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January 30, 2010

Which of the varied visions of Vrdolyak might emerge victorious?

As detailed in this post yesterday, a split panel of the Seventh Circuit reversed a prominent sentence of five-years' probation (plus 2500 hours of community service) for a prominent former Chicago politician in US v. Vrdolyak, No. 09-1891 (7th Cir. Jan. 29, 2010) (available here).  I have just had a chance to read the two lengthy opinions in Vrdolyak, and I am taken (though not surprised) by how differently Vrdolyak and his initial sentencing appear in the different opinions.  This full decision is a must-read for sentencing fans just to see how distinctly circuit judges considering an appeal can sometimes view a defendant and a district judge's assessment of that defendant.

As noted before in my prior post, Judge Posner concludes that a "cascade of errors and omissions [by the district court] cannot be dismissed as harmless, and so requires that the defendant be resentenced."   Moreover, Judge Posner asserts that there is "no assurance that if let off with a slap on the wrist [Vrdolyak] will not commit a future crime," and he orders resentencing before another judge because of a concern that the original sentencing judge had "an idée fixe that the defendant was not to receive a custodial sentence."

In sharp contrast, Judge Hamilton in dissent says "the record here shows that an experienced judge considered the case thoughtfully and learned information that overcame his initial inclinations ... and imposed a sentence reasonably tailored to fit both the crime and the criminal."  In Judge Hamilton's view, the district judge's loss calculation error "was harmless because it did not drive the final sentencing decision under section 3553(a)."

Notably, at the end of  this press report about the ruling, Vrdolyak's attorney indicates a plan to seek an en banc review of the panel decision.  Because I am not especially familiar with the personalities and politics of the full Seventh Circuit these days, I would love to hear from informed readers whether other circuit judges are more likely to embrace Judge Posner's or Judge Hamilton's views in a case like this.  The comments to the prior post have engendered a robust dialogue about the virtues and vices of both Judges Posner  and Hamilton, and now I am eager to hear more about whether readers think other Seventh Circuit judges might be inclined to jump into this high-profile sentencing spat. 

January 30, 2010 at 04:55 PM | Permalink

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Comments

The common objection that an "insufficient foundation" has been laid for the pending question must include a statement of what is missing from the foundation. See Parlier v Fireman's Fund (1960) 178 CA2d 357, 2 CR 906. This is a common-sense rule to ensure that the judge understands the point of the objection.

Posted by: CA Dean | Jan 30, 2010 7:22:58 PM

Hamilton is wrong to say that the sentencing judge committed "harmless error" in finding no loss from the offense. It is well established that each sentencing must begin with an accurate calculation of the sentencing guidelines before jumping off to consider 3553 (a) issues.

Further, to base a sentence on ginned up letters of character reference from the rich and powerful is almost always a mistake.

Posted by: mjs | Jan 30, 2010 8:40:27 PM

mjs.

I agree with your second point but I don't think the DJ "based" his sentence on that; it was merely one thing he considered.

Second, I agree with Hamilton. Go back and look at my original posts on this case from a month or so ago. Frankly, I remain mystified as to why he pleaded guilty at all. I bet he regrets that now.

The problem for the government in this case is that it's not obvious that ANY loss occurred. The government's theory as to what loss should be attributable to the defendant is economically unsound. In fact, if you listen to the oral argument the government attorney comes right out and admits as much. The government loss numbers are just being pulled out of a hat.

The fundamental problem with this crazy case is that once he pleaded guilty to the crime there has to be a legal loss for guidelines calculations even though it's rather obvious there never was any real loss.

I agree with Hamilton because I don't think Posner's voodoo is any more appealing than the DJ's voodoo.

Posted by: Daniel | Jan 30, 2010 10:35:09 PM

Voodoo. Well put, Daniel.

Why did he plead guilty? Maybe they threatened to indict his family. Maybe they stacked charges so high the risk of losing at trial became unthinkable. Maybe he realized it's open season on anyone accused of fraud or corruption these days and didn't trust the jury pool to give a "Chicago politician" an even break.

