Wednesday, February 03, 2010
The low-hanging fruit and long sentencing options of § 922(g)The Fourth Circuit has an interesting sentencing decison today in US v. Wright, No. 08-4679 (4th Cir. Feb. 3, 2010) (available here). First, consider the panel's description of the defendant's crime:
Jeremy Wright sprayed twenty-two rounds from an AK-47 assault rifle into a crowded night club parking lot, killing a man sleeping in a car with a single bullet to the head. Wright fired his rifle until he ran out of ammunition even though there were some two or three hundred people at the club, many of whom were pouring outdoors as the result of a fight that Wright had just instigated with rival gang members. In addition to the man he killed, Wright also wounded a club patron in the course of his rampage.
Now, guess Wright's crime of conviction in federal court (hint: it is not murder, but it did lead to a sentence of life imprisonment). Astute readers will know the answer from the title of this post or from this account of the sentencing issues raised an rejected in Wright:
On appeal, Wright raises three challenges to his sentence. He first argues that the use of his juvenile adjudications as predicate crimes under the ACCA violates the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), because South Carolina family courts do not employ juries. Second, Wright claims that the burglaries he committed as a juvenile do not qualify as violent felonies under the ACCA because he did not "carry" firearms merely by stealing them. Finally, Wright asserts that the district court improperly referenced the sentencing guideline for first degree murder when it sentenced him. We consider each of these arguments in turn.
Thursday, January 28, 2010
Facebook enhancement for drunk driver provides notable example of social-media sentencingThis local sentencing story from the Buffalo News, which is headlined "Drunk driver gets into more trouble after posting Facebook photo," provides a new and notable example of what might be called "social-media sentencing." Here are the details:
Ashley M. Sullivan is in Niagara County Jail, and Facebook may be to blame as much as the car crash that killed a Niagara Falls man.
Sullivan, 17, of Linden Avenue, North Tonawanda, was sentenced Wednesday afternoon to six months in the County Jail and five years' probation for crashing her car while drunk and killing her boyfriend May 30 on Sweeney Street in North Tonawanda. She pleaded guilty Nov. 18 to criminally negligent homicide and misdemeanor driving while intoxicated.
The Buffalo News has learned that Sullivan went to Florida a month after the crash and posted a photo on her Facebook Web page captioned, "Drunk in Florida."
"I'm troubled by your conduct since the crash," County Judge Matthew J. Murphy III told Sullivan, "and that's the reason for the jail sentence." Murphy also refused to grant Sullivan youthful offender status for the same reason. "I don't believe the defendant has earned it," the judge said.
Murphy, in reading the terms of probation, went out of his way to emphasize to Sullivan that she isn't allowed to drink for the next five years. "You're 17 years old. You're not old enough to drink," Murphy said.
When defense attorney Glenn Murray said in court, "This young woman is remorseful," someone laughed among a crowd of more than two dozen of the victim's friends and relatives, drawing a reprimand from the judge....
Murphy, who could have sentenced Sullivan to as long as four years in state prison, said his decision was difficult "because of the defendant's extreme youth and her past history." He ordered that after Sullivan gets out of jail, she will be under electronic home monitoring for a year. He also revoked her driver's license.
"My client failed to consider the consequences, the tragic consequences," Murray said. "This offender understands the tragedy she is responsible for. She will never forgive herself." He said Sullivan had decided not to speak, although when Murphy asked her, Sullivan managed to say, "I'm very sorry," before breaking down in tears.
It is not at all unusual, though it can sometimes be controversial, for sentencing judges to decide to increase a defendant's based on post-offense or even post-conviction conduct. Nevertheless, the impact here of a social-media message on Facebook adds an extra layer to this common sentencing issue. Not only does the sentencing judge here learn that the underage defendant was drinking heavily again not long after having just killed her boyfriend via drinking and driving, but he also discovers that she does not have the good sense not to brag to friends about her persistent misbehavior. For these and other reasons, I think Sullivan should consider herself very lucky to have only gotten a six month jail term here.
Wednesday, January 27, 2010
Fourth Circuit panels spliting over Atkins claims from VirginiaThe Fourth Circuit has a pair of lengthy rulings today involving two different panels providing two different discussions of two Virginia death row defendants' claims that the Supreme Court's Atkins ruling precludes their executions:
Winston v. Kelly, No. 09-2 (4th Cir. Jan. 27, 2010) (available here)
Walker v. Kelly, No. 06-23 (4th Cir. Jan. 27, 2010) (available here)
Kansas legislature considering bill for PTSD-based sentence reductions for veteransAs noted previously on this blog, there have been some notable recent examples of judges reducing a sentence based on the hardships a defendant previously suffered as a result of military service. Now, as detailed in this local article from Kansas, this concept is getting some legislative attention:
Judges would be able to reduce sentences for defendants who are combat veterans and have post-traumatic stress disorder, under a bill being considered by the Kansas Legislature.
The measure is being pushed by state Rep. Tom Sloan, R-Lawrence, who said his aim is to assist returning veterans from Iraq and Afghanistan who become entangled in the criminal justice system to get the help they may need if they are suffering from PTSD. “They are returning from very stressful situations,” Sloan said. “If they get in trouble, maybe they don’t need to go to prison, but they need to get services.”...
