Interview with Alan Ellis, Criminal Defense Attorney
BY Corporate Crime Reporter
Sausalito, California
And so, after all is said and done, your client is guilty and is facing a term in the federal prison system. The question is: which prison do you want your client to spend time in?
The Bureau of Prisons used to publish a guidebook to its facilities, but it stopped doing so in the early 1990s. Now, attorney Alan Ellis has picked up the task, and has just published The Federal Prison Guidebook 2000 Edition, by Alan Ellis and Samuel Shummon. In it, I learn about security risks at the various prisons, telephone privileges, and exercise facilities. In brief, some are cushier than others.
Alan Ellis is a criminal defense attorney based in Sausalito, California. Ellis has built a career advising white-collar criminals about their upcoming trips to federal prison.
We interviewed Ellis on March 6, 2000.
CCR:What is your practice?
ELLIS:I am a criminal defense law firm specializing in the pre-sentence and post-conviction representation of federal criminal defendants and inmates.
CCR:Is that 100 percent of your work?
ELLIS:One hundred percent. I don’t do any trial work whatsoever. That means that if anybody comes to me and they are interested in proceeding to trial, I will refer the case out.
CCR:How long have you been doing this work?
ELLIS:When I realized that fewer cases were being won pre-trial or at trial, I became aware that for most federal criminal defendants how much time they were going to serve and where they were going to serve it were of paramount concern.
CCR:Obviously, there is enough business to make a living on it.
ELLIS:Yes, although the perception is that by the time people come to me, they don’t have any money left. I don’t have to take every case that comes through the federal system. Nor do I have to represent every federal inmate — there are now more than 100,000.
CCR:And only a small proportion of those 100,000 are people with money — white-collar criminals?
ELLIS:The people who have the resources to hire private counsel are white-collar criminal defendants, some drug defendants, and criminals like child pornographers and computer criminals. About sixty percent of my work is white-collar, thirty percent drug, and ten percent other.
CCR:How do criminals find out about you?
ELLIS:I used to be the president of the National Association of Criminal Defense Lawyers. As a result of holding that office, many people know of my work and my specialty. My office also publishes a newsletter that comes out twice a year. It’s called Federal Pre-Sentence and Post-Conviction News. I mail to 10,000 individuals. Also, my name is probably written on bathroom walls throughout the federal prison system.
CCR:Of the people who knock on your door, what percentage of them do you take on as a client?
ELLIS:If they are able to retain us, and there is no conflict of interest, then I would say just about anybody who qualifies.
CCR:What percentage of the cases are those?
ELLIS:I rarely have a conflict. About a third of the people who contact me are able to pay. I take only maybe five percent of the cases of inmates who contact us. I take about 80 percent of the cases referred to me by an attorney. The more ticklish situation, and the one that I care for the least, is where a client calls me up, without first going to his attorney. He says — I’d like you to help me out on my case. The client is not happy with his lawyer. That is the most problematic. Invariably, in that situation, I will have the client contact the lawyer, and then have the lawyer contact me. In those cases, some lawyers have ego problems and are resentful about the fact that the client went to me because I might be able to help him out. Lawyers who have heard of me usually say — terrific, I’m happy to have the help. Maybe, I’ll learn something at the same time.
CCR:How many attorneys are in your office?
ELLIS:In my California office, in addition to myself, I have two attorneys. In my Pennsylvania office, I have one attorney, and three attorneys of counsel.
CCR:The Bureau of Prisons used to put out a guidebook on the federal prison system. And it used to be a prison by prison analysis. When did they stop publishing that book?
ELLIS:They stopped publishing that in 1992.
CCR:Why?
ELLIS:I’m not sure why. But I started publishing The Federal Prison Guidebook in 1998. I took what they had done, and I added a lot of information. In the most recent 2000 edition, I have expanded the volume to include practice tips, articles on how to get your client a favorable federal prison placement and how to obtain early release.
CCR:Give me an overview of the federal prison system.
ELLIS:There are five types of federal facilities, ranging from minimum, which are the federal prison camps, to high-level security facilities, which are the United States penitentiaries. In between those are low-level security facilities like the federal correctional institution at Ft. Dix, to the medium level security facilities, like the federal correctional institution at Allenwood. Administrative facilities are for the most part federal medical centers at Springfield, Rochester, Lexington and now Devens, Massachusetts.
