Tuesday, December 16, 2008
Another prominent white-collar defendant gets a big variance
As detailed in this early Bloomberg report, "Ronald Ferguson, the former chief executive officer of General Reinsurance Corp., was sentenced to two years in prison for helping American International Group Inc. deceive shareholders." Here are more details of what sounds like an interesting sentencing hearing:
Ferguson, 66, was the highest-ranking of five executives convicted for using a sham transaction in 2000 to help AIG improve its balance sheet. U.S. District Judge Christopher Droney in Hartford, Connecticut, also gave Ferguson two years of supervised release and ordered him to pay a $200,000 fine.
Droney, who ruled the fraud cost AIG shareholders as much as $597 million, could have sentenced Ferguson to life in prison. “We will never know why such a good man did such a bad thing,” Droney said. While Ferguson’s criminal conduct was “substantial,” he deserved leniency because of his history and character, the judge said. “I’ve never received such an outpouring for a defendant,” Droney said....
Ferguson deserved a “substantial” term, Assistant U.S. Attorney Eric Glover told Droney today, though he agreed that life “would not be appropriate.”...
Defense attorney Michael Horowitz asked Droney to impose “an unusually long period of supervised release or probation” that would allow Ferguson to work with the needy. Ferguson, who is studying to become an ordained minister, filed 379 letters asking for mercy and depicting him as decent, caring and honorable....
More than 30 Ferguson supporters filled the courtroom today. Among those who spoke was Andrew Henry, general counsel of Colgate-Palmolive Co., where Ferguson was a director from 1987 to 2005; Jill Ker Conway, the former president of Smith College; and Ferguson’s wife of 46 years, Carol. “I am begging you for mercy,” Carol Ferguson, who turned 66 yesterday, said to Droney. “I cannot imagine my life without Ron.” She said her husband’s message for the past 50 years has been that, “you should do the right thing, even when it hurts, even when no one is looking.”
Based on the determined loss amount, the guideline range in this case must have been decades, not merely years. (I heard one report that the PSR calculated a range for 14 to 17 years of imprisonment, and this Bloomberg report certainly suggests that the government was certainly asking for a lot more time than Judge Droney imposed.)
The prominence of the case, the amount of loss, the factors mentioned by Judge Droney, and the fact that Sentencing Commission Michael Horowitz represented Ferguson all add to the intigue and importance of this sentencing ruling for not just the defendant here, but also other prominent white-collar defendants. And I cannot help but speculate that all the pro-discretion rulings coming from the Second Circuit recently played a role in the willingness of Judge Droney to give relatively little weight to the lengthy sentencing term urged by the guidelines.
Some recent related posts:
- A thoughtful and theory-driven exploration of a parsimonious white-collar sentence
- En banc Second Circuit hands down Cavera, the "local conditions" sentencing case
- Second Circuit affirms (in unpublished opinion) greatly reduced white-collar sentence
- Noting the Second Circuit's approval of big white-collar sentencing break
UPDATE: As indicated in this comment and as now confirmed by another source, the guidelines were actually recommending a life sentence in this Ferguson case and the calculated offense level was 49, which is six levels higher than the highest recommended sentence. Yeah, right, year those federal sentencing guidelines sure are presumptively reasonable for non-violent first offenders. Hah!!
Friday, December 12, 2008
A thoughtful and theory-driven exploration of a parsimonious white-collar sentence
I am very pleased to conclude the week by posting a copy of a terrifically thoughtful district court sentencing opinion in a white-collar sentencing case. The ruling comes from Judge James Gwin in US v. Cole, No. 5:08-cr-00327 (N.D. Ohio Dec. 12, 2008) (available for download below). Among the opinion's many virtues is its extended discussion of the traditional theories of punishment that Congress set out in 18 U.S.C. § 3553. Here is how that discussion begins:
We have long understood that sentencing serves the purposes of retribution, deterrence, incapacitation, and rehabilitation. Deterrence, incapacitation, and rehabilitation are prospective and societal–each looks forward and asks: What amount and kind of punishment will help make society safe? In contrast, retribution imposes punishment based upon moral culpability and asks: What penalty is needed to restore the offender to moral standing within the community?
