February 2, 2008
Senate crack/powder sentencing hearing later this month
As detailed in this official hearing notice and in this FAMM webpage, the U.S. Senate Judiciary Committee, Subcommittee on Crime and Drugs has scheduled a hearing for the afternoon of Tuesday, February 12 titled "Reforming the 100-to-1 Crack/Powder Disparity." As FAMM notes, "three bills have been introduced in the Senate and will likely be the subject of debate at the hearing." What FAMM does not note is that it seems pretty unlikely that any of these bills will go anywhere in an election year.
The witnesses for the hearing have not been announced, though I would guess the usual suspects on this issue (with the usual advocacy positions) will be showcased.
Another Wal-mart (sentencing) discount for former executive
This article discussing a high-profile federal sentencing in Arkansas provides yet another example of the impact of the Supreme Court's Gall decision on current federal sentencing realities. Here are some highlights:
A federal court judge Friday gave former Wal-Mart vice chairman Tom Coughlin nearly the same sentence he gave him in August 2006.
After a three-hour sentencing hearing Friday, U.S. District Judge Robert Dawson again sentenced Coughlin to five years of probation and 27 months of home detention with an electronic monitoring device. Added to Coughlin’s sentence Friday was 1, 500 hours of community service....
Coughlin, 58, pleaded guilty in January 2006 to wire fraud and tax evasion, admitting he stole gift cards and equipment from the world’s largest retailer. He also falsified vouchers and invoices in order to pocket the cash.... In giving Coughlin home detention and probation, Dawson departed from federal sentencing guidelines that called for Coughlin to be sentenced to 27 to 33 months in prison.
The government said it asked for prison time for Coughlin because of the severity of the crimes and his abuse of his position of trust in the company. “We believe this was a case that needed prison time,” Assistant U. S. Attorney Christopher Plumlee said after Friday’s proceedings. He said discussions would be held in the Justice Department before the government decides whether to appeal Dawson’s sentence again.
The government appealed Dawson’s original sentence to the 8th Circuit Court of Appeals, which overturned the sentence and sent it back to Dawson for resentencing. Dawson said he declined to send Coughlin to prison because he had no previous criminal record, because Coughlin had a record of community service, and because of the former executive’s public fall from his position in life and the effect it had on him and his family. Prison would threaten the life of a nonviolent offender, the judge said. Dawson said he believed the sentence “punished the defendant sufficiently but not greater than necessary.”...
Dawson’s original sentence of Coughlin was overturned and remanded in August by the 8th Circuit because his departure from sentencing guidelines did not “fall within the range of reasonableness.” The U.S. Supreme Court, in Gall v. U.S. in December, ruled that appeals courts erred in failing to give district judges leeway in sentencing. Dawson wrote in a 30-page sentencing memorandum he made public Friday that the Gall case also found the appeals courts erred in requiring extraordinary circumstances to support substantial variations from the sentencing guidelines. Dawson wrote that his sentencing memorandum was a discussion of the impact of the Gall ruling on Coughlin’s case and his justification for departing from the sentencing guidelines in Coughlin’s sentence.
I will post Judge Dawson's new sentencing memorandum as soon as I track down a copy.
UPDATE: A friendly reader sent me a copy of the opinion, which is a great read (even though my last name is spelled wrong in the second footnote):
February 1, 2008
Split verdict in Wesley Snipes trial ... and another potential high-profile acquitted conduct case
As detailed in this early news report, today brought "a split verdict in the tax evasion case against actor Wesley Snipes." Here are more specifics:
A federal jury in Ocala this afternoon found Snipes guilty of three misdemeanor charges of not filing tax returns. He faces up to three years in prison. The jury found Snipes not guilty of fraud, conspiracy and three other counts of not filing a tax return.
Given that the just rejected all the felony charges, this case could present a real interesting setting for a debate over acquitted conduct sentencing enhancements. And just in time for an upcoming Sixth Circuit en banc case on the issue (details here and here).
I wonder if the Snipes team needs a sentencing consultant.
First Survivor winner voted loser in First Circuit
Just in time for next week's premier of Survivor: Micronesia - Fans vs. Favorites, the First Circuit today affirmed in this long opinion the federal convictions and sentence of Richard Hatch, who won the first installment of the reality TV show "Survivor." Here is how the 52-page ruling starts:
Appellant-defendant Richard Hatch, the first winner of the CBS reality tv show "Survivor," appeals from his convictions and sentence on three counts of filing false tax returns, in violation of 26 U.S.C. §§ 7201 and 7206(1), after a jury trial in the United States District Court for the District of Rhode Island.
