Sentencing Law and Policy

Bloggy debate over the Snipes sentence

For two notably different perspectives on the 3-year prison sentence given to Wesley Snipes in federal court yesterday, check out these two blog posts:

• From TigerHawk: Wesley Snipes got off easy

• From Riehl World View: You Don't Screw With "The Man"

In addition, SL&P's always provocative commentors have been having fun with this case and its outcome.

Wesley Snipes gets 3-year max prison sentence urged by prosecutors

This ABCNews report indicates that a federal sentencing judge today decided to max out Wesley Snipes for his tax evasion convictions:

A Florida judge sentenced the "Blade" movie star to 3 years in jail today. Snipes was convicted of tax fraud in February for not filing his income taxes for at least three years....

In February, a federal jury convicted Snipes on three misdemeanor counts of failing to file a tax return. Jurors acquitted Snipes of felony tax fraud and conspiracy charges that carry more significant punishment upon conviction.  Had he been found guilty of all charges filed against him, Snipes could have faced up to 16 years in prison.

An august legal journal, E!-Online, has more details here.  Another august law publication, TMZ.com, also has more here.

Sentencing thoughts and predictions for US v. Snipes

This morning in Florida federal court brings the scheduled sentencing hearing for actor Wesley Snipes following his conviction on three misdemeanor tax evasion charges.  Here are some morning media links covering this interesting high-profile case:

• From the Associated Press, Prosecutors seek hard sentence for Snipes in tax trial
• From the Ocala Star-Banner, Snipes memo to judge cites probation as 'just punishment'
• From the Ocala Star-Banner, Support for Snipes from Denzel, Woody, Judge Joe Brown
• From the Orlando Sentinel, Why Snipes Shouldn't go to prison

Thanks to the wonders of the web, everyone can access the defense sentencing memorandum asking for a sentencing of probation at this link.  In addition, The Smoking Gun has available here the letters written to the sentencing judge by Denzel Washington and Woody Harrelson.

As for predictions, I would guess that the sentencing judge will split the difference here: I do not think Snipes will escape with probation, but I also doubt he will get the three-year max prison term.  In other words, I think the smart money would be on a prison sentence somewhere in the range of 12 to 24 months.  But I am really just guessing.

Some recent related posts:

• Federal prosecutors want Wesley Snipes imprisoned for three years
• Split verdict in Wesley Snipes trial ... and another potential high-profile acquitted conduct case
• Wesley Snipes to be sentenced two weeks too late
• A taxing analysis of celebrity sentencing issue in US v. Snipes
• Why the government is eager to imprison Wesley Snipes 

Why the government is eager to imprison Wesley Snipes

Forbes.com has this new piece, headlined Wesley Snipes And The TaxDef War," which spotlights why the government sees the Snipes case as one of the most important tax evasion cases in recent memory:

When Wesley Trent Snipes is sentenced Thursday in an Ocala, Fla., courtroom for willfully failing to file federal income tax returns, more than the 45-year-old star's freedom will be on the line. Also at risk will be the government's efforts to staunch the spread of what it recently re-branded "tax defiers."

Tax defiers — or "tax protesters" as they've traditionally been known — glom onto one kooky, discredited theory or another as to why the income tax is illegal or doesn't apply to them personally or doesn't cover their normal sources of income. (Example: Only foreign income, or only earnings of federal employees are taxable.) They typically file returns showing zero income or simply stop filing. Sometimes, they also put in claims for refunds of taxes they paid before their conversions, as Snipes did.

Just this month Nathan J. Hochman, the assistant attorney general in charge of the U.S. Department of Justice Tax Division, launched a new national initiative (TAXDEF for short) to bolster and better coordinate criminal and civil actions against tax defiers. Why now?  Hochman said in an interview he's worried that defiers are now spreading their ideas "virally" through the Web.

"They're not just based in some small cities and having meetings in motel conference rooms with a relatively small number of participants," he said. "They can promote their product across the United States literally overnight in a way that was physically impossible to do back in the mid 1990s." Criminal convictions are particularly important, Hochman observed, because word of them "spreads virally" too. "To lose one of these cases has significance as much as winning it does," he added.

While the government didn't exactly lose the Snipes case, it wasn't a pure win either.  On Feb. 1, a jury acquitted him of two felony charges related to false refund claims and three of six misdemeanor failure-to-file charges, finding him guilty of not filing his 1999, 2000 and 2001 returns. (Two Snipes co-defendants who sold him the tax protest ideas were convicted on felony charges.  At the trial, Snipes' lawyers argued he was a victim who took and believed the bad advice of others.)

Federal prosecutors now say Snipes should get the maximum three-year prison term allowed for his convictions, not only because of the amount of money involved — $14 million in gross unreported income in 1999, 2000 and 2001 alone — but also because of the problematic publicity generated by the split decision in his case.

Daniel R. Meachum, a Georgia attorney representing Snipes, told Forbes he'll argue that Snipes "does not need to be incarcerated. He is not some criminal that poses a threat to society." Meachum added that Snipes has made arrangements to pay the amount of back taxes his forensic accountants believe is owed. He declined to say how much that is, but acknowledged that it is not a number that has been agreed to by the government.

In their sentencing memo, prosecutors contend that the decision "has been portrayed in the mainstream media as a 'victory' for Snipes," and urge the judge to "send a message that Snipes did not 'beat the rap.' " To back up their claim, the prosecutors cite a New York Post headline: "Snipes is Now Tax-Free, Beats Heavy Rap and Walks With Wrist $lap." Even worse, the prosecutors assert, "Snipes' fellow tax defiers have been emboldened by his alleged 'victory' in this case." The defiers, the government says, consider the split decision "as a vindication of anti-tax theories and a 'win' that will attract additional converts into their movement."

