Friday, June 21, 2013
Enron CEO Jeff Skilling resentenced officially to 14 years after plea dealAs reported in this new Houston Chronicle article, headlined "Enron’s Skilling gets more than 10 years cut off sentence," today marked the official resentencing of perhaps the highest-profile white-collar defendant this side of Bernie Madoff. Here are the details:
Former Enron CEO Jeff Skilling had more than 10 years cut off his 24-year prison sentence today after a federal judge signed off on an agreement between the disgraced Houston executive and federal prosecutors. Skilling, 59, could be released as early as 2017.
Skilling, in turn, agreed to drop his ongoing appeals and surrender any claim on the $40 million that had been seized by the government after his indictment for wire fraud, insider trading, conspiracy and related charges stemming from the 2001 collapse of one of Houston's leading companies.
The agreement between prosecutors and Skilling's attorney was announced last month. That his sentence was going to be reduced was known for some time, as appeals courts ruled that one of the theories of the prosecution was not valid, and that one of the factors used to enhance the length of his sentence was improper. But it was unclear precisely what the sentence would have been as Skilling continued to fight to clear his name of criminal wrongdoing.
By settling with the government, the Enron matter — from a criminal perspective — is all but closed.... Implicit in the formal wording of the agreement was the government's desire to be done with Enron, a corporate scandal that eventually was dwarfed by the financial misbehavior and reckless decisions that helped bring about the economic collapse of 2008....The sentencing agreement gave federal judge Sim Lake the discretion of a sentence range of 168 to 210 months imprisonment. Skilling has already served about 78 months, or 6 1/2 years. Skilling currently is housed at a minimum security facility in Littleton, Colo.
Wednesday, May 08, 2013
Feds and Jeff Skilling cut resentencing deal to fix new guideline range at 168 to 210 monthsAs had been previewed a public notice to victims from the Justice Department last month (noted here), federal prosecutors and former Enron CEO Jeff Skilling have reached a deal concerning unresolved matters before Skilling's resentencing. This Reuters article details the basics of this notable high-profile sentencing development:
Jeffrey Skilling, the former Enron Corp chief executive, could be freed from prison nearly a decade sooner than originally expected, under an agreement with federal prosecutors to end the last major legal battle over one of the biggest corporate frauds in U.S. history.
The agreement calls for Skilling to see his federal prison sentence reduced to as little as 14 years, down from the 24 years imposed in 2006. It could result in Skilling's freedom in late 2018, with good behavior.
In exchange, Skilling, 59, who has long maintained his innocence, agreed to stop appealing his conviction. The agreement would also allow more than $40 million seized from him to be freed up for distribution to Enron fraud victims.
A resentencing became necessary after a federal appeals court upheld Skilling's conviction but found the original sentence too harsh.... Wednesday's agreement, which is subject to court approval, recommends that Skilling be resentenced to between 14 and 17-1/2 years in prison, including time already spent there. Skilling has been in prison since December 2006.
A helpful readers forwarded to me the 7-page sentencing agreement, which can be downloaded below. Here are the essential pieces of the deal:
The Government and the defendant agree that, based on the previous decisions of the Fifth Circuit with respect to proper calculation of the United States Sentencing Guidelines range and this Court's prior sentencing rulings on October 23, 2006, the United States Sentencing Guidelines provide that the defendant should be resentenced using an adjusted offense level of 36 and a criminal history category of I, resulting in an advisory guidelines range of 188 to 235 months of imprisonment.
For the reasons set forth below as "Relevant Considerations," the Government and the defendant agree to recommend jointly that the District Court apply a one-level downward variance and resentence the defendant using an adjusted offense level of 35, pursuant to the United States Sentencing Guidelines. Given that the defendant is located in criminal history category I for resentencing purposes, the jointly recommended adjusted offense level will result in a jointly recommended guidelines range of 168 to 210 months of imprisonment.
Neither the Government nor the defendant will seek any variance or departure from the jointly recommended guidelines range. The Government may allocute at sentencing, but the Government will not take a position regarding the particular sentence the District Court should impose within the jointly recommended guidelines range.
The defendant agrees to waive all potential challenges to his convictions and sentence, including a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, appeals, and collateral attacks, except as set forth [below]....
Neither the Government nor the defendant will appeal a sentence imposed within the jointly recommended guidelines range. However, the Government and the defendant each reserve the right to appeal a sentence imposed outside this range.
May 8, 2013 in Enron sentencing, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack
Thursday, April 04, 2013
Resentencing of Enron CEO Jeff Skilling perhaps on the verge of a resolution through a sentencing deal
This new CNBC report, which has a somewhat inaccurate headline and first sentence, provides an interesting update on a long-delayed high-profile resentencing. The article is headlined "Enron's Jeff Skilling Could Get Early Release From Prison," and the first sentence reads as follows: "Former Enron CEO Jeffrey Skilling, who is serving a 24-year prison term for his role in the energy giant's epic collapse, could get out of prison early under an agreement being discussed by his attorneys and the Justice Department, CNBC has learned." The rest of the story explain what is going on and reveals why I call the start of the piece inaccurate:
Skilling, who was convicted in 2006 of conspiracy, fraud and insider trading, has served just over six years. It is not clear how much his sentence would be shortened under the deal.
A federal appeals panel ruled in 2009 that the original sentence imposed by U.S. District Judge Sim Lake was too harsh, but a re-sentencing for the 59-year-old Skilling has repeatedly been delayed, first as the appeals process played out, and then as the negotiations for a deal progressed. Those talks had been a closely guarded secret, but Thursday the Justice Department quietly issued a notice to victims required under federal law:
"The Department of Justice is considering entering into a sentencing agreement with the defendant in this matter," the notice reads. "Such a sentencing agreement could restrict the parties and the Court from recommending, arguing for, or imposing certain sentences or conditions of confinement. It could also restrict the parties from challenging certain issues on appeal, including the sentence ultimately imposed by the Court at a future sentencing hearing."
A Justice Department spokesman declined to comment. Skilling's longtime defense attorney, Daniel Petrocelli, could not immediately be reached for comment.
Lake, who imposed the original sentence, would have the final say in the sentence. The posting of the notice, however, suggests the parties have some indication he will go along. Lake held a private conference call with attorneys for both sides last month.
For Skilling, who has consistently maintained his innocence, an agreement would end a long ordeal, although his conviction on 19 criminal counts would likely stand. The government, meanwhile, would avoid a potentially messy court battle over alleged misconduct by the Justice Department's elite Enron Task Force appointed in the wake of the company's sudden failure in 2001.
Skilling's attorneys had planned to move for a new trial based on that alleged misconduct. Under a sentencing agreement, that motion would likely be dropped.
UPDATE: Thanks to a helpful reader, I discovered that the crime victim notice from DOJ referenced in this article is available at this link.
Tuesday, October 25, 2011
"Five years later, Skilling's sentence is still up in the air"
I just came across this notable recent piece from the Houston Chronicle, which was authored by lawyers Jeff Ifrah and Jeffrey Hamlin, and which shares a headline with the title of this post. Here is how the piece starts:
Oct. 23, 2011, will mark the five-year anniversary of Jeffrey Skilling's sentencing and, remarkably, no one yet knows what the former Enron CEO's final sentence will be.
In May 2006, Skilling was convicted in the wake of Enron's collapse on one count of conspiracy, 12 counts of securities fraud, five counts of making false statements to auditors and one count of insider trading. Five months later, U.S. District Judge Sim Lake sentenced Skilling to 292 months — more than 24 years — in prison and assessed $45 million to be paid in restitution.