Hatch makes four arguments on appeal: (1) that the district court violated his Sixth Amendment rights by curtailing Hatch's explanation of why he believed the show's producers had paid the taxes on his "Survivor" winnings; (2) that, in a variety of ways, the court improperly limited the defense's right to crossexamine; (3) that the court wrongly allowed the government to use what Hatch calls "unqualified experts" while excluding some of the testimony of Hatch's own expert; and (4) that his sentence was unreasonably harsh. After reviewing the record and the arguments, we affirm the convictions on all three counts and the sentence.
Fascinating Eighth Circuit case on restitution
A somewhat amusing set of facts leads to an Eighth Circuit opinion today addressing a very interesting set of legal issues in US v. Chalupnik, No. 07-1355P (8th Cir. Feb. 1, 2008) (available here). Here is how the opinion starts:
BMG Columbia House (“BMG”) sells CDs and DVDs by mail. Many BMG discs prove to be undeliverable. During the time in question, BMG arranged with the United States Postal Service (“USPS”) to gather and discard undeliverable discs, as it was less costly for BMG to produce replacement discs than to pay for the return and restocking of undeliverable discs. James Chalupnik, a janitorial supervisor at the downtown post office in Fargo, North Dakota, took several thousand undeliverable CDs and DVDs from the post office trash and sold them to used record stores. Initially charged with felony mail theft, Chalupnik pleaded guilty to misdemeanor copyright infringement in violation of 17 U.S.C. § 506(a) and 18 U.S.C. § 2319(b)(3). The district court sentenced Chalupnik to two years probation and ordered him to pay -2- BMG restitution in an amount equal to his documented sales proceeds, $78,818. Chalupnik appeals the restitution award. We conclude that the government failed to prove the amount of loss to BMG proximately caused by Chalupnik’s offense. Accordingly, we vacate the restitution award and remand for resentencing.
January 31, 2008
SCOTUS grants last-minute execution stay in Alabama
According to this new AP story, a "murderer scheduled to die in what would have been the nation's first execution in months won a last-minute reprieve Thrusday from the U.S. Supreme Court, prison officials said." Here's more from the AP report:
James Harvey Callahan, set to die at 6 p.m., was granted a stay, Holman prison warden Grant Culliver told officers on death row. The inmate's attorney had asked the high court to halt the execution after a federal appeals court lifted a stay granted by a Montgomery judge. It would have been the nation's first execution since Sept. 25, the day the U.S. Supreme Court agreed to consider whether lethal injection is cruel and unusual punishment. THIS IS A BREAKING NEWS UPDATE. Check back soon for further information.
UPDATE: This blog post from the Birmingham News provides a few more specifics:
The U.S. Supreme Court at 4:45 p.m. today issued a stay delaying the execution of convicted killer James Callahan, who was scheduled to die by lethal injection at 6 p.m. today. Callahan was convicted of the 1982 kidnapping and murder of Jacksonville State University student Rebecca Howell....
Prison officials said Callahan's family is "overjoyed" that the execution has been delayed.... Alabama had tried twice before to become the first state to resume executions, but both of those executions also were stopped by the courts.
A loooong Eleventh Circuit opinion reversing below-guideline sentence
Though I doubt it will be quite as exciting as either the Lost season premire or the Democrats playing one-on-one, part of my evening plans now include readind the Eleventh Circuit's new 50-page(!) opinion addressing reasonableness review in US v. Pugh, No. No. 07-10183 (11th Cir. Jan 31, 2008) (available here). Here is how the long opinion starts:
This appeal tests the nature and extent of appellate review over sentencing under the new regime of advisory Sentencing Guidelines. After thorough review, we are constrained to conclude that even under the most recent Supreme Court precedent, affording substantial deference to the district court’s sentencing determinations, the district court abused its discretion by imposing a probationary sentence on the defendant in this case.
