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March 24, 2010

"Fraudster appeals whopping 845 year sentence"

The title of this post is the headline of this new AP piece.  Here are the basics:

Financial fraudsters have racked up huge prison sentences before, but few if any white collar sentences top the eye-popping 845 years that New York businessman Sholam Weiss received in February 2000.

Weiss on Wednesday is asking the 11th U.S. Circuit Court of Appeals in Atlanta to review the sentence and order a lower court to give him a full re-sentencing. He claims that the federal government never followed through on its promise to grant him the hearing when he was extradited from Austria.

Prosecutors counter that they never made that promise when they negotiated his return. They say the judge gave him the whopping sentence to ensure the 55-year-old would stay behind bars the rest of his life.

March 24, 2010 at 12:21 PM | Permalink

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Comments

Wow, this guy must've been six times more dangerous than Bernie Madoff. Right?

Posted by: Gritsforbreakfast | Mar 24, 2010 2:26:46 PM

I lived on the same Unit with Sholam Weiss at U. S. Penitentiary - Coleman, Florida for about 2 years. He is not a bad guy, and certainly doesn't deserve the longest white collar sentence in American history. He disappeared 2 days before his case went to the jury (after a 9 month long trial), and was sentenced in absentia. The Government got his direct appeal dismissed under the "Fugitive Disentitlement Doctrine", so his convictions became final 10 days following sentencing. No 2255 habeas Corpus was filed within 1 year, while he was a fugiticve, so his convictions and sentence have never been reviewed by a higher Court, and are now legally unreviewable. The U. S. Department of Justice defrauded the Austrian Minister of Justice to secure his return to the U.S. Austria initially denied extradition because Weiss's appeal had been dismissed. Austria is a party to the European Convention on Human Rights, which requires an appeal in all criminal cases. The Dept. of Justice promised to get Weiss a direct appeal, if he was extradited, but the 11th Circuit denied the Government's request to reinstate Weiss' appeal after he was returned to America. Weiss now seeks to have his extradition unwound and be returned to Austria, since the Dept. of Justice cannot comply with the promises it made to Austria to secure his extradition. Under the law, Weiss stands in the shoes of Autria, and can raise any argument that Austria itself could raise. Weiss is represented by Prof. Stephen Saltzburg of George Washington University Law School.

Posted by: Jim Gormley | Mar 24, 2010 3:46:49 PM

How is Weiss able to challenge his extradition? If it is considered that the US violated the extradition treaty with Austria by not meeting stipulations put on the extradition - my understanding is that this can only be challenged by Austria? I really am very interested in how this appeal can fly.

I guess it's time for me to look at the appeal. There are many cases where a country refuses to extradite to the US without conditions placed on the extradition, but once the extradition has taken place, the stipulations are frequently disregarded by the US Justice Department.

How can the defendant challenge this since the agreement is between the US and the extraditing country. The defendant has no standing. PLEASE, I would love to know of cases where this was a successful strategy.

Posted by: beth | Mar 24, 2010 7:26:37 PM

It would surprise me that a criminal defendant wouldn't have standing to enforce the terms of an extradition agreement concerning him (intuitively, I would have thought that this was the functional equivalent of a plea agreement which can be enforced by the defendant; expressly identified third party beneficiaries of contracts have standing to enforce them and the fact that the contract is between state actors shouldn't change that conclusion, but it isn't anything I've researched).

This said, it is hard to see that the remedy that Weiss is seeking (apparently, a return to Austria) has any chance of success in the 11th Circuit (probably the most conservative on criminal justice issues in the country) or SCOTUS (which is no friend of international law). I would give him a decent chance of getting a resentencing. Specific performance of plea agreements are preferred when possible and presumably the same would apply to extradiction agreements concerning a convicted criminal, but if his conviction stands and all he gets is a new sentencing hearing, then anything from 30 years to 845 years looks the same to him, and the feds ought to be able to make a pretty decent cases for some kind of long sentence for someone who was a fugitive from justice in a major fraud case.

Posted by: ohwilleke | Mar 24, 2010 9:50:00 PM

typical lies from our govt. Is it any wonder the world laughs at us and dances in the street when some of us are killed?

hope this guy wins. Let's not forget the punitative damages especially if like you say there is a pattern of lies by our govt where they agree knowing they have no intent to EVER carry through. Seems to be covered by the same CRIMINAL FRAUD laws they are using to convict this guy.

Posted by: rodsmith | Mar 24, 2010 11:02:27 PM

plus of course this kind of criminal stupidity has a direct bearing on other cases. Do you honestly think the swiss if they see this and other cases like it will EVER agree to any axtradiciton to the US again.

