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October 16, 2013

Notable shots at federal prosecutorial efforts in special concurrence to Eleventh Circuit sentencing reversal

I was intrigued to come across what stuck me as an unusual and sharp "special concurrence" from the pen of US District Judge Dudley Bowen Jr., who was sitting by designation and provided an additional panel vote to reverse a sentence in US v. Rodriguez, No. 11-15911 (Oct. 16, 2013) (available here). Here is the substantive reason for the reversal as explained by the main panel opinion:

Mr. Rodriguez argues that the District Court clearly erred when it found that his offense involved more than 50 victims. Although he acknowledges that the government presented 42 affidavits of victims who suffered a loss and a summary chart indicating that there were 238 victims total, he points out that the government provided no witnesses or underlying data to authenticate the government’s summary chart.  For this reason, Mr. Rodriguez argues that the District Court’s finding is not supported by reliable and specific evidence.  We agree.

A circuit decision finding insufficient the evidence relied upon by a district judge at sentencing is itself notable.  But the substance and style of Judge Bowen's four-page concurrence really caught my attention.   These excerpts highlight why:

I concur in the opinion in full. I write specially to comment on the Government’s treatment of the sentencing proceedings.

This is another case wherein the Government has failed to come forward with evidence at a critical time.  Unfortunately, important objections made by a defendant at a sentencing hearing are often dealt with as an afterthought.  The Government’s cavalier disregard for the need of further evidence, specific references to a trial transcript, or another basis upon which the district court may make sustainable findings is all too typical.  In this case, after a laboriously conducted two-week trial, resulting in a conviction we readily affirm, the Government’s willingness to allow the matter to conclude resting upon extrapolation, conjecture, and innuendo left the district court stranded with a well-prepared Presentence Investigation Report, some commentary, and little else....

It is true that a sentencing proceeding is more flexible and less formalized than a trial to a jury.... I fear that the latitude allowed in sentencing proceedings often lulls the Government’s lawyers into a species of spectator.  However, the lower standard of proof, the district court’s wide discretion, and the degree of informality in no way lessen the importance or the due process implications of the event....

In fairness to the district court, findings made at a sentencing hearing are often entered months after a trial, following other trials, adversary proceedings, contested matters, and numerous matters in litigation.  The United States Probation officers correctly concentrate on the preparation of a Presentence Investigation Report, which may include evidentiary matters, opinions, conclusions, and recommendations based on subjective criteria.  When facts in the Presentence Investigation Report are disputed, however, the district court needs more.  No one is better positioned than trial counsel for the Government to anticipate and satisfy the need for articulation, protection, and supplementation of the record with the testimony of witnesses, necessary exhibits, or other evidence.  Too often, energetic, successful prosecutors approach what is arguably the most important part of the case with a surprising level of inexactitude.  Responsible advocacy demands more.

October 16, 2013 at 06:10 PM | Permalink


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It is sometimes astounding when the government fails to provide actual evidence to support its burden of proof at sentencing, and District Judges let them get away with it. One notable case involved the reversal of the sentences of 2 brother who were both M.D.s, who have been convicted on prescribing narcotics without a medical necessity. Their sentences were reversed on appeal by the Seventh Circuit, and the District Judge ordered them released on bond, since they had already served longer in prison than the sentences he was likely to impose upon re-sentencing. See, "United States v. Chube", 538 F.3d 693, 705 (7th cir. 2008),, on remand, 2008 WL 4998382 (N.D. Indiana Nov. 20, 2008). Notably, in Chube, the District Judge held that the Government could not present additional evidence at the second sentencing hearing, but that re-sentencing would be based upon limited evidence of relevant conduct (drug quantity) the government had presented at the first hearing.