What's Posner running for?

Posted by: John K | Jan 31, 2010 9:00:47 AM

John K --

"Why did he plead guilty? Maybe they threatened to indict his family."

What evidence do you have for that?

"Maybe they stacked charges so high the risk of losing at trial became unthinkable."

What evidence do you have for that?

"Maybe he realized it's open season on anyone accused of fraud or corruption these days and didn't trust the jury pool to give a 'Chicago politician' an even break."

You mean they wouldn't give an even break to the same fellow they'd overwhelmingly elected all these years?

Gads. I can hardly wait for your post condemning, as usual, the "fascist" prosecutors going after another erstwhile Chicago politician, Rod Blagojevich. You might remember that Blagojevich was the Governor who auctioned off Obama's old seat, and, when caught at it, got impeached by the state House (dominated by his own party) 114-1, then convicted and removed by the state Senate (also dominated by his own party) 59-0.

Was that too the result of charge stacking? Did someone threaten his family? Maybe threaten to kill them? And his dog too? Do tell!

Does it ever, ever occur to you that these crooks, cheats and swindlers plead guilty because they ARE guilty, and know the prosecution can prove it? And because they want to avoid having their years of corruption spilled out day after day in bloody detail while the guy who will eventually do the sentencing looks on, slack-jawed at what he's hearing?


Posted by: Bill Otis | Jan 31, 2010 1:13:37 PM

Let me add one more.

Maybe somebody read Vrdolyak jury instructions for a RICO conspiracy charge and he discovered it's akin to Mr. Miyagi's crane technique..."No can defend against it."

In a trial I covered a couple of years ago the jury broke from deliberations to ask the judge if it were "possible" to acquit on the conspiracy charge.

The same question had occurred to me after hearing the instructions.

What's marvelous about the Blagojevich case is the subtle line between what he's accused of doing and political business as usual. I mean, is Max Baucus, Joe Lieberman, Ben Nelson or any of their counterparts in Congress or state capitols any less bought and paid for than Blagojevich?

Posted by: John K | Jan 31, 2010 3:01:58 PM

Quick points @ Bill:

Vrdolyak pled. Blago hasn't.

If you don't believe that defendants are pressured to plead guilty for reasons other than their guilt, you're out of touch with the realities of the Northern DIstrict of Illinois. In closer cases with issues where a trial would be a real contest, the USAO frequently stacks counts, threatens charges against family members (or charges them and offers to take the charge off the table in exchange for pleading/cooperating), etc.

I don't read John as definitively stating that Vrdolyak was pressured or coerced. I think he's wondering why he pled. And that's a fair question.

Posted by: Pedro | Jan 31, 2010 4:34:30 PM

Pedro --

"Vrdolyak pled. Blago hasn't."

But you know we'll hear the same thing from John if he does. This is because we ALWAYS hear the same thing.

I was an AUSA, for 18 years, so I think I have a pretty good idea of what the realities are in federal court.

It was my view then and now that any defendant who wants to go to trial is welcome to it, no questions asked. The Constitution provides him that right. AUSA's who want to avoid trial may be attentive to the fact that plea bargains are less work. They're entitled to that view, but it was never my cup of tea.

"I don't read John as definitively stating that Vrdolyak was pressured or coerced. I think he's wondering why he pled. And that's a fair question."

In context it's a slanted question, as I'm sure you can see. I asked him what the specific factual basis was for it. His response provided none, and with all respect neither does yours.

Now since he declined to answer the following question, let me see if you will: Does it ever occur to you that these crooks, cheats and swindlers plead guilty because they ARE guilty, and know the prosecution can prove it? And because they want to avoid having their years of corruption spilled out day after day in bloody detail while the guy who will eventually do the sentencing looks on, slack-jawed at what he's hearing?

Posted by: Bill Otis | Jan 31, 2010 7:16:48 PM

John K --

"Let me add one more."

One more, that is, to the list of prosecution practices you suggest might have been used against this defendant. When I asked you to provide ANY factual basis for your suggestions, you responded with...............ZILCH.