But given the vagaries of the federal sentencing system, Skilling, who is now serving time in a prison in Englewood, Colo., could end up serving that same 24 years, or significantly more time, or even significantly less time, for the crimes that he committed as leader of Enron. Skilling is currently scheduled for release on Feb. 21, 2028, when he will be 74 years old. He could, however, end up getting out of prison well before that and still in the prime of life — or he might serve what amounts to a life sentence.
Since the sentencing, Skilling's legal team has achieved some victories. In January 2009, the U.S. Court of Appeals for the 5th Circuit vacated Skilling's sentence on the grounds that the district court misapplied the federal sentencing guidelines. The next year, however, the U.S. Supreme Court held that the trial record didn't support a conviction on one of the prosecution's key theories — conspiracy to commit "honest services" wire fraud. But Skilling suffered a defeat last April, when the 5th Circuit upheld his conspiracy conviction and found this "honest services" error to be harmless.
With all that, though, Skilling still needs to be resentenced, and Judge Lake has not yet set a date for the resentencing.
Thursday, May 19, 2011
"Enron exec Andy Fastow nears prison release"
The title of this post is the headline of this new CNN piece. Here are snippets:
Former Enron executive Andrew Fastow has been transferred from prison to a halfway house, the last stage of incarceration before his scheduled release later this year, according to the federal Bureau of Prisons.
Fastow, who was chief financial officer at the now-defunct energy company, was moved on Monday to a facility in Houston, according to the bureau. Moving into a halfway house is a typical move for most prisoners during the last portion of their sentence. "It's a bridge, if you will, a transition period," said bureau spokesman Edmond Ross.
The purpose of the halfway house is for prisoners to reestablish family ties and adjust to society outside of prison, he said. Prisoners are allowed to leave the facility to go to their jobs, but their movements are still controlled. "They cannot come and go as they please," said Ross. "Their lives are restricted to the rules of the halfway house."...
Fastow pleaded guilty in 2004 to two counts of wire and securities fraud for his role in the accounting scandal that brought down Enron.... Fastow provided information on Enron's sketchy financial shenanigans, including the names of bankers who he considered complicit, to lawyers representing Enron shareholders.
Wednesday, April 06, 2011
Fifth Circuit makes former Enron CEO Skilling's SCOTUS victory Pyrrhic
As detailed in this Reutersreport, "[f]ormer Enron Chief Executive Jeffrey Skilling was unsuccessful in his latest bid to overturn his criminal conviction as a U.S. appeals court called any errors in his trial 'harmless.'" Here is how the Fifth Circuit's opinion in US v. Skilling, No. 06-2088 (5th Cir. April 6, 2011) (available here), gets started:
Former Enron Corporation CEO Jeffrey K. Skilling was convicted of conspiracy, securities fraud, making false representations to auditors, and insider trading. After we affirmed his convictions, the Supreme Court invalidated one of the objects of the conspiracy charge — honest-services fraud — and remanded, instructing us to determine whether the error committed by the district court in submitting the honest-services theory to the jury was harmless as to any of Skilling’s convictions. Because we find that the error was harmless, we affirm the convictions. In addition, for the reasons stated in our previous opinion, we vacate the sentence and remand for resentencing.
So while Skilling's trip to the Supreme Court created some important new federal criminal law, it appears that he will get no substantive relief from the SCOTUS ruling in his favor last year. That all said, Skilling's High Court success might not end up being completely for naught, as he still has a resentencing ahead and perhaps he can contend that he deserves some measure of sentencing credit for his troubles.
Meanwhile, I would be surprised if resentencing is the next development in the long-running Skilling saga. I would expect Skilling's lawyers to seek en banc and/or certiorari review of today's Fifth Circuit panel holding. But if further review of his convictions are not forthcoming, then Skilling's case will become a high-profile resentencing proceeding; as some may recall, the Fifth Circuit reversed in a prior opinion a key guideline determination that led in part to Skilling's original 24+ year (within-guideline) prison term.
UPDATE: Over at White Collar Crim Prof blog, Ellen Podgor has this lengthy new post titled "Commentary on Skilling Remand Decision."
Monday, March 28, 2011
Notable Enron insider trading sentencing outcome and reasoning
This Bloomberg report, headlined "Ex-Enron Broadband Executive Sentenced for Insider Trading," caught my attention for a number of reasons. Here are the details:
Former Enron Broadband Services executive Rex Shelby was sentenced today on an insider trading charge linked to the investment fraud that destroyed the world’s largest energy trader 10 years ago. Shelby, 59, pleaded guilty to one count of insider trading and was sentenced to three months in a federal halfway house and three months of house arrest. Shelby will also forfeit about $2.6 million in profits from the illicit trade.
Shelby’s lawyer Ed Tomko told a judge that Shelby has also agreed to forfeit another $1 million to resolve related Securities and Exchange Commission charges. He faced a maximum of 10 years and a fine of $1 million on the one count before reaching his plea deal. He’ll be in probation for two years, including the six months of combined confinement....
U.S. District Judge Vanessa Gilmore sentenced Shelby to half the number of months confinement that he’d agreed to in a plea deal. “Mr. Shelby’s actions ultimately did not cause the downfall of Enron,” she said. “Only a few individuals at the pinnacle of Enron knew of the fraud.”
Gilmore said she moderated the sentence to fit Shelby’s role and the punishments given to others in the Enron fraud scheme. She said the fact Shelby has for the last eight years devoted himself exclusively to working on his defense, in “self-imposed home confinement"”, was also a consideration in her decision....
Shelby and six other EBS executives were indicted in 2003 on charges they helped the parent company’s senior management, including Enron’s former Chairman Kenneth Lay and Chief Executive Officer Jeffrey Skilling, deceive analysts and investors about the unit’s capabilities and financial performance.
The executives were accused of misrepresenting EBS at a January 2000 analysts’ conference, where they portrayed it as one of Enron’s “core’’ units, worth about $50 billion. In reality, the division struggled to launch products and never earned a profit.
Enron’s stock soared from $54 a share the day of the analysts’ conference to $72 a share the following day. Shelby sold 150,000 shares on the price increase, reaping gross proceeds of just under $10.7 million, according to his plea.
Shelby had long maintained he sold the shares to diversify his portfolio and not based on any inside knowledge of an alleged conspiracy to inflate Enron’s stock price. To avoid a trial on broader conspiracy and fraud charges, which had been set to begin this past January, Shelby pleaded guilty to one count of insider trading in November....
Shelby’s sentencing marks the end of the Enron Broadband case, which yielded mixed results for the government. Two of the seven originally indicted EBS executives -- Kenneth Rice and Kevin Hannon, who each served as president of the division at one time -- pleaded guilty before trial and testified against former colleagues.
The remaining five executives, including Shelby, were tried together in Houston federal court in 2005. That trial ended with no convictions and a smattering of acquittals, as jurors failed to reach verdicts on scores of counts. None of the men were completely exonerated at that trial, and the government vowed to streamline its case and retry them all on narrower charges.
To avoid that retrial, former CEO Joseph Hirko pleaded guilty to a reduced charge in late 2008 and served about 16 months in prison, forfeiting $7 million. Ex-strategy chief F. Scott Yeager appealed the government’s retrial attempts and in 2009, the U.S. Supreme Court ruled he couldn’t be retried based on his partial acquittal by the first jury.
I have highlighted above one particular passage of this account of the sentencing because I cannot recall hearing of another case in which a judge expressly identified that the time/energy spent by the defendant defending himself as a mitigating sentencing factor. I do not mean to critique the use of this factor, as much as just to note it here and to welcome comments about whether others have a strong view, concerning in this case or others, as to whether the time/energy spent by a defendant defending himself ought to be viewed as a mitigating sentencing factor.
