01 Imprisoned, Hoping for the Second Instance

Xiao Yao (pseudonym) is a girl who graduated from university not long ago. She has a brother and parents who love her, and her life is simple and peaceful. Her brother, Xiao Jing (pseudonym), started working and earning money very early. Xiao Yao said that her brother is a relatively taciturn person who rarely talks to his family about his life and work, but he has always taken good care of her. In 2019, Xiao Jing suddenly told Xiao Yao that he wanted to buy an apartment in Xiao Yao's name and gave Xiao Yao more than 600,000 yuan as a down payment. Xiao Yao didn't think much about it and went through the procedures for buying the house with the money her brother gave her. At the end of the year, Xiao Yao's brother and father were suddenly arrested on suspicion of committing a crime. However, to make matters worse, Xiao Yao also received a call from the police to go to the police station for investigation. It was not until then that Xiao Yao realized that the money was Xiao Jing's criminal proceeds with others.

The day after the interrogation, Xiao Yao went home on bail pending trial. In the following year, the family was running around for Xiao Jing and his father's affairs, and did not pay attention to whether Xiao Yao's case was over. Unexpectedly, one day a year later, the court suddenly notified Xiao Yao that the court was going to open. In court, Xiao Yao insisted that she did not know that the money for buying the house was illegal. Two months later, Xiao Yao thought she could wait for her acquittal, but she received an arrest warrant and was directly transferred to the detention center. How could the court arrest people in such a good manner? Xiao Yao and her family were surprised and scared, and they couldn't figure it out. The next day, Xiao Yao received a judgment stating that the court sentenced Xiao Yao to three years and one month in prison for the crime of concealing and concealing criminal proceeds. At the moment of seeing the verdict, Xiao Yao felt like a bolt from the blue. Her brother and father had already been sentenced, and even she was going to jail, and the whole family was facing collapse. Although Xiao Yao immediately said that she wanted to appeal, she didn't know if the appeal would still make sense. At this time, a friend of Xiao Yao said that she knew a lawyer, and thus found Chen Zhen, a lawyer from our law firm.

 

02 Lawyer Intervention, Carefully Reviewing Evidence

After discussing with the law firm, the entrustment was quickly determined, and Chen Zhen and I served as Xiao Yao's second-instance defenders. Subsequently, we took the high-speed train to meet with Xiao Yao as soon as possible, comforted her emotions, learned about the general situation of the case, and went to the court to collect relevant evidence materials. After returning to Nanning, we immediately started the work of reviewing the files. Since this case has reached the second instance, the prosecutor's office only has one month to review the files. According to experience, many criminal cases are reviewed in writing in the second instance, and the hope of reversing the judgment in cases that are not heard in court will be relatively slim, so we must find out the unclear facts and insufficient evidence in the case through detailed file review, so as to cause the second instance to be heard in court.

The key to determining the crime of concealing illegal gains lies in establishing the perpetrator's "subjective knowledge," specifically, whether Xiao Yao was aware that the money her brother, Xiao Jing, used to buy her a house was illegally obtained. "Subjective knowledge" is a significant challenge in criminal defense because one cannot read the perpetrator's mind. Determining their true intentions requires assessing the case's specific circumstances, objective conditions, and the perpetrator's actions, considering reason, emotion, and common sense to ascertain whether the perpetrator "knew." While legal theory and judicial interpretations attempt to define "knowledge" concretely, complex individual cases demand a profound understanding of theoretical knowledge combined with extensive practical experience for accurate judgment.

Subsequently, we sorted out the evidence of the entire case, classified the evidence used to presume Xiao Yao's "knowing" and "unknowing", and listed and elaborated on the unclear facts and insufficient evidence identified in the first-instance judgment, forming a preliminary defense opinion. Then we put forward our preliminary defense opinions to the judge, and focused on the unclear facts and insufficient evidence identified in the first-instance judgment, hoping to find out these facts through court hearing. After several communications, the judge finally agreed to hear the case.

 

03 Analyzing the Pros and Cons, Choosing a Defense Plan

After accepting the entrustment, Xiao Yao and her family asked us many times how likely it was to reverse the judgment. Although we won the second-instance hearing, we were still unsure whether the judgment could be reversed. The difficulty of reversing the judgment in the second instance is already very high, not to mention that Xiao Yao has always insisted on being innocent, and the difficulty of reversing the judgment in the second instance is conceivable.

After a comprehensive analysis of the evidence in this case, we believe that the possibility of finding Xiao Yao guilty of concealing and concealing the proceeds of crime is high.

