Kelly, Oil on Masonite, 16" x 18.5", Richard J. Van Wagoner, Circa 1968, Courtesy of Van Wagoner Family Trust**
Joel Micah Greenberg, at 37 years of age, may have found religion.
The Third Superseding Indictment filed March 30, 2021 in the Federal District Court for the Middle District of Florida, Orlando Division, alleges a breathtakingly versatile collection of crimes one seldom sees in combination. The alleged crimes include: sex trafficking of a child; illegally obtaining personal information from a motor vehicle record; unlawful use of a means of identification of another person; illegally producing identification and false identification documents; aggravated identity theft; wire fraud; money laundering; stalking a political opponent; and conspiracy to submit false claims to the Small Business Association for economic injury disaster relief and to bribe an SBA employee.
The statutory maximum time in prison for these crimes is staggering. Just because the government or a grand jury says a defendant committed crimes doesn’t make it so. Here, however, Mr. Greenberg appears to be preparing to enter a guilty plea. Reporting does not identify the terms of a negotiated plea agreement but based on recent comments of Mr. Greenberg’s counsel outside the courthouse (suggesting Florida Congressman Gaetz might have something to worry about), the plea deal will likely include Greenberg’s agreement to cooperate with federal prosecutors in exchange for their favorable treatment in the crimes to which he is allowed to plead guilty, dismissing the others, and sentencing recommendations.
Why would Mr. Greenberg agree to cooperate? The answer is based on many factors which include the strength of the evidence against him, the consequences of conviction of some or all of the crimes (especially the most serious), the quality of the information he possesses and its value to prosecutors in the investigation and prosecution of crimes against others, who those others are, how much favor his cooperation could purchase in mitigating the consequences against him (in particular reducing the length of time he must spend in prison), and how uncomfortable his life in prison would be as a known snitch. One’s loyalty to self over that to partners in crime often increases commensurate with the likelihood of serving time in prison.
I have previously posted about the complexities of sentencing for federal crimes in a non-nuanced overview of a very complicated system, much too complex in my opinion. The unfortunate people who are convicted of a federal crime or crimes enter a mysterious world where its occupants speak an unfamiliar language and the heavily cross-referenced and interconnected rules — which matter a lot — are nearly indecipherable to the untrained eye.
While Mr. Greenberg’s judge would have considerable discretion in making sentencing decisions with respect to most of the alleged violations, even in combination, two of the crimes carry minimum mandatory prison terms upon conviction for which the judge would have zero discretion: sex trafficking of a child between the ages 14-17 inclusive carries a mandatory ten (10) year prison term and aggravated identify theft carries a two (2) year mandatory term that, by statute, must be tacked onto any other prison term he earns, including that for child sex trafficking. So under the pending indictment, Mr. Greenberg is looking at no less than twelve (12) years in prison if he is convicted.
Assuming (only) for argument’s sake the strength of evidence against Mr. Greenberg on the crimes that carry mandatory prison terms, how could he reduce his sentence below twelve (12) years? Even if, as part of a cooperation agreement with the government, Mr. Greenberg entered a guilty plea to the crimes that carry a mandatory prison term, the judge has no discretion not to sentence him to the full mandatory terms. With a negotiated plea and cooperation agreement—presuming Greenberg accepts responsibility for his crimes—the prosecution could allow him to plead to charges that do not carry mandatory prison terms.
“I know all about flipping, for 30, 40 years, I’ve been watching flippers. . . . If you can say something bad about Donald Trump and you will go down to two years or three years, which is the deal [Michael Cohen] made, in all fairness to him, most people are going to do that. . . . I have had many friends involved in this stuff. It’s called flipping, and it almost ought to be illegal. . . .”
Donald J. Trump
On occasion prosecutors conclude someone holds information of such importance they are willing to barter for it. Other times the government chooses to compel disclosure through grants of immunity even when the information’s repository has no interest in sharing: if the government gives immunity from prosecution, the recipient can be compelled to disclose but might prefer to sit in jail rather than suffer the consequences of being considered a snitch. Being a snitch can be bad and being dead can be worse.
A subject or target of a criminal investigation, or a defendant, say a Mr. Greenberg, who thinks he has something of value to exchange for reduced charges or reduced time in a federal prison, might entice the government, particularly when the government wants to hook a big fish. If reducing charges or time in federal prison means landing a whale, the government is frequently happy to play catch and release (or at least reduce) with the smaller ones.