Federal sentencing law generally tracks these purposes. Section 3553 tells Courts to choose a sentence that reflects the seriousness of the offense (retribution), promotes respect for the law (retribution, general deterrence), provides just punishment for the offense (retribution), affords adequate deterrence to criminal conduct (general deterrence), protects the public from further crimes of the Defendant (specific deterrence, incapacitation), and provides the Defendant with needed training, care, and treatment (rehabilitation). 18 U.S.C. § 3553(a)(2). These four goals of sentencing will be addressed in turn.
Thursday, December 11, 2008
Noting the Second Circuit's approval of big white-collar sentencing break
The National Law Journal noticed the Second Circuit's important (though unpublished) sentencing work earlier this week as reported in this article, headlined "In Upholding Impath Exec's Sentence, 2nd Circuit Bolsters Discretion of Trial Judges." Here are snippets from an effective article:
In a decision important to high-dollar white-collar prosecutions, the 2nd U.S. Circuit Court of Appeals bolstered the broad discretion of trial judges to issue sentences far below, or far above, sentencing guidelines. The court Tuesday upheld the 42-month prison sentence of former Impath Inc. chief operating officer Richard Adelson, despite an 85-year sentence recommended by the guidelines. Federal prosecutors had appealed seeking more time for Adelson....
Around the country, federal judges have grappled with ways to calculate reasonable sentences for corporate criminals under the guidelines that say the higher the financial losses the longer the sentence. In securities cases market gyrations in the wake of news of corporate malfeasance can cost investors millions of dollars and increase potential criminal sentences.
"The Supreme Court has spoken several times on this issue but the courts of appeal never really got it, until now," said Mark S. Arisohn, of Labaton Sucharow in New York and Adelson's attorney. "The 2nd Circuit now recognizes that district courts have discretion to deviate from the guidelines, way up or way down, so long as the district court judge justifies that decision," he said....
U.S. District Judge Jed S. Rakoff called that a virtual life sentence and "patently unreasonable," of the sort reserved for Mafia dons and drug kingpins. In 2006, the same year Adelson was sentenced, the circuit upheld the 25-year sentence for ex-WorldCom Inc. chief Bernard J. Ebbers, based on an $11 billion fraud that sent WorldCom into bankruptcy.
"I don't know of any other cases out there where the difference between guidelines and actual sentence were so big," Arisohn said.... The ruling further bolsters the authority of federal judges to be guided by individual circumstances in white-collar cases involving large market losses, and set was is reasonable, rather than adhering strictly to a guidelines formula, according to Arisohn.
Some related posts:
- En banc Second Circuit hands down Cavera, the "local conditions" sentencing case
- Huge downward variance in white-collar case
- Second Circuit affirms (in unpublished opinion) greatly reduced white-collar sentence
Wednesday, December 10, 2008
Second Circuit affirms (in unpublished opinion) greatly reduced white-collar sentence
Regular readers and white-collar sentencing fans likely remember the memorable 2006 sentencing decision in Adelson (basics here, comments here right after the sentence was rendered). In Adelson, SDNY District Judge Jed Rakoff's granted an huge variance to a corporate president who faced a life sentence under the federal sentencing guidelines after a fraud conviction that resulted in $260 million in losses.
I just learned from a helpful reader that yesterday the Second Circuit rejected the government's appeal of this sentence (in this summary order), based largely on the strength of the Circuit's work last week in its en banc Cavera decision (basics here, comments here on Cavera). Here is the heart (indeed, virtually all) of the Second Circuit panel's explanation for why the way-below-guideline sentence in Adelson was reasonable:
In Cavera, we stated that, “we will continue to patrol the boundaries of reasonableness, while heeding the Supreme Court’s renewed message that responsibility for sentencing is placed largely in the precincts of the district courts.” Slip op. at 17. We further noted that for certain kinds of crimes, including — as relevant to the present case — various financial offenses, “a district court may find that . . . there is a wide variety of culpability amongst defendants and, as a result, impose different sentences based on the factors identified in § 3553(a).” Id. We explained that “[s]uch district court decisions, if adequately explained, should be reviewed especially deferentially.” Id.