The bill would give a judge the discretion to allow a departure from sentencing guidelines if the defendant has been diagnosed with PTSD and served in combat zones.
Committee Chairwoman Pat Colloton, R-Leawood, said several states are trying ways to connect returning veterans who run afoul of the law with needed health and social services. She said the proposals aren’t intended to excuse unlawful behavior but to get at the root of the problem and try to help
Sloan said he got the idea for the bill after discussions with Maj. Gen. Tod Bunting, the Kansas adjutant general. Recent reports have indicated that as many 300,000 veterans of the Iraq and Afghanistan wars, which is nearly 20 percent of returning forces, are likely to suffer PTSD or major depression.
Some recent related posts:
- "Judges Consider New Factor at Sentencing: Military Service"
- "Judge suggests more sentencing options for war veterans"
- Can downloading of child porn be blamed on post-traumatic stress disorder?
- Prior military service as a sentencing mitigator gets a big boost from SCOTUS
- Should prior military service reduce a sentence?
- "Purple Hearts On Death Row: War Damaged Vets Should Not Be Executed By the State"
Thursday, January 21, 2010
Light sentence for heavy-duty crime in Ohio
I cover a lot of heavy topics on this blog, and this recent sentencing story from Ohio seems even more hefty than most. The piece is headlined "Overweight Woman Sentenced in Boyfriend's 'Sitting' Death," and here are the meaty specifics:
The details are shocking and hard to believe, but authorities say a woman -- who was believed to weigh around 300 lbs. at the time -- sat on her boyfriend and killed him last summer. On Wednesday, Mia Landingham, pleaded guilty to involuntary manslaughter in the death of her 120 lb. boyfriend, Mikal Middleton-Bey.
It happened back in August during an altercation between the couple, who share three children together. During Landingham's sentencing, her boyfriend's family spoke of the pain she has caused their family. "I just want to let you know how much you have hurt us by taking Mikal away from us," said Sharon Phillips, the victim's step-mother.
Landingham's public defender told the judge there was a long history of domestic abuse between his client and her late boyfriend. He also pointed out she has no prior criminal record. Landingham, then told the judge she was sorry for squashing the father of her children. "I just want to say that I am sincerely sorry about this situation... I wish I could take it back."
Judge Carolyn Friedland sentenced her to three years probation and 100 hours community service. Landingham was then immediately released from jail.
While Middleton-Bey's family hoped Landingham would eventually be able to take part in her children's lives, they were surprised that she got no additional jail time. "So basically you can say that I can go sit on somebody and get probation?" said one of the victim's sister. "I feel there wasn't no justice." Landingham faced a maximum of five years behind bars.
I know I should not make light of this situation, especially given how much the crime must weigh on all the members of the victim's family. But it is hard to resist being light-hearted in response to this query: "So basically you can say that I can go sit on somebody and get probation?".
Tuesday, January 19, 2010
"Punishing Lawyers in Corporate Frauds"The title of this post is the headline given to this new piece by Peter Henning over at the New York Times' DealBook page. Here are snippets from the effective piece about the sentencing lawyers involved in corporate frauds:
Joseph P. Collins, a former partner at the international law firm Mayer Brown, received a seven-year prison sentence for his role as the lead attorney for the failed futures trading firm Refco Inc., whose collapse as a result of accounting fraud cost investors and lenders more than $2 billion. Mr. Collins was convicted of conspiracy, wire fraud and securities fraud in July 2009 for his role in the stunning demise of Refco only weeks after the firm’s initial public offering.
The company hid debts owed by its chief executive, Phillip R. Bennett, from a buyout firm in an leverage buyout in 2004 and then in the public offering in 2005. In addition to Mr. Collins’s conviction, Mr. Bennett received a 16-year sentence, and Refco’s former president, Tone N. Grant, was sentenced to 10 years for their role in the accounting fraud.
Mr. Collins was Refco’s long-time outside counsel and the firm was his largest client, generating $35 million in billings for Mayer Brown. It is rare that an outside lawyer is prosecuted for legal representation of a client, and the case can be understood as part of a growing trend in which federal prosecutors and regulatory agencies, including the Securities and Exchange Commission, focus on those who enable corporate fraud along with the officers and directors who orchestrate it....
What is striking about the sentence that Mr. Collins ... received is its length. This is largely a product of a change in the Federal Sentencing Guidelines adopted in late 2001 that substantially increased the likely sentence in fraud cases. The United States Sentencing Commission amended the fraud-loss table used to calculate the sentences so that a loss of more than $400 million pushed the potential punishment to more than 20 years and could even result in a term of life in prison when other factors, such as the number of victims, were considered....
Given the sizable losses in the Refco case, Mr. Collins may be fortunate to have received only seven years, as the potential punishment under the sentencing guidelines called for a maximum of 85 years in prison. The Federal District Court rejected his request not to be sent to prison at all, an unlikely result given the amount of the loss. Mr. Collins is seeking a new trial based on recently revealed e-mails, and he is certain to appeal the conviction. Whether the district court permits him to remain free pending the appeal remains to be seen.
The substantial sentence is sure to be noticed in major law firms throughout the country, but whether it has any deterrent effect is another issue.