CCR:Where do you want your clients to go?
ELLIS:We want my clients to be assigned to a minimum security facility that is a federal prison camp. It used to be that if you were a white-collar offender, and you were sentenced to a period of imprisonment, it was pretty much a slam dunk that you were going to a federal prison camp. That is not necessarily the case anymore. There are factors that will keep you out of a federal camp, at least as an initial designation. For example, whether or not you are in custody at sentencing. If the judge remands you to custody after the verdict, and you are not going to be a voluntary surrender, that will negatively impact on your chances of getting to a federal prison camp. Also, if your sentence is ten years or more, that automatically makes you ineligible for a federal prison camp as an initial placement. Finally, if you are not a self-surrender, and your sentence is more than five years, you may find yourself not being eligible initially to go to a federal prison camp. Therefore, you will find yourself at a low-level security prison, which is a prison with fences around it.
CCR:What are the quality of life differences between a federal prison camp and a low-level security facility?
ELLIS:There are two types of federal prison camps. One is the independent stand-alone federal prison camp. An example of that would be the federal camp at Eglin Air Force Base in Florida or the federal prison camp at Maxwell Air Force Base in Alabama. Then you have federal prison camps that are satellite camps of main institutions. An example of that would be the federal prison camp at Lompoc, California which is just outside the U.S. Penitentiary at Lompoc. It is generally thought that it is preferable to go to an independent federal prison camp, because there the guards do not rotate. That means that the correctional officers and staff spend all of their time at the federal prison camp. They are not rotated from the U.S. penitentiary. When you have guards rotating, they have a different mindset towards inmates than staff people who are exclusively dealing with minimum security, non-violent inmates — people who are not a management concern nor a security risk.
CCR:When people say “Club Fed,” do they mean the federal prison camps?
ELLIS:The Bureau of Prisons hates the phrase “Club Fed.” The only thing that will get them more angry is when they read John Grisham’s new novel, The Brethren. The Brethren takes place in a federal prison camp that is really cushy. It’s as if inmates can get away with virtually anything there.
CCR:Is the novel about white-collar criminals?
ELLIS:Yes, it is. It is about three former judges. One is a California Supreme Court Justice, another is a U.S. District Court Judge from Texas, and the third is a Justice of the Peace from Mississippi. It is a good read.
CCR: So, are federal prison camps like country clubs or not?
ELLIS:To quote one of my clients — I’ve been to country clubs, and this is unlike any country club that I would want to belong to. It used to be thought that there were golf courses and tennis courts.
CCR:Were there tennis courts and golf courses at these prison camps?
ELLIS:At Allenwood and some of the other prison camps, it was pretty loose. There may have been golf courses and tennis courts on the property in the past. There still are recreational facilities at the camps. There are handball courts, there may in fact be tennis courts. The general population thinks this is coddling criminals. But you have to allow people to exercise. You have to allow people to work off their frustrations and their tensions.
CCR:Running, lifting weights, and basketball is one thing, but golf is another.
ELLIS:Yes, but tennis and basketball are cheap ways to get exercise. There are no more golf courses in the federal prison system.
CCR:But at the federal prison camps, there is a relatively easier lifestyle than at the higher security facilities.
ELLIS:Yes. You don’t have to watch your back. You don’t have to be thinking that you are going to be attacked. At a federal prison camp, if there is any hint of violence, you are out of there.
CCR:No prisoner should face violence.
ELLIS:No prisoner should face violence, but as a practical matter, it is more likely to occur at a higher level facility than at a federal prison camp. People at a federal prison camp realize that they have more to lose by opting out aggressively. So, they are more scrupulous in following the rules. The Bureau of Prisons tries to exclude people who are predators, violent people, from the federal prison camps.
CCR:So, the vast majority of white-collar criminals end up at a federal prison camp.
ELLIS:Yes. But it is by no means a guarantee. If an inmate thinks — I’m a white collar offender, I’m going to a federal prison camp — they may be sorely mistaken. People ask — when is the best time to bring me into a case? The best time is prior to plea negotiations, so that I can negotiate a plea agreement that will enable a client to have a realistic opportunity to obtain the lowest possible sentence, to be served at the best facility, under terms and conditions that will enable him to get out as soon as possible.