Some related posts:

• A taxing analysis of celebrity sentencing issue in US v. Snipes
• Federal prosecutors want Wesley Snipes imprisoned for three years
• Split verdict in Wesley Snipes trial ... and another potential high-profile acquitted conduct case
• Wesley Snipes to be sentenced two weeks too late

Federal prosecutors going hard after Wesley Snipes' tax "advisors"

This local article provides the latest news coming from the upcoming sentencing of Wesley Snipes and his co-defendants for tax evasion.  Here are some details:

Federal prosecutors are seeking a prison term of 10 years for Eddie Ray Kahn, one of two co-defendants of actor Wesley Snipes in a tax evasion scheme. In a sentencing memo filed Sunday, Robert E. O'Neill, U.S. Attorney for the Middle District of Florida, called on Senior U.S. District Judge William Terrell Hodges to sentence Eddie Ray Kahn to 10 years in prison. O'Neill also sought a sentence for a second co-defendant, Douglas Rosile, of between six and eight years.

On Feb. 1, an Ocala jury found Snipes guilty of three counts of willfully failing to file tax returns, but also acquitted him of felony conspiracy and tax fraud charges and three additional counts of failure to file.  The jury convicted Kahn and Rosile on the same felony charges.  All three men are scheduled to be sentenced at 9:30 a.m. Thursday.

O'Neill is seeking a sentence of three years in prison for Snipes — the maximum possible — and a fine of at least $5 million against the actor.  Snipes was a member of Kahn's Mount Dora-based American Rights Litigators.  Prosecutors have described ARL and its successor company, Guiding Light of God Ministries, as nothing more than illegal tax-evasion schemes....

In the sentencing memo for Kahn and Rosile, O'Neill described both men as "incorrigible tax offenders for whom significant prison sentences are warranted."  The memo indicates Kahn formed and sold memberships in ARL, even after he was convicted of willfully refusing to file his own returns and served a three-year prison term....

The memo notes that at least nine other members of ARL or Guiding Light of God Ministries have been convicted in separate criminal tax cases around the country, and that at least two more such trials are pending.  Because of Snipes' celebrity, the sentences imposed in the case could "increas(e) tax compliance on a national scale," the memo said. "This may be particularly true of the many customers of tax-defiance organizations, who cannot all be criminally prosecuted due to limited government resources."

Some recent related posts:

• A taxing analysis of celebrity sentencing issue in US v. Snipes
• Federal prosecutors want Wesley Snipes imprisoned for three years
• Split verdict in Wesley Snipes trial ... and another potential high-profile acquitted conduct case
• Wesley Snipes to be sentenced two weeks too late

No delay for Snipes sentencing

For lots of reasons detailed in prior posts, I am really looking forward Wesley Snipes' sentencing on tax evasion charges next week. Thus, I was pleased to see this new news on this front:

A federal judge has rejected a motion to delay actor Wesley Snipes' sentencing on tax evasion charges, scheduled for next week. Senior U.S. District Judge William Terrell Hodges denied without comment a bid by Snipes' legal team to postpone the sentencing scheduled for April 24.

In the motion filed Tuesday, Snipes lead attorney Daniel Meachum argued that Snipes' tax returns were complex and that the defense and prosecution could not agree on the amount of taxes Snipes owes for 1999, 2000 and 2001. An Ocala jury convicted Snipes on Feb. 1 of three counts of misdemeanor willful failure to file tax returns for those three years. Prosecutors are seeking a three-year prison term for Snipes, the maximum possible, and a fine of at least $5 million.

Some recent related posts:

• A taxing analysis of celebrity sentencing issue in US v. Snipes
• Federal prosecutors want Wesley Snipes imprisoned for three years
• Split verdict in Wesley Snipes trial ... and another potential high-profile acquitted conduct case
• Wesley Snipes to be sentenced two weeks too late

A taxing analysis of celebrity sentencing issue in US v. Snipes

Writing over at Slate's Convictions, David Feige has this interesting post highlight that the "impending sentencing of Wesley Snipes on his misdemeanor tax convictions nicely frames an interesting question about celebrity and sentencing."  Here are snippets from this post:

Basically, what the government is arguing here is that Snipes needs to be hammered for his celebrity. The clear suggestion is that because he's a high-profile defendant, sending him to prison for a long period of time is like a deterrent bonanza.  The thing that strikes me, though, is that unlike political trials, or those of thieving cops who abuse a position of trust, Snipes is an actor who never took an oath to serve, protect, or do much of anything else other than look out for No. 1. So here, unlike those other high-profile or political cases that involve an abuse of trust or authority, we really are talking about a sentencing enhancement purely on the basis of notoriety.

Some recent related posts:

• Federal prosecutors want Wesley Snipes imprisoned for three years
• Split verdict in Wesley Snipes trial ... and another potential high-profile acquitted conduct case
• Wesley Snipes to be sentenced two weeks too late

Federal prosecutors want Wesley Snipes imprisoned for three years

As detailed in this Orlando Sentinel article, federal prosecutors are looking for a maximum statutory sentence for Wesley Snipes at his sentencing next week: "Actor Wesley Snipes should go to prison for three years and pay a fine of at least $5 million, prosecutors in his tax case said in a sentencing memo filed today."  Here are more details:

Snipes was convicted in February of willfully failing to file a tax return, but he was acquitted of felony conspiracy and tax-fraud charges.  "This case cries out for the statutory maximum term of imprisonment, as well as a substantial fine," prosecutors wrote in their sentencing memo filed in federal court in Ocala, "because of the seriousness of defendant Snipes' crimes and because of the singular opportunity this case presents to deter tax crime nationwide."