Posted by: rodsmith | Mar 24, 2010 11:03:39 PM

This is not unusual. The US agrees to the terms of the extradition and when the defendant is on US soil, the Prosecutors seek a superseding indictment that alters the terms of the extradition. The defendant has no standing to contest it and it is not possible to get the extraditing country to appeal the issue.

Getting the country to appeal would take untold financial resources. Most of these have been expended paying for legal representation in the extraditing country to get the stipulations put on the extradition to begin with.

When the defendant is on US soil it is imperative that the focus and money be expended on his new legal defense. I would like to know if anyone knows of a defendant who has successfully contested this.

Posted by: beth | Mar 24, 2010 11:21:13 PM

The U. S. Department of Justice defrauded the Austrian Minister of Justice to secure his return to the U.S. Austria initially denied extradition because Weiss's appeal had been dismissed.

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Posted by: Angelinebrown | Mar 25, 2010 1:12:26 AM

Beth and other comentators: I have spoken with an attorney who attended Weiss' oral argument at the 11th Circuit yesterday.
The 3-Judge panel seems to be very upset that the letters of assurance the Dept. of Justice submitted to Austria (the Minister of Justice and Austrian Courts) were intended to be relied upon in getting Austria to change its position and obtain Weiss' extradition. Weiss' attorneys have obtained affidavits on this point from the former Austrian minister of justice, who remains a member of the Upper house of the Austrian National Legislature. Weiis has had an attorny flying back and forth to Vienna for 6 years now, to secure evidence and assistance from the Austrian Government.
The 11th Circuit panel seems inclined to grant specific performance, and order a full blown re-sentencing hearing and a new appeal for Weiss, even though his prior direct appeal was dismissed pursuant to the Fugitive Disentitledment Doctrine, and the 11th Circuit itself denied the DOJ's Motion to Reinstate the Appeal, after Weiss was extradited by Austria.
The Court did not address the fact that the Federal Rules of Criminal Procedure specify that a District Court's jurisdiction over the defendant's case ends 7 days following the sentencing hearing. Weiss' case was filed pursuant to 28 U.S. Code section 2241. Case law makes it clear that he stands in the shoes of Austria, and can assert an claims that Austria could assert itself.
One of the untold stories about Weiss' case is how he has been able to afford more than $1 million of attorney's fees while incarccerated for the past 8 years. He is fortunate to have some extremely wealthy relatives, one of whom is a legitimate billionaire. Few people can go toe to toe with the United States Government in a case like this one. Of course, there is no Constitutional right to counsel in a habeas Corpus case, as there was in the underlying criminal case and a direct appeal of right following conviction.
It will be interesting to see if Weiss' attorneys can find a way to get his sentencing Judge, Patricia Fawcett (M.D. Fla.) removed from the case, so that he can be resentenced by an unbiased Judge. The relevant conduct loss in Weiss' case is about $27 million, far less than the case of disgraced new york attorney Marc Drier, who defrauded 13 hedge funds out of $380 million. In 2009, Drier received a sentence of only 20 years, so there may yet be some hope for Sholam Weiss. The relevant conduct in bernie Madoff's case was at least $21 billion, and he received a sentence of 150 years. Ironically, Weiss and Madoff know one another from Wall Street and from the Orthodox Jewish Community in New York.

Posted by: Jim Gormley | Mar 25, 2010 9:58:33 AM

When did catching non-violent, white-collar fugitives become America's overarching value?

Is it really good business for the U.S. government to defraud friendly foreign governments and renege on contracts in order to imprison one "fraudster"?

Even if Weiss is the vampire the DOJ makes him out to be, shouldn't the honor, credibility and integrity of the U.S. government (snicker) merit a somewhat higher priority?

And did the judge really need to go to 845 years (shouldn't that be (10,140 months?) to make sure a 55-year-old never goes free?

Over-the-top, cowboy-run-amok, guns ablazin' madness.

Posted by: John K | Mar 25, 2010 11:15:55 AM

"The 3-Judge panel seems to be very upset that the letters of assurance the Dept. of Justice submitted to Austria (the Minister of Justice and Austrian Courts) were intended to be relied upon in getting Austria to change its position and obtain Weiss' extradition. Weiss' attorneys have obtained affidavits on this point from the former Austrian minister of justice, who remains a member of the Upper house of the Austrian National Legislature."

in ENGLISH they LIED!

or like they wouild tell us if we dared to put false information on a govt document! We comitted FRAUD! sorry i hope he takes them to the cleaners and evey last individual involved ends up unemployed and hopefully iin PRISON themself.

Posted by: rodsmith | Mar 25, 2010 11:26:16 AM

in fact since the documents they lied on were offical documetns to another country count' THAT country bring fraud charges against them?

