Tuesday, August 12, 2014
Eleventh Circuit finds probation sentence for public corruption substantively unreasonable
All federal sentencing fans and white-collar practitioners will want to be sure to check out a lengthy opinion today from the Eleventh Circuit in US v. Hayes, No. 11-13678 (11th Cir. Aug 12, 2014) (available here). This start to the majority opinion in Hayes highlights why the substance of the ruling is noteworthy:
“Corruption,” Edward Gibbon wrote more than two centuries ago, is “the most infallible symptom of constitutional liberty.” EDWARD GIBBON, THE HISTORY OF THE DECLINE AND FALL OF THE ROMAN EMPIRE, Vol. II, Ch. XXI, at 805 (David Womersley ed., Penguin Classics 1995) . And so, although unfortunate, it is perhaps not surprising that, even today, people continue to pay bribes to government officials with the expectation that they will make decisions based on how much their palms have been greased, and not what they think is best for the constituents they serve.
In this criminal appeal involving corruption in Alabama’s higher education system, we consider whether the district court abused its discretion by imposing a sentence of three years of probation (with a special condition of six to twelve months of home confinement) on a 67-year-old business owner who — over a period of four years — doled out over $600,000 in bribes to a state official in order to ensure that his company would continue to receive government contracts, and whose company reaped over $5 million in profits as a result of the corrupt payments. For the reasons which follow, we hold that such a sentence was indeed unreasonable.
Adding to the fun and intrigue of the ruling, Judge Tjoflat has a dissent that runs almost twice as long as the extended majority opinion. Here is how it gets started (with footnotes omitted):
I fully agree with the court that the sentence of probation Hayes received in this case of massive public corruption is shockingly low and should not have been imposed. In appealing the sentence, the Government treats the District Court as the scapegoat, as if placing Hayes on probation was all the court’s doing. The truth is that it was the Government’s doing. To ensure that Hayes was given adequate credit for cooperating in its investigation, the Government deliberately led the District Court to abandon the Sentencing Guidelines, which called for a prison sentence of 135 to 168 months, and then to ignore the Supreme Court’s explicit instructions, in Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007), on the procedure to use in fashioning an appropriate sentence. This set the stage for the court’s adoption of a fictitious Guideline range of 41 to 51 months and its creation of a downward variance to a sentence of probation.
In appealing Hayes’s sentence to this court, the Government deliberately avoids any discussion of the District Court’s procedural error. To the contrary, it accepts the fictitious Guideline range the court adopted. All it complains of is the variance from that fictitious range to a sentence of probation, arguing that it is substantively unreasonable. Because it invited the procedural error, which, in turn, led to the complained-of substantive error, the “invited error doctrine” precludes the Government from prevailing in this appeal. Yet the court fails to acknowledge that a procedural error has occurred. Instead, it assesses the substantive reasonableness of Hayes’s procedurally flawed sentence — something the Supreme Court prohibits — and thereby avoids the need to grapple with the Government’s invited error. I dissent from the court’s failure to invoke the doctrine and to send the Government hence without day.
In part I of this opinion, I briefly recount the facts giving rise to Hayes’s conviction and sentencing. In part II, I describe how the Guidelines are supposed to operate and will show how the Government and the District Court misapplied the Guidelines and set the stage for the sentence at issue. Part III outlines the role the courts of appeals play in reviewing a defendant’s sentence, pinpoints the procedural errors in this case, and explains why the invited error doctrine precludes the Government from capitalizing on its induced error and obtaining relief. Part IV concludes.
August 12, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
Sunday, August 10, 2014
Can wine fraudster reasonably whine that his sentence was not reduced given wealth of victims?
The question in the title of this post is prompted by this intriguing AP sentencing story about a guy who tried to get rich by selling very expensive (and sometimes fake) wine before its time to some very rich folks:
A collector was sentenced to 10 years in prison in New York Thursday for making bogus vintage wine in his California kitchen, and selling it for millions of dollars. In sentencing Rudy Kurniawan, 37, Manhattan U.S. District Judge Richard M. Berman said he wanted to send a message to others who might tamper with what people eat and drink. “The public at large needs to know our food and drinks are safe — and not some potentially unsafe homemade witch’s brew,” Berman said as he announced the prison term for Kurniawan. He also ordered him to forfeit $20 million and pay $28.4 million in restitution.