As I suggested in a prior post, given that the jury rejected all the felony charges brought against Snipes, this case could present a real interesting setting for a debate over acquitted conduct sentencing enhancements.

Some related posts:

• Split verdict in Wesley Snipes trial ... and another potential high-profile acquitted conduct case
• Wesley Snipes to be sentenced two weeks too late

UPDATE:  Thanks to White Collar Crime Prof Blog's post here, the government sentencing brief in US v. Snipes, filed in anticipation of the sentencing hearing set for April 24, can be accessed at this link.

Creative sentencing for T.I. creates concerns

As detailed in this Atlanta Journal-Constitution article, the creative sentence engineered for the rapper T.I. is creating a stir.  Here is the start of the article:

Both were felons caught with guns. Popular rapper T.I. was sentenced to a year and a day in prison after he pleaded guilty to possessing three machine guns and two silencers, all bought from an undercover federal agent and just a fraction of all the weapons taken from his house and car that day.

In comparison, James Harold Ingram, an unknown, got two years in prison when federal agents, investigating reports he had a moonshine operation, arrested him with four rifles and marijuana he had planned to sell.

T.I., whose legal name is Clifford Harris Jr., had something to offer beyond his cooperation and admission of guilt: his fame, his name and his potential influence over kids who might think guns and violence are cool. Ingram had nothing.

While some have suggested T.I.'s unusual deferred sentence is lenient, U.S. Attorney David Nahmias said it was negotiated because Harris and his attorneys offered a plan to prevent crime. His prison sentence of one year and a day begins only after he has spent at least 1,000 hours preaching the message that violence and guns are bad. With earned time off, his prison stint could be cut to just over 10 months.  But if he fails to meet conditions, he could be sent for prison for almost six years.

"It's not ... because he's a star he gets a lower sentence," Nahmias said.  "Being a star isn't a reason to be targeted or a reason for a lower sentence. If you help convict others, you get a lower sentence. What he proposed was to go out and help prevent crime.  If he's able to prevent a crime, that's something you should get a reduced sentence for."

It's his star quality that makes the plan workable, legal experts say.  "He got it because he's a celebrity and has a bigger impact and is able to offer more to offset the sentence," said defense attorney Michael Trost, a former prosecutor.  "Do I think he got it just because he's a celebrity? No."

A notable perjury trial with sentencing advice for Bonds, Clemens and others

The San Francisco Chronicle has this interesting article about the start of a nother notable steroid-perjury trial in federal court.  As detailed in this excerpt, the trial has a lot of impact on various sentencing issues:

Caught up in the BALCO steroids scandal, an elite athlete adamantly denies using banned drugs, then mounts an aggressive defense to a perjury indictment. It sounds like the case of former Giants slugger Barry Bonds, accused of lying under oath to the federal grand jury that investigated Burlingame's Bay Area Laboratory Co-Operative steroid ring in 2003.

Instead, starting today in federal court in San Francisco, a lesser-known American sports champion — Tammy Thomas, a onetime star of bicycle track racing — goes on trial, charged with perjury and obstruction of justice.  Her case is of interest because it amounts to a dress rehearsal for the trial of Bonds, which may get under way later this year....

Whatever her defense, Thomas is taking a big gamble by refusing a plea bargain and going to trial, said New York criminal defense specialist Patrick Mullin, an expert on federal sentencing guidelines. Up to now, eight people indicted in connection with BALCO have pleaded guilty to reduced charges rather than go to trial. The longest sentence was six months, imposed on Olympic track superstar Marion Jones, who confessed to lying to federal agents about her use of banned drugs and about her participation in a check-fraud scheme.

But if Thomas goes to trial and is convicted of obstruction of justice and perjury, she could face 30 months in federal prison, Mullin said.  Mullin said Thomas may have decided to gamble on a trial because she knows that if she pleaded guilty to lying under oath she might be legally barred from obtaining a license to practice law. "If she's going to law school, that would give you pause," he said.

Busta Rhymes doesn't have to worry about bustin' out

As detailed in this AP report, a "judge sentenced Busta Rhymes to three years' probation Tuesday for assaulting his former driver and a fan, and warned the rapper to stay out of trouble."  Here are more details:

The 35-year-old Rhymes, whose real name is Trevor Smith, was also ordered to perform 10 days of community service; pay a $1,250 fine, plus court costs; and enroll in a drunken driving program. After the sentencing, Rhymes said the terms of the plea deal won't be a problem. "I have no trouble being a good dude because that's what I am," he said.

Scott Leemon, Rhymes' lawyer, said a private agency called Rock Corp. will work out the community service program. He said he doesn't know yet what it will be. He also said Rhymes has paid most of the fines and surcharges he owed.

Manhattan Criminal Court Judge Larry Stephen put Rhymes on notice that he must abide by the conditions of his probation.  "If you mess up, you're going to jail," he said. "I've given you a chance."

Rhymes said after the sentencing, "I couldn't feel better, and this couldn't have happened at a better time. I thank the judge for giving me a chance and I thank everybody for being supportive."  The rapper said he wanted to get back to "having fun, making music, running around and showing love."