First of all, the most unfavorable thing for Xiao Yao is that Xiao Yao admitted in the first record that she thought there was a problem with the money Xiao Jing gave her, and was willing to plead guilty and accept punishment, but she retracted her confession in the subsequent record. Although Xiao Yao proposed that she was very nervous when making the first record, did not see the contents of the record clearly, and there was inducement, there is no evidence to prove it. Second, Xiao Yao applied for multiple bank cards at the request of her brother for her brother to use. Subsequently, her brother transferred a large amount of funds from other people's bank accounts into Xiao Yao's bank card account for circulation, and several cards had abnormally frequent circulation of funds. Third, Xiao Jing not only bought a house in Xiao Yao's name, but also bought houses in the names of his father, cousin, aunt and others at the same time. According to Xiao Yao's age, experience and cognitive scope, Xiao Yao should be able to feel the abnormality of the source of funds. However, Xiao Yao accepted her brother's money to buy a house without other reasonable explanations. Therefore, based on the evidence of the entire case, we believe that we can determine that Xiao Yao "should have known" that the source of the house purchase was illegal.

Similar to her situation is Xiao Yao's cousin, who was also prosecuted as an accomplice, and her cousin also accepted Xiao Jing's money to buy a house in her own name. In addition, her cousin also helped Xiao Jing transfer money several times. Her cousin's involvement and amount were heavier than Xiao Yao's. We also watched the video of the first instance through the court trial public website and found that Xiao Yao and her cousin still insisted that they did not know the source of the funds at the beginning of the questioning in the court trial, which caused a major conflict with the prosecutor. The difference is that her cousin agreed to plead guilty and accept punishment at the last moment, while Xiao Yao did not. In the end, her cousin was sentenced to probation because she was identified as surrendering herself and was willing to plead guilty and accept punishment. Xiao Yao, who could not be identified as surrendering herself and lacked the circumstances of pleading guilty and accepting punishment, was sentenced to three years and one month in prison. From this, we judged that Xiao Yao, who had a lighter crime, was very likely to get probation if she pleaded guilty and accepted punishment in the first instance. So, is there a chance to get probation if you voluntarily plead guilty and accept punishment in the second instance? With this idea, we began to analyze the pros and cons of the two plans, and wrote defense opinions for both plans. The following briefly explains the risks and advantages of the two plans.

 

1. Guilty Plea Plan

Advantages: According to the law, the guilty plea system applies to all stages of the case, and according to the first instance, Xiao Yao belongs to helping close relatives to conceal and conceal the proceeds of crime, the circumstances are relatively minor, the personal danger is low, and the court does not reject the probation.

Risk: Based on practical experience, pleading guilty and accepting punishment at the second instance stage can easily lead the judicial authorities to believe that the appellant is seeking a lighter punishment and has a significant "speculative mentality." Moreover, giving him the opportunity to plead guilty and accept leniency at the second instance stage will not have a substantial impact on the quality of the case and the efficiency of the proceedings. Therefore, the possibility of obtaining leniency due to pleading guilty and accepting punishment at the second instance stage is low.

 

2. Persist with a not-guilty defense strategy

Advantage: It is the most ideal outcome expected by the client.

Risk: Because Xiao Yao made unfavorable statements against herself in the first written record, and it is impossible to collect reasonable trust evidence that Xiao Yao's brother has a large amount of legal income in a short period of time, it is difficult to find a strong breakthrough. What is even more difficult is that there are two accomplices, Xiao Yao and her cousin, in this case, and the circumstances of the two are similar. If the second instance makes a not-guilty verdict for Xiao Yao, it is equivalent to two accomplices with similar circumstances, one guilty and one not guilty. Although it is undeniable that there are such judgments, this obviously makes the not-guilty defense even more difficult.

After analyzing the advantages and disadvantages of the two plans, we believe that the plea of guilty and acceptance of punishment plan is more promising.

 

04 Detailed Explanation of the Plea and Punishment System to Gain Recognition

After unifying our opinions, the next task is how to persuade Xiao Yao.

Communicating with the client about their willingness to plead guilty and accept punishment is a crucial aspect of criminal defense. This communication goes beyond simply informing them that pleading guilty and accepting punishment can lead to a lighter sentence, or that it's the most lenient sentencing option. In practice, some clients might initially agree to plead guilty and accept punishment as a compromise, but deep down, they either can't accept that they committed a crime or feel they are unjustly accused, leading them to suddenly change their plea during the trial, potentially with counterproductive and strongly worded consequences.

