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November 29, 2010

Defendant's post-plea rant on Craigslist costs him sentence reduction for accepting responsibility

The Eighth Circuit has an interesting little "new-media" sentencing opinion today in US v. Wineman, No. 10-1121 (8th Cir. Nov. 29, 2010) (available here). These two paragraphs from the opinion provide some of the particulars:

Wineman emphasizes that the Craigslist rant did not deny any aspect of his role in the conspiracy, did not identify any undercover law enforcement officers or informants, and did not request any retaliation against law enforcement.  He characterizes the rant merely as an expression of frustration with his physical disability and the denial of disability benefits.  Notwithstanding the rant, Wineman argues that his timely guilty plea, his timely admission of all relevant conduct (including drug quantity and possession of a firearm), and his assistance in helping authorities recover methamphetamine from his residence are sufficient to merit a reduction for acceptance of responsibility.

Wineman is correct that a timely guilty plea and admission of relevant conduct “constitute significant evidence of acceptance of responsibility,” but “this evidence may be outweighed by conduct of the defendant that is inconsistent with such acceptance of responsibility.”  United States v. Nguyen, 52 F.3d 192, 194 (8th Cir. 1995) (quoting U.S.S.G. § 3E1.1 cmt. n.3).  “The key issue is whether the defendant has shown ‘a recognition and affirmative responsibility for the offense and sincere remorse.’” Id.  In this case, we agree with the district court that the Craigslist rant is inconsistent with any acceptance of responsibility by Wineman.  In the rant, Wineman places responsibility for his offense on the “addicts” who bought his product and on the unnamed officials who denied him disability benefits.  Wineman’s only regret appears to be that law enforcement officers and informants had the temerity to disrupt the methamphetamine “service” he provided to his community, a service he equates to the local “gas station or grocery store.”  This is far removed from “a recognition and affirmative responsibility for the offense and sincere remorse.”  Nguyen, 52 F.3d at 194.

November 29, 2010 at 02:23 PM | Permalink

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This is disturbing. Since when does "accepting responsibility" mean "agreeing with the law" or "appreciating the efforts of law enforcement"? When a defendant pleads guilty, acknowledges that he committed a crime, and recognizes the court's authority to sentence him, then he has accepted responsibility. If he then goes on to make a political statement that he was convicted under an unjust law and prosecuted by people who have priorities that he believes are misguided, he is exercising that time-honored practice of, you know, speaking his mind. In other words, he is being given additional punishment for his political beliefs, simply because they are unpopular. It would have been different if his rant had suggested that he hadn't committed the crime but was forced to plead guilty anyway, or that he was tricked into it by the prosecution, or some similar statement. Instead, he offered an explanation in mitigation of the offense (that no one but him would find it mitigating doesn't change the nature of the statement), he criticized law enforcement for focusing on consensual drug offenses (which, in fact, is what law enforcement does, whether or not we think it's a good idea), and expressed his displeasure with a lengthy prison sentence he did not feel he deserved. But he didn't deny his innocence or suggest that the court was somehow unlawfully pronouncing sentence upon him. I fail to see what's so offensive about regretting getting caught, as opposed to pretending to regret having committed a crime, where the defendant does not fight the charge or try to maintain his innocence. Sure, we'd like people to somehow see that they acted immorally, but then I'd like to have wings, too.

Anyway, I've seen defendants allocute along very similar lines, and they weren't denied a reduction for accepting responsibility. They were just ignored by everyone in the courtroom. It seems like this defendant was really being punished for taking his thoughts to a forum that the court couldn't control.

Posted by: anonymous | Nov 29, 2010 10:22:03 PM

Oops, should have been "he didn't deny his guilt", not his innocence.

Posted by: anonymous | Nov 29, 2010 10:24:09 PM

"It seems like this defendant was really being punished for taking his thoughts to a forum that the court couldn't control." - It would appear that control can be exercised.