Kurniawan, an Indonesian citizen of Chinese descent, lowered his head as the judge explained the sentence and described Kurniawan’s quest as a “bold, grandiose, unscrupulous but destined-to-fail con.” Assistant U.S. Attorney Stanley Okula described Kurniawan as the “kingpin of counterfeiters,” a man who turned his Arcadia home into a laboratory where he poured wine into what appeared to be vintage bottles before attaching elegant fake labels and selling them for tens of millions of dollars.
“He did it to line his own pockets,” Okula told Berman, who concluded that Kurniawan had caused losses close to $30 million, primarily to seven victims. One of them was William Koch, a billionaire yachtsman, entrepreneur and wine investor. Koch testified at Kurniawan’s December trial, when Kurniawan was convicted of mail and wire fraud.
Before he was sentenced, Kurniawan twice apologized, saying “I’m really sorry” and expressing a desire to take care of his mother, who lives in California after receiving asylum....
His lawyer, Jerome H. Mooney, asked for leniency, saying his client got swept up in the thrill of mixing with California’s wealthiest people. “He was insecure, very insecure,” Mooney said. “He wanted to be them. He wanted to be part of it.”
Mooney said Kurniawan used some of his family’s fortune to buy $40 million of wine, eventually selling $36 million of it before he realized he could develop a business in which he created mixtures that tasted like the world’s greatest wines. He said Kurniawan’s victims were wealthy and aware that counterfeit wines were a frequent occurrence in the marketplace. “Nobody died. Nobody lost their savings. Nobody lost their job,” he said. The lawyer said the 2 1/2 years Kurniawan has served in prison was enough penalty, since he had lost everything and been branded a cheat.
Okula called the defense lawyer’s comments “quite shocking,” especially when he suggested that Kurniawan should get lenient treatment because he ripped off rich people rather than the poor. “Fraud is fraud,” he said.
Kurniawan was a connoisseur of counterfeiting who mastered label making, cork stamping, bottle waxing and recorking to create fake bottles of wine. Federal prosecutors said Kurniawan turned his California home into a wine factory. Restaurants sent him empty wine bottles, then he mixed together cheap wine and rebottled it as vintage wine. He also borrowed money against his collection of fake wines and owes a New York bank several million dollars....
For example, Kurniawan phonied up two bottles of 1934 Romanee-Conti and sold them for $24,000. A fake double-magnum of 1947 Chateau Petrus was auctioned for $30,000. “He made blends,” Downey said. “He was like a mad scientist.” But he made mistakes that raised eyebrows in the world of fine wine. Kurniawan put up for auction bottles of Clos Saint-Denis from the 1940s and 1950s even though the winery didn’t start producing that appellation until the 1980s.
Thursday, July 31, 2014
Sixth Circuit panel finds one-day prison sentence unreasonable for white-collar defendant
The Sixth Circuit today has reinforced its reputation as one of the circuits most likely to declare a below-guideline sentence unreasonable with a unanimous panel ruling in US v. Musgrave, No. 13-3872 (6th Cir. July 31, 2014) (available here). Because post-Booker appellate sentence reversals are rare, this relatively short opinion is a must read for everyone who following federal sentencing law and policy closely. In addition, at a time when debates over white-collar sentencing rules and practices remain hot, all those who follow white-collar crime and punishment will want to be sure to check out this opinion as well.
Here is how the Musgrave opinion starts and finishes:
A jury found Paul Musgrave guilty of one count of conspiracy to commit wire and bank fraud and to make false statements to a financial institution; two counts of wire fraud; and one count of bank fraud. The district court sentenced him to one day of imprisonment with credit for the day of processing — a downward variance from his Guidelines range of 57 to 71 months’ imprisonment and below the government’s recommendation of 30 months’ imprisonment. On appeal, the government asserts that Musgrave’s one-day sentence is substantively unreasonable. For the following reasons, we vacate the district court’s sentence and remand for resentencing....
A defendant’s sentence must reflect the seriousness of the offense, promote respect for the law, and provide just punishment. 18 U.S.C. § 3553(a)(2). In imposing a sentence, the district court must explain, based on permissible considerations, how its sentence “‘meshe[s] with Congress’s own view of the crimes’ seriousness.’” United States v. Peppel, 707 F.3d 627, 635 (6th Cir. 2013) (quoting United States v. Davis, 537 F.3d 611, 617 (6th Cir. 2008)). The collateral consequences of the defendant’s prosecution and conviction are “impermissible factors” when fashioning a sentence that complies with this directive. Peppel, 707 F.3d at 636. A district court’s reliance on these factors “does nothing to show that [the defendant’s] sentence reflects the seriousness of his offense. Were it otherwise, these sorts of consequences— particularly ones related to a defendant’s humiliation before his community, neighbors, and friends—would tend to support shorter sentences in cases with defendants from privileged backgrounds, who might have more to lose along these lines.” United States v. Bistline, 665 F.3d 758, 765–66 (6th Cir. 2012). Thus, when a district court varies downward on the basis of the collateral consequences of the defendant’s prosecution and conviction, the defendant’s sentence will not reflect the seriousness of the offense, nor will it provide just punishment. See Peppel, 707 F.3d at 636; Bistline, 665 F.3d at 765–66.