In this meeting, we first explained to Xiao Yao in detail the reasons for the first-instance judgment and the logic of conviction, and then systematically analyzed the evidence that was favorable and unfavorable to her, so that she could understand the whole picture of the case. Finally, we told her the defense ideas and risks of the two plans, and explained to her the purpose and significance of the plea and punishment system, as well as the consequences of signing the plea and punishment agreement.

Xiao Yao told us that what made it difficult for her to understand was that she had never asked her brother about the source of the funds, and she really did not know what her brother was doing illegally. Why did the court still determine that she knew that the source of the funds was illegal? After understanding her doubts, we explained to her in detail the legal standards for determining "knowing" and "should have known," as well as the legal significance behind the standards. Not having asked about the source of the funds and not knowing exactly what kind of illegal activities her brother was engaged in does not mean subjective "unknowing." From the perspective of general common sense and the judge, in the absence of being able to say exactly what her brother's job was and the source of his income, her brother suddenly took out a large amount of money to allow three relatives and friends to buy three houses at the same time, and the purchase price was transferred from multiple unknown accounts. The court inferred that she "should have known" that there was a problem with the source of the funds based on the above-mentioned abnormal circumstances.

The primary prerequisite for pleading guilty and accepting punishment is to be aware of and admit that you have violated the law and committed a crime. Many people believe that "I don't know that doing this is a crime is innocent," which leads them to miss the application of the plea and punishment system because they subjectively feel that they do not constitute a crime. Therefore, only by deeply analyzing the logic and reasons for the legal determination that they constitute a crime can the parties better choose whether they are willing to plead guilty and accept punishment.

At the end of this meeting, we did not let Xiao Yao make a decision immediately, but told her to make a careful choice. No matter what choice she made, we would fully respect and do our best to defend her. A week later, we met with Xiao Yao again. She told us that she had thought it over and was willing to plead guilty and accept punishment. She carefully considered our words. She said that she should have asked about the source of the money when her brother gave her the money. Although she can't recall the psychological state of choosing not to ask at the time, she should also be responsible for her imprudent attitude.

 

05 Communicate with the Prosecutor to Obtain a Plea of Guilty and Acceptance of Punishment

After determining the plan, the next step is the process. Although the case has reached the second instance, even if the plea of guilty and acceptance of punishment is proposed again during the trial, there is no problem. However, we still want to strive to obtain the procuratorate's plea of guilty and acceptance of punishment agreement and the sentencing recommendation for probation. When communicating with the prosecutor for the first time, I was still a little uneasy, worried that it would be rejected outright. Fortunately, the other party listened to our opinions very patiently. Although the prosecutor also pointed out that since Xiao Yao did not plead guilty in the first instance, the plea of guilty and acceptance of punishment in the second instance was of little significance, we immediately explained to the prosecutor that since no one had explained to Xiao Yao in detail the legal rules for determining knowledge in the first instance, she had always believed that as long as her brother had not told her the source of the money, it would not be considered knowledge, so there would be a situation of retraction. This was her misunderstanding of the application of the law. Then, we explained to the prosecutor Xiao Yao's family difficulties and specific circumstances. Afterwards, the prosecutor said that he needed to consider it for a period of time. In the second communication, he agreed to give a probation sentencing recommendation, but would make an oral proposal during the court session and would not sign a plea of guilty and acceptance of punishment agreement separately. Although this was beyond expectations, the lack of written materials was always not reassuring. Finally, in the third communication, the prosecutor agreed to sign a written plea of guilty and acceptance of punishment agreement and gave a recommended probation sentencing recommendation.

 

06 Go All Out to Achieve Good Results in the Court Trial

Although the plea of guilty and acceptance of punishment agreement has been signed and a probation sentencing recommendation has been obtained, we still cannot slack off in the court trial. First of all, preparing a full defense opinion is a must, and two sets of defense plans are prepared to prepare for the client's temporary change of attitude. Second, Xiao Yao was fully communicated with and prepared for the court trial again the day before the trial. This step is very important. It is difficult for clients who lack trial experience to state the facts of the case and express their opinions concisely and accurately. I have seen many times in court trials that the client was interrupted because the narration was too lengthy, the expression was wrong because of emotional excitement, or the opportunity to be given a lighter punishment was lost because the attitude was wavering and contradictory. Therefore, pre-trial counseling is very necessary.