Here, the government appealed from the non-custodial sentence of defendant Bruce Clayton Pugh (“Pugh”), who downloaded on his computer over a period of several years at least 68 images of child pornography, as well as videos of an adult male raping an infant girl and of a young girl performing oral sex on an adult male. The advisory Sentencing Guidelines range recommended for the offense to which Pugh pled guilty -- knowing possession of images of child pornography that were mailed, shipped or transported by computer in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A) -- was 97 to 120 months’ imprisonment. The district court nevertheless sentenced Pugh to a five-year probationary term. In so doing, the district court relied heavily on Pugh’s history, characteristics and motive in imposing a non-custodial sentence for a crime that fell on the high end of the Guidelines sentencing table. But in our view, the district court did not provide a sufficiently compelling justification to support the degree of its variance, nor did it give any apparent weight to many other important statutory factors embodied by Congress in 18 U.S.C. § 3553(a) that must be considered at sentencing. As we see it, this probationary sentence utterly failed to adequately promote general deterrence, reflect the seriousness of Pugh’s offense, show respect for the law, or address in any way the relevant Guidelines policy statements and directives. Accordingly, we hold that this sentence is unreasonable, and therefore vacate and remand so that the district court can re-calculate the defendant’s sentence.
Drug laws, racial attitudes and jurisprudence
Alex Coolman, the lawyer who authors the always interesting Drug Law Blog, has a terrific new post providing the particulars interview with Prof. Doris Marie Provine, author of the book Unequal Under Law: Race in the War on Drugs. Here are snippets of an interview that should be read in full:
Q: I’m thinking — and this is maybe a counter-example — of the moment you note in your book when Rep. Barney Frank was talking about the crack-powder sentencing disparity. He was being very explicit and saying it was “overwhelmingly, objectively racist,” and he inspired all these outraged responses from other representatives who just thought that was ludicrous and that it couldn’t possibly be.
A: You can’t go that route and create policy change. I think Marc Mauer [the director of the Sentencing Project] is brilliant in the way that he is approaching change. If we talked with Marc, I think his analysis of that disparity would be very similar. But his approach when he’s dealing with people who aren’t of this persuasion is to address the issue in terms of “efficiency,” “cost,” all these utilitarian concepts. That’s good, because it’s more neutral territory and people can go there and not get so aroused. But I don’t have Marc’s job. I have a different job. My focus in this book was on how race amplifies the fears that mind-altering drugs provoke.
Around the blogosphere
Lots and lots of interesting new posts that should be of interest to sentencing fans can be found at the following blogs:
- Capital Defense Weekly
- Corrections Sentencing
- Crime and Consequences
- Grits for Breakfast
- White Collar Crime Prof
Check 'em out.
Where "acceptance of responsibility" outer limits meets the sentencing twilight zone
A new Tenth Circuit opinion in US vs Lozano, No. 06-1424 (10th Cir. Jan. 30, 2008) (available here) makes it hard not to recall classic sci-fi television shows like "The Outer Limits" and "The Twilight Zone." (Perhaps I should do a podcast about Lozano to honor this famous opening: "There is nothing wrong with your sentencing instincts. Do not attempt to adjust the guidelines. We are controlling calculations.")
Here is the opening paragraph of an interesting opinion in Lozano, which is principally about the application of the guidelines' provisions on acceptance of responsibility:
Cecilia Lozano, convicted of two drug counts, but acquitted of a drug conspiracy charge, essentially argues that, due to the district court’s technical sentencing error, she was entitled to more consideration for acceptance of responsibility than she received. Because the court’s technical error “places us in the zone of speculation and conjecture,” we remand for resentencing so that the district court may determine the sentence it thinks proper under the guidelines and the 18 U.S.C. § 3553 factors. United States v. Labastida-Segura, 396 F.3d 1140, 1143 (10th Cir. 2005).
Fifth Circuit flags yet another criminal history circuit split for SCOTUS to consider
By my count, the Supreme Court this Term has four cases on its docket (which is more than 5% of its merits docket) committed to resolving circuit splits concerning the impact and import of state criminal convictions in the application of federal sentencing law: (1) Logan (decided last month, basics here); (2) Rodriquez (argued earlier this month, basics here); (3) Begay (argued earlier this month, basics here); and (4) Burgess (to be argued in March, basics here). As federal sentencing practitioners know, however, there are plenty more cases like these producing circuit splits over state criminal history and federal sentencing rules.