Amazing! Those who viewpoint you oppose are required to furnish supporting facts, but no such requirement exists for you. Far out!

I think I heard somewhere that suggesting bad intent on the part of others while refusing to provide a single specific fact in support of that claim is called, "Throwing it up against the wall."

Posted by: Bill Otis | Jan 31, 2010 7:30:01 PM

Bill:

I'll answer your question: of course many defendants plead guilty because they know they stand no chance of prevailing at trial. They know they committed the offense and they don't want to go to trial because they know the government has the horses to win the case.

Is anyone really disputing this point? It's obvious.

It's nice to hear you were noble in the way you approached going to trial as an AUSA. Suffice to say your approach is not the norm in many districts (2010). Very real taxes are added when a case goes to trial. Those same instruments (enhancement statutes, mandatory-minimum charges, charging decisions that impact family members) are taken away when a defendant chooses to plead.

My point is pretty simple: because of the manner in which these enhancements are wielded, it's fair to ask why certain defendants choose to plead. It's an oversimplification to say "people plead because they're guilty."

Posted by: Pedro | Jan 31, 2010 8:11:00 PM

Pedro --

Well, I HOPE no one would dispute that defendants plead guilty because they're guilty, and provably so, but seldom if ever have I seen John K say about any particular case that guilt was the reason for the plea. It's always that the government is using some malevolent hammer and that the defendant -- usually blameless -- is only caving to pressure.

I do not regard myself as noble in the slightest for preferring trials to plea bargains. I agreed with Santobello that bargains are permissible, but the fact of the matter is that they are used so often only as a practical necessity and not because they embrace the outcome most closely corresponding to the defendant's behavior. I tend to be one of these strict constructionist types; since the Constituion specifies trials as the method for resolving criminal charges, at a minimum the system's default position should be the holding of a trial.

Posted by: Bill Otis | Jan 31, 2010 11:29:06 PM

C'mon, Bill. I've said any number of times most people accused of federal crimes either knowingly broke the law or somehow ran afoul of one or more of the thousands of broad, vague, sweeping federal statutes most citizens don't even know exist.

My problem is the unholy power the government sometimes unleashes to mask its initial exaggerations and overreaches by tightening the screws until defendants cave, regardless of whether they were wrongly accused or innocent.

And while it's easy to say anyone can demand a trial, no questions asked, it's difficult for most of the defendants who interest me (mostly low-level white-collar cases) to come up with a quarter of a million dollars to pay for a defense.

And at the risk of getting into SC's area here, I get the feeling some lawyers who don't see a big payday at the end of a trial for that reason alone are more inclined to recommend taking a deal...which itself typically costs upwards of $40,000 to negotiate.

Don't believe me? Check websites for defense lawyers specializing in white-collar crimes? Some seek to qualify prospective clients by asking if parents and grandparents have enough equity in homes to help cover their fees.

So of course one decision some defendants must make is whether to impoverish mom and grandma in a long-shot attempt to persuade 12 ordinary citizens that not everyone the United States government accuses of largely incomprehensible derivative crimes is guilty as charged.

Then there's the "taxes" Pedro noted on the foolhardy few who nonetheless put the government to the annoyance of a trial.

So no, Bill, I don't believe all defendants are innocent. But I do believe too many defendants who end up signing plea agreements are either not guilty as charged or not guilty at all

Posted by: John K | Feb 1, 2010 8:46:15 PM

the seventh circuit rarely ever hears anything en banc. they certainly would not do so in a case like this.

more to the point, though, ever since the guidelines have become advisory, the 7th circuit has been reversing white collar sentences that involve no jail time. the majority opinion is wholly consistent with that trend. the only remarkable thing about this opinion is that a judge dissented.

Posted by: ziemer | Feb 3, 2010 4:27:48 PM

That is why a good lawyer is worth his weight in gold. The law must not be that open to interpretation but this is how the case law works.

Posted by: refinance mortgage | Apr 2, 2011 1:41:44 PM

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