Criminal Defense of Immigrants

(C)  Types of Offenses. 

                (1)  Charged Offenses.  If the safe haven offense is the lead offense — the most serious offense that is commonly charged in Count I of the charging paper — then the chances are higher that the prosecution may be willing to accept a plea of guilty to that charge, thereby protecting the client from deportation on account of the conviction.  In other cases, a safe haven may be found as a charged offense somewhere else in the indictment, information, or complaint filed against the defendant.  Here as well, the prosecution may be likely to accept a plea to a following count, at least if the maximum penalty is more or less equivalent to the most serious offense charged, or the prosecution is willing to agree to a less serious offense in return for the plea.

                (2)  Lesser-Included Offenses.  It may be more difficult to obtain the prosecution’s agreement to a plea to a lesser-included offense because the offense is not as serious and does not have as large a potential maximum sentence as the charged offenses.  On the other hand, a lesser-included offense is very closely related to the facts of the offense originally charged, so there would be little difficulty persuading prosecutor or court that this disposition is factually appropriate so long as the more minor nature of the disposition is not an insuperable obstacle.

                (3)  Reasonably-Related Offenses.  Reasonably-related offenses, that have some factual connection with the conduct committed by the defendant but are not charged offenses or lesser-included offenses to the charged offenses, may be acceptable plea bargains depending on the strength of the evidence that the defendant in fact committed them and on whether the offenses are more or less equivalent in seriousness and potential maximum sentence to the charged offenses. 

                (4)  Unrelated Offenses.  If no safe haven can otherwise be found, it may be necessary to find a completely unrelated safe haven and try to sell the prosecution and court on it as a plea bargain, if deportation is to be avoided.  This practice is not uncommon for relatively minor offenses.  For example, in California, a plea to disturbing the peace is a common unrelated lesser offense to an original charge of soliciting an act of prostitution.  It becomes more difficult, however, to secure the agreement of prosecution and court, particularly in federal criminal cases, to an offense that is unrelated to the conduct of the accused.