This is just such a case. After adopting many of the calculations in the Presentence Report, the able district judge properly calculated Adelson’s total offense level and gave due consideration to the Section 3553(a) factors, including the nature, circumstances, and seriousness of the offense; the goal of deterring other potential offenders; and the history and characteristics of the defendant. After carefully considering those factors, the District Court sentenced Adelson principally to 42 months’ imprisonment, a sentence substantially below the applicable Guidelines range of life in prison, and also imposed an order of restitution of $50 million, payable to the company’s shareholders, and directed Adelson to forfeit $1.2 million in criminal proceeds. The Government argues that in doing so the District Court “discarded the Guidelines in favor of the District Court’s personal view of the seriousness of the offense,” resulting in “fail[ure] to give proper weight to the sentencing factors.” But the record demonstrates that the District Court’s decision to impose a below Guidelines sentence was not a failure or refusal to recognize the Guidelines, but rather a carefully considered reliance on the Section 3553(a) factors. In doing so, the District Court satisfied the requirements we described in Cavera, and we therefore affirm the sentence.
Tuesday, November 18, 2008
A birthday update for a high-profile federal defendant
As detailed in this CNN political post, today "may not be the happiest of birthday's for Ted Stevens. As the longtime Republican Senator from Alaska marks his 85th birthday, he's fighting for his political life." Here's more from this new AP articleabout Stevens' current status and his trials and tribulations:
Convicted Sen. Ted Stevens clung Tuesday to the hope that a climactic vote count in Alaska would buttress his argument to remain in Congress and fellow Republicans accommodated him by putting off a decision on his expulsion.
It was just another in a series of topsy-turvy days for the 84-year-old, six-term senator who has been straddling coast-to-coast challenges to his power. Notwithstanding all that turmoil, Stevens revealed that he will not ask President Bush to give him a pardon for his seven felony convictions....
"I wouldn't wish what I'm going through on anyone, my worst enemy," he lamented to reporters at one point. "I haven't had a night's sleep for almost four months, all right."
It was possible he'd know a lot more about the electoral fight back home in Alaska before the day was done. Election officials there resumed counting some 24,000 absentee and contested votes....
Many of Stevens GOP colleagues have called on him to resign, but Stevens plans to appeal his convictions.
Some recent related Stevens posts:
- Senator Stevens convicted on all counts
- Some sentencing questions after Senator Stevens conviction
- How should (and will) Senator Stevens' political past and future impact his sentencing?
- Will Senator Stevens pay at sentencing for election-related comments?
- As more Alaskan votes are counted, Senator Stevens may have more time to focus on sentencing issues
- Friday's news full of mixed blessings for Senator Ted Stevens
UPDATE: CNN provides this update election report: "Alaska Sen. Ted Stevens, the Republican lawmaker convicted on felony corruption charges in October, was defeated in his bid for re-election by Democrat Mark Begich, according to a release from Begich's campaign and unofficial results from state officials."
Monday, November 03, 2008
Insider trading leads to former UBS executive being inside prison for 78 months
As detailed in this Reuters story, a former UBS executive is going to have to deal with a whole different kind of insider trading for more than six years in federal prison:
A U.S. judge sentenced a former UBS AG executive to 6-1/2 years in prison on Monday for his role in what prosecutors called the most pervasive insider trading ring since the 1980s. Mitchel Guttenberg, a former institutional client manager in UBS' equity research department, admitted in a guilty plea in February to selling nonpublic information about the bank's stock recommendations.
In handing down the sentence, which includes three years of supervision after his release, Judge Deborah Batts of U.S. District Court in Manhattan said, "from the moment he joined the (UBS) investment review committee he planned to give that information to others to use illegally."
Batts did not fine Guttenberg, who expressed his remorse to his family, the court and his former employer. His lawyer Sean O'Shea described Guttenberg as "a broken man" whose wife had left him, and he was living in his sister's apartment.
Guttenberg was among 13 people, including former employees of Wall Street firms such as Bank of America Corp, Morgan Stanley and Bear Stearns Co Inc, who were criminally charged last year in an insider trading ring....
Guttenberg had pleaded guilty to two counts of conspiracy and four counts of securities fraud. He had faced 78 months to 97 months in prison under sentencing guidelines.
Ah... remember the '80s? Perhaps the decade is making a comeback...
Notable rulings on loss and other sentencing issues in AIG/Gen Re case
Thanks to a helpful reporter, I now have a copy of a notable sentencing ruling in a notable white-collar case out of Connecticut. This AP story provides the background:
A federal judge has ruled that shareholders of American International Group Inc. lost more than $500 million as a result of a scheme to manipulate the financial statements of the world's largest insurance company. The ruling Friday by Judge Christopher Droney means five former insurance executives convicted of the scheme could face up to life in prison under advisory sentencing guidelines.