Should being a good tipper get Spitzer a sentencing break?

The blogosphere is buzzing about all thing Spitzer, with TalkLeft providing the latest news and Sex Crimes providing a great round-up of commentary.  This ABC News story has an array of notable information and comment:

A 22-year-old escort found on another call-girl Web site claimed to ABC News in a phone interview that Gov. Eliot Spitzer had been one of her customers two years ago when he was New York attorney general and that he was a nice guy who tipped well....

Federal investigators say there is no evidence Spitzer used state money or campaign funds to pay the prostitutes, but that the way he moved an estimated $40,000 through various accounts violated federal money laundering laws. "These are serious laws and laws that given the amount of money involved here could mean a prison term of 10 to 18 months," Sean O'Shea, a former federal prosecutor specializing in financial crimes, said.

A prison term is one of the issues holding up the governor's resignation as well as whether or not he pleads guilty to criminal charges.

I wonder if being a good tipper would be considered a valid mitigating sentencing factor under 3553(a).  Probably so in the Second Circuit, but maybe not if the feds figure out a way to charge him in the Fourth Circuit.

Meanwhile Harlan Protass looks at criminal justice realities a bit more seriously here at Slate, in a piece tiled "How To Prosecute Eliot Spitzer."

Should Prez Bush (or would a Prez Clinton) consider a pardon for Gov Spitzer?

Over at Pardon Power, P.S. Ruckman already has this entertaining post talking about Governor Eliot Spitzer and clemency issues.  Here is a snippet:

Should Gov. Spitzer be convicted (of anything), he stands a much-better-than-average chance of also benefiting from a presidential pardon — the irony being that, as governor, he has been notoriously stingy with the clemency power.  Well, actually, there is another, even greater irony: Spitzer is on record as supporting a presidential pardon for long-since deceased boxing legend Jack Johnson, who was also convicted for ... violating the Mann Act! Kinda has that feel of Bill Clinton pardoning all of those individuals for lying under oath and making false statements to government agents, doesn't it?

Why might Spitzer be pardoned?  Because 1) former governors in legal trouble have a pretty darn good record for such and 2) it appears likely to many that the next president will be a fellow Democrat.  Spitzer is, after all, one of those ever-so-popular "Superdelegates." Either way, he will probably not be treated in the manner suggested by one South Carolina Senator who, back in the day, recommended that Diggs and Caminetti be "shot like dogs."  So, it may be one more addition for our Presidential Pardon "Watch List".

Should and will NY Governor Elliot Spitzer be prosecuted by the feds?

Breaking crime news from the New York Times: New York Governor  "Eliot Spitzer has been caught on a federal wiretap arranging to meet with a high-priced prostitute at a Washington hotel last month, according to a person briefed on the federal investigation."  Here is more:

The wiretap recording, made during an investigation of a prostitution ring called Emperors Club VIP, captured a man identified as Client 9 on a telephone call confirming plans to have a woman travel from New York to Washington, where he had reserved a room. The person briefed on the case identified Mr. Spitzer as Client 9....

The man described as Client 9 in court papers arranged to meet with a prostitute who was part of the ring, Emperors Club VIP, on the night of Feb. 13.  Mr. Spitzer traveled to Washington that evening, according to a person told of his travel arrangements. The affidavit says that Client 9 met with the woman in hotel room 871 but does not identify the hotel. Mr. Spitzer stayed at the Mayflower Hotel in Washington on Feb. 13, according to a source who was told of his travel arrangements....

Federal prosecutors rarely charge clients in prostitution cases, which are generally seen as state crimes. But the Mann Act, passed by Congress in 1910 to address prostitution, human trafficking and what was viewed at the time as immorality in general, makes it a crime to transport someone between states for the purpose of prostitution. The four defendants charged in the case unsealed last week were all charged with that crime, along with several others.

Anyone know what the standard guideline range might be for violations of the Mann Act? 

UPDATE: TalkLeft has this post with more details on the federal criminal case in which all this news broke and Jeralyn notes that it is clear from this 55-page indictment "that Customer #9 was a repeat customer and that he intended to use them again in the future."

Conrad Black gets a peek inside the American criminal justice system and does not like what he sees

Writing for New York Sun, Conrad Black has this remarkable op-ed entitled "My Faith in American Justice." Here are snippets:

It is a terrible thing to be falsely accused, and wrongly convicted, even of a fraction of the original charges, and unjustly incarcerated. For persisting in seeking the recognition of my innocence of these charges, I have been portrayed as defiant, or at least in denial. I defy and deny unjust charges, not the practical difficulties I have faced for the last four years and am facing now.

I would qualify in political terms as a reasonable member of the law-and-order section of the public. And as a conscientious and religious matter, I believe in the confession and repentance of misconduct, as well as in the punishment of crimes. If I had committed any of the offenses charged, I would have pleaded guilty and asked for a sentence that would enable me to atone for my crime and assuage my guilt and shame....

There was no evidence to support two of the remaining convictions, and the only evidence, from the chief cooperating witness, was exculpatory.  For the third count, the evidence was an uncorroborated allegation of a non-incriminating telephone conversation, which did not, in fact, take place....

Some of the jurors, in post-trial comments, by e-mail and on television, where there can be no question of a journalist misunderstanding what was said, confirmed that there remained a reasonable doubt, but that a compromise was reached on acquittals and convictions, contrary to the judge's instruction. One of the jurors stated that it should have been a civil case....