CCR:What is the pre-sentence investigation report?
ELLIS:The pre-sentence investigation report is the background report that is prepared for the court. It tells the court what the estimated federal sentencing guidelines should be. It also tells the court about the defendant’s background that the Bureau of Prisons will closely look at to determine what placement to make. So, it is very important to have a pre-sentence investigation report that does not have anything in it that will preclude camp placement or preclude participation in other types of programming that will enable your client to be released from custody early.
CCR:How can you affect the outcome of a pre-sentence report?
ELLIS:Here is what I advise. Accompany your client to his or her meetings with the probation officer during the preparation of the Presentence Investigation Report (PSI) stage. Probation officers are often overburdened, so obtain in advance the forms they need filled out and the documents they need produced and have your client complete and bring them with him or her to the initial interview. If you have any cases supporting your position regarding anticipated disputed issues in the guidelines, bring the cases with you and highlight the relevant sections. Remember, probation officers are not lawyers and often have a difficult time with memoranda of law. Highlighted cases are more helpful to them. When you meet with the probation officer, find out what his or her “dictation date” is. This is the date by which he or she must dictate the first draft of the PSI. When possible, it is extremely helpful to have the probation officer and the assistant U.S. attorney (AUSA) buy into what you believe is your client’s offense behavior, his or her role in the offense, and any grounds for downward departure before the dictation. Obviously, “buying in” does not mean paying anybody off. It simply means getting them to agree that your position is not unreasonable. Remember that probation officers often have a proprietary interest in their original draft PSI, and getting them to change it through making objections is often very difficult. Hence, you want the best draft PSI you can get so you don’t have to file that many objections.
CCR:What are the kinds of things that can be knocked out of a pre-sentence investigation report?
ELLIS:We had a fellow who was a mule. His task is to take drugs from point A to point B on behalf of higher ups. The mule is being paid a pittance to perform this menial task. Or in this case, the mule was tasked with taking the money from the sale of the drugs from point A to point B. The mule was labeled in the PSI as somebody who was a trusted employee of the Cali cartel in Colombia. This guy was nothing more than a schlepper, a Yiddish word for somebody who takes something from point A to point B. But because of the Cali designation, he would be barred from a federal prison camp. So I had this language removed.
CCR: What about in a white-collar context? What would you be able to get knocked out of the report?
ELLIS:Anything that references ties to organized crime, which I am seeing more and more of in securities fraud cases in New York City. If there is something in the client’s record that showed that he was a security risk, that he had failed to appear for a previous court appearance — I would want to strike that reference.
CCR:Last year, you wrote an article for the Federal Sentencing Reporter. The title of the article is “Answering The Why Question.” You say that at sentencing, most judges want to know answers to two why questions: why did the defendant do what he did? And why is he unlikely to do it again? You propose three answers — diminished capacity, aberrant behavior, and post-offense rehabilitation.
ELLIS:These are not the only possible answers. But judges uniformly want to know — who is this person? Why did this person deviate from a normal law-abiding lifestyle?
CCR:You write: “Too many defense attorneys do not recognize that a white-collar criminal client may have been suffering from a significant mental disorder that contributed to the commission of the offense.”
ELLIS:Lawyers say to me: I have this great plea agreement, and I can’t understand why this client won’t take it. Or: The client is just running off at the mouth. I can’t pin him down. He’s becoming a very difficult client. I can’t really communicate with him. I suggest to lawyers that sometimes if your client is acting crazy, he may be crazy. Crazy does not mean that the client is somebody with a 95 IQ, walking on all fours, drooling from the mouth. Diminished capacity is an encouraged departure under the federal sentencing guidelines. The guidelines define diminished capacity as any significant mental disorder that in any way contributed to the commission of the offense, either because the client didn’t understand what he was doing, or two, he knew that what he was doing was unlawful, but was unable to control his behavior. Prosecutors and defense lawyers think — if a person is able to perpetrate a complex, fraudulent scheme, how could he possibly be crazy? Well, there are documented cases of people who suffer from significant mental disorders who are fully able to develop and pull off complex crimes, but nonetheless did what they did because of mental disorders.
CCR:In what percentage of your white-collar cases do you raise diminished capacity?
