Sentencing Calculations, Courtesy Of The FBI

Walter Pavlo has a nice follow-up to the not-guilty plea last week from Matthew Martoma, the former SAC Capital Advisors portfolio manager accused of insider trading on a tip he got about an Alzheimer’s drug that failed in test trials.  As Pavlo notes, there is already substantial speculation about whether Martoma will cooperate with the government in its ongoing investigation in hopes of leniency.

But what caught our eye is this discussion of how the FBI secures cooperation:

Tactics used by the FBI are meant to intimidate individuals and get them to cooperate in their investigation.  Cooperating witnesses are powerful in persuading jurors to convict and getting other co-conspirators to plead guilty.  Some agents have told me that they carry a copy of the Federal Sentencing Guideline[s] Table as a visual aid in showing targets how much prison time they could be looking at should they consider NOT cooperating.

That strategy is interesting for at least a couple of reasons.  First, the guidelines aren’t mandatory anymore.  And second, it’s often difficult to figure out exactly what a defendant’s guidelines range will be.  Many issues—such as how many participants are involved in an operation or whether a defendant can be classified as a leader, organizer, manager or supervisor—can’t be resolved until sentencing.

Perhaps in the interest of full disclosure, FBI agents should carry around a copy of United States v. Booker as well.