Four former executives of General Re Corp. and a former executive of AIG were convicted in February of conspiracy, securities fraud, mail fraud and making false statements to the Securities and Exchange Commission. Prosecutors filed court papers citing a study by its expert, concluding the fraud-related losses to AIG shareholders totaled $1.2 billion to $1.4 billion. They cited another methodology by the expert that put the losses at $544 million to $597 million, but said either method is reasonable.
Droney rejected the higher estimate, but said the lower range was reasonable. That finding and a determination that the fraud affected more than 250 victims will increase the advisory guideline sentence range. The guideline range and a sentencing date have not been set yet.
The defendants challenged the estimate, saying there was no loss to investors....
A report by the probation department recommended sentences of 14 years to more than 17 years for each defendant.
The 21-page ruling in US v. Ferguson et al., No. 3:06CR137 (CFD) (D. Conn. Oct. 31, 2008), can be downloaded below:
Sunday, October 19, 2008
One criminal justice echo in the midst of the economic crisis
Various bloggers focused on crime and justice have been pondering how the recent economic crisis could impact criminal justice issues. Today's New York Times looks into some of these realities in this article, headlined "F.B.I. Struggles to Handle Financial Fraud Cases." Here is the lead:
The Federal Bureau of Investigation is struggling to find enough agents and resources to investigate criminal wrongdoing tied to the country’s economic crisis, according to current and former bureau officials.
The bureau slashed its criminal investigative work force to expand its national security role after the Sept. 11 attacks, shifting more than 1,800 agents, or nearly one-third of all agents in criminal programs, to terrorism and intelligence duties. Current and former officials say the cutbacks have left the bureau seriously exposed in investigating areas like white-collar crime, which has taken on urgent importance in recent weeks because of the nation’s economic woes.
Some recent related posts:
Friday, October 10, 2008
A first sentencing echo from the economic meltdown?
This new article from Corporate Counsel may reveal a first sentencing echo from some of the ugly doings on Wall Street. The piece is headlined, "Former Gen Re Lawyer Could Face Life in Prison: Federal prosecutors want Robert Graham to be sentenced to 230 years in jail for his role in a sham insurance deal with AIG," and here are excerpts:
Robert Graham, a former senior lawyer at General Re Corp., faces life in prison for doing what his defense attorney calls a "few hours work" on a fraudulent deal. Prosecutors want to sentence Graham to a "substantial" term -- up to 230 years behind bars -- for his role in a sham insurance deal with American International Group Inc. The government also wants Graham, who is 60, to pay millions of dollars in fines and restitution.
In February a U.S. district court jury in Hartford convicted Graham -- Gen Re's former assistant general counsel -- and four other executives of multiple counts of securities fraud. At a Sept. 25 sentencing hearing before Judge Christopher Droney, prosecutors argued that Graham should face a stiff penalty because he abused a position of trust and used his special skills and knowledge as a lawyer to further the fraud. The government is also asking for similarly harsh prison terms for three of Graham's co-defendants -- Ronald Ferguson, Gen Re's former CEO; Elizabeth Monrad, the company's ex-CFO; and Christian Milton, the former vice president of reinsurance at AIG.
The government arrived at the severe prison terms by using a formula in the federal sentencing guidelines which provides for steeper penalties as the amount of loss and number of victims rises. Prosecutors argue that the defendants deserve heavy sentences because more than 250 AIG investors lost at least $544 million from the fake deal with Gen Re. The defendants have countered with an expert who maintains that there was zero loss and no victims....
Graham's attorney, Alan Vinegrad, a New York-based partner with Covington & Burling, wouldn't comment for this story. But in a September court filing, Vinegrad argued that his client is the "least culpable" of the defendants, and that prosecutors are overstating the seriousness of his misconduct. Graham didn't initiate the scheme, didn't have control over the amount of loss, and didn't personally benefit from it, according to Vinegrad. Even without jail, the conviction will "wreak havoc with the remainder of Graham's professional and economic life," Vinegrad says in his 71-page reply....
White-collar defense attorney Michael Cornacchia, who is not involved in the case, says harsh sentences are due to "post-Enron hysteria," which led to sentencing guidelines based on factors like the amount of loss and number of victims. The proposed sentence for Graham "sounds draconian to me," says Cornacchia, a former Assistant U.S. Attorney and senior litigation counsel in the business and securities fraud section of the U.S. Department of Justice. If you take a life, Cornacchia adds, a life sentence is appropriate. "This is serious conduct, but it's not taking a life. This is stealing money," he says of Graham's conviction....