Tuesday, October 13, 2009
Should there special doctrines concerning "inflammatory" pre-sentencing publicity?Among the fascinating aspects of the SCOTUS cert grant in the Skilling case today (basics here) is the pretrial publicity issue raised in the defendant's cert petition. Specifically, here is the second question presented in Skilling's cert petition:
When a presumption of jury prejudice arises because of the widespread community impact of the defendant’s alleged conduct and massive, inflammatory pretrial publicity, whether the government may rebut the presumption of prejudice, and, if so, whether the government must prove beyond a reasonable doubt that no juror was actually prejudiced.
Given that the first question presented in the Skilling cert petition relates to a fraud issue that is already before SCOTUS in two other cases, I cannot help but speculate that the Justices are somewhat interested in this separate claim related to "massive, inflammatory pretrial publicity." And though I am not fully up-to-speed on the jurisprudence concerning "inflammatory pretrial publicity," I cannot help but speculate (and hope?) that the Skilling case might indirectly prompt lawyers and jurists to give some consideration to whether "massive, inflammatory" pre-sentencing publicity could be the basis for some kind of due process claim in some extreme cases.
Recent related post:
SCOTUS to review fraud convictions of Jeff Skilling, former Enron executive
As detailed in this AP report and this SCOTUSblog post, the biggest and perhaps highest-profile white-collar conviction of recent vintage is going to be reviews by the Supreme Court. Here is the SCOTUSblog report:
The Supreme Court agreed on Tuesday to rule on claims that “searing media attacks” on longtime Enron executive Jeffrey K. Skilling tainted his criminal trial and conviction on various fraud charges. The case also raises an issue on the scope of the federal law punishing the failure to provide “honest services” as a corporate executive. This was one of four cases granted review, to be argued early next year.
I am pretty sure there are no sentencing issues before the Court in the case, but I cannot help but have a feeling that the long sentence initially given to Skilling may have played at least some role in the Justices' determination that this case merited review.
Among the interesting sentencing-related issues going forward is whether Skilling will now request bail pending SCOTUS review. Conrad Black failed to get such bail when the Supreme Court took up his case, but he (a) had served less time, and (b) was subject to a much shorter sentence.
Wednesday, January 07, 2009
Any early predictions on Jeff Skilling's likely sentence the second time around?
As noted here, the Fifth Circuit ordered former Enron CEO Jeff Skilling resentenced because District Judge Sim Lake made a guideline calculation error. But the Fifth Circuit said little else about Skilling's original sentence, which may ensure that the outcome (and even the terms of debate) for his resentencing are uncertain for the time being. This Bloomberg news reporthas this notable discussion of resentencing possibilities:
If that’s the only basis of resentencing, it would be a modest reduction,” said Kirby Behre, a partner at Paul Hastings Janofsky & Walker in Washington and co-author of “Federal Sentencing for Business Crimes.” “It might be more than modest, but it’s not going to get him down to 10 or 12 years.”
In the 2000 guidelines under which Skilling was sentenced, the financial-institution factor brought his offense level to 40 from 36 and his range to between 292 and 365 months in prison. Lake imposed 292 months, or 24 years and four months. Dropping the offense level back to 36 brings a range of 188 to 235 months, or 15 2/3 years to 19 years and seven months....
Because the Supreme Court made the guidelines voluntary in January 2005, in a case called U.S. v. Booker, Skilling may be given the same sentence...
Other experts said the judge may reduce Skilling’s sentence to the lower range.... Lake is likely to use the guidelines again when he resentences Skilling, said Paul Cassell, a former federal judge who’s now a law professor at the University of Utah in Salt Lake City. “Most federal judges in the system follow the guidelines, particularly in a case where they’ve used them before,” Cassell said in a phone interview.
For a host or reasons, I am disinclined to make any predictions about resentencing. In addition, because the Skilling legal team clearly plans to continue appealing his convictions, it is even unclear whether resentencing may be only a few months away or still years away. Whatever the practical particulars, I would be eager to here reader thoughts on what might happen next on the sentencing side of the Skilling case.
Tuesday, January 06, 2009
Enron CEO Jeff Skilling's convictions affirmed, but resentencing ordered
The AP has this early report on today's huge white-collar sentencing news:
An appeals court has upheld former Enron Corp. CEO Jeff Skilling's convictions for his role in the energy giant's collapse but orders that he be resentenced. A three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans on Tuesday denied Skilling's request that his convictions be overturned because they were based on an incorrect legal theory.
But the judges, in their 105-page opinion, ordered that Skilling be resentenced. They said U.S. District Judge Sim Lake erred by applying guidelines that resulted in a 24-year prison term. Skilling was convicted in May 2006 on 19 counts of fraud, conspiracy, insider trading and lying to auditors for his role in the collapse of Houston-based Enron, once the nation's seventh-largest company.
I will post the opinion once I track it down, and lots of commentary will follow whenever I get the chance to see exactly what the long opinion says.
UPDATE: The full opinion in US v. Skilling is available at this link. The sentencing discussion does not start until page 97, and here is how the sentencing section begins:
Skilling challenges various aspects of his sentence. In particular, he disputes the district court’s application of the Sentencing Guidelines and the reasonableness of his sentence under 18 U.S.C. § 3553(a). Because we decide that the court committed error in applying the Guidelines, we do not reach the § 3553(a) requirements, as proper calculation of the Guidelines range is antecedent to a reasonableness challenge. See Gall v. United States, 128 S. Ct. 586, 596-97 (2007).
Monday, June 16, 2008
Upcoming JEC hearing on costs of US drug policy
According to this webpage at FAMM, later this week "Senator Jim Webb (D-Va.) will convene a hearing of the Joint Economic Committee (JEC) to examine the economic consequences of the United States' drug policy." Here are more details:
The hearing, entitled “U.S. Drug Policy: At What Cost?” will be held Thursday, June 19. The panel will discuss the illegal drug economy in the United States, assess the costs of U.S. policy responses to combatting drug use and address the need for policy reforms. The hearing is also likely to address, to some extent, mandatory minimums and sentencing issues.
This page at Stop the Drug War lists expected witnesses, though I cannot yet find any official notice of the scheduled hearing.
As noted in prior posts linked below, last year Senator Webb convened a JEC hearing on the costs of mass incarceration. It is principally for this reason that I have been excited by the prospect of Senator Webb being on a presidential ticket.
Wednesday, April 02, 2008
Will there be any sentencing talk in the Skilling Fifth Circuit argument?
As detailed in a bunch of news stories linked at How Appealing, the Fifth Circuit today will oral argument today in former Enron Corp. CEO Jeffrey Skilling's appeal. Though the focal point of the news coverage and the briefing are on challenges to his convictions, I am hopeful that a bit of sentencing talk comes up during the appeal. After all, I think Skilling has a pretty good argument based on 3553(a)(6) that his sentence is unreasonably long given that co-conspirators Andrew Fastow and Richard Causey got much lower sentences.
UPDATE: I see that Jeralyn at TalkLeft has this effective post on the Skilling appeal which ends with this analysis:
The judges hearing the appeal will be 5th Circuit Judge Jerry Smith, 5th Circuit Judge Edward Prado and U.S. District Judge Alia Ludlum of Del Rio. Smith was one of the judges on the panel that overturned the convictions of Kevin Howard, the former finance chief for Enron's broadband division. I'm a big fan of Judge Prado (he was an early vocal opponent of mandatory minimum sentences.)
As for Skilling, I think 24 years is way too harsh a sentence for any non-violent criminal. Especially when other culpable defendants get 6 years because they cooperated and told the Government's truth. I hope he wins his appeal.
