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August 5, 2005

And now the rest of the (Ellis) story from the 11th Circuit

In this post last week, I noted the Eleventh Circuit's issuance of an opaque unpublished opinion in US v. Ellis, which remanded for resentencing in an intriguing case involving a former Georgia district attorney convicted of lying to federal agents about an improper sexual relationship with a drug suspect.  Today, in US v. Ellis, No. 05-10150 (11th Cir. Aug. 5, 2005) (available here), we get the rest of the story. 

In short form, the 11th Circuit in Ellis says that the district court erred in upward departing based on guideline section 5K2.7, which encourages a departure if the defendant's conduct "resulted in a significant disruption of a governmental function."  The problem, explains the circuit court, is that "Ellis's false statement to the FBI did not actually disrupt any governmental function."

August 5, 2005 at 03:18 PM | Permalink


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The panel actually required the government to prove a nexus between the departure and the offense conduct. I've read, oh, at least one-hundred published CTA sentencing cases. And I've never seen this level of review.

What do other things? Did the panel give the prosecutor an unfair shake (re: gave him a break). A prosecutor who forces a defendant to have sex with him is the lowest of the low - right down with child molestors. But here, the panel (seems, again, I could be wrong) to do everything in its power to keep him out of prison.

Posted by: 42USC1983 | Aug 5, 2005 4:42:45 PM

Sorry, my emotional outburst caused me to make some typos. (It really fires me up when prosecutors - those who are sworn to uphold the law - get a break when they abuse their power. Especially in a case where, like here, the prosecutor forced a criminal defendant to have sex with him.)

Posted by: 42USC1983 | Aug 5, 2005 4:45:59 PM

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