Accounting for the skewed punishment accountability in state crime codesA helpful reader alerted me to this interesting column from the Philadelphia Inquirer, which is headlined ""Pa. punishments often go beyond the crime." The piece reports on important work being done by Professor Paul Robinson and his students concerning the perceptions and realities of sentencing in one state's criminal justice system. Here are a few highlights:
Did you know that peeking at someone's e-mail in Pennsylvania carries a stiffer maximum penalty than keeping a slave? Or that state law looks more harshly at someone who stole $2,000 than someone who sold a child?
These are just some of the weirder quirks in the piecemeal approach to lawmaking documented by a Penn research group for the state legislature. University of Pennsylvania law professor Paul Robinson had his students determine this fall whether criminal laws were written in an orderly way. What they found was a "hodgepodge," as State Sen. Stewart Greenleaf, chairman of the Senate Judiciary Committee, put it. "It's more than inconsistent," the Republican said. "It's unfair."
Students found scores of serious crimes with lesser penalties than penalties for lesser crimes. And polling of Pennsylvania residents turned up an additional 100 or so laws whose sentencing ranges were out of whack with public sentiment.
Robinson blames "aggressive politics." The more legislators feel the need to show their constituents they're responsive to the latest outrage in the media, the more punitive are the laws they write. "Usually some incident happens, it gets in the headlines, and legislators get worked up," he said. "They feel obliged to do something about it. The natural effect is to exaggerate the penalty."
Pennsylvania last gave its laws a good scrubbing in 1972, when it simplified, clarified, and organized its criminal code. Since then, the code has more than doubled in size, to 636 offenses and suboffenses. On top of that, legislators have added definitions of criminal offenses in 1,648 more sections of state law.
Researchers gauged the vastly different attitudes Pennsylvanians have about how much punishment should fit a crime by asking 131 residents from across the state to compare the seriousness of offenses. Take slavery, for instance. Keeping an adult against his or her will, according to the law, is a first-degree misdemeanor, with a maximum penalty of five years. But Pennsylvanians found that crime as serious as a first-degree felony, which can bring a 20-year term.
In most examples, the law proved harsher than popular opinion. The law puts the maximum sentence for selling a bootlegged Beatles CD at five years. Pennsylvanians thought it was worth no more than 90 days. Reading someone else's e-mail without permission carries a seven-year term. Again, Pennsylvanians thought 90 days was more like it. ...
The problems with the law run deeper than disorganization. Unequal justice erodes people's confidence in the system. Matt Majarian, one of Robinson's second-year students, says: "If people have little confidence in the system, they will be less willing to serve on juries, less willing to call police, they'll be more willing to engage in vigilantism. This results in real problems in law enforcement and criminality."
The students presented their findings before the state Senate and House Judiciary Committees in December. They've proposed that the legislature reorganize its criminal code, evaluate the relative severity of punishments, and ensure that laws are not written too broadly.
I strongly suspect that Pennsylvania is not at all unique in this regard, and I hope Professor Robinson (or others) will consider conduct this sort of study and analysis of skews in other state criminal codes.
Sunday, January 17, 2010
Young kid killer of two (including dad) gets sentence of residential treatment
This CNN report, which is headlined "Arizona boy who admitted killing father sentenced to treatment," details the sentencing outcome in a sad and sadly sensational double-killing that took place in Arizona a few years ago. Here are the basics:
A 10-year-old Arizona boy who admitted to shooting and killing his father and another man in 2008 was sentenced Thursday to "in-patient treatment" that could go on for several years, according to the prosecutor. The boy pleaded guilty in February to one count of negligent homicide in exchange for a plea deal that dropped the two counts of murder he was charged with initially.
The boy was accused of killing his father, Vincent Romero, 29, and Tim Romans, 39, who rented a room in Romero's home in St. Johns, Arizona. Both men were found dead at the home November 5, 2008, and police said the next day that the boy confessed to shooting them with a .22-caliber weapon. At the time, the boy was 8.
"Under the plea agreement, he can be there (in treatment) up until he is 18," Apache County, Arizona, Attorney Michael Whiting said after the sentencing. "We hope that the treatment won't take that long. Obviously, it's not going to be successful if he is there when he is 18, and they are still treating him."
Whiting did not specifically describe what type of treatment the boy will undergo, beyond saying a psychiatrist will be involved and that the youth will be kept at his treatment facility with no ability to leave. The judge in the case ordered follow-up evaluations of the boy every two and a half years to update court officials on his progress.
Defense attorney Ron Wood said the boy was upset and crying in court during the sentencing and, "He was frightened." The boy apologized and "accepted responsibility for what he did," Wood said.
Saturday, January 16, 2010
You be the judge: what sentence would you give to Gilbert Arenas following his plea?
The question in the title of this post is prompted by this Washington Post article which is headlined "Arenas awaits sentence on gun charge, fate in NBA." The piece provides the latest legal update on the state and possible fate of NBA star Gilbert Arenas, as well as details about his criminal behavior:
Washington Wizards star Gilbert Arenas will have to wait until March to learn if he will be sent to prison for a felony gun conviction, while his future with the NBA sits in limbo. The charismatic player known as "Agent Zero" was straight-faced and subdued when he pleaded guilty Friday to the charge connected to a locker-room argument with a teammate last month.
