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October 9, 2011

New AP article perpetuates notion (myth?) that federal sentencing is still about luck of the draw

This new AP article, which provides a partial preview of an upcoming high-profile white-collar federal sentencing, has a headline and a theme that suggests that luck of the judicial draw matters more than anything else in modern federals sentencing.  The piece is headlined "Sentencing is a wildcard in busy NYC courthouse," and here are excerpts:

The prison term awaiting a one-time billionaire hedge fund founder convicted of insider trading charges is unpredictable at best in a Manhattan courthouse where judges vary considerably in their assessment of how justice should be dispersed at sentencing.

Raj Rajaratnam, 54, is scheduled to be sentenced Thursday for his conviction at trial earlier this year.  If federal prosecutors have their way, he'll get between 19½ and 24½ years in prison for what they say were more than $72 million in profits for himself and his Galleon Group of hedge funds.  If defense lawyers are persuasive, he'll face between 6½ and 9 years for what they say was about $7 million in illegal profits.

Regardless of the outcome, his fate may have been decided when Judge Richard J. Holwell was selected to hear the case after the Sri Lanka-born Rajaratnam's October 2009 arrest.

"Welcome to the Southern District of New York," said Rita Glavin, a former federal prosecutor who leads the white-collar crime unit at the Manhattan law firm of Vinson & Elkins.   "The judge you are assigned to is critical," Glavin said.  "Having been on the prosecution side, there were certain judges from a government perspective you loved being in front of whether for trial, sentencing or evidentiary issues.  Now that I've moved to the defense side, it's not necessarily the same judges."...

The tone and result in sentencings have varied widely for those charged in the case against Rajaratnam and two dozen co-defendants, all of whom have been convicted, most as a result of guilty pleas.  Most of the sentencings have resulted in prison terms ranging from a few months to a few years.  Besides the sentencing guidelines, judges are supposed to take into account various other factors, including the defendant's personal history and the need to deter others from committing similar crimes.

The longest sentence handed down — 10 years — came from a stern Judge Richard Sullivan, who last month dispensed some finger-wagging words toward Zvi Goffer immediately after telling him that he viewed Goffer's sentencing as "a tragic day," not a day "for lecturing or finger wagging or table pounding."

He told Goffer that he had a gambler's mentality after his arrest. "You decided to double down and gamble on a trial," Sullivan said, adding that Goffer acknowledged his crimes post-trial.  "Had you made that acknowledgement before trial, you might have shaved almost three years off your guideline's sentence," he said as he gave him a sentence near the lower end of the guideline's range....  He added: "I am not saying you are going to be punished for going to trial, but there are consequences that flow from that.  You don't get the benefit of people who accept responsibility."

A few hours later, Winifred Jiau, 43, of Fremont, Calif., was sentenced to four years in prison after her conviction in an insider-trading probe that focused on Wall Street consultants who matched up public company employees willing to divulge secrets about earnings and mergers with hedge fund managers. The investigation was a spinoff of the Rajaratnam-Galleon probe.

Jiau received half the prison term recommended by sentencing guidelines from Judge Jed Rakoff, who had a different view of the effects of going to trial.   "I know judges vary.  It will never be the policy of this court to make a huge difference in sentence between those who exercised their right to go to trial and those who plead guilty, because at that point I think it becomes no longer a recognition of the credit that should justly be given for acceptance of responsibility, it becomes a veiled price of going to trial," he said.  "There should be no price on going to trial."...

Annemarie McAvoy, a Fordham Law professor, said she learned as a young federal prosecutor in Brooklyn from 1989 to 1992 that the judge assigned to each case "makes a huge difference."

"There were clearly judges who were more favorable to the government.  They did longer sentences.  They didn't make it as easy for defendants," she said.  "And there were other judges always trying to do as much as they can for defendants and always trying to give them the lowest sentence they could.  That was luck of the draw."

October 9, 2011 at 01:17 PM | Permalink

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Never done before. Total e discovery of the judge. The Supremacy will the first and only litigant to Try it no lawyer will ever do it because the judge generales lawyer jobs. No lawyer will ever admit the judge is the tyrannical enforcer for the CCE.