Friday, February 22, 2008
Brit bankers get American plea bargained justice in Enron-related sentencing
This new post at the WSJ Law Blog, titled "NatWest Three Get 37 Months Each," covers this interesting Friday afternoon sentencing story:
The curtains are closing on the corporate-law drama of the ages. And three of its final players, we discovered this afternoon, are poised to exit the stage. The NatWest three — the trio of British bankers who were extradited to the U.S. in mid-2006... — received their sentencing today. David Bermingham, Giles Darby and Gary Mulgrew will each serve 37 months. Here’s the early AP report, and a report from the Houston Chronicle.
The Three — who were charged with colluding with ex-Enron CFO Andy Fastow and his lieutenant Michael Kopper to steal money from their former employer, Greenwich NatWest, now part of RBS — changed their plea from not-guilty to guilty back in November. After claiming initially that they did not collude with Fastow, the Three signed a plea agreement, each pleading guilty to one count of wire fraud.
According to reports, their sentences matched the recommendation of prosecutors, although federal sentencing guidelines recommended 41 months to 51 months. They will also repay the $7.3 million they gained from the scheme.
At the Three’s request, Werlein is recommending they do their time at Allenwood, a federal prison complex in White Deer, Pa. They’ll reportedely serve six months to a year in U.S. prison before being transferred back to a British prison. (Fastow is serving a six-year term at Oakdale, in Louisiana, while Kopper is serving 37 months at Texarkana, in Northeast Texas.)
Obviously, the lawyers for the NatWest Three effectively schooled them on the reality that they are much better of cutting a deal that risking a trial to assert their claims of innocence. Notable, the combinded plea-bargained sentences to be served by the NatWest Three and Enron's Fastow and Kopper together still add up to six years less in jail than Jeff Skilling got after his trial conviction. As I have often said before, the extremely high trial penalty in the federal criminal justice system means that someone who is really guilty (like Fastow) knows that can and should quickly cut a deal so to be much better off than anyone else who might lose at trial after maintaining their innocence (unless they can get a commutation like Libby).
Saturday, December 22, 2007
Disparities, trial penalty and Gall in Skilling reply brief
Thanks to this post at White Collar Crime Prof Blog, I was able to access the 162-page reply brief(!) filed by Jeff Skilling's legal team in his Fifth Circuit appeal. The sentencing arguments begin on page 143, and these disparity arguments are developed starting at page 152:
Skilling’s 24.3-year sentence reflects a profound and unwarranted disparity compared to the (1) uniformly below-Guidelines sentences imposed on eight even more culpable high-ranking executives from major corporations; and (2) the 5.5 year sentence imposed on co-defendant Richard Causey.
In developing point (2), the reply brief makes these points (with some cites omitted) about the relevance of co-defendant disparity:
The [Enron] Task Force says the district court was prohibited from considering the sentence imposed on former Enron CAO Richard Causey because the Guidelines and sentencing statutes concern “nationwide” disparities rather than those among co-defendants. This is not the law. This Circuit has long recognized the district court’s ability to consider co-defendants’ sentences. Similarly, in the post-Booker, advisory-Guidelines regime, courts regularly consider the sentences imposed on co-defendants. Indeed, just this month, the Supreme Court expressly approved of a sentencing court’s giving “specific attention to the issue of disparity when [it] inquired about the sentences already imposed by a different judge on two…co-defendants.” Gall, slip op. at 9....
There is no rational and lawful basis for the 19-year disparity between Causey and Skilling’s sentences. The only ground offered by the district court [Skilling’s decision to exercise his right to trial] was contrary to the Constitution.
Though the Fifth Circuit might not reach sentencing issues in the Skilling appeal, this case is worth watching closely if they do because these kinds of disparity arguments seem especially important in the wake of Rita, Gall and Kimbrough.
Saturday, December 15, 2007
Fascinating review of recent white-collar sentencing realities
I just noticed this Bloomberg news story detailing some of the sentencing realities of the modern assault on corporate crime. The story is headlined "Bush Fraud Probes Jail Corporate Criminals Less Than Two Years," and here some lengthy excerpts from a very interesting piece:
Sixty-one percent of defendants sentenced in the Bush administration's crackdown on corporate fraud spent no more than two years in jail, escaping the stiff penalties given WorldCom Inc. and Enron Corp. executives. In the past five years, 28 percent of those sentenced got no prison time and 6 percent received 10 years or more, according to a review of 1,236 white-collar convictions....
A wave of corporate corruption marked by Enron's collapse in 2001 and an accounting scandal at WorldCom led Congress to enact harsher penalties. President George W. Bush signed the Sarbanes-Oxley Act to reform governance and named a Corporate Fraud Task Force to push "significant" prosecutions....
Defendants got reduced jail time when they helped prosecutors investigate frauds, served as low- or mid-level executives, or committed crimes that were less sophisticated than complex accounting conspiracies, the review by Bloomberg News found....Of the 1,236 convictions from 2002 to 2007 in the review, 1,133 defendants were sentenced. Forty-seven percent of those got a year or less in prison....
The Justice Department claimed credit for 1,236 convictions in the crackdown on corruption. The department says it doesn't have a comprehensive list. Bloomberg assembled a comparable list based on more than 350 cases from task force annual reports, lists of executives, and press releases on the department's Web site....
Joan Meyer, who oversees the task force as senior counsel to the deputy attorney general, argues that any prison sentence can serve as a deterrent. "Every case can't be an Enron,'' Meyer says. "The question is, do we give a pass to white-collar defendants because their crimes are non-violent and result in lesser sentences? That would be an abdication of our responsibilities.''...
At least 129 defendants cooperated with prosecutors, court records show. The number may be higher, lawyers say, because public files don't always reflect whether a judge credited a defendant for helping the government..... Judges weigh a crime's nature, the amount of financial loss and a defendant's circumstances in sentencing. Offenders who plead guilty tend to get less time than those who go to trial.
Defendants are penalized for not accepting responsibility for their crime, while those convicted at trial may be held accountable for the full loss in a fraud. Of 193 defendants convicted at trial, 38 got 10 years or more.... "The idea that somebody who goes to trial and gets hammered while people who plead guilty get far less time smacks of the Inquisition,'' says defense attorney John Keker of Keker & Van Nest in San Francisco. "I think it's a disgrace. The going-to-trial penalty should be an embarrassment to judges everywhere.''...
Friday, October 26, 2007
Is there any principled basis for DOJ opposition to the crack amendment being retroactive?
Writing in the National Law Journal, Marcia Coyle has this effective article detailing the state of the debate over whether the US Sentencing Commission will make its new reduced crack guidelines retroactive. The piece is entitled, "Retroactivity for Crack Sentence Cuts Debated: More than 20,000 crack offenders could have their sentences reduced," and here are key snippets:
As the Nov. 1 effective date approaches for new and lower crack cocaine sentencing guidelines, the U.S. Sentencing Commission has received more than 1,000 public comments on a related proposal -- making those lower sentencing levels retroactive. The commission has extended the public comment period on the retroactivity issue and has scheduled a Nov. 13 public hearing.
The commission staff recently released an analysis of the impact of making the so-called "crack minus two" guideline amendment retroactive: Nearly 20,000 crack offenders could have their sentences reduced an average of two years or more.
The more than 1,000 public comments on the retroactivity issue heavily favor retroactivity, according to sources close to the commission's work. The outpouring of comments is unusual for most of the commission's work, but not for the crack cocaine issue, they say. This time the comments appear to be the result of intensive efforts by organizations that have long supported the commission's position that the 100-to-1 crack-powder cocaine sentencing disparity disproportionately affects minorities and low-level offenders and undermines the objectives of the nation's sentencing reform laws.