Arenas won't know whether he must serve jail time until his March 26 sentencing and remains free until then. The government indicated it will not seek more than six months, although the judge can give Arenas anywhere from probation to the charge's maximum term of five years. Guidelines call for six to 12 months....
The NBA didn't comment Friday, while the players' union offered support, with executive director Billy Hunter saying: "The Players Association will continue to make all of its resources available to Gilbert."...
Possession of a gun at an NBA arena is a violation of the league's collective bargaining agreement. Last week, commissioner David Stern suspended the 28-year-old Arenas indefinitely, without pay, pending the outcome of the investigation, a move supported by the Wizards. Arenas is in the second season of a six-year, $111 million contract.
Arenas' NBA future could hinge on the league's own ongoing investigation, and it's possible Stern will wait until the sentence is issued before deciding how to punish the three-time All-Star. Arenas' lawyer, Kenneth Wainstein, asked Judge Robert E. Morin for an earlier sentencing date but was denied.
This article provides these details about the events leading up to Arenas's criminal troubles:
Assistant U.S. Attorney Chris Kavanaugh said the charge stemmed from a Dec. 19 dispute between Arenas and another Wizards player over a card game on a team flight back from a game in Phoenix. Kavanaugh did not identify the other player, but authorities searched the home of Wizards guard Javaris Crittenton for a gun on Thursday. Crittenton has not been charged, and his agent denied wrongdoing.
Kavanaugh said "the other player" offered to settle matters with a fist fight, but Arenas said he was too old for that and would instead burn the other player's car or shoot him in the face. The teammate replied he would shoot Arenas in the knee. Arenas missed most of the past two seasons after having a series of operations on his left knee.
Two days later, Kavanaugh said, Arenas brought at least one gun — a .500 Magnum revolver — to the Wizards' arena in a black backpack, then put four guns on a chair in front of the teammate's locker with a sign saying, "Pick 1." Court documents do not specify when Arenas brought the other three guns to the locker room, including a gold-plated Desert Eagle .50-caliber semi-automatic.
According to Kavanaugh, when the other player asked something along the lines of, "What is this?," Arenas responded with words to the effect of: "You said you were going to shoot me, so pick one." The other player said he had his own gun, threw one of Arenas' weapons across the room and then displayed his own firearm, Kavanaugh said.
Arenas had acknowledged keeping guns in his locker — but claimed he wasn't aware of the law and meant no harm in what he viewed as a "misguided effort to play a joke." Stern suspended him the day after Arenas pretended to "shoot" teammates by pointing his index fingers at them during a pregame huddle.
As folks consider what they might do as Arenas's sentencing judge, I would appreciate comments on two topic: (1) should the fact that Arenas is suffering a multi-million dollar "punishment" from the NBA influence his sentencing outcome, and (2) should the fact that the Second Amendment provides a constitutional right to "keep and bear arms" influence his sentencing outcome?
Some related posts on Gilbert Arenas' situation and other celebrity gun possession cases:
- Now that Plaxico Burress has been formally indicted for gun possession, will Second Amendment fans come to his defense?
- Why Second Amendment supporters need to be helping out Plaxico Burress
- Rapper Lil Wayne cops a plea to New York gun possession charge
US Army soldier facing questionable(?) child porn charges
A helpful reader alerted me to this notable local story, which is headlined "Galesburg soldier being held overseas on child porn charges: Family says they e-mailed photos of niece and 24-year-old did nothing wrong." Here are the basic details:
The parents of a Galesburg soldier charged with possessing child pornography in Afghanistan say he did nothing wrong and are furious about the way he is being treated by military authorities. The U.S. Army has charged Spc. Billy Miller, 24, with possession of child pornography and a related charge of failure to obey an order that troops in Afghanistan not possess pornography.
Army spokesman Lt. Mary J. Pekas declined to discuss details of the case or evidence against Miller. She said the charge is punishable by up to 10 years in prison. Miller's unit returned to Illinois in August, according to the National Guard, but the Army said he remains in Afghanistan, awaiting the end of his case and possible court martial. "Spc. Miller is currently on active duty and assigned to Headquarters and Headquarters Co., 82nd Airborne Division, pending the conclusion of the investigation and any potential legal proceedings," the Army's media center in Bagram, Afghanistan, said in a brief, unsigned e-mail statement.
Miller's mother, Terri, said the family e-mailed their son pictures of his 4-year-old niece last summer to ease his homesickness. Relatives say Billy Miller became close to the girl after she was diagnosed with a serious illness while her own father was away for military training. The pictures were taken by Terri Miller and the girl's mother at the girl's birthday party last summer, said Rodney Miller, the soldier's father.
The pictures show the child in a swimsuit playing in a wading pool and sitting on a truck. In one, the girl is wearing a swimsuit and part of her buttocks are exposed, according to The Associated Press. The pictures were on the soldier's laptop, which the Army has confiscated.
Terri and Rodney Miller said they are angry with the way they and their son have been treated by the military. They said they are worried about the toll the allegations have taken on Billy Miller....
Terri Miller said she had great respect for members of the armed services, but the way her son's case was being handled had changed her mind about the military. "This is nothing against the troops," she said, "but the military can go to hell."...
A military spokesman in Afghanistan said charges were made against Billy Miller on Jan. 5, stemming from an investigation that began last August. The military spokesman said no timeline has been determined as to when a hearing will begin.