Given AIG's recent collapse, Graham's timing is nothing if not lousy. Because of the sham deal, AIG's longtime CEO Hank Greenberg was forced to resign in 2005. Prosecutors said in court that Greenberg initiated the deal, though he was never charged. After AIG agreed to pay $1.6 billion to settle state and federal investigations into the fake deal, the company's stock plummeted. Now, amid the financial crisis, U.S. taxpayers have had to bail out AIG with $122.8 billion in loans while AIG execs are being grilled in congressional hearings.
Thursday, October 09, 2008
One area in which bad times are good for business
Last week I asked in this post, "When will the latest economic crisis become a criminal justice story?". Today, the New York Law Journal is on this story with this new piece, headlined "Criminal Prosecutions Predicted to Surge Over Financial Crisis." Here is how the effective piece begins:
With public anger reaching a boiling point over plunging stock prices and Wall Street "greed," white-collar defense attorneys are preparing for an inevitable surge in criminal prosecutions.
Stanley S. Arkin, for one, said he expects that the anger, hysteria and economic dislocation fueled by "imprudent credit policies" will "inspire" indictments that would not have been brought in a "calmer and more dispassionate time." There is "an underlying popular sensibility in this country that someone has to pay for all the jobs lost and the savings extinguished," said Arkin, a partner at Arkin Kaplan Rice. "There's a lynching quality that arises in circumstances of extreme dislocation like this."
As I said before, this all suggests it may be an especially good time to "buy stock" in any law firm specializing in white-collar defense, and law students might want to sign-up ASAP for courses in White-Collar Crime and/or Federal Criminal Law and Sentencing.
In addition, all corporate attorneys with old business clients now fearing different kinds of legal problems ought to quickly study up on federal sentencing realities. As regular readers know well, the first executives to run to prosecutors and offer up information are likely the ones (and perhaps the only ones) who will escape severe consequences when indictments start rolling in.
Tuesday, September 30, 2008
When will the latest economic crisis become a criminal justice story?
Traditional economic markets rarely play a direct role in the criminal justice arena (though I believe punishment systems would be much improved if subject to rigorous cost/benefit analysis). But dramatic economic realities always become a criminal justice story in some indirect way, sometimes through crime-and-justice budget cuts in tough times (or excessive spending in good times), sometimes through increases in certain types of crimes because of market realities.
Consequently, I have little doubt that the current credit crunch will become a criminal justice story at some point; the real question is just when and how. On this basic topic, David Zaring over at the Conglomerate asks a fitting question in this new post, "Who Is Going to Jail for All of This?". Here is a snippet:
One of the rules of financial crises is that some business executives end up doing time after they happen. You can ask yourself if the punished executives are chosen through a fair process, whether other executives avoid prosecution for essentially the same conduct, and so on, but... but ex-post white collar tends to be part of the bureaucratic response....
Who is going to be the villain of this crisis, and who should lawyer up? It's pure speculation, but I think AIG is more likely to get Enronized than Lehman, and I suspect that Congress, quite hypocritically, will be baying for a little blood from Fannie and Freddie.
Put another way, this is probably a good time to "buy stock" in any law firm specializing in white-collar defense. Indeed, law students concerned about what the economic crisis could mean for large firm employment might want to sign-up ASAP for any courses offered in White-Collar Crime and/or Federal Criminal Law and Sentencing.
Tuesday, September 09, 2008
District judge rejects plea deal calling for only probation for billionaire
As detailed in this Los Angeles Times article, headlined "Judge rejects plea deal for Broadcom co-founder Henry Samueli," a federal district judge yesterday refused to accept the government's suggestion that a term of probation was sufficient in a high-profile white-collar case. Here are details from the LATimes article:
Suggesting that Broadcom Corp. co-founder Henry Samueli deserves to go to prison, a federal judge Monday rejected a deal with prosecutors that would have given the Orange County billionaire probation for lying to regulators about his role in an alleged $2.2-billion stock-option scam.