Posted by: VA loan | Nov 30, 2010 12:26:01 PM

Ah yes, the ole government extortion clause. Complain about unfair/treacherous tactics used to leverage/coerce a plea and we'll hammer you some more.

Can't have Craigslist readers discovering how the system actually manages to rack up 96 or 97 plea deals for every 100 citizens charged with federal crimes. Only family and trusted friends get to hear about the backroom rack and thumbscrews aspects (note to Bill: this sentence is an example of hyperbole...I don't believe the feds literally stretch defendants on racks or mangle their thumbs with torture devices).

Couching the extortion clause in lofty expressions of "accepting responsibility" or "showing remorse" just adds to the aura of cynicism and dishonesty that too often underlies the process.

Posted by: John K | Nov 30, 2010 3:19:28 PM

yep seems blackmail by out govt aginst it's own citizens is still alive and well.

Posted by: rodsmith | Nov 30, 2010 3:59:58 PM

John K and rodsmith --

As I have said here several times, I disliked plea bargaining and discouraged it. It reduces the risks and costs on both sides (which is why so much of it gets done) but produces compromise justice. The government gets the assurance of a conviction, but almost always at the cost of giving away charges for which the defendant is, in truth and in fact, responsible.

The economics of the system, which are about to get even worse, demand it, but no one should pretend it's anything more than what it is.

The Constitution does not even mention plea bargaining, and it was not a sure thing that it was constitutionally acceptable until Santobello was decided in the 1970's.

If I had my way, every felony defendant would get the trial to which the Constitution entitles him. I 100% assure you, however, that you would like the results of that less than what you're seeing now. Your view that defendants are coerced into bargains is a fantasy. They sign the bargains because they know they're better off doing that than having the whole (often literally) bloody mess spelled out at a trial. If either of you actually practiced law, you'd know that.

Posted by: Bill Otis | Nov 30, 2010 5:20:13 PM

"They sign the bargains because they know they're better off doing that than having the whole (often literally) bloody mess spelled out at a trial. If either of you actually practiced law, you'd know that."

No. If I'd practiced law I'd probably docilely accept this miserable, destructive turkey-shoot that passes for a legal system as do most folks who practice law.

Still, I don't see how practicing law yields special insights as to what's true and what's not once the feds exert their breathtaking power and resources to induce citizens to confess.

And who's kidding who, Bill? As an AUSA exactly how many "literally bloody" cases did you handle? Tell me again, what's the percentage of federal cases that involve actual violence, 2...maybe 3 percent?

I've been looking at white-collar crime almost exclusively for about 7 years now. What I've seen is that the plausible threats of draconian punishments (somehow it seems virtually everyone the feds target faces upwards of 30 years in prison) typically suffice to make even innocent and wrongly accused citizens eager to plead guilty to something.

The alternative -- impoverishing their famlies to raise legal fees in a long-shot bid to beat the feds and their bulging toolbag of fuzzy, flypaper statutes -- is simply unthinkable for most citizens who find themselves in that position...guilty or not.

If you were a journalist instead of a career adversary in the system you'd know that.

Posted by: John K | Dec 1, 2010 8:35:56 AM

hmm

"The Constitution does not even mention plea bargaining,"

True or course that's probably because it REQUIRES a trial by a jury or your peers for any CRIMINAL CHARGES...no need to mention something ILLEGAL on it's face after that statment.

One of our MAJOR problems are the so-called "creative interpetation" of the constution by crimnals who call themselves judges.

Posted by: rodsmith | Dec 1, 2010 1:47:02 PM

Fair warning to Rookie Kagan: if you refuse to carry CJ Roberts' (legal) pads, karma will land you with an injury that prevents you from writing any opinions for at least six weeks..

Posted by: discount pandora | Dec 13, 2010 7:47:15 AM

Fair warning to Rookie Kagan: if you refuse to carry CJ Roberts' (legal) pads, karma will land you with an injury that prevents you from writing any opinions for at least six weeks..

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