This is the criminalization of what was and remains a civil factional corporate dispute.  My faith in the United States has inspired me to persevere, despite what I believe has been the prosecution's insufficient respect for the Fifth, Sixth, and Eighth Amendment guarantees of due process, of the grand jury as an assurance against capricious prosecution, of no seizure of assets without just compensation, of speedy justice, access to counsel, and reasonable bail.

I have been besieged by various agencies of the U.S. government for over four years, and I know of only one higher bond in U.S. history than the $38 million I have been posting. 

Thoreau wrote: "Under a government which imprisons unjustly, the true place for a just man is also in prison."  These charges and the actions leading up to them have been unjust. Most of them have already been found to be unjust. I cherish my liberty as all people do, but I am unafraid.  I have faith in American justice.

I admire Lord Black for retaining faith in the American justice system despite his travails and his apparent belief in his innocence.  Candidly, I think his faith is badly misplaced.  I would be quite surprised if a Seventh Circuit panel ends up reversing his convictions.  And, even if it does, I would expect the Justice Department to seek en banc and/or cert review of any reversal. 

Moreover, a reversal most likely could just result a new trial, not an exoneration.  And, perhaps most critically, since Lord Black must report to federal prison today, he may end up serving most of his sentence before any of these legal particulars ever get resolved.

Congress may push for Clemens perjury prosecution

The New York Times this morning reports here on the latest doings in the Roger Clemens HGH brouhaha:

A Congressional committee has taken the first steps toward asking the Department of Justice to start a criminal investigation into whether Roger Clemens committed perjury during testimony about performance-enhancing drugs, according to three lawyers with knowledge of the matter.

The committee chairman Henry A. Waxman said a decision about referring Clemens had not been made.  A draft letter referring Clemens, but not his accuser Brian McNamee, had been drawn up by staff members for the House Committee on Oversight and Government Reform by the end of last week, according to two of the lawyers.  But all three lawyers, who spoke on the condition of anonymity because they were not authorized to comment publicly on the matter, said it was possible that McNamee would also be included in the referral by the time it was sent to the Justice Department....

In a related case last month, Waxman and Davis jointly asked the Justice Department to investigate shortstop Miguel Tejada for suspected false statements in 2005, when Tejada spoke privately with committee staff members about performance-enhancing drugs....

Any referral from the committee is primarily a symbolic gesture. The Justice Department can decide on its own to investigate a Congressional perjury case, and indeed, several federal agents were present during the hearing Feb. 13.  One of those in attendance was Jeff Novitzky, the I.R.S. agent who has spent the past several years investigating steroid use among professional athletes....

A referral by Congress is like an extra push to the Justice Department, said Todd D. Peterson, a law professor at the George Washington University School of Law who worked in the department’s Office of Legal Counsel during the 1980s and 1990s. “It simply puts informal public pressure on the Department of Justice to take a look at it and respond in some way to Congress’s action,” he said.

Some recent related posts:

• Should Roger Clemens now be indicted for perjury?
• More on Roger Clemens, Barry Bonds, perjury prosecutions and race concerns
• Still more on lying, Clemens, Bonds and equal justice
• "McNamee's Lawyer Predicts Clemens Pardon"
• Barry Bonds indicted, what would be his guideline range?
• Marion Jones gets six-month federal prison term

Still more on lying, Clemens, Bonds and equal justice

This New York Times commentary, headlined "Justice Will Be Served Only if Clemens Isn’t Given a Pass," echoes points I have been making about the need for equal steroid justice.  Here are excerpts:

What we all know now is that someone was lying. And at this juncture, that someone would seem to be Clemens. We’re not talking about razor-thin, “I thought it was flaxseed oil” types of lies before a federal grand jury, which is what Barry Bonds stands accused of. We’re talking about potentially whopping lies before Congress, before the world....

If there is fair and equal justice under the law, Clemens should become the next super athlete, after Marion Jones and Bonds, to be pursued by [government agents] to the end of the earth.  Or at least to a room containing a federal grand jury.

Bonds was ultimately indicted on four counts of perjury and one count of obstruction of justice for telling a federal grand jury in 2003 that he never knowingly took illegal performance-enhancing drugs. The public was not privy to Bonds’s flaxseed performance before the grand jury. If we had been, maybe we would have come away with the same “Are you kidding me?” reaction that many had to Clemens’s testimony on Wednesday, particularly when he said that his friend and former teammate, Andy Pettitte, had “misremembered” previous conversations between the two men.  The flaxseed oil comments became the basis for attacking Bonds, for belittling his historic home run chase of Henry Aaron.  Now we are confronted by a performance by Clemens that makes Bonds’s flaxseed story seem almost naïve.

But none of this means a thing unless the Department of Justice investigates Clemens.  On the surface, there seems to be little choice but to do so. What Jones and now Bonds and Clemens have in common is not accusations of illegal use of steroids but of lying to representatives of the federal government: Jones to federal agents, Bonds to a grand jury and Clemens to members of Congress.

Jones was pursued and disgraced and finally sentenced because she lied; Bonds was pursued and faces a trial because the government believes he lied. Clemens, by virtue of his performance Wednesday, has to be a prime candidate for the same treatment....

[There is a] potential racial divide over punishment, with Jones unceremoniously carted away, with Bonds up next, and with Clemens, a bigger-than-life Texan with some bigger-than-life friends, hoping to emerge unscathed by the law.  Earl Ward, an African-American who is one of Brian McNamee’s lawyers, directly addressed the issue of color Thursday, noting that “several people of color have been caught up in the steroids scandal” and that if Clemens is left uninvestigated, “it would send the entirely wrong message to African-Americans.”  Ward is a paid adversary of Clemens, of course, but what he is saying, many others are thinking.