Posted by: Jim Gormley | Oct 16, 2013 8:02:03 PM

In my comment above, I neglected to add the citation to the District Court's unpublished Order that the Chube brothers be released on bond, pending re-sentencing, which is well worth reading, because it is such a rare event to see bond granted pending re-sentencing in a drug case, where the defendant had received a sentence of more than 10 years at his first sentencing hearing. The Bail Reform Act makes clear that bonds are almost never available in such circumstances. See, "United States v. Chube", Case No. 2:04-CR-96 (N.D. Indiana Nov. 26, 2008)(Docket No. 263 unpublished Order granting bond pending re-sentencing and ordering that while out on bond, defendants begin serving their terms of supervised release). See also, "United States v. Rosenburg", 585 F.3d 355, 357-58 (7th Cir. 2009) (drug sentence of nurse practitioner reversed because of the Government's failure to present evidence of relevant conduct (drug quantity) at sentencing).

Posted by: Jim Gormley | Oct 16, 2013 8:27:13 PM

I am presently working on the appeal to the Sixth Circuit from the denial of a Motion for Habeas Corpus in the Eastern District of Kentucky, where one issue is whether trial/appellate counsel was ineffective as counsel in failing to object to the District court's extrapolation to narcotics prescriptions written for 2,000 patients, from a random sample of 50 of those files at the sentencing of an M.D. who was convicted of prescribing narcotics without a medical necessity. See, "Ali H. Sawf v. United States", Appeal No. 13-5620 (6th Cir. 2013). Dr. Sawaf's case was defense counsel's first ever Federal criminal case. He was only 3 years out of law school, and the trial lasted more than 2 weeks. The Government put up no evidence at all of drug quantity relevant conduct at sentencing. Rather, the Government asked the Court to consider the testimony of the Government's M.D. expert witness at trial for relevant conduct purposes. The Government's trial expert testified that he had reviewed a random sample of 50 patient files out of more than 2,000 total, and that he found no evidence in any of them that there had been a medical necessity for prescribing narcotics. Based upon his testimony, the District Judge extrapolated for purposes of calculating relevant conduct to all narcotics prescriptions written in all 2,000 patient files. The resulting 87,760 pills yielded a Guidelines Range of 235 to 293 months, with a statutory cap of 240 months. The Judge sentenced Dr. Sawaf (now 72 years old) to the maximum sentence of 20 years, and he has already served 13 of them. Defense counsel failed to object to the extrapolation, and failed to raise the issue on direct appeal, which was clearly ineffective assistance of counsel. Sixth Circuit precedent makes clear that a District Judge should never estimate of extrapolate relevant conduct at sentencing if there is a means of determining the actual relevant conduct. See, "United States v. Walton", 980 F.2d 1289, 1302 (6th Cir. 1990). In this case, the actual relevant conduct could have been determined by having a Government expert review each of the 2,000 patient files, not just a ransom sample of 50 files. The District Court has already granted a Certificate of Appealability on another issue, ineffective assistance of counsel at plea bargaining. Defense counsel failed to advise Dr. sawaf that he would be facing Guidelines of 235 to 293 months if he lost at trial, when he advised him to turn down a 41 month long plea bargain offer. On Habeas Corpus, the District Judge found that counsel had been ineffective, but declined o grant habeas relief, based upon her belief that the defendant wasn't harmed by counsel's ineffectiveness. But see, "United States v. Morris", 470 F.3d 596, 602 (6th Cir. 2006) (prejudice is presumed where there is a large disparity between the plea refused and the ultimate sentence following trial). That issue may be affected by the forthcoming Supreme Court opinion in "Burt v. Titlow", No. 12-414 (U.S. Cert. Granted, Feb. 25, 20313).

Posted by: Jim Gormley | Oct 16, 2013 8:53:27 PM

Jim: See my private message on Facebook.

Here is something an effective defense counsel would do.

Expert says, no pain scale filled out.

OK. Give us 50 of your records. If one is missing that pain scale, move for a mistrial. Demand the judge try the expert for perjury, and assign all costs to the personal assets of the expert. To deter. If the expert does not have 50 records of pain patients, he is not as experienced as the defendant and should be disqualified.

Did you ever do or see that done?

This is explosive defense tactic. So I want fairness credit.