The government's allegations against Samueli, "if true, warrant a significant prison sentence," U.S. District Judge Cormac J. Carney wrote in an order delivered to Samueli, his attorneys and prosecutors at a hearing in Carney's Santa Ana courtroom. Under the terms of the plea agreement, Carney could only accept or reject the recommended sentence, not modify it.
The judge took aim in particular at an unusual provision in the plea accord calling for Samueli to pay $12 million to the government. The maximum fine under the charge to which Samueli agreed to plead guilty is only $250,000. "The court cannot accept a plea agreement that gives the impression that justice is for sale," Carney wrote. Accepting the agreement, he added, would "erode the public's trust in the fundamental fairness of our justice system."
Judge Carney wrote a thoughtful and detailed 22-page opinion explaining his decision, which can be accessed at this link. Fascinating stuff.
Wednesday, August 20, 2008
Tenth Circuit discusses loss, restitution and other white-collar issues of note
In a long opinion (108 pages!) covering lots of ground, the Tenth Circuit today in US v. Gallant, No. 07-1344 (10th Cir. Aug. 20, 2008) (available here), discusses a host of notable and important white-collar crime and sentencing issues. The sentencing discussion starts on page 58 of the slip opinion, and here is the court's summary of issues covered:
The government and all four defendants appeal aspects of the district court’s sentencing procedures and conclusions. The government’s primary argument is that the district court erred in calculating the amount of loss attributable to the defendants’ conduct for purposes of imposing an enhancement under § 2F1.1 of the Sentencing Guidelines. The defendants and the government also argue that the district court erred in imposing various other enhancements under the Guidelines. In addition, the government challenges the sentencing procedures employed by the district court and argues that the district court erred in failing to order restitution.
Friday, August 15, 2008
Important new white-collar opinion justifying below-guideline sentence
As effectively covered in posts from at New York Federal Criminal Practice and White Collar Crime Prof Blog, District Judge Frederic Block issued an important new sentencing opinion in the white-collar case of US v. Parris, No. 05-CR-636 (EDNY Aug. 14, 2008) (available for downloading below). The opinion is a must-read defies easy summarization, but this starting paragraph provides the basics:
I have sentenced Lennox and Lester Parris today to a term of incarceration of 60 months in the face of an advisory guidelines range of 360 to life. This case represents another example where the guidelines in a securities-fraud prosecution “have so run amok that they are patently absurd on their face,” United States v. Adelson, 441 F. Supp. 2d 506, 515 (S.D.N.Y. 2006), due to the “kind of ‘piling-on’ of points for which the guidelines have frequently been criticized.” Id. at 510.
Monday, July 21, 2008
A telling consequence of severe white-collar sentencing guidelines and the trial penalty
This intriguing new article available from law.com, headlined "Federal Judge Refuses to Accept Guilty Plea in Health Care Fraud Case," spotlights one of the many pernicious effects of severe white-collar sentencing guidelines and the extreme trial penalty that white-collar offenders routinely face if they contest their guilt. As the article explains, a white-collar defendant was prepared to plead guilty to an offense he many not have committed, surely because federal prosecutors told him he could face decades in prison if he went to trial and lost. Here are highlights from the start of the article:
After months of negotiations, Chi Yang agreed to plead guilty in connection with fraudulent sales made by his Dublin, Calif.-based biotech company. Even though he would admit to making a false statement, not fraud, Yang would still have to do prison time. He would also owe hundreds of thousands of dollars in fines and restitution.
Then the deal reached Oakland, Calif., federal Judge Saundra Armstrong. In what observers call a highly unusual move, Armstrong refused to accept Yang's plea. She raised questions last month about whether Yang actually committed all of the elements of the crime to which he agreed to plead. "It is not my practice to accept guilty pleas from people who are not guilty," Armstrong said, according to a transcript of the June 10 hearing.
Some recent related posts:
Should all "true" first offenders now get a sentencing discount in light of Gall and Kimbrough?
In the olden days when the federal sentencing guidelines were mandatory, the Supreme Court in Koon indicated that a district court departing downward from Criminal History Category I would "abuse its discretion by considering [a first offender's] low likelihood of recidivism [because the Sentencing] Commission took that factor into account in formulating the criminal history category." But now, of course, the guidelines are merely advisory. And Kimbrough strongly suggests that courts can and should look to research reports by the Sentencing Commission when deciding whether and when and how to vary from the guidelines. And in May 2004, in this interesting report titled "Recidivism and the 'First Offender'," the Commission highlights empirical data showing very low recidivism rates for what I would call "true" first offenders:
The analysis [of empirical data on re-offending] delineates recidivism risk for offenders with minimal prior criminal history and shows that the risk is lowest for offenders with the least experience in the criminal justice system. Offenders with zero criminal history points have lower recidivism rates than offenders with one or more criminal history points. Even among offenders with zero criminal history points, offenders who have never been arrested have the lowest recidivism risk of all.
