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August 31, 2011

Severe "trial penalty" seemingly urged by feds in sentencing of Jack Abramoff aide

A helpful reader altered me to this new AP piece on a high-profile federal sentencing recommendation.  As the article explains, the severe sentence being urged by prosecutors has the sentencing judge already expressing concern that the feds want to punish the defendant for exercising his right to go to trial:

Prosecutors are recommending that a little-known defendant in the Abramoff lobbying scandal get 17 to 22 years in prison for treating government officials to meals and event tickets — a sentence that would exceed the time served by all 20 other defendants in the conspiracy combined.   The reason for the discrepancy?  Ex-lobbyist Kevin Ring refused to admit his guilt and unsuccessfully fought charges at trial.

"That's a pretty big penalty for exercising a constitutional right," U.S. District Judge Ellen Segal Huvelle remarked during a hearing Tuesday over Ring's sentencing recommendation.

Justice Department attorney Nathaniel Edmonds responded that a stiff sentence would not be a punishment for going to trial.  He said that cooperating defendants are rewarded with leniency, a distinction repeatedly upheld by the Supreme Court and frequently used in prosecutions.  "It's not retaliation," Edmonds insisted over grumbling from Ring's supporters in the courtroom's public benches.

The government's recommendation for Ring would dwarf the sentences of even the leading figures in the influence-peddling conspiracy that shook up Washington.   The ringleader, Jack Abramoff, was sentenced to six years in prison.  Michael Scanlon, Abramoff's partner in a kickback scam bilking clients out of tens of millions of dollars, was sentenced to 20 months.  Bob Ney, a six-term Ohio Republican congressman and the only lawmaker convicted in the scheme of trading gifts for favors, got 30 months.

Ring, an Abramoff deputy from Kensington, Md., was convicted after two trials of five felony counts including conspiracy, payment of a gratuity and honest services wire fraud. The first jury couldn't agree on his guilt so he had a second trial that led to his conviction in November.  He was accused of bribing public officials with meals at fancy restaurants and tickets to sporting events and concerts, but he tried to argue he was only doing a lobbyist's work of building relationships with government figures.

Other lobbyists who worked for Abramoff and were accused of similar conduct usually got off with probation, fines or time in a halfway house.  None of the public officials — two Capitol Hill aides and a special assistant for legislative affairs in the Bush administration's Justice Department — who accepted nights out with Ring and admitted doing favors for him in exchange were given any time in jail.

But those defendants all reached plea deals with prosecutors in which they admitted their guilt in exchange for a negotiated charge.  "He is the only lobbyist who went to trial and chose not to plead guilty and cooperate with the United States," Edmonds said.

Prosecutors justified their recommendation by using a different calculation for Ring than any other defendant in the case under federal sentencing guidelines.... Only in Ring's case prosecutors are arguing he should get an enhanced sentence under the guidelines because of the grants and appropriations he and his co-conspirators were able to get for his clients at the Abramoff firm in exchange for his corrupt relationships with public officials. They put that value at more than $14 million, including $7.3 million in increased funding for a jail for an Indian tribe client.

Ring attorney Timothy O'Toole argued that the sentencing guidelines are supposed to provide consistency in punishment for similar conduct.  "If the guidelines can be manipulated like that, they are meaningless," he said.

Huvelle questioned whether prosecutors should be able to use a different calculation for Ring.  She pointed out that the sentencing guidelines already consider a defendant's level of cooperation to compensate for his refusal to plead guilty.  "It does undercut the whole idea of the guidelines, you must admit," Huvelle said to Edmonds.  He responded that it's a legitimate tool to encourage cooperation and avoid the high taxpayer cost of a trial.

Huvelle is taking the issue under consideration before sentencing Ring on Oct. 26.  She can give him a sentence that is less than the guideline range if she deems it appropriate.

Even if the prosecutors' distinct guideline calculations were accepted, this case would seem to be a strong example of why 18 USC § 3553(a)(6) — which demands consideration of "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct" — may sometimes require a below-guideline sentence.

Some courts and commentators have been heard to claim that § 3553(a)(6) is always best served by a within-guideline sentence.  But I believe there are a considerable number of settings (such as this one, it seems) in which the "avoid unwarranted disparity" concern of § 3553(a)(6) is only served by a non-guideline sentence.

August 31, 2011 at 11:44 AM | Permalink

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Comments

"He responded that it's a legitimate tool to encourage cooperation and avoid the high taxpayer cost of a trial."

How much does it cost to keep someone in prison for 17 to 22 years?

Posted by: C.A.J. | Aug 31, 2011 1:38:35 PM

the ENTIRE thing is a friggin joke! and a crime!

becasue of this!

"Ring, an Abramoff deputy from Kensington, Md., was convicted after two trials of five felony counts including conspiracy, payment of a gratuity and honest services wire fraud. The first jury couldn't agree on his guilt so he had a second trial that led to his conviction in November."

Just when did the criminals running this country decided they could just do a trial OVER AND OVER AND OVER AND OVER AND FRIGGIN OVER....till they got a verdict they liked!

and more important when and WHERE did juries get the idiotic ideal there was THREE choices for a verdict!

you got TWO

GUILTY

or

NOT GUILTY!

if they can't agree and pick one or the other....shove the idiots in a room and feed em though a tube in the door UNTILL they PICK ONE!

Posted by: rodsmith | Aug 31, 2011 2:04:36 PM

of course we could go back to what WAS THE LAW in this country for 200+ YEARS! if you couldn't get a jury to CONVICT with a gulty verdit....that was enough REASONABLE DOUBT to CAN THE WHOLE THING!.....it was DONE!

Posted by: rodsmith | Aug 31, 2011 2:07:53 PM

Most interesting is that federal judges typically, rarely have any problem with greater guideline ranges caused by the client choosing to go to trial and foregoe the -3 AOR point deduction. Interesting that in this case, with a high profile defendant, when the public spotlight is on, the court has a potential problem with it. The higher range for going to trial is automatic in courtrooms throughout this country, sadly.

Posted by: fedpd | Aug 31, 2011 3:40:51 PM

Of course there is a higher range if you go to trial -- that is the purpose of acceptance of responsibility -- but the government's argument here is beyond the pale --- it is utterly stupid and incredibly unjust. Are they woking on renaming DOJ--DOI -- Dept. of Injustice???

Posted by: Steve Prof | Aug 31, 2011 6:39:32 PM

nah steve they simply have the same name as every other current federal department......"depatment of idots and criminals"

one size fits all!

Posted by: rodsmith | Sep 1, 2011 1:10:03 AM

As a taxpayer, I object. Paying for meals is courteous to someone whose time is being consumed. It is not a crime. There was no evidence of any actual undue influence by these meals. That the defendant would occupy a prison bed after hurting the feelings of prosecutors, beating them in court once, and making them work, would take the place of a violent repeat offender. It would detract from the mature incapacitation purpose of the criminal law. It is even doubtful he is guilty, given the first jury verdict.

The prosecution motion may violate 8.4 (d), it is professional misconduct "to engage in conduct that is prejudicial to the administration of justice;..." The judge should report these prosecutors to the Ethics Office for their frivolous and retaliatory motion.

Posted by: Supremacy Claus | Sep 1, 2011 5:18:35 AM

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