Impermissible considerations permeated the district court’s justification for Musgrave’s sentence. In imposing a sentence of one day with credit for the day of processing, the district court relied heavily on the fact that Musgrave had already “been punished extraordinarily” by four years of legal proceedings, legal fees, the likely loss of his CPA license, and felony convictions that would follow him for the rest of his life. “[N]one of these things are [his] sentence. Nor are they consequences of his sentence”; a diminished sentence based on considerations does not reflect the seriousness of his offense or effect just punishment. Bistline, 665 F.3d at 765. On remand, the district court must sentence Musgrave without considering these factors....
In the context of white-collar crime, we have emphasized that “it is hard to see how a one-day sentence” would “serve the goals of societal deterrence.” Davis, 537 F.3d at 617. “‘Because economic and fraud-based crimes are more rational, cool, and calculated than sudden crimes of passion or opportunity, these crimes are prime candidates for general deterrence.’” Peppel, 707 F.3d at 637 (quoting United States v. Martin, 455 F.3d 1227, 1240 (11th Cir. 2006)); see also Davis, 537 F.3d at 617.
Consideration of general deterrence is particularly important where the district court varies substantially from the Guidelines. See, e.g., Aleo, 681 F.3d at 300 (explaining that the greater the variance, the more compelling the justification based on the § 3553(a) factors must be). This is even truer here, given that the crimes of which Musgrave was convicted are especially susceptible to general deterrence and the fact that there is a general policy favoring incarceration for these crimes. Indeed, “[o]ne of the central reasons for creating the sentencing guidelines was to ensure stiffer penalties for white-collar crimes and to eliminate disparities between white-collar sentences and sentences for other crimes.” Davis, 537 F.3d at 617. More importantly, Congress understood white-collar criminals to be deserving of some period of incarceration, as evidenced by its prohibition on probationary sentences in this context. Id. Where a district court’s view of a particular crime’s seriousness appears at odds with that of Congress and the Sentencing Commission, we expect that it will explain how its sentence nevertheless affords adequate general deterrence. Id.; Camiscione, 591 F.3d at 834. The district court failed to do so here.
Musgrave must be resentenced. The district court relied on impermissible considerations and failed to address adequately how what amounted to a non-custodial sentence afforded adequate general deterrence in this context. Nevertheless, it bears repeating that “[w]hile appellate courts retain responsibility for identifying proper and improper sentencing considerations after Booker, it is not our task to impose sentences in the first instance or to second guess the individualized sentencing discretion of the district court when it appropriately relies on the § 3553(a) factors.” Davis, 537 F.3d at 618 (citing United States v. Vonner, 516 F.3d 382, 392 (6th Cir. 2008) (en banc)). The district court’s sentence is vacated, and the case is remanded for the district court, in its discretion, to impose a sentence sufficient but not greater than necessary to serve the § 3553(a) factors.
I view the main message of this Musgrave case, along with other cited cases in which the Sixth Circuit has reversed similar one-day sentences on appeal, that the Sixth Circuit generally believe that at least a short period of incarceration is nearly essential for any serious crime for which the guidelines recommend years of incarceration even if the defendant is a relatively sympathetic first offender not likely to re-offend.
July 31, 2014 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (0) | TrackBack
Friday, July 11, 2014
Second Circuit finds unreasonable probation sentence based on "cost of incarceration"
A helpful reader made sure I did not miss while on the road an interesting Second Circuit opinion in US v. Park, No. 13‐4142 (2d Cir. July 9, 2014) (available here), concerning reasonableness review and a sentenced reduced based on the cost of imprisonment. Here is the heart of one part of the per curiam panel decision:
After a review of the record, we conclude that the District Court committed procedural error in imposing a term of probation in lieu of imprisonment for two reasons. First, the only sentencing factor the District Court deemed relevant was the cost of incarceration to the government and the economic problems allegedly caused by the government shut‐down. As the Court clearly announced, “I am not going to put him in jail only because of the economic plight that we are facing today.” After emphasizing that its sentencing decision was based solely upon this consideration, the Court then rebuffed defense counsel’s suggestion to “supplement the record,” asserting, “[i]f we have to resentence him, we will later.” The Court also stated that if the Court of Appeals were to reverse, it would “consider all of these factors” at resentencing, clearly indicating that it did not consider the relevant factors in the first instance. The Court therefore committed procedural error by refusing to consider the § 3553(a) factors in deciding what is an appropriate sentence.