These issues came to mind as I read closely the Sixth Circuit thoughtful work last week in US v. Duane, No. 06-6536 (6th Cir. July 17, 2008) (available here). At the very end of Duane, the panel had this nuanced discussion of these issues in a post-Booker world:
[T]he district court did not respond to Duane’s first argument — that he deserved a more lenient sentence because he had zero criminal history points. This was not a particularly strong argument given that Duane’s criminal history category was taken into account in determining his Guidelines range. But the argument was not completely frivolous. Because Duane had zero points at age 57, he might plausibly argue that even category I — which applies when a defendant has zero or one criminal history point(s) — overstated his criminal history to some degree. Although the district court would have ideally addressed this argument, we can hardly say that this failure alone constituted error in this case. Given that the district court imposed a within-Guidelines sentence, addressed the factors it found relevant, and addressed the majority of Duane’s arguments, we conclude that the district court did not err.
Though the Duane court does not reverse a within-guideline sentence for failure to consider low likelihood of recidivism for a "true" first offender, the panel's carefully discussion of this issue suggests district courts now have an obligation to address expressly these issues whenever a true first offender defendant urges a below-guideline sentence by saying he is very unlikely to even commit a crime again.
Indeed, defendants and defense attorneys can (and perhaps should) stress the USSC's own research to assert that proper application of 3553(a) in the case of a "true" first offender now virtually demands a below-guideline sentence. The argument would be that the considerations set forth in 3553(a)(2)(C) and in 3553(a)(6) are only properly acknowledged if and when a "true" first offender gets a lower sentence than the advisory range suggested for all the other persons with some criminal past that are lumped into Criminal History Category I.
Friday, June 27, 2008
Lawyer Scruggs gets smoked with five-year max prison term
As detailed in this local report, "Dickie Scruggs received the maximum 5 years in prison in $250,000 in fines for a crime Judge Neal D. Biggers Jr. called 'reprehensible'." Here are more details:
Scruggs faced a maximum sentence of five years but argued that he should be sentenced to 30 months. He pleaded guilty in March to conspiring in 2007 to bribe Circuit Court Judge Henry L. Lackey, who cooperated with federal investigators.
Biggers entered the courtroom at 10 a.m. sharp and it was soon obvious from what he said about the findings in the pre-sentencing report, that the judge would hand down a stiff sentence. He said, "There is no question in the court's mind that Mr. Scruggs, Mr. Richard Scruggs, was a leader and a planner (in the conspiracy). He has said he came into the scheme late. Regardless, he was the leader, he was the money man."
In fact, Biggers said Scruggs had entered into the scheme so easily that it made him wonder whether Scruggs had done such a thing before and indeed evidence indicates that he may have....
Biggers also questioned why Scruggs would be paying legal settlement fees to non-lawyers. He did not mention any names, but it was clear that he was referring to the elusive Delta businessman P.L. Blake, who expected, over the course of a settlement Scruggs reached with tobacco companies, to receive $50 million in fees.
Friday, May 16, 2008
Latest FSR issue focused on white-collar sentencing
I am pleased to report that, just in time for the start of the summer sentencing season, the latest issue of the Federal Sentencing Reporter focused on white-collar cases is now in print and also available here on-line. The issue is titled, simply enough, "White-Collar Sentencing."
FSR's publisher has kindly made the issue's terrific opening commentary by Mark Harris and Anna Kaminska, which is entitled "Defending the White-Collar Case at Sentencing," available for download for free here. The full contents of this latest FSR issue are listed below and can be ordered on-line here.)
- Mark D. Harris & Anna G. Kaminska, Defending the White-Collar Case at Sentencing
- Harry Sandick, Gall and Kimbrough and Their Relevance to Sentencing in White-Collar Cases
- Frank O. Bowman III, Sentencing High-Loss Corporate Insider Frauds After Booker
- Gabrielle S. Friedman, Kan M. Nawaday & Daniel M. Gitner, Challenging the Guidelines’ Loss Table
- Hector Gonzalez, Matthew D. Ingber & Scott A. Chesin, Is Booker a “Loss” for White-Collar Defendants?
