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December 7, 2009

Might modern white-collar sentencing realities impact debates over honest services fraud?

How Appealing links here to lots of major media coverage previewing SCOTUS oral arguments in the three big "honest services" fraud cases to be considered by the Supreme Court this term.  Though sentencing issues do not seem to be formally in play in these cases, I have been thinking lately about whether modern federal sentencing realities for white-collar offenders might be impacting, at least indirectly, how various Justices and commentators think about these matters.

In the old days — I'm not sure whether to call them the good old days or the bad old days — relatively few white-collar offenders could expect significant prison time following a fraud conviction.  (Consider that the most famous white-collar offenders from the end of the old era, Ivan Boesky and Mike Milken, both served less than two years in the federal pen.) 

But now, nearly all white-collar offenders can and should expect to serve some serious prison time, especially if they get convicted after a criminal trial (rather than after pleading guilty).  In the two highest-profile cases that SCOTUS is reviewing, Conrad Black and Jeff Skilling received federal prison terms in excess of 6 and 24 years, respectively.

I have not had a chance to review the submissions in the cases being argued on Tuesday, but I wonder if modern sentencing realities are stressed in any of the briefs.  I certainly will be reviewing the oral argument transcripts in these cases to see if any Justices mention sentencing matters.

December 7, 2009 at 09:58 AM | Permalink


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When I was convicted of white collar crimes arising out of clients from my law practice, I went into sentencing looking at Guidelines of 121 to 151 months, which were driven by a conviction for conspiracy to commit money laundering with my clients. The amount of money involved was about $1.3 million, but I never saw or touched it. My client always had the money in his account, from which he had checks cut and wire transfers sent. I was paid a total of about $30,000 in attorneys' fees and expense reimbursements over a 2 1/2 year period of time. At sentencing, my Judge "sua sponte" raised the "minor role" adjustment, gave the Government an opportunity to argue against it, and then granted a 2 point downward adjustment, yielding Guidelines of 97 to 121 months; I was sentenced to 97 months. My local counsel, S. Ben Bryant, of Charleston, West Virginia, had been an Asst. U.S. Attorney for years, both before and after the Guidelines became law in 1987. He told me before sentencing that if I had been convicted and sentenced before the Guidelines were enacted, he didn't belive any Judge in America would have sentenced me to more than 1 year for, and I quote him "this bullshit!" So, in the white collar world, I believe the pre-Guidelines days were "the good old days!". P.S., where Michael Milken's sentence was concerned, you forgot to mention that he paid a $500 million fine too.

Posted by: Jim gormley | Dec 7, 2009 12:11:28 PM

I don't see sentencing coming up for these cases, they are concerned with whether a crime was actually committed.
Both of these cases are going to be interesting to watch.

Posted by: Soronel Haetir | Dec 7, 2009 1:41:18 PM

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