Second, and equally problematic, is that the cost of incarceration to the government—the Court’s sole justification for imposing a term of probation rather than incarceration — is not a relevant sentencing factor under the applicable statutes. We agree with the Eighth Circuit that, based on the plain language of § 3553(a), no sentencing factor can reasonably be read to encompass the cost of incarceration. Nor does the statute permit the sentencing court to balance the cost of incarceration against the sentencing goals enumerated in § 3553(a).
Park is a must-read for post-Booker sentencing fans because it includes lots of important phrases about both procedural and substantive reasonableness review. The Park opinion also talks up the importance of deterrence in one white-collar sentencing, noting "general deterrence occupies an especially important role in criminal tax offenses, as criminal tax prosecutions are relatively rare."
Wednesday, July 09, 2014
Former NOLA mayor Ray Nagin gets 10-year federal prison sentence for corruption
As reported in this New York Times article, "Ray Nagin, the former mayor of New Orleans, was sentenced to 10 years in prison on Wednesday on federal corruption charges, ending a case that began with the rebuilding of the city after Hurricane Katrina." Here are a few more more details of this high-profile federal sentencing:
The sentence was less than the recommended 15 years, but Judge Ginger Berrigan of United States District Court for the Eastern District of Louisiana told the court that the evidence failed to show that Mr. Nagin had organized or had been a leader of a corruption scheme....
Prosecutors objected to the sentence, a move that could set up an appeal. MOReaction was swift, and mixed. “I think that he got off lightly considering the violations of the public trust,” said Edward E. Chervenak, a political science professor at the University of New Orleans and a critic of Mr. Nagin during his eight years as mayor.
“I think he should have gotten more time,” says Michelle Alford, 37, a native of New Orleans and a hotel employee. “He did nothing to benefit the city. I think he should have gotten 20 years at least. I think it’s ridiculous. It’s ridiculous.”
Sunday, July 06, 2014
Interesting account of guidelines accounting facing former NOLA mayor at upcoming federal sentencing
This lengthy local article, headlined "Emotions aside, Nagin sentence likely to come down to math," effectively reviews some of the guideline (and other) factors likely to impact the federal sentencing of former New Orleans mayor Ray Nagin this coming week. Here are excerpts:
Under the rules, Nagin starts with a base “offense level” of 20 because he was an elected official who took multiple bribes but otherwise has no criminal history — facts that, with the jury verdict, are now undisputed.
The other major factors that will add points to his offense level include the financial “loss” the court assigns to his actions, the court’s judgment as to whether he was an “organizer or leader” in “criminal activity” that involved at least five people, and whether Nagin is found to have obstructed justice by lying to investigators and to the court.
There is some gray area in all of these questions. For instance, the monetary loss can be calculated to include not only bribes paid and received, but also the proceeds of any contracts that resulted from bribes. At a minimum, however, Berrigan will almost certainly find that the loss was greater than $200,000, as the jury convicted Nagin of taking more than that amount in bribes. That would bring his offense level to 32, but it could go significantly higher depending on whether Berrigan decides to include the profits of some or all of the contracts Nagin signed....
Experts say the question of financial loss is among the thorniest in calculating guidelines. The amount of bribes paid is an imperfect measure, for contracts awarded on the basis of bribes are presumed to be inflated to cover the cost of the payoffs. At the same time, the contractor usually completes the work outlined in the contract, making it unfair to count the entire value of the contract as a loss. In Nagin’s trial, the government did not present evidence to show that those who bribed Nagin failed to perform....
Other questions are similarly nuanced. If Berrigan finds Nagin obstructed justice by lying to investigators and to the jury, as prosecutors say he did on more than 25 occasions, the offense level would jump another two points. And if she finds he took a leadership role in a scheme involving five or more people, that would add as many as four more points. Though it’s clear that Nagin’s criminal conduct involved more than five people, experts say there may be wiggle room in that question, too....