Posted by: Supremacy Claus | Oct 9, 2011 2:29:58 PM

It is no myth that sentencing is luck of the draw. Judges differ greatly in their adherence to the guidelines. This will not necessarily be apparent from data collected about sentencing practices. Even before Booker, judges could obtain a result they desired simply by making findings of fact that supported it. As long as there is some evidence in the record to support the finding, it will not be "clearly erroneous", and it will be upheld on appeal. Do you want to sentence alien smugglers to a lot of time? Just find that they subjected their passengers to reckless endangerment, and point to facts, no matter how contested, to support that opinion. Perhaps you think the relevant conduct in a drug case makes the guideline range too high? Simply find the evidence of that conduct is not reliable or credible. Maybe the defendant did not adequately debrief for safety valve, or the firearm possessed by the defendant was not related to a felony offense, or the intended loss is lower than the Probation Office suggests. Maybe the defendant's attitude offends, so he loses acceptance of responsibility.

It is not necessary for a judge to be result oriented or cynical about this, either. Some judges genuinely believe that drug couriers never exercise a minor role in a drug trafficking organization; other judges find that couriers are low people on the totem pole, expendable, and exercise a minor role, which can substantially affect the resulting guideline range. Some judges believe that relevant conduct that happened over a year ago is too remote in time, while others do not. A judge may feel that cultural assimilation is important mitigating evidence in an illegal re-entry case, while another may feel the defendant's criminal history far outweighs ties to this country. And, of course, there are judges that don't even care about the guidelines to begin with, so they vary above or below the guidelines routinely.

So, I would argue that sentencing has a lot to do with luck.

Posted by: C.E. | Oct 10, 2011 6:08:07 AM

I don't know who C.E. is, but he/she obviously has a boatload of real world experience and tells it like it is, as does the main article.

The restoration of mandatory guidelines and robust appellate inforcement will not eliminate the lottery-like features of sentencing, but it will curb them, and thus should be the Sentencing Commission's first order of business.

Posted by: Bill Otis | Oct 10, 2011 9:16:15 AM

The meaningful sentencing uniformity provided by the guidelines was the consistent harshness of the sentences they imposed on nearly all defendants subjected to them.

Their key contributions were to put prosecutors in control the system and provide them with a powerful lever to make costly, time-consuming trials terrifyingly risky for defendants and, therefore, rare.

So it's not surprising that judges with fair-minded, even-handed impulses found ways to work around a system contrived in the get-tough, Incarceration-Nation, Nixon-Reagan-GHW Bush era.

The judge who said he wasn't punishing the defendant for exercising his trial rights was kidding himself.

Judge Jed Rakoff sounded like the sort of judge I wish we had more of when he said: "It will never be the policy of this court to make a huge difference in sentence between those who exercised their right to go to trial and those who plead guilty, because at that point I think it becomes no longer a recognition of the credit that should justly be given for acceptance of responsibility, it becomes a veiled price of going to trial," he said. "There should be no price on going to trial."..."

This whole "acceptance of responsibility" thing sometimes carries the moral weight and clarity of the weak kid's cry of "uncle" as the bully applies the pain.

Posted by: John K | Oct 10, 2011 9:22:04 AM

Bill (and C.E.), would you dispute that mandatory minimum statues (like ACCA and 924(c) and many drug MMs) and the profound importance of garnering substantial assistance credit/letters (even with the guidelines advisory) make sentencing often turn on the "luck of the draw" with federal prosecutors? Do you believe that "restoration of mandatory guidelines" would curb or exacerbate the impact of the luck of prosecutorial draw?

Relatedly, given the assertion that "robust appellate enforcement" helps to curb the impact of "lottery-like features of sentencing," would you endorse a formal statutory (or administrative) scheme for formal appellate review of prosecutorial sentencing discretion. I can imagine a lot of novel (and efficient) systems for allowing a defendant to outside review of any and all MM charges in an indictment. Would you think it wise for the US Sentencing Commission to explore the possibility of such systems and make recommendations to Congress accordingly? (Please note: I am eager to give DOJ credit for its own internal efforts through the post-SRA years to guide/regulate prosecutorial charging/bargaining/sentencing choices among USA offices and line prosecutors; but I also strongly share your sense that only robust (and transparent) outside review ensures these kinds of regulations have bite.)