Returning to this case, given that there had been a strong conflict with the prosecutor in the first instance, we need to alleviate Xiao Yao's tension and anxiety before the trial through pre-trial counseling and explanation. In addition, the most important issue to pay attention to is how Xiao Yao explains to the court the reasons for the two changes in her attitude of pleading guilty, and how to convince the judge that Xiao Yao is sincerely remorseful. As a lawyer, we cannot teach Xiao Yao what to say, let alone teach her to lie, because if it is not from her true thoughts, it is likely to backfire in court. Therefore, it is necessary to let Xiao Yao understand the key points of asking and answering questions by rehearsing the questions that may arise in the trial, learn how to accurately express her meaning without causing ambiguity, and let her be psychologically prepared to remain calm even when facing sharp questions. Finally, let her fully prepare her final statement.

At that time, Xiao Yao asked me if it was necessary to prepare the final statement. People in the detention center said that every defendant was crying miserably, and the judge was already tired of hearing it. I told her that I couldn't guarantee whether it would affect the outcome of the case, but I believed that the judge also had compassion, and we should not give up every opportunity. Moreover, this is the best opportunity to leave a good impression. What you have to do is to sincerely show your own mental journey and attitude. She nodded, indicating that she would take it seriously.

On the day of the trial, Xiao Yao's answer was brief, to the point, and sincere, and our defense work was also successfully completed.

 

07 Sudden Disadvantage, Active Response

After the trial, we were still waiting for an important document - the local Justice Bureau's community correction investigation and evaluation opinion. This plays a very important role in whether a suspended sentence can be imposed. In previous communications with the prosecutor, he also mentioned the importance of this document. One day, I suddenly received a call from the judge. The Justice Bureau where Xiao Yao's registered residence was located suggested that she should not be subject to community correction because she did not plead guilty in the first instance and there was a social risk. Hearing this news, I felt a thud in my heart, but we immediately continued to communicate with the judge about whether there was still a possibility of a suspended sentence. The judge replied that whether to impose a suspended sentence needs to be discussed. If we can supplement more materials that meet the conditions for a suspended sentence, we can submit them as soon as possible. Time was tight, so we immediately prepared more supporting materials for her family situation, submitted a more detailed supplementary defense statement, and also an important document, a case with similar circumstances of the same crime that was changed to a suspended sentence in the second instance only because of pleading guilty and accepting punishment, and also lacking a community correction investigation and evaluation opinion. In the case of a cautious attitude in the second instance, a similar case may become an important breakthrough.

After submitting the materials, we entered a period of waiting again. Some people say that the work of a lawyer is similar to that of a doctor. Sometimes they can heal, often help, and always comfort. As defenders, we cannot guarantee the outcome, and we often watch the parties suffer repeatedly between hope and disappointment. All we can do is provide legal assistance to the best of our ability.

 

08 Obtaining a Suspended Sentence, Restoring Light

Tongwang Law Firm

Finally, Xiao Yao was reunited with her family, and all the efforts were worth it.

 

Postscript

Someone once asked, why should lawyers advise their clients to plead guilty and accept punishment? If they choose to plead guilty and accept punishment, why do they need a lawyer? A lawyer was also hired in the first instance of this case, and I believe he was a dedicated lawyer. However, when the client is wavering about whether to plead guilty and accept punishment, we must comprehensively consider whether the facts and evidence of the case are indeed sufficient based on professional analysis and experience judgment, so that the client is fully aware of the reasons and risks of each defense plan before making a choice. Moreover, pleading guilty and accepting punishment only turns the original 'adversarial defense' into a pre-trial 'negotiating defense'. Lawyers can still do their best to fight for a fair and reasonable outcome for their clients.

I am sharing this case note with you in the hope of summarizing experience through review. In fact, in terms of complexity, this is a relatively simple case. The final result is relatively satisfactory, and there is no wonderful story of finding key defense points to reverse the defeat, but looking back on the whole process, if a certain step is missed or a certain link is perfunctory, it will be a waste of effort. Handling a case is sometimes like a rugged mountain road that a lawyer and a client walk together. We cannot guarantee that we will see the sun at the top of the mountain, but we can guarantee that we will take every step with our heart and in a down-to-earth manner.

 

About the Author

Shi Lu, Lawyer

 

Master of Criminal Law from Southwest University of Political Science and Law, off-campus tutor of Guangxi Police Academy, and resident lawyer of the Guangxi Police Association's Rights Protection Workstation for Police Officers.

Focuses on criminal defense business, participates in the defense of many difficult and complex criminal cases such as duty crimes and economic crimes, and strives to provide clients with high-quality and efficient legal services, and has successfully handled many cases of bail pending trial, non-arrest, non-prosecution, suspended sentence, and second-instance retrial.