to help people. Heck, when I was a public defender we needed jury trials in order to get promoted and get pay raises. I believe that is still the case in Missouri. Thus, Mr. Fassler’s repeated claims throughout his book that public defenders merely seek to plead clients guilty makes no sense. Moreover, federal public defender jobs are coveted by lawyers. Why? Federal public defenders get paid the same as U.S. Attorneys; they also get all federal benefits and can even accrue a pension. In short, the jobs are highly coveted and only are given to the best lawyers who apply. Federal defenders, as they are known, are well-versed in all aspects of federal criminal procedure, have considerable jury trial experience and know a fair deal when they see one. Likewise, lawyers who practice federal criminal defense privately, for the most part, have similar knowledge. A good method to determine if a private lawyer is well-respected and competent is to ask if they are part of the federal district’s CJA panel.

The Criminal Justice Act (CJA) was created to afford competent attorneys to people charged with federal crimes. Prior to the CJA, any attorney who sought to join the federal district court bar was required to handle a criminal case for free (pro bono – fancy Latin). Since most of these lawyers were civil attorneys with little to no trial experience, you can easily see how inappropriate this system was. In fact, my father, a civil bankruptcy attorney, used to tell the story of the criminal cases he had to handle from time-to-time and how absolutely clueless he was while doing so. Now, nearly all districts have CJA panel attorneys and use them regularly. While panel attorneys can help by taking some cases from a federal defender’s office when they are overloaded, there is a more important reason for them. A lot of federal drug cases these days have an indictment charging a number of individuals as being part of a federal criminal conspiracy. While the district’s federal defenders’ office can represent one of these people, they would have a conflict if they represented anyone else on the same case. Accordingly, judges appoint CJA panel attorneys to represent the indicted people.

So, what does it take to become a CJA panel attorney? Ultimately, each panel attorney must be reviewed and approved by the judges in each particular district. It is a must that you have significant trial experience and a detailed understanding of federal criminal law. Many districts even assign mentors to teach lawyers who want to be on the CJA panel, requiring years of federal experience before being allowed to handle a federal criminal case on their own. CJA panel members must also reapply to be on the panel every few years, listing all cases they have tried recently, all prosecutors and judges who were a part of each trial and providing detailed information about each case that the lawyer has handled to date. The lawyer then has an interview with the federal defenders’ office to ensure they are capable. After that process, the judges in a district must vote to agree that the lawyer either may be placed on the CJA panel or that they should remain on it. Overall, becoming a CJA panel attorney is a rigorous process and only the lawyers with sufficient experience are able to be considered.

Thus, the reason I detailed that if you are seeking to hire an attorney for a federal case, you should see if they are on the CJA panel is that if they are, that means judges and their peers all trust the lawyer and you can rest assured that he or she is qualified to handle difficult federal criminal cases. Moreover, and this is the best part as a CJA panel lawyer, panel members are paid hourly for their time, making Mr. Fassler’s claims about lawyers simply trying to scare clients into pleading guilty ludicrous. After all, if I am a CJA panel attorney representing you, I get paid hourly for the work I do. Taking your case to trial, irrespective of the outcome, earns me considerably more money on your case. Advising a client to accept a plea deal, therefore, results in the lawyer making less money on the case. While many criminal defense lawyers like to help people, at the end of the day, it is a business like any other. Thus, if I advise you to accept a deal and you take my advice, I will make a lot less money on your case than had you proceeded to trial. Accordingly, Mr. Fassler’s claim that lawyers just seek to plead clients makes no sense.

Overall, if you find yourself in jail on a federal criminal case and Mr. Fassler’s book is there, read it to learn about the sentencing guidelines and federal criminal procedure. However, realize the advice you are getting in the book comes from a man who was not knowledgeable enough to keep himself out of prison. Moreover, even after writing the book and presumably taking his own advice, he ended up back in prison later. Accordingly, ignore the advice aspect of the book and work with your attorney. Be open and honest with them and let them know when you have questions or something doesn’t make sense. Based on my experience practicing federal criminal defense, I have yet to meet a federal public defender or CJA panel lawyer who did not have their client’s best interest at heart. Likewise, I have never found any attorney (or even a client) who thought the book offered good advice!

Good luck!

Jeffrey A. Goldfarb – http://www.314Law.Com