Defendants want as much as possible in exchange for as little as possible — the epitome of contract law: what a willing buyer will contractually pay and a willing seller will contractually accept. Of course, in this case there’s one major difference—for the defendant, the threat of losing greater portions of his liberty interest overshadows the process. The government wants valuable, admissible evidence against others. The person bartering for reduced charges and prison time generally won't want to rat on others . . . but will . . . and wants a deal that allows him to disclose everything he’s ever said, stolen, damaged, assaulted, killed, buried, smoked, snorted or fucked – including names and ages – in exchange for a promise of no further prosecution, greater liberty and, of course, the government’s most favorable recommendation to the judge at the time of sentencing.
Considerations for the government's entering a cooperation agreement are like those for granting immunity. They may include:
• Does the person seeking reduced charges or prison time have information on someone higher in the food chain?
• What is the information and what’s its value to the government? The government will not “buy a pig in a poke,” a comment I hear virtually every time I engage a prosecutor in immunity or cooperation discussions. The government usually requires a “proffer” from the lawyer, that is, a detailed description of what the lawyer believes the client has to say so the government knows whether it would receive anything of value in exchange before entering an immunity or cooperation agreement. The proffer will be given in the context of settlement discussions, which courts encourage, so the Rules of Evidence generally prohibit its use in court. Moreover, the lawyer can fashion the proffer to otherwise prevent its use as evidence. It’s for discussion purposes only. It helps when the prosecutor and defense attorney trust each other.
• How serious is the upstream crime?
• Does the government already have the information that is being offered, making cooperation of little value to the government?
• If the government already has the information being offered, is the government’s possession in a form that can be used in court: does it satisfy admissibility under the Rules of Evidence?
• Is the person seeking reduced charges or prison time credible, believable, if he must be called as a witness? Clearly, the fact that someone has bartered for freedom in exchange for becoming a government witness makes him and his credibility easy targets for impeachment on cross examination.
• Is the information credible, believable, verifiable through some independent source?
Another major consideration here, which is unlike most other cases, is whether the defendant has credible, incriminating information against a sitting United States congressman.
The more valuable the information Mr. Greenberg has in assisting the United States in resolving crimes against others, the less time Mr. Greenberg will serve in federal prison. The Department of Justice will assess the level of his cooperation before Mr. Greenberg is sentenced on the counts to which he pleads guilty in the United States District Court, so the DOJ can tell the court just how valuable the assistance has been.
The foregoing is based in Section 5k1.1 of the United States Federal Sentencing Guidelines Manual, which says:
"Substantial Assistant to Authorities (Policy Statement)
"Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines [shorten the time to be spent in a federal prison].
"(a) The appropriate reduction shall be determined by the court for reasons stated that may, but are not limited to, consideration of the following:
"(1) the court's evaluation of the significance of the usefulness of the defendant's assistance, taking into consideration the government's evaluation of the assistance rendered;
"(2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
"(3) the nature and extent of the defendant's assistance;
"(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;
"(5) the timeliness of the defendant's assistance."
The Federal Rules of Criminal Procedure provide incentives, even after sentencing, for a defendant to earn time off his/her time in prison. Rule 35, which can be invoked only after sentencing, gives a defendant up to one year to think about it and provide substantial assistance in “investigating or prosecuting others.” Two things to keep in mind: first, post-sentencing, the court can reduce that sentence only if the prosecution files a motion seeking the reduction; and second, the prosecution has the exclusive right to decide whether to file such a motion, meaning the prosecutor alone determines whether the quality of what the defendant provided rises to the level of “substantial assistance.” The United States Attorney’s Manual provides:
"Substantial Assistance. When making a sentencing recommendation, the attorney for the government may consider whether, and to what extent, the defendant has provided substantial assistance in the investigation or prosecution of others."
One court defined substantial assistance as assistance "directed to the investigation and prosecution of criminal activities by persons other than the defendant." United States v. Billue, 576 F.3d 898, 902 (8th Cir. Minn. 2009).
Rule 35 says:
“(b) Reducing a Sentence for Substantial Assistance.
“(1) In General. Upon the government's motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person. . . .
“(3) Evaluating Substantial Assistance. In evaluating whether the defendant has provided substantial assistance, the court may consider the defendant's presentence assistance.
“(4) Below Statutory Minimum. When acting under Rule 35(b), the court may reduce the sentence to a level below the minimum sentence established by statute.”
*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 many 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