Posted by: Supremacy Claus | Oct 16, 2013 11:38:58 PM

This opinion goes to the heart of what happens every darn week in my district (which is not in the 11th Circuit.) I could not tell you how many times we are presented by the Government with what are no more than conclusory allegations, usually in the form of a chart or spreadsheet, with no effort to explain or document the methodology used. Even when we specifically ask for items of reliable evidence to support these things, we almost never get any. The Government often operates as if their burden to prove facts at sentencing is limited to the asserting of them. These observations are only valid for my personal 24 years of experience in the district where I work, and does not apply to all AUSAs I have worked with. But the problem is frequent and pervasive.

Posted by: USPO | Oct 17, 2013 1:26:16 AM

I have asked this question several times.

Daubert applies to tort litigation and to the criminal trial. Has it ever applied to the sentencing hearing?

That sentencing hearing is the most important of all. There are a lot of loose assertions about future forecasting. It is where the public safety is protected or no protected. It generates a lot of tax cost.

Is the defense bar afraid to upend the whole business, so does not raise it.

It is the worst of ineffective counsel that will fail to do, that will allow garbage science to be used to cage his client.

Rule of Evidence 702 (amended to reflect Daubert) has no limitation on its applicability, as set by other decisions. It applies to any court, to any specialist, not just scientists, and to any subject where the judge is allowing an opinion from the witness..

Posted by: Supremacy Claus | Oct 17, 2013 7:16:19 AM

What USPO said.

Posted by: AFPD | Oct 17, 2013 9:52:06 AM

It is indefensible when the Government fails to introduce evidence sufficient to establish a Guidelines' enhancement, loss amount, number of victims, etc., but in my experience as a federal prosecutor and federal law clerk, I have also seen the reverse where defendants do not introduce evidence but merely make assertions when attempting to sustain their burden at sentencing (e.g., asking for a downward adjustment for minor role, health problems, etc.) In addition, I find that judges - despite their claims that sentencing is "tough" - are frequently annoyed when the Government attempts to prove up an enhancement or some fact reelvant to the 3553(a) analysis, which explains (but does not excuse) why federal sentencing proceedings sometimes have a unwanted cursory feel.

Posted by: Papa Bear | Oct 18, 2013 12:04:27 PM

I was indicted for taking prescribed HGH for the "off label use" of treating my Hepatitis C (Healthcare fraud) I had taken it for 12 years. I was a Congressional caseworker and it was a covered medication by OPM. But not covered for Hepatitis C, as I learned the hard way. However, now I understand that off label uses are not illegal and even pharmaceutical companies are free to discuss them. At the time, there was exculpatory evidence that my attorney said should have exonerated me. Testimony before the grand jury, by the first prescribing physician clearly stated that he had told me that I suffered from low growth hormone. However, the AUSA was “disingenuous” according to my Federal Public Defender, who said he felt confident going to trial. The problem was that the FBI had visited my then close friend, who at that time was a catholic priest. They threatened to reveal his sexual orientation to the church and make it public (they visited his church over 5 times). One week before trial, the AUSA came up with a (two year probation only) deal, no more "church visits" or harassment's ... if I would sign an agreement to plead guilty to “off label uses” of HGH. They somehow dropped 32 counts of my medication use and I signed. Not sure if that sort of "deal" is coercion. However, they DID have recordings of me begging the insurance company not to deny my HGH “since it had lowered my Hepatitis C viral count and helped my liver function”. That was their smoking gun. I do not deny it. I never thought a legally prescribed medication could land a patient in Federal Prison. None of the doctors were charged, they prescribed the medication. The AUSA said, I "benefitted" and the doctors did NOT. This was in 2007, I served 6 months prison and 3 years probation (the 'recommendation") for no jail and 2 years probation was NOT accepted by the judge. I completed the full sentence and was ordered to repay my medication costs to the insurance company ($86,000) which I did. This nightmare ruined my career, I am unemployed, still sick with Hep C and no coverage to treat my illness. Is there anything I can do reverse this? HIV patients are allowed to take hgh, but HCV patients are not and in my case are sent to prison. Is there anything anyone can think of at this point? Attorneys want money, nobody will guide you, it seems unreal. Thanks.

Posted by: Henry P | Oct 25, 2013 7:15:08 PM

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