Another splitting criminal history headache is showcased in a recent Fifth Circuit ruling, US vs. Lopez-Salas, No. 06-41637 (5th Cir. Jan. 3, 2008) (available here). Interestingly, in this case the Fifth Circuit expressly rejects the government's interpretation of the criminal history aspect of the immigration guidelines, and interpretation which the district court and a prior Eleventh Circuit decision had adopted. It will be interesting to see if the government considers appealing this ruling and gives SCOTUS yet another opportunity to examine the wonderful intricacies of state criminal history and federal sentencing law.
January 30, 2008
Murder, media and other capital mayhem
I have been meaning all week to spotlight Jeffrey Toobin's fascinating essay in The New Yorker about all the craziness surrounding the crimes and trials and tribulations of Brian Nichols, the notorious Georgia courthouse shooter. Here was one of many great passages from the Toobin piece:
The Nichols case illustrates a troubling paradox in death-penalty jurisprudence: the more heinous a crime — and the more incontrovertible the evidence of a defendant’s guilt — the greater the cost of the defense may be . Death-penalty trials require juries not only to determine whether the defendant is guilty but also to make other complex moral judgments — why a defendant committed a crime, whether he is likely to do so again, what punishment fits the crime. Defendants are entitled to often costly expert assistance, including the services of psychiatrists, as they prepare their cases. Yet spending large sums of public money on the defense of capital cases is politically incendiary, and in Georgia the consequences may be cataclysmic. According to Stephen B. Bright, the senior counsel for the Southern Center for Human Rights, in Atlanta, “We are just now starting to see the ripple effect of Nichols. The question now is whether the whole thing is going to come crashing down.”
The quote from Stephen Bright is now especially interesting in light of this new development regarding the Nichols case:
The judge presiding over the case of accused courthouse shooter Brian Nichols says he is stepping down from the case. Superior Court Judge Hilton Fuller announced his decision in a letter to Doris Downs, the chief judge for Fulton County Superior Court.
He cited recent media reports referring to a quote in a magazine article attributed to him in which he allegedly asserted that Brian Nichols was guilty.
The article by Jeffrey Toobin appeared in the New Yorker. Fuller insisted he didn't recall making the comment and that his arrangement with the writer was that their conversation would be for background only.
Two notable Rita remands from the Eighth Circuit
The Eighth Circuit today has two notable (and notably similar) remands based on Rita. My friends cut and paste help me provide these unofficial summaries from this official circuit webpage:
US v. William Greene, No: 07-1479 [PUBLISHED] [Bye, Author, with Bowman and Smith, Circuit Judges](available here): In light of Rita, the district court's application of a presumption of reasonableness to the applicable guidelines range was a significant procedural error, and the case is remanded for resentencing.
US v. Nathan Huff, No: 07-1500 [PUBLISHED] [Bye, Author, with Bowman and Smith, Circuit Judges](available here): In light of Rita, the district court's application of a presumption of reasonableness to the applicable guidelines range was a significant procedural error, and the case is remanded for resentencing.
Is an Alabama execution possible this week after Eleventh Circuit lifts a stay?
It has been a long time since any lower court has generated serious execution news over the last three months as the Baze lethal injection de facto moratorium settled in. However, as detailed in this brief AP piece from Alabama, a "federal appeals court has lifted a stay of execution for James Harvey Callahan, who is scheduled to be executed Thursday. But it could be delayed again by the U.S. Supreme Court, which has not yet ruled on lethal injection."
The federal appeals court making the news is the Eleventh Circuit, which just released this split panel opinion in which the majority explains that "in light of the fact Callahan’s complaint was filed more than two years beyond the limitations period, the district court abused its discretion by entering a stay of execution." The opinion is an interesting read, and there is little doubt that additional litigation developments will follow soon. Stay tuned.
UPDATE: Over at SCOTUSblog, Lyle Denniston has this new post about this Alabama litigation. Here is how that post begins:
Three weeks after the Supreme Court held a hearing on constitutional issues surrounding the lethal injection method of execution for murder, the Justices are expected to be asked later Wednesday whether to keep intact an informal but functional bar to such executions until a ruling is issued in the test case. Alabama legal sources said that attorneys for James Callahan, facing execution in that state at 6 p.m. Thursday, were preparing an application seeking to postpone the execution. The Court has not permitted an execution to occur since shortly after it agreed to examine the lethal injection method in an order on Sept. 25.