"We've launched a campaign to ask all of our members to explain to the commission that this is the right thing and the judicially efficient thing to do," said Mary Price, vice president and general counsel of Families Against Mandatory Minimums (FAMM). Besides FAMM, the commission also has heard from the American Bar Association, the American Civil Liberties Union, Federal Public and Community Defenders, the National Association of Criminal Defense Lawyers, their members and other organizations.
Yet to weigh in on the retroactivity issue is the U.S. Department of Justice. But spokesman Erik Ablin said, "We have not yet filed a comment, but we plan to do so by the Nov. 1 deadline. I can tell you that our comment will reflect our opposition to retroactive application."
I will be eager to see what DOJ has to say, because I have a hard time identifying a truly principled basis for resisting retroactive application of an amendment that the USSC has said is long overdue and that is supported by mountains of sound research and advocacy.
Of course, because so many offenders have been subject to unduly harsh crack guidelines, the practical consequences of making the new guidelines retroactive would be significant. But so would be the practical consequences of non-retroactivity — which might spark prison riots and surely would engender lots of litigation. Moreover, it would be particularly sad if our national "Department of Justice" fear or resist too much justice for certain defendants simply because it may require a lot of extra paperwork.
Some related posts:
- The Sentencing Project urges retroactivity of USSC crack amendment
- USSC schedules public hearing on crack amendment retroactivity
- USSC analysis on potential crack amendment retroactivity impact
- Crack wackiness brewing over impact of crack amendments
- Latest FSR issue covers crack sentencing
- ABA makes pitch for USSC crack amendments to be made retroactive
October 26, 2007 in Enron sentencing, Kimbrough reasonableness case, New USSC crack guidelines and report, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack
Sunday, September 09, 2007
Ernon appeal in the news
As detailed in this Houston Chronicle article, entitled "Enron's Skilling asks court to throw out all his convictions," the highest profile white-collar conviction is back in the news. The WSJ Law Blog has more here on the looong opening appeal brief filed by Jeff Skilling's lawyers. The sentencing arguments made to the Fifth Circuit start on page 206 of the 239-page brief.
I expect that it will take a while for the Government to respond, and thus it seem unlikely that oral argument will take place before 2008 and it surely could be a full year or more before Skilling's appellate claims are adjudicated. Because he lost his plea for bail pending appeal, Skilling is serving time in prison while his arguments on appeal work their way through the courts.
Tuesday, June 19, 2007
Another Enron defendant sentenced
As detailed in this AP article, a " key prosecution witnesses whose testimony helped convict former Enron CEO Jeffrey Skilling and company founder Kenneth Lay was sentenced Monday to 27 months in prison." Here are more details:
It's been nearly three years since Kenneth Rice, 48, the former chief of Enron Corp.'s high-speed Internet unit, pleaded guilty to securities fraud and agreed to help federal prosecutors on other cases related to the energy giant's collapse. His sentencing was postponed as he cooperated with prosecutors.
Rice becomes the ninth ex-Enron executive to receive a jail term after pleading guilty to crimes. Before sentencing, Rice apologized for his role in the corporate scandal that wiped out thousands of jobs, more than $60 billion in market value and more than $2 billion in pension plans. "I'm sorry. I wasn't raised that way and I'm ashamed of that," he said, his voice breaking with emotion. "I'm committed to turning my life around."...
Assistant U.S. Attorney Ben Campbell said he was satisfied with the sentence. He had noted to the court Rice's "candid testimony" in the trial of Skilling and Lay, who were convicted last year for their roles in the company's collapse. In addition to that testimony, Rice was a key witness for eight days at the trial of five former colleagues at the Internet unit. Rice also met 63 times with prosecutors. One of Rice's attorneys, Dan Cogdell, said he had never seen such cooperation by a witness in his 25 years of practicing law. He said Rice had unquestionably accepted responsibility for his role in the fraud and had cooperated with prosecutors since the start of their investigation.
Monday, March 26, 2007
Justice Talking on the death penalty
First used in Texas in 1982, lethal injection is the method of execution now authorized in 37 of the 38 states that have the death penalty. But the recent botched execution of Angel Nieves Diaz in Florida raises new questions of whether the method violates the Eighth Amendment's prohibition against cruel and unusual punishment. Join us on this edition of Justice Talking as we take a new look at capital punishment and ask age-old questions about whether the death penalty is appropriate retribution for heinous crimes, whether it deters criminal activity and whether it can be administered in a fair and humane way.
Tuesday, December 12, 2006
That was quick... Skilling to start serving sentence
The AP reports here that, less than 24 hours after staying the start of his sentence (news here), the Fifth Circuit "denied former Enron Chief Executive Officer Jeffrey Skilling's request to remain free during his appeal Tuesday and ordered him imprisoned immediately." According to the AP story, the Fifth Circuit's "order notes 'serious frailties' in Skilling's convictions, [but] says those problems fail to raise a 'substantial question' likely to result in the overturning of all Skilling's convictions, as would be required to grant bail during appeal."
When will Skilling have to report to prison?
Lots of news folks were talking up the fact that Jeff Skilling was due to report to prison this week, as evidenced by articles here and here and here. But, as the Houston Chronicle reports here, the Fifth Circuit has now stayed Skilling's prison report date so it could fully consider his motion for bail pending appeal:
The U.S. 5th Circuit Court of Appeals has delayed the start of former Enron CEO Jeff Skilling's prison sentence that was scheduled to begin here Tuesday. The court said today he would not have to report to prison while it considers his motion for bail pending his appeal on his conviction. "This order is entered solely to allow this court to give careful consideration to the request for bail pending appeal," the court said.
The Washington Post has more coverage here.
Saturday, November 18, 2006
Final Enron sentencings
As detailed in this Houston Chronicle story, two final Enron executives learned their sentencing fate on Friday. Here are the basic details:
Two former Enron executives who pleaded guilty to crimes and helped prosecutors pursue others in the scandal-ridden company learned their punishments today. Michael Kopper, former Enron finance chief Andrew Fastow's onetime top lieutenant, will serve three years and one month in prison followed by two years probation for helping scam the company out of millions of dollars while manipulating its books, U.S. District Judge Ewing Werlein ruled today. Shortly thereafter, Werlein sentenced former Enron investor relations chief Mark Koenig to 18 months in prison followed by probation for two years for helping top management mislead investors about the company's financial health.
Monday, November 13, 2006
Closing chapter 1 of the Enron sentencings
As the Houston Chronicle details here, a number of the remaining Enron-related sentencings will take place this week: Richard Causey will be sentenced on Wednesday, and Mark Koenig and Michael Kopper are set for sentencing on Friday. White Collar Crime Prof Blog here is promising analysis throughout this week.
I consider these sentencings only the close of Chapter 1 because Jeff Skilling is sure to pursue some sentencing issues on appeal. And that appeal could be significantly impacted by the two now-pending SCOTUS cases on reasonableness review, Claiborne and Rita (background here). The outcome in the Rita case, which involves review of a relatively lengthy within-guideline sentence for a first offender, could be especially important to Mr. Skilling's fate.
Tuesday, October 24, 2006
More Skilling reactions and a query
Those interested in more post-game analysis of the Skilling sentence should be sure to check out Tom Kirkendall's analysis here and also the Houston Chronicle's cool extended podcast with expert commentary from an assortment of thoughtful experts.
The Houston Chronicle's podcast is really intriguing from start to finish, and it begins with lots of praise for Skilling's lawyers for keeping his sentence from being even higher than 24+ years. I would like to hear from readers whether they agree with this assessment.
Some more blogosphere (and media) reactions to the Skilling sentence
In addition to some prior reactions noted here, folks looking for the blogosphere's various takes on Jeff Skilling's sentence of 24+ years can check out these posts:
- Dave Hoffman here at Concurring Opinions
- Norm Pattis here at Crime & Federalism
- Peter Lattman here at the WSJ Law Blog
UPDATE: Howard Bashman now has all the major media coverage of the Skilling sentence linked here.
