In negotiating with the prosecution, it has rarely been fruitful to approach a government lawyer until a motion or petition has been filed with the court.  If counsel goes in cold, even with a large package of favorable information concerning the client, the course of least resistance for the prosecution, involving the least work, is simply to say, “No.”  Once a motion has been filed, the old case file in the prosecutor’s office is pulled from storage, the case is assigned to someone to handle, and ideally a court date is approaching.  At that point, the course involving the least work for the prosecutor may well be to settle the case with defense counsel.

 

            It is imperative to have in mind exactly what outcome the client needs in order to avoid the adverse immigration consequences.  The chances of a successful negotiation are enhanced if counsel can offer to substitute a greater offense and greater sentence for the conviction and sentence that must be vacated in order to avoid adverse immigration consequences.  In other words, if counsel approaches the prosecution asking that a felony sale of heroin conviction be vacated, and the charges dismissed, the prosecution may be reluctant to agree.  On the other hand, if counsel can offer a substitute felony, such as a conviction of accessory after the fact to sale of drugs, with reinstatement of the original sentence and credit for full satisfaction of that sentence, the prosecution gets a new felony conviction out of the deal, as well as reinstatement of the original sentence, and may feel s/he is giving up a good deal less.

 

It often helps to write a settlement proposal in the form of a letter to the prosecutor, outlining exactly what you want, and giving a list of reasons why this is a reasonable disposition.

 

On occasion, court or prosecutor will take the position it is somehow improper to reopen a criminal case for the purpose of avoiding adverse immigration consequences, as if it were to defeat “the will of Congress” or frustrate federal law.  To counter this position, it is possible to argue that state law requires counsel to do so,[4] and to put forward all the factors that indicate a compassionate disposition is appropriate in the present case.[5]  What follows are sample arguments on these two points.  A sample negotiation script is also offered below.[6]

[4] See § 9.5, infra.

[5] See § 9.6, infra.

[6] See § 9.7, infra.

Ninth Circuit

NEGOTIATION
Vasquez-Ramirez v. US Dist. Court for the S. Dist. of California, 443 F.3d 692 (9th Cir. Apr. 6, 2006) (once a prosecutor brings charges against a defendant, Federal Rule of Criminal Procedure 11 requires judge to accept defendants guilty plea to those charges, regardless of whether the judge feels prosecutors charging decision was too aggressive or too lenient).
http://caselaw.lp.findlaw.com/data2/circs/9th/0475715p.pdf