- Peter J. Henning, Prior Good Works in the Age of Reasonableness
- Alexandra A.E. Shapiro & Nathan H. Seltzer, Measuring “Gain” Under the Insider Trading Sentencing Guideline Based on Culpability for the Deception
- Cheryl A. Krause & Luke A.E. Pazicky, An Un-Standard Condition: Restricting Internet Use as a Condition of Supervised Release
- Emily Barker, Brian Baxter, Alison Frankel & Nate Raymond, Progress Report: How the Justice Department’s Highest-Profile Corporate Fraud Cases Turned Out (reprinted from The American Lawyer)
- U.S. Sentencing Commission, 2007 Sourcebook of Federal Sentencing Statistics Tables
- Sentencing Memorandum in United States v. Thomas Coughlin, No. 06-20005 (W.D. Ark. Feb. 1, 2008)
Thursday, May 01, 2008
A (record-setting?) long white-collar sentence
This local report from Denver has me wondering whether a new record has been set for the longest white-collar federal sentence. Here are the basics:
U.S. District Court Judge Robert Blackburn sentenced a man to 330 years in prison Tuesday for his role in a $56 million investment scam from which proceeds were used to buy the Redstone Castle. At 72, it's unlikely Norman Schmidt, of Denver, will ever be released.
You gotta like the foresight of the reporter here, who thinks it "unlikely" that Schmidt will live until the year 2338 to get released. (Then again, with 15% good-time credit, Schmidt may be able to get out as early as the year 2289.) Silly numbers aside, here is what led to this extraordinary federal sentencing term:
Investigators believe Schmidt obtained tens of millions of dollars from hundreds of investors for his own personal gain. Schmidt was found guilty of conspiracy to commit mail fraud, wire fraud and securities fraud, plus other counts and a money laundering count. He and his wife, Jannice Schmidt, plus five others were indicted in 2004. Jannice Schmidt was recently sentenced to nine years in prison....
Schmidt worked with the others from 1999 to 2003 to defraud investors with a purportedly high-yield investment program. The group used "corporate alter-egos" named Reserve Foundation Trust, Smitty's Investments, Capital Holdings, Monarch Capital Holdings and Fast Track. They promised investors returns of 2 to 400 percent per month and even sent out false monthly statements, authorities believe.
This AP story indicates that a sentencing appeal is planned: "Schmidt's attorney, Thomas Hammond, said Wednesday he planned to appeal the conviction and sentence. 'To say that it is excessive is an understatement,' Hammond said."
Wednesday, April 30, 2008
The loss-culpability connection (or disconnect) in white-collar sentencing
Especially in the federal sentencing system, where the (now advisory) guidelines place so much emphasis on the concept of "loss," the relationship in white-collar sentencing cases between loss amounts and criminal culpability is an extremely important and largely under-examined topic in much of the caselaw and commentary. Fortunately, a soon-to-be-available new issue of the Federal Sentencing Reporter will be examining these issues at some length. And, even before this FSR issue becomes available, a new decision from the First Circuit, US v. Innarelli, No. 06-2400 (1st Cir. Apr. 29, 2008) (available here), addresses these matters briefly. As noted by AL&P, Innarelli covers lots of issues, but this passage struck me as especially notable:
[W]e focus our loss inquiry for purposes of determining a defendant's offense level on the objectively reasonable expectation of a person in his position at the time he perpetrated the fraud, not on his subjective intentions or hopes. Moreover, as already noted, it is immaterial that many of the victims actually incurred no loss. As the district court aptly stated, "[l]oss in a fraud case is a yardstick for moral culpability." Where, as here, the defendant reasonably should have expected that loss would result, he can and generally should be punished more severely to account for his greater level of moral culpability, even where the victim has managed to make money in spite of the fraud.
I have no quibble with enhancing a sentence because of a "greater level of moral culpability" reflected in the defendant's "objectively reasonable expectation" of what loss would result from a fraud. The problem I have is that defendants rarely get the converse sentencing discount when they completely lack a "greater level of moral culpability" but there are large actual loss amounts that were never intended or even objectively reasonable to expect as a result of a questionable and perhaps fraudulent business decision.