The Millers believe that one of Billy Miller's friends in Afghanistan, whom he had fallen out with, had reported seeing inappropriate pictures on the specialist's laptop. Terri Miller showed GateHouse News Service text messages from soldiers in the unit that suggested he was the victim of a personal vendetta.
Thursday, January 14, 2010
Offender circumstances cited for big downward variance to convicted Refco lawyerThis ABC News report, which is headlined "Chicago Lawyer Sentenced to 7 Years in Prison," reports on the latest high-profile white-collar sentencing in which a below-guideline sentence was imposed. Here are the basics:
A Chicago lawyer was sentenced to seven years in prison Thursday by a federal judge who said his excessive loyalty to Refco Inc. led him to help the big commodities brokerage carry out a $2.4 billion fraud.
Attorney Joseph P. Collins, 59, of Winnetka, Ill., was sentenced by U.S. District Judge Robert P. Patterson in Manhattan after he was convicted at trial of conspiracy and other charges in the huge fraud at Refco.
Patterson cited Collins long history of charitable acts toward friends and his support of Chicago schools and the University of Notre Dame as he imposed a sentence considerably less than the 85 years in prison suggested by federal sentencing guidelines.
Patterson said the lawyer's loyalty to a customer led him to his crimes. "I don't believe Mr. Collins committed these crimes for greed, for money," Patterson said. "I think this is a case of excessive loyalty to a client," he said. "It's an admirable thing but in this case seems to have caused the crimes to be committed."
Patterson said it was necessary to give Collins a significant prison term as a message to lawyers that they can be held responsible if they are complicit in their client's crimes. He said he wanted "to deter other lawyers from doing this."
Tuesday, January 12, 2010
Eighth Circuit reverses above-guideline sentence for embezzing police officer
The Eighth Circuit has an interesting little sentencing ruling today in US v. Molnar, No. 09-1326 (8th Cir. Jan. 12, 2010) (available here). The simple fact that the Eighth Circuit reversed a sentence on a defendant's appeal is itself noteworthy, and the facts of the case add to the intrigue.
In Molnar, the defendant was a police officer who pleaded guilty to embezzlement of seized drug money. Though his calculated guideline range was ten to sixteen months, the district court varied upward and sentenced Molnar to sixty-months' imprisonment. The Eighth Circuit find a "procedural" error in one of the factors that the district court used to justify the above-guideline sentence, but the panel decision also indirectly suggests that the appeals court was troubled that this defendant was sentenced so severely for what seems to be a relatively minor crime.
Sunday, January 10, 2010
Some local (and international) coverage of sexting issues
This morning I noticed via the news feed a number of notable stories on "sexting" and the ways in which criminal laws try to deal with this issues:
- From Kentucky here: "Bill targets youth who send 'sexts': Richards’ proposal would lessen penalty for sending sexually explicit messages"
- From Pennsylvania here: "York County DA backs sexting reform: With two proposals in Harrisburg, legislators are hopeful the law could be changed this year"
- From Canada here, "'Sexting' nude photos a concern among teens: Is it criminal behaviour or just today’s version of spin the bottle?"
The story from Kentucky nicely summarizes the diversity of legal and policy responses to this new "sexting" phenomenon:
Legislation regarding sexting was introduced in at least 11 states in 2009, with six passing the bills, according to the National Conference of State Legislatures. The bills were a mix of increased penalties, decreased penalties and the creation of educational programs about the dangers of sexting....
The juvenile court system in Warren County has had an increasingly difficult time in deciding how to deal with sexting cases. “(They) are struggling how to handle it because it’s such a sensitive issue,” Warren County Attorney Amy Milliken said.
Wednesday, January 06, 2010
Off to war, rather than prison, for military marriage scammerA helpful reader sent me this notable local sentencing story, which is headlined "After marriage fraud, soldier will serve in Afghanistan, not in prison." Here are the basics:
A former Fort Bragg soldier who married a Russian woman in order to get her into the United States and claim higher benefits for himself was sentenced to probation Monday for the fraud.
Robert L. Cooper, lawyer for Stephen Schneider, argued that his client has been recalled to military service in Afghanistan and could only do so if he was not serving time. The judge agreed and sentenced Schneider to five years probation.
Schneider pleaded guilty in December to conspiracy to commit marriage fraud. Authorities said Schneider and another man, Sgt. Wesly Farris, 23, each married Russian women in order to get higher pay and move off post. After a civil ceremony, the women returned to New York, while the soldiers filed immigration papers for the women and personal requests for increased living allowances from the Army, authorities said.
Cranky convicted corporate cooperator complaining about prosecutorsThis Bloomberg report, which is headlined "Ex-UBS Banker, Informant Birkenfeld Seeks Probe of Prosecutors," provides the latest news on a white-collar case that has the feds and their corporate cooperator in a fight. Here are the details:
Bradley Birkenfeld, a key informant in a U.S. investigation of offshore tax evasion aided by UBS AG, claimed in a complaint that federal prosecutors made false statements to a judge who sentenced him to 40 months in prison.
Lawyers for Birkenfeld, a former UBS banker, claimed prosecutors made “inaccurate, misleading and incomplete” statements about him at his Aug. 21 sentencing hearing and in an interview on CBS Corp.’s 60 Minutes television show aired Jan. 3. Birkenfeld, 44, must report to prison on Jan. 8 and can’t extend his surrender date as he requested, a judge ruled Jan. 4.