In short, do you acknowledge that the problem with modern federal sentencing discretion after the SRA eliminated parole is as great, if not greater, with prosecutors than with judges? If not, why not? And if so, why not endorse and push for legal regulations of prosecutors' sentencing decisions that are at least as robust and transparent as are the current post-Booker regulations of district judges?

Posted by: Doug B. | Oct 10, 2011 10:22:58 AM

Any luck of the prosecutorial draw that exists is temperered by the oversight of the supervisory US Attorney staff and adherence to Department of Justice guidelines.

There is no such oversight on Federal Judges. They are free to impose their idiosyncratic view of justice with no supervision by colleagues and only minimal oversight by appelatte courts.

Posted by: mjs | Oct 10, 2011 10:48:30 AM

John K --

"So it's not surprising that judges with fair-minded, even-handed impulses found ways to work around a system contrived in the get-tough, Incarceration-Nation, Nixon-Reagan-GHW Bush era."

Actually, the SRA was co-sponsored by Ted Kennedy and passed by a House overwhelmingly controlled by the Democrats, with Tip O'Neil as Speaker.

Nor is up to judges to circumvent laws they don't like.

Posted by: Bill Otis | Oct 10, 2011 2:32:28 PM

Doug --

"Bill (and C.E.), would you dispute that mandatory minimum statues (like ACCA and 924(c) and many drug MMs) and the profound importance of garnering substantial assistance credit/letters (even with the guidelines advisory) make sentencing often turn on the "luck of the draw" with federal prosecutors?"

No, for the reasons stated by mjs.

"Relatedly, given the assertion that "robust appellate enforcement" helps to curb the impact of "lottery-like features of sentencing," would you endorse a formal statutory (or administrative) scheme for formal appellate review of prosecutorial sentencing discretion."

No I would not, because such appellate review would be unconstitutional as a flagrant violation of the separation of powers. Since the Founding, charging has been an exclusively executive branch function.

Now let me ask a question of my own: Do you have any factual basis for contesting anything C.E. said?

Posted by: Bill Otis | Oct 10, 2011 2:41:27 PM

Prosecutorial power over sentencing lies within their charging decisions. But the DOJ has established policies that require prosecutors to charge the offense with the most serious sentencing consequences as long as it is "readily provable." I expect that actual practices differ from place to place, especially in jurisdictions where some sort of "fast track" program is available. But I don't think the individual prosecutor has as much to do with sentencing as does the overall policy established in Washington. Unfortunately, I'm only familiar with a single division in a single district, so I don't know if other places adhere as closely to the DOJ policy.

Eliminating mandatory minimum sentences, or at least providing more exceptions, would go a long way toward remedying some of the harsher aspects of sentencing. It has always been astounding to me that a first-time drug transporter should have to face 10 years in prison just because he has two criminal history points. For the uninitiated, having a previous 60-day sentence for, say, a theft case, can mean the difference between a mandatory sentence of 10 years and the possibility of a sentence of little to no time in prison.

I'm skeptical that a formal scheme for appellate review would differ much from the current, judge-made one. Appellate judges just don't seem to like to second-guess trial judges, so the approach would probably still rest on reasonability, deference to findings of fact, and the presumption that guideline sentences are reasonable.

Posted by: C.E. | Oct 10, 2011 2:59:45 PM

C.E. --

If a fellow has already gone to jail for theft, he has no business transporting drugs, or getting anywhere near drugs. If he can't get this through his head, there's a limit on the amount of sympathy due him.

At some point, it stops being the "system's" fault and starts being time to look in the mirror.

Posted by: Bill Otis | Oct 10, 2011 3:23:14 PM

Bill, I do not dispute C.E.'s assertion that federal judges vary in their views of federal guidelines, as well as in their views of the venality of certain federal defendants and the harms of certain federal crimes. Of course, as litigation often reveals, federal judges also vary in their views on, e.g., the constitutionality of public dispays of religious symbols and on the meaning of the Second Amendment and on the limits of the Commerce Clause and so on and so on and so on. If all law was simple to administer and merely a matter of calling balls and strikes, we would not need judges to exercise judgment -- computers like Watson could be programmed to make the calls. The fact that there are different perspectives (like 5-4 SCOTUS ruligns) reflects the challenge of the enterprise, not the failings of decisionmakers.

