Andrew Lelling, the new U.S. Attorney for the District of Massachusetts, along with his First Assistant Nathaniel Mendell, Criminal Division Chief Zachary Hafer, and Civil Division Chief Mary Murrane, spoke at an event last night hosted by the Boston Bar Association. Lelling and his staff acknowledged that the “Sessions Memo,” which directs federal prosecutors to “charge and pursue the most serious, readily provable offense,” gives them less discretion when charging defendants and making sentencing recommendations than they had under the prior administration. Still, the panelists noted that there is room for advocacy before charging decisions are made.
U.S. Attorney Lelling and Criminal Chief Hafer invited attorneys to meet with line prosecutors and Office leadership during the investigation phase or before charging. Lelling said frank and informal discussions with counsel about the strengths and weaknesses of a case can influence the Office’s charging decisions. The U.S. Attorney added that attorneys can sometimes achieve good results for their clients if they can educate prosecutors about an exculpatory aspect of the case that may not yet have been clear from the investigation.
Lelling and his staff also expressed an openness to “C pleas,” which are a type of plea agreement in which the defendant and the government agree to both the offenses to which the defendant will plead and a specific sentence or sentencing range. If the court accepts the plea, the agreed upon sentence or sentence range is binding on the court. Some judges have expressed a strong dislike for C pleas — Judge Young in the District of Massachusetts was particularly vocal in his decision rejecting a C Plea for corporate defendant Aegerion Pharmaceuticals — but Lelling said he still thinks C pleas are in the public interest and will present them to judges. A well negotiated C plea by an individual or corporate client’s attorney can provide welcomed predictability to the resolution of a criminal investigation.