Posted by: rodsmith | Mar 25, 2010 11:27:06 AM

Rod: You raise an interesting point about what might/should happen to the DOJ officals who lied to the Austrian Minister of Justice, to obtain Weiss' extradition, after Austria had initially denied it. The Office of Professional Responsibility at DOJ is supposed to investigate such matters and discipline lawyers who violate the ethical and legal rules. To my knowledge, there is not yet any OPR investigation of anyone involved in the Weiss case. Judy Hunt, an AUSA from Orlando, has worked on Weiss' case for more than 12 years, and argued yesterday for the Government at the 11th Circuit. She was intimately involved in obtaining weiss' return from Austria and (behind the scenes) crafted the false representations the International Division at DOJ made to Austria to secure Weiss' extradtion. Surely OPR should have an interest in what she has done, and how her ideas and proposals were approved inside the International Division at DOJ. Weiss may also have civil claims against her and others for violating his civil rights under color of law, 28 U.S. Code 1983/Bivens v. Six unknown named Federal Agents. It is not clear when the statute of limitations on those claims begins or expires. DOJ is quite concerned about the precedent Weiss' case may set, so DOJ may appeal any 11th Circuit opinion on to the U.S. Supreme Court, where Weiss' attorney, Prof. Stephen Saltzburg once Clerked for Justice Thurgood Marshall!

Posted by: Jim Gormley | Mar 25, 2010 11:50:00 AM

Give me a break--this man fled the country in the middle of his trial. Even if the government "lied" (which, from the article, it disputes; plus it's hard to see how there was any "lie" if DOJ moved to reinstate the appeal and the 11th Circuit denied it), I doubt anyone other than the usual gang of commenters with conspiracy theories and their own axes to grind would care very much.

I especially love John K's comment--I imagine if the government wasn't prosecuting white collar criminals, John K or someone else would be back here ruminating on how wealthy people/Republicans/Jews can get away with anything, while ordinary drug dealers and thugs get sent away forever. Yes, John, prosecuting people who are involved in multi-million dollar frauds is an important American value.

Posted by: Jay | Mar 25, 2010 1:18:57 PM

Jay: If you saw the Affidavits from the Austrian Minister of Justice in the case file, you would have no doubt that the DOJ defrauded Austria to obtain Mr. Weiss' extradition. First, they promised a resentencing, to get rid of the 10 years of mr. Weiss' sentence that was associated with 2 counts of obstruction of justice that would not have been crimes under Austrian law. Extradition cannot occur on crimes that would not be crimes under the laws of both countries. DOJ knew that the Fedeal Rules of Criminal Provedure strip a District Court of jurisdiction to modify the sentence within 7 days of the original sentencing date, but never told Austria that problem, which Judge Fawcett later relied upon to deny re-sentencing. Second, DOJ told the Austrian Minister of Justice that they would get Mr. Weiss a direct appeal, so that Austria could satify its obligations under the European Convention on Human Rights, which requires an appeal in all criminal cases. Mr. Weiss' direct appeal had already been dismissed upon the Government's motion under the Fugitive Disenfranchisement Doctrine, and DOJ had never previously gotten an appeal reinstated under these circumstances. DOJ never told Austria it would be up to the 11th Circuit whether to reinstate Weiss' direct appeal. DOJ told the Autrian Minister of Justice that it could and would get Mr. Weiss a direct appeal, although there was no precedent for this in American law. DOJ should not have been surprised when the 11th Crcuit denied their Motion to Reinstate Mr. Weiss appeal. If the U.S. Government stands for the Rule of Law, as it says, then it cannot be defrauding friendly First World countires to obtain a fugitive at any cost. And the taxcpayers should be furious at the hundreds of thousands of dollars our Government has suandered trying to defend the conduct of the DOJ lawyers who concocted this fraud. They should have cells of their own.

Posted by: Jim Gormley | Mar 25, 2010 2:08:43 PM

There are 15 prior comments on this story but, with the exception of Jay, not one word even mildly critical of Mr. Wiess's dishonest behavior.

That's where we are here.

I agree that the government should be straight forward. For those who think it wasn't, take it up with Eric Holder.

Posted by: Bill Otis | Mar 27, 2010 12:14:12 AM

sorry jay but horse hockey! Just becase this guy is a crook and a coward! that old saying comes to mind.

"two wrongs don't make a right!" He's a crook we all can see it. BUT that didn't give anyone in our govt the autority to lie and cheat to get him. Let alone LIE and present fake documetns to a soveright country!

Posted by: rodsmith | Mar 30, 2010 1:30:28 PM

Can anyone shine a little light on the "Fugitive Disenfranchisement doctrine" and provide me with a cite to the original case convicting Mr. Weiss as well as the denial of his appeal that was at least in part based on the previously mentioned disenfranchisement doctrine?

Posted by: Ebecker | Apr 20, 2010 12:43:42 PM

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