Do you likewise acknowledge that federal prosecutors likewise vary in their views of federal sentencing guidelines, as well as in their views of the venality of certain federal defendants and the harms of certain federal crimes? You seem to adopt the asserion by mjs that "oversight of the supervisory US Attorney staff and adherence to Department of Justice guidelines" limits the impact of these differences among the many thousands of AUSAs. Why can't I say the same about judicial sentencing discretion, which is subject to "oversight by circuit courts and adherence to USSC guidelines AND federal statutory law"?

Here is the brass tax: Federal judges have their sentencing discretion regulated by democratically-enacted public law in the form of legally binding statutory law (the SRA), as well as advisory guidelines developed in a public manner through the USSC, and all of this law is subject to binding litigation in the federal courts. Federal prosecutors do not have their charging/bargaining/sentencing discretion regulated by ANY public law or any public guidelines and internal guidelines created by DOJ are neither binding nor subject to any binding litigation (or any real transparency). Notably, we can look up official federal sentencing data with the help of the USSC (which I think you want to abolish), but nowhere can we look up official federal charging/bargaining data.

It is telling, Bill, how eager you are to assert that unelected and non-transparent big-government prosecutors can be trusted to follow non-binding, private, internal charging/bargaining/sentencing guidelines (and that the Constitution should be read to prevent any other regulation of prosecutorial discretion). I understand that, in a monarchy, executive officials typically have unquestioned and unregulated enforcement authority, but is that really how you think it should (or must) run in our constitutional democracy?

Posted by: Doug B. | Oct 10, 2011 4:24:09 PM

Doug --

"Do you likewise acknowledge that federal prosecutors likewise vary in their views of federal guidelines, as well as in their views of the venality of certain federal defendants and the harms of federal crimes?"

You bet.

"You seem to adopt the asserion by mjs that "oversight of the supervisory US Attorney staff and adherence to Department of Justice guidelines" limits the impact of these differences. Why can't I say the same about judicial sentencing discretion, which is subject to "oversight by circuit courts and adherence to USSC guidelines AND federal statutory law."

For several reasons. First, the deference given district court by appellate courts vastly exceeds the deference given line AUSA's by Main Justice. Second, there is no such thing as required adherence to the guidelines. Indeed, as you pointed out in an excellent post on Spears and Nelson in early 2009, trial courts cannot any longer even presume the guidelines are REASONABLE, and still less must they adhere to them. Third, of course the courts must abide by federal statutory law, but isn't that in large measure the MM laws you elsewhere criticize?

"Federal judges have their sentencing discretion regulated by democratically-enacted public law in the form of legally binding statutory law (the SRA), as well as advisory guidelines developed in a public manner through the USSC, and all of this law is subject to binding litigation in the federal courts."

See previous points. And the SRA had its heart cut out almost seven years ago. There is no such thing as being "bound" by advisory guidelines.

"Federal prosecutors do not have their charging/bargaining/sentencing discretion regulated by ANY public law or any public guidelines and those internal guidelines created by DOJ are neither binding nor subject to litigation."

Actually, there's litigation all the time (motions to dismiss) to throw out the charges the prosecutor selected. But that's not the main point. The main point is that you overlook the central and enormous difference between the judicial and executive branches, to wit, that the former was designed by the Framers to respond to law, and the latter principally to the will of the electorate. This means that the nature of regulation of each will vary sharply. The principal means of regulating the policy decisions of the executive branch is by elections. That is a blunt instrument to be sure, but that's how it works and was designed to work.

"It is telling, Bill, how eager you are to assert that unelected and non-transparent big-government prosecutors can be trusted to follow non-binding and private internal charging/bargaining/sentencing guidelines (and that the Constitution should be read to prevent any regulation of prosecutorial discretion)."

But I never said the Constitution should be read to prevent ANY REGULATION of prosecutorial discretion. I said it should be read, as it always has been read, to prevent APPELLATE REVIEW of such discretion. And it was specifically appellate review that you recommended.

If we are going to have courts run one of the core functions of the executive branch, we need to recognize that from now on we'll have two branches, not three.

"I understand that, in a monarchy, that executive officials typically have unquestioned and unregulated enforcement authority, but is that how you think it should (or must) run in our constitutional democracy?

Not hardly (and I know you're being a bit facetious here). I'm saying that, in a constitutional democracy (unlike a monarchy), the people decide on what their ruler may do by going to the ballot box to select -- or reject -- him and his program.

