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November 9, 2005

White-collar Booker breaks

This news report on an insurance analyst receiving a below-guideline sentence for his role in an insider-trading scheme has me again wondering, as I did in this long ago post, whether white-collar offenders may be the biggest beneficiaries of the new sentencing discretion Booker gives to federal  judges.  Of course, even if this is true, it might suggest, as discussed before, that the guideline ranges in white-collar cases are too harsh, not that federal judges are exercising their new sentencing discretion inappropriately.

Notably, the post-Booker sentencing data from the US Sentencing Commission (available at this link from the USSC's Booker webpage) would seem to support my conjecture.  The USSC's data indicate that theft and fraud offenses (along with firearm offenses) have the highest rate of judges imposing sentences "otherwise below" the applicable guideline range.  That data point should be examined in context, however, since it appears that theft and fraud offenses have the lowest rate of prosecutor-initiated departures.  Judges are perhaps somewhat more lenient in theft and fraud cases perhaps because prosecutors (especially post-Enron) may be particularly harsh in these cases.  (Moreover, statistics for theft and fraud offenses, which include bank robberies, serve as an imperfect proxy for true white-collar offenses.)

Some related prior posts:

November 9, 2005 at 02:07 PM | Permalink

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Ellen Podgor linked here, and called you "wonderful." Well, the post. Well, whatever.

http://lawprofessors.typepad.com/whitecollarcrime_blog/2005/11/white_collar_se.html

Indeed, the punishments may be harsh. But because WCCriminals may be the _only_ potential criminals out there who _really can_ perform CBAs before they do the crime, maybe harsh sentences actually will dissuade some, performing the deterrence function which is otherwise generally absent in crimes of passion, crimes of need, and crimes of impulse.

Posted by: Eh Nonymous | Nov 9, 2005 7:59:07 PM

“Presumed Guilty” The other side of the story from a “little guy” accused of big white collar crimes…I am currently awaiting a Federal trial for allegedly committing white collar crimes I am not guilty of committing. I have never committed a crime of any type. Paid my taxes, respected others and even law enforcement. I believed that overall our law enforcement agencies were honest and their agents honorable, I was so very wrong. I operated several small businesses that unfortunately failed to gain enough funding to realize their full potential. Many of my investors and clients were retirees...THEY LOST MONEY, and I have to take responsibility for someone else’s poor choices. Everyone's a Victim now, especially the elderly! On my side of the isle, it's pathetic. My life, marriage, and reputation have all been flushed down the toilet. I spent over $100,000 on paying for the best legal advice I could find, a prominent securities attorneys and I even had a full time corporate Attorney on staff plus he was a major shareholder and I STILL GOT INDICTED ANYWAY, AMAZING ISN’T IT? My disclosures were over the top and my agreements very detailed. In 2002, the State of California sued me and by default won a judgment of almost $17M. I went Bankrupt, started drinking heavily, friends disappeared, I was the subject of a major search warrant in march of 2003 which produced nothing that was not already on public file; I understand over 50 total agents with the FBI, IRS and others were apart of the searches of my home, temp. office, banks, accountants homes etal.

Now I have so many negative articles and false statements on the internet, I have only been able to work as a security guard or limo driver. Mistakes were made by me, I took risks and they did not pay off. Are we going to prosecute everyone who dares take a risk? Entrepreneurs are the life blood of this mighty country!
Most of the revenue my companies created where from acting as a distributor for larger companies we had no ownership or stake in. The US Attorney decided to target me, because they knew I did not have the $1.5-$2m it takes to get a reasonably competent legal defense team. I have an overworked, lazy, systematic federal public defender, who advised me on our 2nd meeting, that all was lost, I could not win! I have had to spend over 1000 hours to learn what my rights are and how I can force the system to at least give me a chance at a fair trial! I have 20,000 files that will prove I am innocent of the charges against me. Files the opposition did not get in their searches, due to a really wonderful client of mine who called to warn me the FBI had come to his home with accusations against me.

I have 105 total counts and aiding and abetting. I have been told they like to stack multiple charges of the same crime to induce the accused person to take a plea bargain, instead of going to a costly and time consuming trial. Guilt has been presumed since the beginning. "PRESUMED GUILTY" First with a ridiculous $17m worth of civil judgments and penalties, then when no assets turned up after a few years, a criminal indictment is sought after and it's almost a word for word copy of the States civil case, Imagine that?

I have been diagnosed with a bi-polar disorder and am on four different medications to cope. The name I am using is my full name in Greek, to protect my identity until I decide what direction I will go in. My Public defender said there will be 80-90 percent seniors on my jury, trial could take months because I have over 100
Witnesses I want to call and the A-USA will have that and more. My businesses will seem too complicated for the average 70 year old juror. The prosecutor will simply parade dozens of seniors who will sob and point at me…Sounds like a fair trial with a jury of my peers, right?

I Am very sorry that people lost money and would do anything within reason to change the past, but that's not going to happen! I wanted to give everyone my side of the story or at least a summary thereof.

"Presumed Guilty" Hand cuffed, booked, stripped, searched, finger-printed, kept in jail for two weeks, made bond-cannot have a glass of wine, was subject to drug testing with the lowest life crack heads in my area, every week, I have to report in each week, I have to have permission to leave the city I live in for any reason. I cannot work in any of the jobs I have experience in, insurance and real estate, ALL THIS AND still no trial.

When this whole thing’s over one way or another, I plan to produce a documentary, which will be an ongoing series on others who had to plead guilty or face life in prison for crimes no where near the Scope of ENRON and related fraud cases. Why? NO Money for competent legal counsel, that pretty much sums it up. We have all heard you can indict a boloney sandwich, all you need is a Federal Grand Jury and 50% vote. The US Attorney is well aware that most of their “white collar” charges would never stand up in a Fair and Balanced trial setting. If more people fought and won at trial, precedents would be had and a deluge of federal prisoners would demand new trials..

I am not asking for sympathy, I am a man and will take my lumps, as long as they are equally administered!

Posted by: Yianni Papadojiannis | Mar 14, 2007 6:31:15 PM

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