Monday, October 23, 2006
Skilling gets guideline sentence of 292 months
As well reported by Howard Bashman here, Judge Sim Lake sentenced Jeff Skilling at the low end of the (now advisory) 2000-era Guidelines range by imposing a sentence of 292 months of imprisonment (That's 24 years and 4 months for those not good at dividing quickly by 12.)
Because Skilling was sentenced in the Fifth Circuit, his within-guideline sentence will be deemed presumptively reasonable on appeal (though I suppose Skilling could contest on appeal some guideline calculation issues). Notably, I do not believe any other high-profile white-collar defendants have received a within-guideline sentence recently. Though WorldCom's Bernie Ebbers was sentenced to 25 years, the guideline range in that case was life, I believe.
I have not heard if Judge Lake has plans for a written opinion in this case, but I hope he will write up an explanation for his various decisions.
UPDATE: Ellen Podgor and Peter Henning at White Collar Crime Prof Blog have lots of interesting reactions here. I found this comment by Peter especially provocative:
While Jeffrey Skilling receives 24 years for presiding over the collapse of Enron, former Congressman Randy (Duke) Cunningham sells his office to a string of defense contracts for a bit over $1 million and receives a sentence of 8 years. Soon-to-be former Congressman Bob Ney will likely be sentenced to less than 3 years in prison for selling out his office to lobbyists led by Jack Abramoff. How can there be such a disparity between the sentences for public corruption and the corporate frauds perpetrated by Ebbers and Skilling?
Tastes great, more Skilling
As this headline suggests, I am getting a bit punchy following the Houston Chronicle's live blogging of the Skilling sentencing. Still, I cannot turn away, and these posts have something for everyone:
- It begins
- Sentencing enhancements
- Skilling's statement (in part)
- Victims start to speak
- Victims in favor of leniency for Skilling
In addition, I see that here that White Collar Crime Prof Blog has collected a lot of "Background on Skilling." And, speaking of collecting posts, here's my recent work in this arena:
- Skilling sentencing questions (and predictions?)
- More pre-game coverage of Skilling sentencing
- Still more Skilling sentencing pre-game analysis
- Enron sentencing archive
UPDATE: The Houston Chronicle's blog reports here that it is now time for attorney arguments that now Judge Lake has "said under guidelines Skilling would be faced with between 292 and 365 months in jail. He may depart from that, however."
MORE: It seems that the sentencing hearing is wrapping up with Skilling's lawyer presenting argument; Skilling's sentence may soon be announced. But I now need to go teach a two-hour class, so I may be the last interested person to find out what number Judge Lake picks. Of course, that should not stop readers from noting and debating that number in the comments.
Still more Skilling sentencing pre-game analysis
With Jeff Skilling's sentencing scheduled for today, this morning brings another round of articles discussing his case and white-collar sentencing more generally. The New York Times, for example, has this piece headlined, "The Guidelines Now Tougher, Skilling to Face Sentence Today."
The Houston Chronicle has this front-page story entitled "An era ends today as Skilling learns fate." In addition, as detailed here, the Chronicle "plans to blog the sentencing hearing" which begins at 1 pm CDT. The Chronicle says the hearing "is expected to take a couple of hours" and that its "blogging should begin earlier in the morning."
Recent related posts:
- Skilling sentencing questions (and predictions?)
- More pre-game coverage of Skilling sentencing
- "Enron: The Tale of Two Sentencings"
- Ken Lay's conviction vacated
- Enron sentencing archive
Sunday, October 22, 2006
More pre-game coverage of Skilling sentencing
As discussed recently here, Jeff Skilling is due to be sentenced in Houston on Monday. Today, in both the traditional media and the blogosphere, there is a lot of pre-game analysis. For some basics, check out coverage from the AP, from the Houston Chronicle, and from Reuters. To dig deeper, check out coverage around the blogosphere.
Tom Kirkendall at Houston's Clear Thinkers here seeks to provide "an objective evaluation of Skilling's case as a counterbalance to what the mainstream media typically serves up." Larry Ribstein at Ideoblog here discusses the "particular problem [of] the government's buying testimony with pleas." In a similar vein, Ellen Podgor at White Collar Crime Prof Blog here explores "what happens to the accused's right to a jury trial when there is an enormous disparity between the sentence given to cooperators and that given to those who decide to go to trial."
Recent related posts:
- Skilling sentencing questions (and predictions?)
- "Enron: The Tale of Two Sentencings"
- Ken Lay's conviction vacated
- Enron sentencing archive
Friday, October 20, 2006
Skilling sentencing questions (and predictions?)
Right after Ken Lay and Jeff Skilling were convicted in May, I did this post with first-cut Enron sentencing questions. With Skilling's sentencing hearing scheduled for this coming Monday, these questions remain timely:
- What will be the likely offense level and sentencing range for Skilling under the federal sentencing guidelines?
- Assuming the guideline range for Skilling is very high, will the government ask for a guideline sentence?
- Will defense counsel seek a "traditional" departure under the guidelines as well as a variance based on Booker and 3553(a)?
With much time and many developments in this case and in other high-profile white-collar cases (see this Enron sentencing archive), we might now add these questions:
- How many victims will testify at the sentencing hearing?
- Will Judge Lake announce a sentence for Skilling on Monday, or take some time to write a sentencing opinion as he did in Olis?
- Will Skilling be granted bail pending appeal?
Of course, the ultimate question is what sentence will Skilling get. Anyone brave enough to make predictions in the comments?
Thursday, October 19, 2006
"Enron: The Tale of Two Sentencings"
The Wall Street Journal today has this interesting commentary entitled, "Enron: The Tale of Two Sentencings — If Skilling Gets 20 Years in Prison, It'll Show It Hurts Not to Sing to Prosecutors." Here are some portions:
The surprisingly lenient prison sentence given recently to Enron Corp. former Chief Financial Officer Andrew Fastow highlights the benefits of cooperating with federal criminal authorities. The coming sentencing of former Enron President Jeffrey Skilling is likely to demonstrate the dangers of fighting them....
The likely discrepancy in prison terms for Messrs. Fastow and Skilling, widely considered to be two of the central figures of the Enron scandal, illustrates that there has never been a better time in the white-collar-crime world to rat on your colleagues.
Over the past half-decade, prison terms for financial crimes have ratcheted up. Where a convicted corporate executive could once expect probation or a few years in prison, a first-time offender now faces as long as life behind bars. The surest way to avoid such a fate is to admit wrongdoing, cut a deal with prosecutors and help them nab others. The sentencing system "has developed a huge gulf between those who go to trial and those who cooperate," says Kirby Behre, a former federal prosecutor and co-author of a treatise on federal sentencing practices. While Mr. Skilling faces "an astronomical sentence," cooperators such as Mr. Fastow "are still getting sweet deals," says Mr. Behre, a partner in the Washington law office of Paul, Hastings, Janofsky & Walker.
Wednesday, October 18, 2006
Ken Lay's conviction vacated
Though presidents and Governor's rarely grant pardons anymore, abatement doctrines mean that the grim reaper still can: as detailed in this Reuters account, Judge Sim Lake yesterday "dismissed the conspiracy and fraud convictions of Enron Corp. founder Ken Lay because he died before he could appeal." For traditional media coverage, check out the Houston Chronicle, the New York Times and Washington Post; for blogosphere highlights and commentary, check out the WSJ Law Blog, White Collar Crime Prof Blog and Houston's Clear Thinkers.