Depending on how the judge rules on those questions, Nagin’s final offense level could be as low as 32, or as high as 40 or more. Based on those numbers, the guidelines would call for a sentence ranging from 10 years at the low end to as much as 30 years or even life. A filing by Nagin’s lawyer, Robert Jenkins, suggests that probation officers came up with an offense level of 38, which translates to a range of 20 to 24 years.
Jenkins asked Berrigan to consider a downward departure from that figure based on Nagin’s lack of a criminal history and an argument that the crimes of which he was convicted constituted “aberrant” behavior for an otherwise upstanding citizen. But prosecutor Matt Coman argued in an opposing motion that the guidelines already take into account the mayor’s unblemished past, which they do. Meanwhile, Coman said it was laughable to consider Nagin’s criminal conduct as an aberration, considering that he was convicted of multiple bribery and fraud schemes that unfolded over a period of years....
Apart from applying her own analysis of the guidelines, Berrigan also has some ability to go outside the recommended range, experts said. She could grant a “downward variance” on some basis she deems appropriate, provided that she explains it and the variance is not too great. Federal law spells out a number of factors a judge may consider, from the need to protect the public from further crimes to the deterrent effect of the sentence.
Saturday, July 05, 2014
High-profile ex-con (who is also an ex-Gov) eager to keep pushing for death penalty abolition
As reported in this AP article, headlined "Ex-Illinois governor Ryan wants to continue anti-death penalty work," the death penalty abolitionist community now has another high-profile advocate newly free to preach the gospel. Here are some excerpts from an interesting article:
George Ryan, an ex-Illinois governor and now an ex-convict, says he’d like to re-engage with the cause he left behind when he went to prison in 2007 — campaigning for the end of the death penalty in the U.S. “Americans should come to their senses,” Ryan said this week, in an hourlong interview at his kitchen table.
Newly free to speak after a year of federal supervision that followed his more than five years in prison for corruption, Ryan appeared to have recovered some of his old voice and feistiness, in contrast to the subdued figure that emerged a year ago from the federal penitentiary in Terre Haute, Ind., and ducked briefly into a Chicago halfway house.
At his home in Kankakee, south of Chicago, the Republican, 80, held forth on capital punishment, the state of American politics and the criminal justice system — though not the difficult details of his own corruption case.
He said he’d like to spend some time on the national circuit to encourage other states to follow Illinois’ lead in abolishing capital punishment. That move came in 2011 and stemmed from Ryan’s decision to clear death row in 2003. While he was treated as a champion by death penalty opponents at the time, he acknowledged some public figures now may have trouble openly associating with him. “I’m an ex-convict,” he said. “People tend to frown on that.”
Ryan, who was governor from 1999 to 2003, was indicted in 2003 and convicted in 2006 on multiple corruption counts, including racketeering and tax fraud. He said he does not plan to discuss the details of the criminal case — to which he always maintained his innocence — though he might in an autobiography he is writing....
He also lashed out at the U.S. justice system, calling it “corrupt” and bluntly contending that the fervor with which he was prosecuted was due in part to his nationally prominent campaign to end the death penalty. “It put a target on my back when I did what I did,” he said, adding that even prison guards derided and mocked him. “It certainly didn’t win me any favor with the federal authorities.”
It’s unclear whether Ryan’s re-emergence on the public scene will be welcomed. But at least one former federal prosecutor balked at Ryan’s contention that he may have been singled out because of his death penalty stance. “It’s absurd,” said Jeff Cramer, a former U.S. attorney in Chicago, noting that four of Illinois’ last seven governors have gone to prison. “It wasn’t his political stand that made him a target. It is what he did. ... He’s trying to rewrite history.”...
[Ryan] also expressed some sympathy for his Democratic successor, Rod Blagojevich, saying the 14-year prison sentence the former governor is serving in Colorado for trying to sell President Barack Obama’s old Senate seat and other pay-to-play schemes was excessive. The sentence is under appeal. “I wasn’t a fan” of Blagojevich, he said. “Irrespective, his sentence was out of line.”
But Ryan displayed the most passion while discussing capital punishment. Once a fervent advocate of the death penalty, he said he agonized about approving the last execution in Illinois before he issued a ban in 2000. “I killed the guy,” he said of the man who had raped, kidnapped and murdered a 21-year-old Elmhurst woman. “You can’t feel good about that.”
As he contemplated commuting all death sentences in 2003, he said he felt increasing pressure not to do it, including from one influential politician whom he remembers asking him directly not to spare one man convicted of murdering a friend’s daughter. After the commutations, Ryan said the politician never spoke to him again.