Birkenfeld asked for an internal probe in a letter yesterday to U.S. Attorney General Eric Holder and the Justice Department’s Office of Professional Responsibility, which investigates allegations of attorney misconduct. Birkenfeld began telling U.S. authorities in 2007 how UBS helped Americans hide assets in secret Swiss accounts. He pleaded guilty in 2008 to helping California billionaire Igor Olenicoff and others evade taxes.
“It is one thing to hold Mr. Birkenfeld accountable for wrongdoing,” Birkenfeld’s lawyers wrote. “It is another thing altogether to imprison Mr. Birkenfeld on false information, especially when he is treated far more harshly than the wrongdoers who actually profited from the illegal tax schemes that Mr. Birkenfeld disclosed.”
Justice Department spokeswoman Tracy Schmaler said in a statement that Birkenfeld pleaded guilty to conspiracy to defraud the U.S. and admitted criminal wrongdoing. “At his sentencing in August, Mr. Birkenfeld made arguments for leniency,” Schmaler said. “In a motion filed in December, Mr. Birkenfeld requested a resentencing hearing citing the same issues raised in his letter to the Justice Department Office of Professional Responsibility. After consideration of these issues, that request was denied by a federal judge.”...
At his sentencing hearing in federal court in Fort Lauderdale, Florida, Justice Department prosecutor Kevin Downing said the U.S. couldn’t have unraveled the bank’s “massive tax fraud scheme” without Birkenfeld’s cooperation. Downing also recommended a 30-month term for Birkenfeld, saying he wasn’t initially truthful about Olenicoff. U.S. District Judge William Zloch, who could have imposed as many as five years, instead gave Birkenfeld a term of three years and four months.
Olenicoff, who pleaded guilty in 2007 to filing a false tax return, got two years’ probation and paid $52 million in back taxes, fines and penalties. Last year, six former UBS clients pleaded guilty....
The letter was sent yesterday by attorneys Stephen Kohn and Dean Zerbe of the National Whistleblowers Center in Washington.
"Juvenile Injustice"The title of this post is the headline of this editorial in today's New York Times. Here are excerpts:
Gladys Carrión, New York’s reform-minded commissioner of the Office of Children and Family Services, has been calling on the state to close many of its remote, prison-style juvenile facilities and shift resources and children to therapeutic programs located in their communities. Her efforts have met fierce and predictably self-interested resistance from the unions representing workers in juvenile prisons and their allies in Albany.
A recent series of damning reports have underscored the flaws in New York’s juvenile justice system and the urgent need to shut down these facilities. The governor and the State Legislature need to pay attention....
Not surprisingly, these institutions do a terrible job of rehabilitation. According to a study of children released from custody between 1991 and 1995, 89 percent of the boys and 81 percent of the girls were eventually rearrested. New York’s facilities are so disastrous and inhumane that state officials recently asked the courts to refrain from sending children to them, except in cases in which they presented a clear danger to the public.
Mr. Paterson’s task force was rightly impressed with Missouri’s juvenile justice system. It has adopted smaller regional facilities that focus on rehabilitation and house troubled youths as close to home as possible in order to involve parents and community groups in the therapeutic process. Missouri also has cut recidivisim rates by smoothing re-entry and helping young people with drug treatment, education or job placement.
New York clearly needs to follow Ms. Carrión’s advice and adopt a Missouri-style system. That means the Legislature will finally have to put the needs of the state’s children ahead of the politically powerful unions and upstate lawmakers who want to preserve jobs — and the disastrous status quo — at all costs.
Monday, January 04, 2010
Notable new study about juve sex offendersToday's USA Today includes this notable article, headlined "Study: Third of juvenile sex offenders target other kids." Here is how it starts:
More than a third of sex crimes against juveniles are committed by juveniles, according to new research commissioned by the Justice Department. Juveniles are 36% of all sex offenders who victimize children. Seven out of eight are at least 12 years old, and 93% are boys, says the study by the Crimes Against Children Research Center at the University of New Hampshire.
The report comes as states toughen penalties for adult sex offenders and wrestle with how to handle juveniles. "They are different from adult sex offenders," says study co-author David Finkelhor. They are more likely than adults to commit sex offenses in groups, and their victims are younger and more likely to be male.
Finkelhor says only about 10% of juvenile offenders have signs of "sexual preoccupation," an indicator of a pedophile. He says teen offenses include date rape. In the case of offenders age 12 or 13, it is often sexual experimentation with younger kids. Early sex education is key to teaching boundaries and preventing such experimentation, Finkelhor says.
The study, based on 2004 law enforcement data, finds that juvenile sex offenders commonly target children younger than they are. Their numbers increase sharply at age 12 and plateau at 14. Female offenders are younger.