Some recent related posts:

• Should Roger Clemens now be indicted for perjury?
• More on Roger Clemens, Barry Bonds, perjury prosecutions and race concerns
• "McNamee's Lawyer Predicts Clemens Pardon"
• Barry Bonds indicted, what would be his guideline range?
• Marion Jones gets six-month federal prison term

Should Roger Clemens now be indicted for perjury?

Here is a very simple question for any and all federal prosecutors or would-be federal prosecutors: Based on his performance under oath before the House today, should Roger Clemens be indicted for perjury.  According to this MLB.com article, at least one former federal prosecutor is talking up perjury charges for the seven-time Cy Young winner:

Roger Clemens was unconvincing in his testimony before Congress and may have opened himself up to federal perjury charges, a legal expert told MLB.com on Wednesday.  Katherine Darmer, a former assistant U.S. attorney in New York and an expert on criminal procedure, said that Clemens did not come across as credible and that it would not be surprising to see the former big league hurler experience more legal troubles in days to come. "I thought Roger Clemens did not come across well," said Darmer, a professor of law at Chapman (Calif.) University. "Coming at it from pretty much an open mind, I just thought he was not credible. He's obviously got a lot to lose with his denials, but if I were his lawyer or his family, I'd be worried about perjury charges."

Darmer said that Clemens may have been ill-advised to testify before Congress, especially after Rep. Henry Waxman (D-Calif.), the chairman of the House Committee on Oversight and Government Reform, said Wednesday that he was prepared to shy away from holding the hearing. Clemens insisted that he wanted an opportunity to set the record straight against lingering charges from his former trainer, Brian McNamee. Darmer said she believed Clemens thought he would have been able to better convince the committee of his innocence. "I think it backfired," Darmer said. "This may not be the majority view, but in watching these two guys, I just thought Roger came across as [less] credible. They were able to point to a number of inconsistencies, particularly his deposition denials, where he denied repeatedly that he'd had any conversations with McNamee about [HGH], and then later, he said, 'Except for when my wife [used].' It didn't add up."...

Darmer noted that, before Congress, Clemens attempted to steer several questions and did not answer in a straight-forward fashion at times, especially when inconsistencies in his testimony were pointed out.... "Somebody's lying, obviously. There's no way you can reconcile these two stories, and I think there's a lot of ways you can't reconcile Clemens' own story. Given that there's an independent third party [in the form of Andy Pettite], I think Clemens could face charges."

Darmer said that Clemens' tours of Capitol Hill on three recent days, going door-to-door to meet with as many representatives as possible, were an ill-guided attempt to exert influence. "He's got star power, and I think he was hoping he could use that and leverage that," Darmer said. "He's a national hero and a lot of people love the guy. As a federal prosecutor looking at these guys, I think Clemens is in trouble."

Should Congress not pursue the inconsistencies in Clemens' story, Darmer said, the message to the American people would not be favorable. "To me, it would look like they are giving special favors to a well-loved sports hero," Darmer said. "I think almost anyone else that appeared before Congress and told what, I believe, will turn out as bold-faced lies, would face consequences. Were they to just let it slide, I don't think that would look good for Congress."

Though Professor Darmer is focused on how it would make Congress look if Clemens does not have perjury charges, I am more concerned about how it looks from a racial justice perspective.  As I noted in prior posts here and here, I am troubled that the highest profile athletes to be prosecuted for lying about steroid use have all been African-Americans (Barry Bonds, Marion Jones and Dana Stubblefield).    Though I am not making direct or even indirect allegations of biased prosecutorial practices, I do consider the pattern worthy of commentary and critical reflection, especially if Clemens ultimately escapes having to face an indictment under all these circumstances.

Bill Lerach gets (plea bargained max of) two years in prison

As detailed in this early AP report, "a former partner at a prestigious New York law firm has been sentenced to two years in federal prison for his role in a lucrative kickback scheme involving class-action lawsuits.  William Lerach was also sentenced Monday to two years probation, fined $250,000 and ordered to complete 1,000 hours of community service."

This somewhat unsurprising outcome can be spun in so many ways.  This was the max Lerach could get under the terms of the plea agreement, so this is arguably a sentencing win for federal prosecutors.  But, as detailed here, Lerach had put together such a favorable plea agreement, federal prosecutors at sentencing were forced to recommend a below-guideline sentence.  Also, against the backdrop of the decades of imprisonment given to many other prominent high-profile white-collar offenders, Lerach has to be content with the ultimate outcome.

Related prior posts:

• Feds saying harm to reputation justifies a below-guideline sentence for Bill Lerach
• What sentence will (and should) Bill Lerach get?

Welsey Snipes to be sentenced two weeks too late

As detailed in this local story, a "federal judge has set a sentencing date for actor Wesley Snipes, who was convicted Feb. 1 on three misdemeanor counts of willful failure to file tax returns" for late April 2008.  Here are more details:

Senior U.S. District Judge William Terrell Hodges set a hearing for April 24 to sentence Snipes and his codefendants Eddie Ray Kahn and Douglas Rosile.  Snipes, Kahn and Rosile were each charged with one count of conspiracy to defraud and one count of aiding and abetting the making of a false and fraudulent claim as part of an alleged tax fraud scheme.  Snipes also was charged with six counts of willfully failing to file federal income tax returns.

