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October 4, 2010

Helping a district judge send a sentencing message to unscrupulous landlords

A helpful reader sent me a copy of a recent notable white-collar sentencing decision by US District Judge Mark Bennett in US v. Miell, No. CR 07-101-MWB (D. Iowa Sept. 27, 2010) (available for download below). There are many notable passages in this 105-page(!) opinion, and I have spotlighted the first paragraph and a notable footnote here:

In Little Dorritt (1855-57), Charles Dickens portrayed a greedy landlord as repeatedly urging his rent collector to “squeeze” the inhabitants of his most squalid property, even though the rent collector believed that he had already “squeezed” them dry.  Although this defendant’s properties were not squalid, there is nevertheless a disturbingly Dickensian quality to this case: The defendant, who owned hundreds of rental properties in Cedar Rapids and Linn County, Iowa, and, consequently, was himself worth many millions of dollars, engaged in a fraud scheme involving renters’ damage deposits over many years to “squeeze” an extra few hundred dollars each from people that he thought were too economically vulnerable or unsophisticated to contest his claims.  His damage deposit fraud scheme involved creation of fake and inflated invoices for repairs to and cleaning of his rental properties to justify claims and judgments against renters’ damage deposits. He also engaged in another fraud scheme to obtain insurance payments for repair of hail damage to the roofs of more than a hundred of his rental properties based on fake or inflated invoices, whether or not the roofs in question had actually been repaired.  The defendant pleaded guilty to eighteen counts of mail fraud arising from these schemes. He also pleaded guilty to two of three counts of perjury and was convicted by a jury of two counts of filing false tax returns. I write this sentencing decision to explain why I find that the defendant’s conduct warrants an upward departure or variance in his sentence for these offenses, from an advisory guidelines sentencing range of 168 to 210 months to 240 months, the statutory maximum sentence for the mail fraud offenses....

I am not sure that I have ever imposed a sentence to send a “message” to others or, in the parlance of sentencing lingo, as a “general deterrent.”  Certainly, in the daily ritual of sentencing drug defendants in our court to lengthy mandatory minimums, there is no anecdotal or empirical evidence that sentencing to “send a message to others” actually “works.”  In my view, it not only does not work as a general deterrent, but federal sentences in drug offenses — especially for the vast majority of addict defendants who are the daily grist of federal drug sentencing — are so harsh that these sentences themselves promote fairly widespread disrespect and undermine our citizens’ confidence in the fairness of federal sentencing.  That would probably be a risk worth taking if these sentences actual worked, but they don’t.

In this case, however, while “sending a message” is not my motivation or intent to any major degree, I hope that this sentence sends a seismic shockwave to every unscrupulous landlord who has repeatedly, unfairly, and unlawfully withheld renters’ damage deposits. You know who you are.   As this topnotch federal prosecution shows, the long arm of the United States Department of Justice, backed by endless resources, is here to seize you whether you are an inner-city slumlord, a college town landlord with a history of ripping off college students, a rural property owner, or an unscrupulous landlord working your scam anywhere in between.

Download Miell.MemopReSentencing 

October 4, 2010 at 06:08 AM | Permalink

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Comments

The deterrence of others by a sentence is unfair and violates the procedural due process right of the defendant. One may not be made to pay for the speculative, future misconduct of another unknown and not influenced by the defendant. This is called scapegoating. If this lawyer dumbass wants to deter others, the best means is to increase the chance of prosecution, which is close to zero at present. The lawyer has nearly immunized evil. Why? To generate more since evil requires more lawyer jobs.

Posted by: Supremacy Claus | Oct 4, 2010 6:28:55 AM

Well deserved, I might add.

Posted by: azazel | Oct 4, 2010 7:35:38 PM

While I disagree with the "send a message" , deterrence school of thought on principle, I must wonder about restitution in this case. Was any ordered? Should have been.However, I cannot condone the use of a human being as a "Western Union message form." To use the severity of punishment of one person to "discourage" others from similar behavior is barbaric, in my opinion.But then much of what the USA does, in its C.J. system, does so qualify - in my opinion.
Twenty years? Far too much and , if no restitution was ordered, far too little.

Posted by: Tim Rudisill | Oct 5, 2010 8:20:07 AM

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