Lies, damned lies, and recidivism statistics
Thanks to this post at Sex Crimes, I see that the Numbers Guy at the Wall Street Journal has this effective post asking the important question "How Likely Are Sex Offenders to Repeat Their Crimes?" and this related print story about the challenges of getting accurate data on sex offender recidivism. Here are snippets of the blog post from the Numbers Guy:
In debates over laws monitoring released sex offenders, it’s common to hear claims that they’re sure to commit more sex crimes.... But as my print column this week points out, the numbers don’t bear this out. Recidivism rates vary widely depending on which crimes are counted, the timeframe of the studies, and whether repeat offenses are defined by convictions, arrests, or self-reporting. But even the author of a widely published report suggesting a recidivism rate of 52%, Wisconsin psychologist Dennis Doren, told me of the notion that all sex criminals are likely to re-offend, “There is no research support for that view, period.” ...
The conventional wisdom on sex-crime recidivism, coupled with high-profile sex crimes against children, has helped spur the spate of registry and neighbor-notification laws, even before they could be properly studied for their impact on recidivism rates. Several researchers, including Dr. Doren, say that residency-restriction laws may be counterproductive. Such a constraint “drives them out of their community, and leads to a lack of stability,” said Karen J. Terry, a criminologist at John Jay College in New York. “Those are some of the underlying conditions that caused them to abuse in the first place.” A consensus on how to measure recidivism, and determine its baseline rate, would help evaluate such laws.
This research is expensive and long-term follow-ups are, by definition, slow to produce results. Even if we were to know whether rates have declined in recent years, it would be difficult to isolate the cause. Dr. Doren proposes several alternate explanations for his perception that rates have declined in recent years, including better and more frequent treatment, and closer monitoring.
Critically, the challenging issues spotted by the Numbers Guy attend not only to sex offender recidivism. The US Sentencing Commission did some very interesting work on recidivism a few years ago (see here and here and here), which found among other things that the recidivism predictor used by the the US Parole Commission two decades ago "is a statistically better recidivism risk prediction instrument than" the criminal history categories incorporated by the Sentencing Commission into the sentencing guidelines.
What's most disconcerting, however, is the common reality that even perfect crime rate studies and data about recidivism cannot alone significantly alter the public viewpoints and political debates. As we often see in the context of the death penalty, statistical realities and empirical debates often serve —perhaps sometimes just unconsciously — as cover for the expression of other normative concerns. Though I sincerely hope lots of smart folks will continue crunching public safety numbers, policy advocates need to invest more time in thinking about how to effectively operationalize solid data insights into sound sentencing reforms.
Feds saying harm to reputation justifies a below-guideline sentence for Bill Lerach
As detailed in this New York Sun article and this WSJ Law Blog post, federal prosecutors "are seeking a two-year prison term for one of the nation's most successful class-action attorneys, William Lerach." The Sun article explains why this is notable:
Prosecutors said federal guidelines call for a sentence somewhat longer than 24 months, but that the term would be sufficient for Lerach in light of the harm done to his reputation.... Lerach "stands in disgrace before the profession of which he considered himself a national leader," prosecutors said. They did give Lerach credit for coming forward on his own initiative with an offer to plead guilty and for having no direct involvement in the alleged conspiracy "for a considerable time."
Lerach's defense team has also weighed in on the sentence and is presumably seeking the minimum prison term under the plea agreement, 12 months. However, the defense's precise position is unknown because it has asked that all its papers relating to sentencing, including letters testifying to Lerach's character, be placed under seal.
This news make this case the rare (first?) post-Booker high-profile sentencing setting, at least that I can recall, in which the government is urging a below-guideline sentence for reasons other than cooperation with authorities. Of course, the government is hardly being a softie here. As detailed in this WSJ post, the government's sentencing advice may be mandated by the terms of the plea agreement and is still tougher than what Lerach's PSR recommends:
The plea agreement calls for a one to two-year sentence. Within that range, exactly how much is just right is now a source of debate within the federal government. The U.S. Probation Office has recommended 15 months, but in a court filing yesterday prosecutors asked for two years. Los Angeles federal Judge John Walter is due to sentence the famed securities litigator a week from Monday. A mere 15 months, prosecutors argue, “does not adequately promote respect for the law, nor does it provide just punishment.”