Judge Lake's memorandum opinion is available here, and sentencing fans may be most interested in the effort by a claimed Enron victim to use the new Crime Victims' Rights Act (CVRA) to oppose vacating Lay's convictions. Judge Lake gave these arguments short shrift, but a news report indicates that victim plans to appeal. This part of the decision could become real interesting because the CVRA requires a circuit court to resolve a mandamus action brought pursuant to the CVRA very quickly.
Some recent related posts on victims' rights:
Saturday, October 07, 2006
Another Enron cooperator gets shortened sentence
As detailed in this article, another Enron cooperator has received a shorter sentence as a result of that cooperation. Here are some details:
Enron Corp.'s former No. 2 investor relations executive who helped link former company Chairman Ken Lay and former CEO Jeff Skilling to fraud in their trial earlier this year will serve probation for two years for insider trading, a judge ruled Thursday.
Paula Rieker, 52, wept before U.S. District Judge Melinda Harmon, prompting a court staff member to hand her a box of tissues as she asked for probation. Insider trading carries a maximum sentence of 10 years in prison, but Rieker was eligible to serve probation to six months behind bars under federal sentencing guidelines.
Some related posts:
Wednesday, October 04, 2006
Comparing Ebbers and Fatsow sentencing outcomes
Over at Jurist, guest columnist Douglas Branson has this very interesting commentary about recent white-collar prosecutions and sentencings entitled "Fastow and Ebbers: A Tale of Two Criminals." The commentary is full of intriguing insights, and it closes with this paragraph:
What do we learn from this? One, corporate CEOs are much like ship captains: they may be blamed for everything that happens on their watch, whether they are complicit or not. Two, the much ballyhooed Department of Justice guidelines mean nothing in high profile white collar crime cases. They don't prevent lynching the less blameworthy; they also permit a mere slap on the wrist to the greedy, the sophisticated, and the stealthy if they turn state's evidence. Three, Ebbers should serve roughly the same as, or only a little more, or even a little less, time than should Andrew Fastow, at least if we are concerned about doing justice.
Tuesday, October 03, 2006
Further Fastow sentencing follow-up
Today's papers bring three intriguing pieces in the aftermath of the sentencing of Andrew Fastow:
- From the Houston Chronicle here, "Fastow's lawyers want him out temporarily for deposition"
- From the Washington Post here, "Feeling 'Slap in the Face' After Fastow's Sentence"
- Also from the Houston Chronicle, the insightful Professor Sandra Guerra Thompson has this commentary entitled, "In Fastow's case, the punishment fit the 'snitch'"
Thursday, September 28, 2006
Further Fastow and other white-collar follow-up
Though the blogosphere had lots of commentary in a matter of hours, traditional media are now starting to reflect on the sentence given to Andrew Fastow earlier this week (basics here). Here are two notable commentaries I have seen:
- From the Houston Chronicle here, "Fastow's 6 years has a few experts scratching heads"
- From Forbes here, "Corporate Crime: Where's The Justice?"
In addition, Houston's Clear Thinkers has this additional follow-up on Fastow and other Enron doings. Also, reflecting more broadly on corporate scandals and sentencing outcomes, Professor Nancy Rappaport has this interesting commentary at Jurist entitled "Don't Outsource Your Conscience: Lessons in Corporate Truth."
Tuesday, September 26, 2006
Fastow gets only six years' imprisonment
I just received the somewhat surprising news that, as detailed in this Wall Street Journal alert and this AP coverage, that "Former Enron Corp. chief financial officer Andrew Fastow was sentenced today in a Houston federal court to six years in prison followed by two years of full-time community service for his role in the crimes committed at the energy giant." Fastow's plea deal capped his sentence at 10 years, and I think most observers expected a sentence near that cap.
I encourage commentators to debate whether the comparable sentences now given to Fastow of Enron and Jamie Olis of Dynegy (details here) is a great example of sentencing consistency or of unwarranted sentencing disparity. Because of all their great coverage of white-collar sentencing, I'm already looking forward to the reactions of Tom Kirkendall and the folks at the White Collar Crime Prof Blog.
Monday, September 25, 2006
For white-collar sentencing fans...
the White Collar Crime Prof Blog has lots and lots of quite interesting commentary. Check out:
- More on Olis Re-Sentencing
- Does the Olis Resentencing Portend a Harsh Sentence for Skilling?
- Ebbers to Begin Serving 25 Year Sentence This Week
- Fastow to Be Sentenced This Week
More coverage of white-collar sentencing season
I noted in this recent post that we are in the middle of white-collar sentencing season, and today's newspapers provide some more coverage. This piece from the Houston Chronicle discusses tomorrow's scheduled sentencin of Andrew Fastow, and this front-page piece from the Washington Post asks in its headline, "Cook the Books, Get Life in Prison: Is Justice Served?".
Some recent related posts:
- White-collar sentencing season
- Some Enron-related sentencing news
- Jamie Olis gets 6 years at resentencing
Tuesday, September 19, 2006
Sentencing around the LPB network
Two of my favorite reads in the Law Professor Blogs network have numerous of interesting sentencing items worth checking out. The White Collar Crime Prof Blog has these recent posts on (surprise, surprise) white-collar sentencing:
- Another Enron Cooperator Gets Sentenced
- Olis Resentencing
- Enron Cooperator Gets Four Years Probation
Over at the Crime Prof Blog, the recent sentencing posts have a big west-coast influence:
- WA Law Makes Schools Aware of Convicted Juvenile Sex Offenders
- CrimProf Franklin Zimring Criticizes Cali's New Sex Offender Crackdown
- Packed Prisons, Solution-Stalemate: Is the Eighth Amendment the Answer?
Saturday, September 16, 2006
Some Enron-related sentencing news
As detailed in this Houston Chronicle article, yesterday a "former assistant treasurer at Enron was sentenced to four years probation and a $10,000 fine for his role in deceiving credit rating agencies while working at the collapsed energy giant."
Hat tip to Tom Kirkendall, who provides some background in this post at Houston's Clear Thinkers. (Folks following the Olis resentencing closely with also want to check out Tom's strong posts on this past week's resentencing hearing here and here.)
UPDATE: The Houston Chronicle now has this piece previewing other upcoming Enron sentencings.
Thursday, June 15, 2006
So much to do, so little time...
Though the title of this post certainly describes my life most days, it also is a fitting moniker for this week's filing by Jeff Skilling's lawyers asking for a "continuance of 35 to 45 days of all sentencing dates" in the initial schedule set by Judge Sim Lake following last month's Enron convictions. Peter Henning here at the White Collar Crime Prof Blog provides some highlights from the filing, and also provides access here to the seven-page filing. The filing is quite interesting in part because it flags a number of the key issues raised by Skilling's sentencing (many of which I have previously discussed in this Enron sentencing archive).
Saturday, June 03, 2006
The other Ernon sentencing stories
In a series of posts, I have mentioned some issues of interest in the future sentencing of Ken Lay and Jeff Skilling. This AP article details the issues arising in the sentencing of all the other persons connected to the case: "Now that Enron Corp. founder Kenneth Lay and former Chief Executive Jeffrey Skilling are felons, the string of ex-executives whose testimony helped the government snag those convictions face punishments of their own."
Wednesday, May 31, 2006
Another Enron case now turns to sentencing
I am glad I have created this Enron sentencing category archive, because another Enron-related criminal charge resulted in a conviction this afternoon. However, as this AP story details, prosecutors only batted .500 this time around:
Jurors on Wednesday convicted one of the former executives from Enron Corp.'s defunct broadband unit to be retried after his original case ended in a hung jury last year. Former broadband unit finance chief Kevin Howard was convicted of five counts of fraud, conspiracy and falsifying records while former in-house accountant Michael Krautz was acquitted of the same charges after a monthlong trial.