Jurors acquitted Snipes of the felony counts, but convicted Kahn and Rosile.  The jury also acquitted Snipes of the three remaining failure to file counts.Snipes faces a possible maximum sentence of three years in prison.  Kahn and Rosile face a possible 10 years.... Hodges' order allows Snipes and Rosile, both free on bond, to remain free until the sentencing.

Unless one believes that general deterrence should have no role at all in sentencing, it seems to me that this sentencing is scheduled about two weeks too late.  Snipes' sentencing will be a very high-profile punishment for failure to file tax returns, and it seems that society would benefit greatly by having this sentencing tax place right before Tax Day, April 15.  I wonder if, as a victim of Snipes' crime, federal citizen taxpayers like me (and TaxProf Paul Caron) have a right under the Crime Victims' Rights Act to request moving up the sentencing date in this case.

Split verdict in Wesley Snipes trial ... and another potential high-profile acquitted conduct case

As detailed in this early news report, today brought "a split verdict in the tax evasion case against actor Wesley Snipes."  Here are more specifics:

A federal jury in Ocala this afternoon found Snipes guilty of three misdemeanor charges of not filing tax returns.  He faces up to three years in prison.  The jury found Snipes not guilty of fraud, conspiracy and three other counts of not filing a tax return.

Given that the just rejected all the felony charges, this case could present a real interesting setting for a debate over acquitted conduct sentencing enhancements.  And just in time for an upcoming Sixth Circuit en banc case on the issue (details here and here).

I wonder if the Snipes team needs a sentencing consultant.

First Survivor winner voted loser in First Circuit

Just in time for next week's premier of Survivor: Micronesia - Fans vs. Favorites, the First Circuit today affirmed in this long opinion the federal convictions and sentence of Richard Hatch, who won the first installment of the reality TV show "Survivor."  Here is how the 52-page ruling starts:

Appellant-defendant Richard Hatch, the first winner of the CBS reality tv show "Survivor," appeals from his convictions and sentence on three counts of filing false tax returns, in violation of 26 U.S.C. §§ 7201 and 7206(1), after a jury trial in the United States District Court for the District of Rhode Island.

Hatch makes four arguments on appeal: (1) that the district court violated his Sixth Amendment rights by curtailing Hatch's explanation of why he believed the show's producers had paid the taxes on his "Survivor" winnings; (2) that, in a variety of ways, the court improperly limited the defense's right to crossexamine; (3) that the court wrongly allowed the government to use what Hatch calls "unqualified experts" while excluding some of the testimony of Hatch's own expert; and (4) that his sentence was unreasonably harsh.  After reviewing the record and the arguments, we affirm the convictions on all three counts and the sentence.

Media coverage of Padilla sentencing

How Appealing collects all the major media coverage of today's sentencing of Jose Padilla, and I cannot help but notice this notable boo-boo in the New York Times piece:

Ms. Padilla called the government’s case “insane” and said she was not surprised by Judge Cooke’s decision to department from federal sentencing guidelines and give her son more lenient sentence.

I think "department" is supposed to be "depart" in this news account.  Moreover, based on the media coverage, it actually is not clear whether Judge Cooke technically "departed" or "varied" from the 30-life guideline range in order to impose a sentence of  208 months. 

Intriguingly, this Miami Herald piece reports that "Federal prosecutors said they would appeal the judge's decision on sentencing for the defendants."  As I suggested in this prior post, Gall and Kimbrough plainly make it harder for the government to prevailing on a claim that the sentence here is unreasonable.  But the Justice Department may think the message sent by appealing is more important than whether it ultimately prevails in the Eleventh Circuit.

Any Padilla sentencing predictions?... UPDATE: 17+ years'

As detailed in this AP story, Jose Padilla may finally get sentenced today in federal court.  Here are the basics:

The accusations that he plotted to set off a radioactive "dirty bomb" are long gone, but Jose Padilla was still convicted last summer of conspiring to support Islamic extremists around the world.  Now a federal judge who sat through a three-month trial and seven-day sentencing hearing was set to decide Tuesday the fate of the 37-year-old U.S. citizen and two co-defendants.  U.S. District Judge Marcia Cooke, appointed by President Bush, has wide discretion in determining how much time the three men will spend behind bars.

And this effective article from the Christian Science Monitor places the Padilla sentencing in a broader context.  Here is how this piece starts:

Prosecutors in Miami are asking a federal judge to endorse a broad reading of a murder conspiracy statute and material support law to send convicted Al Qaeda recruit Jose Padilla to prison for the rest of his life.   If US District Judge Marcia Cooke agrees with the US Justice Department, the severe sentence won't be for any violent act carried out or planned by Mr. Padilla.  Instead, he will be punished for what prosecutors say were his dangerous intentions — intentions to conduct unspecified future terrorist operations.

The case raises a potential landmark legal question.  Can a suspected future terrorist receive the same harsh punishment meted out against actual terrorists who were personally involved in planning or carrying out genuine bombings, assassinations, and kidnappings?

UPDATE:  As detailed in this AP story, Jose Padilla "was sentenced Tuesday to 17 years and four months on terrorism conspiracy charges."  The article indicates that Judge Cooke "said she was giving Padilla some credit — over the objections of federal prosecutors — for his lengthy military detention at a Navy brig in South Carolina":

She agreed with defense lawyers that Padilla was subjected to "harsh conditions" and "extreme environmental stresses" while there. "I do find that the conditions were so harsh for Mr. Padilla ... they warrant consideration in the sentencing in this case," the judge said.