ELLIS:In every case, unless there is clear evidence to the contrary, I’m going to have my client evaluated by a mental health professional. In my firm, I have two psychiatric social workers on staff. I will have one of those two social workers do the evaluation. If they think there is something there, I will then refer the client to another mental health professional, generally a forensic psychiatrist, to do a full blown evaluation, including psychological testing.
CCR:How does the initial analysis come out for your white-collar clients?
ELLIS:A good thirty percent of my white-collar clients suffer from some kind of diminished capacity as defined by Section 5K2.13 of the federal sentencing guidelines.
CCR:What about aberrant behavior? Violating the law is aberrant behavior.
ELLIS:If somebody steals a loaf of bread to feed their family, that does not show to me that they are suffering from a mental disorder. However, whenever I see somebody with $10 million and they feel the need to steal $10 million more, I wonder about that person. Any kind of criminal behavior is deviant behavior. That is different from aberrant behavior. There are two views — circuits differ in what is aberrant behavior. Aberrant behavior is thoughtless, spontaneous behavior. I’ll give an example. I’m talking to you right now, and I decide that I’m going to go outside and strangle my secretary. That would be aberrant behavior — thoughtless, spontaneous, wrongful behavior. There was a case where two guys were following an armored car. The back door of the armored car opened, and out fell a bag of money. The men who were following stopped the car, grabbed the bag of money and took off. That’s thoughtless, spontaneous behavior. On the other hand, in another case out of the First Circuit, there was an alderman who worked for a company. He would bribe his fellow alderman to support contracts that favored his company. The First Circuit found that this was conduct that was out of character for him, unlikely to reoccur, caused by some extrinsic factors in his life and called it aberrant behavior.
CCR:In this article, you write: “In some instances, leaving why the defendant did what he did unanswered in sentencing may be wise, because the answer is greed and malice.” Isn’t that the case in most instances?
ELLIS:No. I divide criminal offenders into several categories. There are those people who did what they did because of some sort of mental disorder. Department of Justice statistics show that one in six state inmates suffer from some sort of mental disorder that contributed to the condition of their offense.
CCR:Those are street criminals?
ELLIS:Yes. And I would suggest to you that the one in six figure is low for federal criminals.
CCR:What percentage of federal offenders are drug related?
ELLIS:Sixty percent. And thirty percent white-collar.
CCR:Of the white-collar defendants, what percentage of them do the deed because of greed and malice?
ELLIS:Perhaps 25 percent.
CCR:When the judge asks the question, you say — judge, I can’t answer because the real answer is an embarrassing one — greed and malice.
ELLIS:No, I take another tack. I might raise the issue of unique family circumstance — someone who is the sole supporter of their family. Diminished capacity, aberrant behavior, extraordinary family circumstances, extraordinary charitable contributions —
CCR:Let’s talk about that one. Can you really get a downward departure for someone who is a criminal but gives money to the United Way?
ELLIS:Simply writing a check to the United Way is not going to be enough to get you a downward departure. But somebody who gives their time to mentor, coach, work with underprivileged children or disadvantaged people in the community before they were apprehended may qualify. After you get indicted, you can’t just write a check to the United Way. That to me would be a show of arrogance by trying to buy a downward departure. But if you have somebody who has a documented, pre-indictment history of good works in the community, I would use that as a ground for downward departure. The Supreme Court ruled in 1996 (U.S. v. Koon) that unless a factor has been prohibited as a downward departure, it is fair game. I look and see what makes this case different from the typical, the heartland offense or the heartland offender. Once I see how this offense or offender is different, I will urge that difference as a ground for a downward departure. I have a case coming up right now involving a young man, a 19 year old man who has been convicted of distributing child pornography. He’s not the typical person you think of when you think of the person who distributes child pornography. This is a kid and he has a problem. I am going to be arguing not only diminished capacity but post-offense rehabilitation. Anything that takes my client out of the heartland offense is fertile ground for arguing a downward departure, and I will think of some way of characterizing it.
CCR:What do you mean by heartland offense?