Posted by: Bill Otis | Oct 10, 2011 5:09:56 PM

Bill, how can anyone assess or confirm your assertion that "the deference given district court by appellate courts vastly exceeds the deference given line AUSA's by Main Justice"? I cannot even guess what Main Justice has for a charging/bargaining/sentencing policy on kiddie porn cases, and there is evidence that there is wide disparity in this area from office to office and AUSA to AUSA. Most critically, DOJ will not even let outsiders know if there is a policy for the exercise of discretion here, let alone whether/when the policy is followed. We know both the USSC policy "guidelines" for CP cases, and we know how often they are followed and how far deviations run. We do not know any of this for prosecutors, even though they can control through chanrging bargaining whether a downloader is facing 0 to 10 years or 5 to 20 or even more.

You note that "of course the courts must abide by federal statutory law" without acknowledging that federal prosecutors essentially do not. They can and do decline prosecutions in many thousands of cases and allow pleas to lesser charges in thousands more --- though exactly when and why is subject to no scrutiny. I am not arguing against prosecutorial discretion, but rather just seeking to highlight that every concern you express about judicial discretion is as great, if not greater, with prosecutorial discretion with the additional problems of a lack of transparency or any outside review by anyone.

You assert that "the principal means of regulating the policy decisions of the executive branch is by elections," but how can this regulation operate if we lack any information about how those policy decisions get made and applied, especially in the individual case? Are you saying the only remedy for when a bunch of career AUSAs seem to start taking different approaches to kiddie porn cases nationwide is to vote for another Administration four years later? Really? And, of course, I cannot even know if this is what is going on because DOJ does not share its internal data and nobody else can figure this out.

My point here is only to continue to question why you, Bill, are apparently soooo troubled by the exercise of sentencing discretion by federal judges in a transparent advisory guideline system with a statutory backstop, but yet seem just fine with the exercise of (often even-more-potent and consequential) exercise of charging/bargaining/sentencing discretion by federal prosecutors in an opaque standardless system with no clear legal backstop?

I have to assume that your essential answer is that you trust line prosecutors more than you trust district judges and/or that you think regulation by DOJ is more dependable than regulation by statutory law. That's an understandable perspective coming from a career prosecutor, but not one that I find fully convincing.

Posted by: Doug B. | Oct 10, 2011 8:07:54 PM

Doug B hypothesizes: "I can imagine a lot of novel (and efficient) systems for allowing a defendant to outside review of any and all MM charges in an indictment."

I thought there was such a system. It's called a trial.

Posted by: chiming in | Oct 10, 2011 8:47:34 PM

Doug --

"Bill, how can anyone assess or confirm your assertion that "the deference given district court by appellate courts vastly exceeds the deference given line AUSA's by Main Justice"?

By having been there. I'm sure I'm not the only former AUSA who posts here.

"You note that 'of course the courts must abide by federal statutory law' without acknowledging that federal prosecutors essentially do not. They can and do decline prosecutions in many thousands of cases and allow pleas to lesser charges in thousands more --- though exactly when and why is subject to no scrutiny."

But as you sort of acknowledge in your next paragraph, there IS no law requiring prosecutors to bring every case or charge everything they could (and if there were such a law, the heads of three-quarters of your commenters would explode). Nor does any sensate person believe that such a law would be either possible or desirable.

I am called away just now, and will add only one more thought, that being that I am all for more disclosure by DOJ, and if I ever go back in I'll invite some of my students to look over my shoulder for a day to see how things get done. But the idea, of which you seem to be fond, of allowing THE COURTS to oversee executive branch decisions just cannot be squared with the separation of powers.

Posted by: Bill Otis | Oct 10, 2011 9:14:20 PM

Sentencing starts long before the sentencing hearing. It starts with law enforcements decisions and progresses from there. By far, the most influencial of these circumstances determining sentencing are the charging decisions of the prosecutor.

Posted by: beth | Oct 10, 2011 9:55:45 PM

Bill gets a lot of mileage out of Kennedy's purported role in spawning the SRA, but even a cursory reading of the history of that legislation belies the spin Bill puts on it.

Kennedy was interested in fixing indeterminate sentencing, yes, but I saw nothing to suggest he was hell bent on shoving judges to the sidelines and packing prisons by putting prosecutors in charge of the system.

