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June 15, 2011

Lots of notable sentencing talk in big Eleventh Circuit opinion affirming big mortage fraud convictions

As detailed in this Atlanta Journal-Constitution article, an Eleventh Circuit panel yesterday "upheld the convictions and 28-year prison sentence against Atlanta real estate developer Phillip Hill, who prosecutors said oversaw a massive mortgage fraud scheme."  The panel "also upheld all the convictions and sentences against eight of Hill's associates -- brokers, lawyers and recruiters."

The 163-page opinion in US v. Hill, No. 07-14602 (11th Cir. June 14, 2011) (available here), has lots of discussion of lots of sentencing issues.  Among many interesting passages, these passages referencing carrots and sticks caught my eye:

Van Mersbergen contends that he was, arguing that he was deprived of due process because the district court threatened to punish the defendants at sentencing if they refused to agree to reasonable stipulations in order to expedite the trial proceedings.... If one considers a criminal defendant’s failure to stipulate to be the exercise of a constitutional right, it would seem that increasing a defendant’s sentence because of his failure to stipulate crosses the line.  But some of the lines in this area are blurry....

In Roberts the Supreme Court held that a court could lengthen a defendant’s term of imprisonment by imposing consecutive instead of concurrent sentences because he had refused to cooperate in the investigation of another crime in which he was a confessed participant....  That those who fail to cooperate receive longer sentences than those who are equally culpable but do cooperate is an inevitable product of encouraging cooperation.

That principle is written throughout our criminal law.  For example, the Supreme Court has held that it is entirely permissible for prosecutors to threaten a defendant with a harsher charge carrying a much longer sentence in order to pressure him into pleading guilty, and then carry through with the threat when the defendant has the temerity to insist on his constitutional right to trial....

A distinction might be drawn between the carrot and the stick, between rewarding a defendant for giving up rights to which he is entitled on one hand, and punishing him for refusing to give up those rights on the other.  The argument against that distinction is that the result for the defendant is the same.  If a defendant receives a sentence of 100 months because he went to trial while his equally culpable co-defendant gets 50 months because he cooperated by pleading guilty, is a stick being administered to the defendant or a carrot being given to the co-defendant?

Whatever may be said about the use of sticks, the law seems to be clear that he who receives a break has gotten a carrot, and there is nothing wrong with doling them out.  And that is enough to decide this case.  At trial, the district court sometimes expressed its sentiment regarding stipulations by indicating that cooperation would result in a lower sentence, and at other times by indicating that failure to cooperate would result in a higher one.  At sentencing, however, there were only carrots — cooperation was rewarded all around.

June 15, 2011 at 09:43 AM | Permalink


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