Saturday, January 02, 2010
Latest story of sports stars and guns creates great con law issue spotter
Regular readers know that I am giddy when I can "work" while reading the sports pages or listening to sports talk radio. Thus, whether the issues involve famous athletes getting seemingly lenient sentences for drunk driving (see Donte Stallworth) or seemingly harsh sentences for the poor exercise of Second Amendment rights (see Plaxico Burress), the intersection of sports and crime always gets me going. And the latest sports story making the police blotter has me thinking that constitutional law professors should be excited about the latest news coming from DC. This New York Times piece, headlined "Wizards Gun Inquiry Focuses on Dispute," provides some key details:
The National Basketball Association and law enforcement officials are investigating the circumstances in which Washington Wizards guard Gilbert Arenas carried unloaded firearms into the team’s locker room, and whether he presented any guns during an argument with his teammate Javaris Crittenton....
Arenas acknowledged storing three firearms in his locker and said he took them to the arena because he did not want them in his home after the birth of his third child. When asked if he had showed the weapons to anyone, Arenas said: “Yes, I showed them to someone. I showed them to team security when I handed them to them and said give them to the police. Yes, I took them out of this locker room. I had to take them out to get them out of here to give to security. You see they didn’t take the whole locker out of here.”
The District of Columbia police and the United States Attorney’s Office opened a joint investigation into the incident. Their inquiry centers on whether Arenas produced any of the guns in a dispute with Crittenton before a practice at the Verizon Center on Dec. 21, according to Yahoo Sports. The New York Post reported that both players drew weapons, which Arenas denies. “I wake up this morning and seen I was the new John Wayne.” Arenas wrote on his Twitter account, adding. “Media is too funny.”
The District of Columbia has a zero-tolerance weapons possession law similar to that of New York City, and it is a violation of the N.B.A.’s collective-bargaining agreement to carry weapons into an arena or facility owned by the league. Charges have not been filed against Arenas, but if they are, he may face steep disciplinary action from the league....
Arenas, once the author of a popular blog, originally vowed not to interact on Twitter until his account reached one million followers. Far short of that mark, his feed featured a flurry of activity in a 24-hour span that began on New Year’s Eve before news broke of the argument with Crittenton. “i understand this is serious...but if u ever met me you know i dont do serious things im a goof ball this story today dont sound goofy to me,” Arenas wrote....
Arenas signed a six-year, $111 million contract in 2008. Before this season he played in only 15 games the last two years while battling injuries.
He pleaded no contest to misdemeanor weapons and vehicle charges in 2003 after being charged with carrying a .40-caliber handgun and driving without a license during a traffic stop in California. Shortly after, Arenas left the Golden State Warriors and signed a six-year, $64 million contract with the Wizards. The N.B.A. suspended Arenas for the first game of the 2004 season because of the charge. Arenas said he had registered the weapon in Arizona, but not in California.
Based on just this simple account of the facts, I can spot dozens of constitutional issues now surrounding this incident. Obviously, Second Amendment issues are in play since Heller declared a constitutional right to possess guns (at least in the home) for self defense. But how about the potential First Amendment issues involved in Arenas blogging about this on-going criminal investigation? Or how about Fourth, Fifth and Sixth Amendment issues raised by whether the police can now search the Wizards' locker room and Arenas's home and by how police can question Arenas and his Wizard teammates? And let's not forget all the structural constitutional questions in light of the overlapping local, state, and federal police-power interests in the District of Columbia. Of course, the NBA is a private actor subject to few constitutional constraints on how it responds to this incident; but I think contract and labor law could become constitutional law if the NBA were to, say, forever ban Arenas from the league.
Of course, for sentencing fans, one needs to assume a crime before getting too invested in thinking about all the interesting legal questions this case raises. Still, it is already fun to contemplate whether what Arenas says on Twitter could provide a valid basis for a sentence enhancement in some future sentencing. Also, if Arenas gets quicky and severely "punished" by the NBA, how should that impact formal prosecution and sentencing decisions? And what about the fact that Arenas appears to be a repeat offender (as well as a responsible father)?
I am sure there are even more great legal issues worthy of discussion as thoughts slowly turn from football to basketball during this time of the sports year. Readers are, of course, encouraged to join in this game of fast-break criminal justice issue spotting.
Thursday, December 31, 2009
"Judges Consider New Factor at Sentencing: Military Service"The title of this post is the headline of this new article in today's Wall Street Journal. Here are excerpts from the effective piece:
A small but growing number of judges say U.S. military veterans should be treated differently from nonveterans when they are sentenced for crimes.
As more soldiers return home from combat overseas and end up in the criminal-justice system, a number of state and federal judges are deciding to show former soldiers leniency in light of their service. Some veterans are receiving probation coupled with psychological treatment, generally for nonviolent crimes that normally would land them in prison.
That is raising concern among some legal experts, who say singling out veterans for special treatment indulges criminal behavior and risks establishing a two-tier system of justice.
Many veterans returning from war zones develop behavioral and psychological problems, which in some cases leads to alcohol and drug abuse -- and crimes. "We dump all kinds of money to get soldiers over there and train them to kill, but we don't do anything to reintegrate them into our society," says John L. Kane, a federal judge in Denver. Earlier this month, Mr. Kane sentenced an Iraq war veteran convicted of bribery to probation instead of prison.
Most U.S. courts don't have rules on giving veterans special consideration.... But in North Carolina, if a defendant was honorably discharged from the military, judges must use that fact as a mitigating factor at sentencing. And in several states, including Tennessee and Louisiana, courts have ruled that judges are allowed to use prior military service to lessen a sentence.