David Oscar Markus here has this astute comment: "It will be interesting to see whether the government appeals the sentences after Gall and Kimbrough, the recent Supreme Court cases which give district courts very wide latitude in sentencing."

Will mom have an impact in Padilla's sentencing?

This local article discusses the testimony of a very interested participant in the sentencing proceeding of Jose Padilla.  Here are excerpts:

Jose Padilla's mother told a federal judge Thursday he is "not a monster" despite convictions on terrorism conspiracy and pleaded for mercy instead of the life prison sentence sought by prosecutors.

Padilla's lawyer also asked U.S. District Judge Marcia Cooke to consider the harsh, isolated conditions under which Padilla was held during 3 1/2 years in military custody as an enemy combatant.

Estela Lebron, who said she raised Padilla on her own, described him as a loving son who seemed to turn a corner in what had been a troubled life when he converted to Islam in the 1990s. Padilla was a gang member as a youth in Chicago and has a long criminal record. "My son is not a monster, and he's not dangerous to society," Lebron said in a brief statement. "I believe in justice, and I believe what they are doing to my son is an injustice."

The statement came on the sixth day of a sentencing hearing for Padilla, 37, and co-defendants Adham Amin Hassoun, 45, and 46-year-old Kifah Wael Jayyousi. They were convicted in August of being part of a support cell that provided money, supplies and recruits for al-Qaida and other Islamic extremist groups around the world.  Sentencing guidelines call for prison terms of between 30 years and life, but Cooke has discretion to impose lesser sentences. The judge has not said when she will make her final decision, with the hearing set to continue Friday.

Here is a tough gendered question to ponder (and comment upon) over a long weekend: do you think the plea for mercy from Jose Padilla's mother is more (or less) likely to have an impact because the sentencing judge is a woman?

Padilla subject to USSG terrorist enhancement

As highlighted in this effective Christian Science Monitor article from earlier this week, the guideline sentencing ranged faced by Jose Padilla and his co-defendants turns heavily on the potential application of a terrorism enhancement.  And, as now reported in this AP article, yesterday "U.S. District Judge Marcia Cooke rejected defense arguments that there was little evidence linking Padilla, Adham Amin Hassoun and Kifah Wael Jayyousi to actual terrorist attacks or groups [and] found that enhanced terrorism penalties could be applied" under the guidelines.  This Los Angeles Times article provides more details about all the guideline determinations made by Judge Cooke yesterday.

UPDATE:  How Appealing collects additional Padilla sentencing media coverage here.

Marion Jones gets six-month federal prison term

As detailed in this Reuters article, "Disgraced Olympic sprinter Marion Jones was sentenced to six months in prison on Friday for lying to federal prosecutors about her steroid use."  Here are more details:

U.S. District Court Judge Kenneth Karas imposed the sentence after Jones pleaded guilty to two charges last October, part of a stunning demise of the five-time medalist from the 2000 Sydney Olympics. Karas gave Jones six months for lying about steroid use and two months -- to run concurrently -- for a separate charge of misleading federal investigators about her knowledge of a check fraud case involving her ex-boyfriend, former 100 meters world record holder Tim Montgomery.

Jones, 32, became the biggest name in international sport to admit to using steroids with her guilty plea in October.  She tearfully admitted to betraying the trust of her fans and country after years of vehemently denying she used performance enhancing drugs. She confessed to lying to federal investigators in 2003 when she denied knowing that she took the banned substance tetrahydrogestrinone (THG), known as "the clear," before the 2000 Olympics.

As part of her plea deal, prosecutors asked the judge to sentence her to between zero and six months in prison, and defense lawyers asked for mercy because she had suffered public humiliation.

Though I try to avoid injecting racial issues into matters that are clearly about a lot more than race, I cannot help but note that Barry Bonds and Marion Jones are the only two high-profile athletes to be formally prosecuted for lying about steroid use even though I have every reason to believe a number of other athletes have clearly lied or mislead federal investigators in the course of steriod investigations.  I wonder what the astute folks at blackprof might think about this prosecutorial reality.

AP reports on high-profile federal sentencings

Two very different high-profile federal sentencings are in the news this week, and here are the latest AP reports on both:

• Sentencing Begins for Padilla, 2 Others

• Feds: 6 Months Enough for Jones

I do not think I am going out on a limb when I predict that Jose Padilla is likely to get a much longer prison term than Marion Jones.

Padilla sentencing already creating headlines

As detailed in this AP article, Jose Padilla is in federal court today for the start of sentencing proceedings: "U.S. District Judge Marcia Cooke, an appointee of President Bush, has set aside three days beginning Tuesday to hear testimony and legal arguments before imposing sentences on Padilla, Adham Amin Hassoun, 45, and Kifah Wael Jayyousi, 46."  Notably, as detailed in this New York Times article, the broader stories in the war on terror might get continued attention during these proceedings:

Citing disclosures that the federal government had concealed, and in some cases destroyed, videotaped interrogations of Al Qaeda operatives, a defense lawyer in the case of Jose Padilla, the Brooklyn-born convert to Islam who was convicted as a terrorism conspirator, asked a federal judge on Monday to disclose any recordings that might bear on Mr. Padilla’s recruitment into the terrorist organization. The judge rejected the request, saying she had reviewed relevant material and concluded that the government had handed over all the required evidence.

Recent related post:

• Jose Padilla sentencing hearing this week