More great SCOTUS briefing on the rule of lenity
As noted in this prior post, the petitioner in Burgess v. United States, No. 06-11429 — a case concerning the application of a 20-year mandatory minimum sentence imposed under 21 U.S.C. § 841(b)(1)(A) — filed a merits brief last week that included an interesting discussion of the "rule of lenity." This week now brings an amicus brief in Burgess which is focused on the history and modern application of the lenity canon of construction. This amicus brief can be download below, and here are just a few of the many highlights from its interesting arguments:
The rule of lenity derives from the practice of the English courts in the seventeenth and eighteenth centuries of strictly construing penal statutes.... [H]istorical precedents show an emerging understanding that a restrained judicial reading of sentencing laws appropriately observes the line between the legislature’s prerogative in enacting criminal statutes and the more limited judicial role of interpreting and applying them.
The rule of lenity likewise has deep roots in American law. Chief Justice Marshall’s opinion in United States v. Wiltberger, 18 U.S. (5 Wheat.) 76 (1820), detached the rule from any particular association with capital sentencing and located it firmly in the understanding that it is the role of the legislature, not the courts, to define crimes and their punishments. By the time of McBoyle v. United States, 283 U.S. 25 (1931), it was clear that the rule of lenity was a structural safeguard requiring that criminal punishment be clearly authorized by a statute — not so much for the benefit of the individual defendant, who Justice Holmes’s opinion acknowledged was unlikely to “carefully consider the text of the law,” id. at 27, but rather to protect the broader principle that prospective statutes, not retrospective judicial decisions, should define the criminal law. The rule of lenity is by now an established part of our legal system and a background principle against which Congress presumptively legislates, and so has acquired precedential significance that reinforces its original justification.
Application of the rule of lenity is particularly appropriate with respect to mandatory minimum sentencing provisions, such as § 841(b)(1)(A). Like the English statutes removing benefit of clergy, mandatory minimums require a harsher punishment than might otherwise be imposed after judicial consideration of the circumstances of a particular case. Mandatory minimums are thus contrary to the usual rule permitting discretion in sentencing. Applying the rule of lenity to mandatory minimums also vindicates the underlying bases of the rule — the separation of powers and the principle of legality. A mandatory minimum sentence, with its serious consequences for individual liberty, should be imposed only when Congress has spoken clearly. In addition, the certainty offered by the rule of lenity enhances the smooth operation of the criminal justice system.
Lynne Stewart appeal raising lots of notable issues
As detailed in press reports assembled here and here by How Appealing, there were "intense arguments Tuesday at the 2nd U.S. Circuit Court of Appeals" over the federal conviction and sentence of defense attorney Lynne Stewart. This New York Law Journal piece provides many highlights:
Defense attorney Joshua Dratel, trying to win a reversal of Stewart's 2005 conviction for providing material support to a terrorist conspiracy, claimed that Stewart's release of a statement by imprisoned Sheik Omar Abdel Rahman to his followers in the outlaw Islamic Group was protected by the First Amendment. But Anthony Barkow, an Assistant U.S. Attorney in the Southern District of New York who was part of the government's team during the trial before Judge John Koeltl, told the panel that there was "abundantly overwhelming evidence" that Stewart and interpreter Mohamed Yousry "knew that what they were doing was wrong" when they passed messages between the Islamic Group and the sheik....
Judges Guido Calabresi, John M. Walker Jr. and Robert Sack threw one question after another at lawyers for Stewart, Yousry and a third co-defendant, Ahmed Abdel Sattar, who was convicted of engaging in a conspiracy to murder in the Middle East.... The arguments Tuesday occurred before hundreds of people, many of them supporters of Stewart, who nearly packed the ceremonial courtroom on the ninth floor of the courthouse at 500 Pearl Street.... During the first two hours of the arguments, Calabresi and Sack returned repeatedly to the issues of knowledge and intent....
With the appeal pending, Stewart, who was disbarred in April 2007, has yet to begin serving a 28-month sentence, which the prosecution believes is far too low for the crime. Barkow argued that Koeltl abused his discretion in giving Stewart a "slap on the wrist." Barkow received more than a sympathetic response from Walker, who said Judge Koeltl "didn't sufficiently consider that she abused her position as a lawyer and lied to the government" when Stewart signed attorney affirmations promising to abide by the special administrative measures the Justice Department and the Bureau of Prisons imposed on the sheik to prevent him from communicating with the Islamic Group.