There are some rich back stories as well about Republican mischief and the role demagoguery typically plays in sealing unanimous votes for big "crime bills" such as the SRA.

Posted by: John K | Oct 11, 2011 9:09:59 AM

John K --

"Bill gets a lot of mileage out of Kennedy's purported role in spawning the SRA, but even a cursory reading of the history of that legislation belies the spin Bill puts on it."

It wasn't a "purported role," it was an actual role, and there is no "spin" in stating the historical fact that he was a co-sponsor.

"There are some rich back stories as well about Republican mischief and the role demagoguery typically plays in sealing unanimous votes for big "crime bills" such as the SRA."

Well by all means let's hear them. I'll be fascinated to learn how Kennedy and Tip O'Neil, two of the most experienced and wily legislators in town, and two of the most powerful, got hoodwinked. Do tell!!!

P.S. The reason most Democrats support crime bills is that they're not nearly as much in love with criminals as you are.

Posted by: Bill Otis | Oct 11, 2011 9:52:41 AM

Bill,

I believe that German prosecutors are verifiably sensate, and they do have a law requiring all potential charges for which a factual basis reasonably exists to be brought. To them, prosecutorial discretion is lawlessness, pure and sensible. Sometimes you act like the charging/ sentencing regime that existed from 1984 to Booker is the only one that "sensate" people may desire, or even conceive. But there are many alternatives, including the pre- 1984 US system, the French inquisitive- magisterial system, the German system, and the post-Booker US system. Each of these systems was established by not just sensate people, but quite well- meaning and quite reasonable people. Each of these systems has particular strengths and weaknesses. Failure to acknowledge these strengths and weaknesses, much less acting like there aren't reasonable alternatives, only serves to weaken your arguments; you end up sounding like a tired old former prosecutor who pines for the days in which we had a system that simply maximizes the role of federal prosecutors. After Booker and Gall, those day are long gone and they are not coming back.

The South will not rise again. History has a funny way of moving on.

Posted by: Mark Pickrell | Oct 11, 2011 12:05:08 PM

With regard to the statement that elections are the principal/sole means by which the people exercise oversight of the executive branch's criminal enforcement decisions, it is interesting to note the distorting effect, over time, of the felon disenfranchisement rule in this respect. I am familiar with the arguments for and against permanent disenfranchisement generally. But regardless of the general arguments for and against, it does seem that, with regard to the specific question of the proper level of government zeal in pursuing felony charges in arguably borderline cases like minor drug possession, the government has the potential to unfairly influence such oversight by permanently disqualifying many of the folks most likely to oppose such practices. This is not necessarily an argument against permanent disenfranchisement, but it *is* an argument that alternate sources of oversight are necessary in a world where such disenfranchisement exists.

This problem is, of course, exacerbated by the extreme class disparity in detection/policing of drug use and possession. Despite broadly comparable levels of illicit drug use across classes, the long drug war has decimated the franchise among certain (largely poor) neighborhoods and classes where drug use is relatively more out in the open and prosecution is cheap, while leaving it largely intact among more affluent/educated classes where drug use is more discreet and prosecution is both politically and economically more expensive. Thus, the voters who maintain the franchise are likely to be insulated from the problems/burdens ostensibly created by the government's enforcement policies, and therefore unlikely to expend political energy to remedy them. (Particularly given that there are dozens of other issues at stake in any election.)

This last point may essentially be a way of moving the discretion analysis back one further step -- to the detection and investigation decisions of police -- as that, rather than prosecutorial decisions, is probably the major contributor to this class disparity. And again, with regard to police conduct, the idea of electoral supervision is complicated by felon disenfranchisement. One can argue that it is small wonder that the voting public continues to ratify drug war enforcement policies, when many of those most negatively affected by the policies are excluded from voting, while those granted de facto immunity from investigation and detection for minor possession and use may and do vote.

Posted by: Anon | Oct 11, 2011 12:30:15 PM

Mark Pickrell --

"I believe that German prosecutors are verifiably sensate, and they do have a law requiring all potential charges for which a factual basis reasonably exists to be brought."

Such a law could not conceivably work in the United States and I would not support it. Would you?

Posted by: Bill Otis | Oct 11, 2011 3:39:30 PM

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