ELLIS:The purpose of the federal sentencing guidelines was to carve out a heartland of the typical case — where similarly situated offenders should receive similar sentences. Someone with no prior record who defrauds a victim out of $100,000 should receive the same sentence in New York as in California. In the 1960s, a minority person in the south facing zero to 20 years, would get the 20 years. That same judge might impose probation on a white-collar offender who happened to belong to the same white only country club that the judge belonged to. In an effort to reign in some of these racist federal judges in the south, the federal government developed these sentencing guidelines.
CCR:The argument was the white-collar criminals got slap-on-the-wrist sentences. Post guidelines, sentences for white-collar criminals started going up. Are these sentences still on the rise?
ELLIS:They have leveled off, but they certainly are higher than they were pre-guidelines. Pre-guidelines, there was a presumption of no time. The in/out decision was in favor of the out. Now, it is more likely than not that the white-collar offender is going to do some time. People don’t realize that the white-collar offender is going to do some time. People don’t realize that in the federal system, if you are charged by the feds, there is a 97 percent chance that you are going to wind up in front of a sentencing judge according to statistics from the U.S. Sentencing Commission. Ninety-four percent of cases result in pleas. Of the six percent that go to trial, 75 percent result in a guilty verdict, according to the Department of Justice. And 82 percent of all federal criminal defendants who are sentenced receive a prison term. And the median prison term is 30 months.2
CCR:When a white-collar criminal comes before you, how high on a list of his concerns is the following: fear of being raped in prison?
ELLIS:High. They are fearful of the unknown, they are fearful of being attacked.
CCR:Is there rape in the federal prison system.
ELLIS:No, certainly not at the minimum security facilities and generally not at the low-level security facilities.
CCR:One of the arguments that you make for downward departure is: since being convicted, my client has rehabilitated himself.
ELLIS:You can show it with is through cooperation. Judges often feel that an offender who provides substantial assistance, who becomes an ally of law enforcement, rather than an enemy of the state, has made effective post-offense rehabilitative efforts. If I determine the client has a mental disorder, once I have detected it, I am going to delay the sentencing as long as possible to establish a track record of treatment therapy, and in some cases medication. A fairly large number of my white collar clients have bipolar disorder, which can be treated with medication.
CCR:Do you have as clients corporate criminals?
ELLIS:Not the corporations. My practice is more oriented to people. Most of the corporate clients go to the corporate counsel firms.
CCR:Does your representation end when the client ends up behind bars?
ELLIS:No. While my clients are behind bars, I am trying to get them out as quickly as possible, by getting them into drug or alcohol programs, boot camp if appropriate, that will enable them to be released earlier than their normal release date. I also try to get my clients into halfway houses or home confinement for as long as possible. Once they are out, and they are on supervisory release — which is the new term for parole — I try and get that terminated as quickly as possible. And at the same time, I try to work out any problems with the probation officer.
CCR:Parole has been abolished in the federal system.
ELLIS:Yes. Pre-guidelines, on a ten year sentence, you could be out after a little more than four years. Now that parole has been abolished, the sentence that you receive is the sentence that you serve, less approximately 15 percent good time. In order to assure that there is some sort of post-incarceration supervision, the Congress has enacted something called supervisory release.
CCR:So, parole is back?
ELLIS:It has never left us, it is here under different terms. The period of post-incarceration supervision is now significantly less than it used to be under the old system.
CCR:Coming out of prison, are white-collar criminals changed people?
ELLIS:Many people that I have talked with are often bitter. They have often made bad contacts while in prison. Nobody likes to go to prison, but some know how to serve time better than others. I counsel my clients on how to survive the experience. For example, I show my clients how to avoid getting on the wrong side of prison staff. The best thing that your case manager can ever say to you is: what’s your name again? The white collar convicts who are in the face of these case managers, who annoy staff, have the most difficult time. On the other hand, I went up to see a type A executive at Allenwood a couple of years go. He had been a high-maintenance client. I met in the waiting room. There he was, dressed in his khakis. He looked fantastic. He must have lost 20 pounds, he had a flat stomach. I said — Dave, you look terrific. And he looked at me and said — Alan, you look like hell. He said the biggest decision that he had to make each day is whether he has to play shortstop or second base. He said — I don’t drink. I cut down on my smoking. I exercise everyday. It is like rehab. I’m reading the great books that I never had the time to read. The government has taken away sixteen months of my life. I’m going to add three years back on the back end through healthy living.