There are no special courts for veterans in the federal court system.... But momentum for special treatment is growing. Since last year, about 16 counties and cities -- from California's Orange County, to three cities in western New York, have started veterans courts, according to the National Association of Drug Court Professionals. Three counties in and around New York City launched similar programs in July, and state legislatures have approved the formation of such courts in places such as Harris County in Texas and the state of Nevada.
The goal of the courts, which serve veterans of any era, is to keep defendants out of prison. Veterans are put into treatment programs for war-related illnesses, among other problems, that aren't available in the prison system. Their probation includes rigorous drug testing. After veterans complete treatment, some prosecutors' offices drop the criminal charges as long as the veterans didn't have a prior felony conviction....
Some legal experts worry the movement could result in special consideration for all veterans, regardless of whether their criminal conduct was influenced by their military service. "What we think goes over the line is the creation of two separate systems based solely on somebody's status," says Allen Lichtenstein, the general counsel for the American Civil Liberties Union in Nevada. "Police are under particular stress -- should there be a court for them?"...
Taking military service into account at sentencing isn't a new tradition. In the Civil War era, members of the military were routinely shown leniency by judges, notes Carissa Hessick, a law professor at Arizona State University. During the World War II and Vietnam eras, certain judges allowed criminal charges to be dropped if defendants enlisted in the armed forces. That practice is no longer allowed.
Sympathy for new veterans aided John Brownfield of Cañon City, Colo. The former U.S. Air Force firefighter pleaded guilty to accepting a bribe as a public official for illegally selling tobacco to federal prison inmates while working as a correctional officer in 2007, two years after he returned from tours in Iraq and Afghanistan.
The federal prosecutor and Mr. Brownfield's lawyer agreed to recommend to the judge that he serve a year in prison. But the judge, Mr. Kane of Denver, instead ordered a psychiatric evaluation and earlier this month sentenced Mr. Brownfield to five years of probation.
In the Brownfield case, Judge Kane wrote a lengthy opinion explain his sentencing decision. The Brownfield opinion can be accessed at this link, and it starts this way:
I have written this sentencing memorandum, which is more extensive than most such findings and conclusions, because this case involves issues the Sentencing Guidelines do not address regarding the criminal justice system’s treatment of returning veterans who have served in Afghanistan and Iraq. As I conclude that the Sentencing Guidelines’ advice is not persuasive in the circumstances of this case, I will make specific findings necessary to achieve the purposes of 18 U.S.C. § 3553 (2006). This memorandum opinion will be published and copies provided to the United States Sentencing Commission pursuant to the implicit suggestion in Rita v. United States, 551 U.S. 338, 357-58 (2007).
Some recent related posts:
- "Judge suggests more sentencing options for war veterans"
- Can downloading of child porn be blamed on post-traumatic stress disorder?
- Prior military service as a sentencing mitigator gets a big boost from SCOTUS
- Should prior military service reduce a sentence?
UBS whistleblower complaining that he is only person headed to prisonReuters has this interesting new article previewing what sounds like an interesting upcoming segment of 60 Minutes. The piece is headlined "UBS whistleblower asks why he is going to prison," and here are excerpts:
The key informant in the U.S. tax fraud case against Swiss bank UBS AG says he does not deserve the federal prison term he is due to start serving next month, according to an interview to be broadcast on Sunday.
Bradley Birkenfeld, a 44-year-old U.S. citizen, has been hailed by whistleblower advocates and U.S. prosecutors alike as pivotal to the case against UBS, his former employer. The bank was targeted in a wide probe by U.S. authorities for helping U.S. tax cheats to hide assets in UBS accounts.
Speaking in an interview to be broadcast on CBS television's "60 Minutes" on Sunday, his first since he began providing insider information to U.S. prosecutors in the summer of 2007, Birkenfeld seems both angered and stunned by the fact that he is due to enter prison on January 8 for a 40-month term.
Birkenfeld was handed his sentence by a Florida district court judge in August, two days after U.S. and Swiss authorities signed a pact in which Switzerland agreed to reveal the names of about 4,450 wealthy American clients of UBS to U.S. tax investigators.
No other UBS bankers have been jailed in connection with the massive tax fraud case. Birkenfeld's former boss, a Swiss citizen and an alleged mastermind of the conspiracy, was detained in the United States in 2008 and held for four months on a material witness warrant before he was quietly allowed to leave the country. "I gave them the biggest tax fraud case in the world," Birkenfeld says in the interview, portions of which were released by CBS on Wednesday. "I exposed 19,000 international criminals and I'm going to jail for that?" he asks.
Birkenfeld pleaded guilty to a single fraud conspiracy count in June 2008, when he acknowledged helping his largest U.S. client hide assets from the Internal Revenue Service. In a claim disputed by Birkenfeld's lawyers in a December 7 letter to U.S. Attorney General Eric Holder, Justice Department officials say the jail time was justified because he was not initially forthcoming about the tax fraud committed by his billionaire U.S. client Igor Olenicoff.
In the "60 Minutes" interview, Birkenfeld, who says he was sometimes asked to "cater" to his U.S. clients by shopping for things like cars, chalets or expensive Swiss watches on their behalf, was reminded by journalist Steve Kroft that he was an enabler for people breaking the law. "And I am the only one going to prison. Out of 19,000 accounts and no Swiss bankers," Birkenfeld responds.