"There's a serious aspect to this case ... that a lawyer is sworn to uphold codes of conduct and ethics and behave in a particular way," Walker said. He said that Koeltl "in effect" nullified the terrorism enhancement in the sentencing guidelines "because there was no harm." "Doesn't the judge have to at least account for the guidelines? It seems there was no consideration," he said, adding later, "We don't want total freewheeling judges just to make decisions that they choose."
Given the make-up of the panel and all the intricate and important issues involved, I would expect a split decision in this case and further appeals (both en banc and to SCOTUS) perhaps by both sides. In other words, I suspect this Stewart case will generate plenty more stories in the months and years ahead. But whether these stories will involve the federal sentencing issues that obviously are troubling Judge Walker remains to be seen.
A (last?) federal juve parole case
A distinctive case and facts leads to an interesting opinion from the Tenth Circuit in Alexander v. US Parole Commission, No. 06-1343 (10th Cir. Jan 29, 2008) (available here). Here is how the opinion begins:
The Federal Youth Corrections Act (“YCA”), enacted in 1950, was designed to prevent youths from hardening into habitual offenders by providing them with treatment aimed at achieving rehabilitation. 18 U.S.C. § 5010 (repealed 1984). Because the statute was repealed in 1984, there are few inmates remaining who were sentenced under the Act. Petitioner-appellee Roy Alexander may be the only one. The brutality of his crime — a murder and robbery of four individuals — sets him apart from most YCA offenders and makes his case particularly difficult. Because Mr. Alexander’s crime was so heinous, the United States Parole Commission (“Commission”) has repeatedly denied parole despite Mr. Alexander’s successful completion of his treatment program. Though on each previous habeas petition the district court found the Commission’s denial supported by the evidence, on his most recent petition the district court granted him relief, ordering the Commission to take into consideration possible conditions on release in its analysis of Mr. Alexander’s parole eligibility, and to develop a pre-release plan for Mr. Alexander, to be followed by the Bureau of Prisons. The Commission appeals from this order. We take jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253 and affirm in part and reverse in part.
January 29, 2008
Another long sentence for a chief involved in corporate fraud
As detailed in reports from Bloomberg News and Reuters, another corporate fraud led to another very long prison sentence in federal court today. Here are some notable highlights from the Bloomberg report:
Daniel Marino, the former finance chief of the bankrupt hedge-fund firm Bayou Group LLC, was sentenced to 20 years in prison for defrauding investors of as much as $400 million. The judge cited the size and length of the eight-year fraud, and Marino's role as its "linchpin'' in setting the sentence. Marino, 48, who had sought leniency due to his cooperation with prosecutors, was ordered imprisoned immediately. He was handcuffed by marshals in the well of the courtroom and led away.
"You are as much a career criminal as any mobster or any drug kingpin,'' U.S. District Judge Colleen McMahon said today in Manhattan federal court, adding he may have gotten a 50-year term. "There is simply no alternative but to punish you for your life of crime.''...
Marino apologized today, saying he was "truly sorry.'' Individuals who cooperate typically receive greatly reduced sentences. The judge said she didn't give Marino credit for cooperating because his help wasn't central to solving the case. She said the amount of the fraud "boggles the mind.''... McMahon concluded "there is no way that the Bayou fraud could have been perpetrated, nor could it have grown to its immense proportions, but for you.''...
Marino's lawyer, Andrew Bowman, said he will appeal the sentence.... Bowman asked for leniency, citing his client's recurring bouts of cancer, hearing loss, depression and attempted suicide. The lawyer claimed Marino has been sickly since age 5, when complications from the mumps left him with severe hearing loss.... In refusing his bid for leniency, she told Marino that his "personal difficulties'' don't warrant a shorter sentence. "You are a sad individual -- you were good at doing the worst,'' she told him. "And for this, you have to pay.''
It is interesting to speculate whether all the recent consternation over the economy might have, directly or indirectly, impacted the outcome in this case. Though I doubt Judge McMahon ever planned to go easy on Marino, the bad national economic news over the last few weeks surely could not have helped Marino's efforts to get a little leniency from this judge at sentencing.