Sunday, May 28, 2006
More good coverage of Enron sentencing dynamics
This morning's Chicago Tribune has this interesting article, entitled "'Ashamed' wrongdoer gets break: Deal limiting sentence of former finance chief key to prosecution, but some say it goes too far." As the title suggests, the article focuses on the steep sentencing discounts given to cooperators in corporate fraud cases. Here's the article's start:
They blamed him above all others for bringing down Enron Corp., forcing him to admit repeatedly under oath that, yes, he is a shameful excuse for a human being. Yet in the end, the contrite Andrew Fastow stands to come through the Enron scandal in far better shape than the unrepentant Kenneth Lay and Jeffrey Skilling, the ex-Enron bosses who attacked him so vigorously during the criminal trial that ended last week with their convictions.
By pleading guilty and testifying for the government, the former finance chief has limited his exposure to 10 years in prison, while Lay and Skilling face 20 years or more at their sentencing on Sept. 11. If Fastow gets off with a relatively light sentence, he will join the swelling ranks of white-collar offenders who have reaped significant rewards for their cooperation. The crackdown on corporate crime that culminated in Thursday's Enron verdict has led to vast disparities in punishment between those who strike plea bargains and those relative few who go to trial.
Recent related Enron posts:
Saturday, May 27, 2006
Strong media coverage of Enron sentencing issues
As I predicted, the Enron conviction stories are now starting to turn to sentencing issues. And today both the Houston Chronicle and the AP have terrific stories about some key issues to be raised by the sentencing of Ken Lay and Jeff Skilling. Both stories rightly focus on the extraordinary importance of loss calculations under the federal sentencing guidelines, and I especially liked how Mary Flood starts her great Chronicle piece discussing the federal sentence process:
On their way to sentencing, Ken Lay and Jeff Skilling will next be put under a microscope by a federal probation officer as their attorneys try to convince the judge that they didn't cause shareholders to lose a penny — or at least not many pennies.
Sentencing in the federal courthouse has its own nearly indecipherable procedures. They are so complicated that experienced lawyers often disagree about what will likely happen. They do agree a probation officer will be assigned to look at everything from the men's mental health and family history to financial assets and losses they caused.
Recent related Enron posts:
UPDATE: I now see that Peter Henning at the White Collar Crime Prof Blog has this interesting post entitled "The Parameters of CEO Sentencing." Here are some of Peter's many good insights:
The government's memorandum for [WorldCom CEO Bernie] Ebbers sentencing sets out what I expect will be the likely approach of the Enron Task Force regarding a non-Guidelines analysis based on comparable sentences given in other cases to avoid sentencing "disparity," one of the goals of the Guidelines. Here, the 25-year sentence imposed on Ebbers and the 15 years that the 80-year old [Adelphia CEO John] Rigas received could be argued by the government as the appropriate parameters of a "reasonable" sentence for Lay and Skilling, and prosecutors would be expected to seek a sentence at the higher end of that range.
Friday, May 26, 2006
Victims' rights and the Enron sentencings
I continue to enjoy issue spotting in anticipation for the future sentencings of Ken Lay and Jeff Skilling. I have now moved from first-cut questions and guideline calculations to pondering the role of victims in the Enron sentencing process.
As criminal law gurus should know, a few years ago Congress enacted the Crime Victims' Rights Act (CVRA), which guarantees crime victims eight different rights, including the "right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding." 18 U.S.C. § 3771(a)(4). Notably, as detailed here, the Ninth Circuit recently declared that this provision gives crime victims a right (which they can independently enforce) to "allocute at sentencing" in addition to submitting a written impact statement. District Judge Paul Cassell, as detailed here, has likewise ruled in a thoughtful recent opinion that, under the CVRA, "victims of all crimes have a right to personally address the court."
In light of the CVRA, I wonder how many persons can claim to be victims of Lay and Skilling, and how many of those persons may demand to speak at their sentencings. Does every holder of Enron stock and former Enron employee have a statutory basis for claiming a right to speak in person at the Lay and Skilling sentencings? Notably, the CVRA has a provision stating that if "the court finds that the number of crime victims makes it impracticable to accord all of the crime victims" their rights, "the court shall fashion a reasonable procedure to give effect to [the CVRA] that does not unduly complicate or prolong the proceedings."
Against this backdrop, I could imagine some victims being a voice for a shorter prison sentence: e.g., some victims might urge Judge Lake to limit the prison terms for Lay and Skilling so they can earn money after their release to pay restitution to more victims. Recall that Congress has told sentencing courts section 3553(a)(7) to consider "the need to provide restitution to any victims of the offense." Consider here the possible current balance sheet of Michael Milken — who, intriguingly, was a BusinessWeek cover boy just before the Enron scandals, was just recently on the cover of Worth magazine, and has this impressive website.
Some related posts on victims' rights at sentencing:
Enron guideline calculations (and a fascinating post-Booker question)
In this list of first-cut Enron sentencing questions, I speculated that the (advisory) federal guideline sentences for Ken Lay and Jeff Skilling could be life or at least 360 to life. Confirming my instinct is guideline guru Frank Bowman, who already has prepared a snazzy PowerPoint presentation, entitled "Sentencing Ken Lay & Jeffrey Skilling" that you can access here thanks to Peter Lattman at the WSJ Law Blog. Frank concludes that both Lay and Skilling face guideline recommendations of life sentences based on his calculations (which, notably, do not even include enhancements for obstruction of justice).
In thinking (and talking to others) about the Enron guideline calculations, one especially fascinating post-Booker question has my mind racing: Which version of the guidelines should apply to Lay and Skilling?
I am pretty sure the fraud guidelines were amended significantly to increase sentences in white-collar cases in November 2001 and again in November 2003. Before Booker came along, it was settled law that ex post facto concerns generally required district judges to apply the version of the guidelines in place at the time of the crime. (This old-world reality itself raises some issues, since arguably some offense conduct took place in late 2001.)
After Booker, there is a reasonable argument that ex post facto concerns no longer limit the application of the current guidelines even if they provide for harsher sentences. (In fact, I believe Judge Easterbrook has some dicta in a post-Booker opinion to this effect.) After all, the guidelines are no longer binding law, just intricate advice.
Shouldn't Judge Sim Lake at sentencing consider the most up-to-date advice from the Commission? If the guidelines themselves are so darn reasonable and incorporate all the 3553(a) factors (as a few district judges and many circuit judges like to stress), why should Judge Lake rely on old, out-of-date and less reasonable advice from 2000 or 2001 when sentencing Lay and Skilling? In short, many of the justifications for attentiveness to the guidelines in the post-Booker world seem to call for applying the latest version of the guidelines now that they are only advisory.
So, dear readers, should the 2000 guidelines or the 2001 guidelines or the 2005 guidelines apply to Lay and Skilling? And what version of the guidelines will prosecutors to argue for (given than we can be sure the defense will argue for the most lenient 2000 guidelines to apply)?
Thursday, May 25, 2006
Enron and on and on and on
Unsurprisingly, the mainstream media and the blogosphere is abuzz about the Enron convictions (basics here, early commentary here). Most of the links set forth below involve trial post-mortems; I suspect it will be a few days before folks start to focus on the future sentencing of Ken Lay and Jeff Skilling. But, having now had a chance to talk to a few reporters about the Enron sentencing issues, I am certain that the Lay and Skilling sentencings will be a fascinating (and unique) case-study of the dynamics of the post-Booker world.
Here's just an abridged collection of some blog/MSM coverage of the Enron convictions:
- White Collar Crime Prof Blog
- Professor Bainbridge.com
- The WSJ Law Blog
- Houston Chronicle Enron Trial Watch Blog
- How Appealing (collecting media reports)
- TechBlog (collecting blogger reactions)