Sunday, June 29, 2014
Two new examinations of white-collar prosecutions and punishment schemes
Lucian Dervan has recently posted two notable new articles on white-collar crime and punishment on SSRN. Here are links to both articles and their abstracts:
Abstract: In this symposium article, Professor Dervan examines the issue of finality and sentencing. In considering this issue, he argues that prosecutors, defendants, and society as a whole are drawn to the concept of finality in various ways during criminal adjudications. Further, far from an aspirational summit, he argues that some outgrowths of this quest for finality could be destructive and, in fact, obstructive to some of the larger goals of our criminal justice system, including the pursuit of truth and the protection of the innocent.
Given the potential abstraction of these issues, Professor Dervan decided to discuss the possible consequences of our quest for finality through examination of specific cases. Therefore, the article examines five stories of white collar criminal prosecution. The five stories are ones in which the players sought to achieve finality in different ways and in which finality came in different forms. Despite their differences, however, the stories do share important commonalities.
First, the stories demonstrate that we must be careful not to value finality over accuracy. As an example, though plea bargaining offers both the prosecution and the defense a mechanism by which to reach sentencing finality, it must not be used to mask unfounded criminal cases or offer overpowering incentives to innocent defendants to falsely confess in return for a promise of leniency. Second, the stories remind us that the government must be careful not to confuse achieving a victorious sentencing finality with achieving a just one. Too often today, the government proceeds after indictment as though winning a sentence at any cost is worth any price. Third, the stories reveal that, in many ways, the quest for true finality in criminal cases is fleeting. While we have long been aware of the lingering collateral consequences present even after a sentence is concluded, we now must also recognize that even those who are acquitted face significant collateral consequences from indictment itself.
Abstract: Overcriminalization takes many forms and impacts the American criminal justice system in varying ways. This article focuses on a select portion of this phenomenon by examining two types of overcriminalization prevalent in white collar criminal law. The first type of over criminalization discussed in this article is Congress’s propensity for increasing the maximum criminal penalties for white collar offenses in an effort to punish financial criminals more harshly while simultaneously deterring others. The second type of overcriminalization addressed is Congress’s tendency to create vague and overlapping criminal provisions in areas already criminalized in an effort to expand the tools available to prosecutors, increase the number of financial criminals prosecuted each year, and deter potential offenders. While these new provisions are not the most egregious examples of the overcriminalization phenomenon, they are important to consider due to their impact on significant statutes. In fact, they typically represent some of the most commonly charged offenses in the federal system.
Through examination of the Sarbanes-Oxley Act of 2002 and examples of these two types of over criminalization within that law, this article seeks to understand whether new crimes and punishments really achieve their intended goals and, if not, what this tells us about and means for the over criminalization debate and the criminal justice system as a whole.
Thursday, June 26, 2014
Effective review of debate over federal fraud guidelines in preview of another high-profile insider trading sentencing
Newsweek has this lengthy and effective new article on federal fraud sentencing, headlined "Nonsensical Sentences for White Collar Criminals," which seems prompted in part by the upcoming sentencing of hedge fund trader Mathew Martoma of SAC Capital Advisors LP following his conviction of insider trading. Here are a few excerpts:
[A]s the government’s probation department recommends a sentence [for Martoma] that would be the longest ever for insider trading — anywhere from 15 to 20 years — U.S. judges, federal public defenders, the U.S. Sentencing Commission, the U.S. Department of Justice and the American Bar Association are increasingly calling into question the nation’s sentencing guidelines, which, in the words of one federal judge, “are just too goddamn severe.”...
The biggest quibble judges have with white-collar sentencing guidelines is the fact that prison terms are heavily weighted toward how much money is made or lost on a financial crime, regardless of the circumstances of the offense, whether it is insider trading, embezzlement, a Ponzi scheme or some other type of financial fraud....
The problem, says federal Judge John Gleeson, who represents the Eastern District of New York City, has built up over time, as congressional directives and statutes—often pushed by public pressure to treat offenders more aggressively and rigorously—have acted as what he calls a “one-way ratchet,” boosting the austerity and length of sentences ever higher....
The concerns come at a time when insider-trading cases — a subsection of the U.S. Sentencing Commission’s broader financial fraud category — have nearly tripled over the past three years (2011 to 2013), compared with the prior three years (2008 to 2010), according to commission data.
In sum, insider-trading cases are on the rise, with the money involved and the prison sentences growing even as judges continue to abandon federal sentencing guidelines to minimize sentences they believe to be too punitive. Sentences are “diverging, that’s for sure, and, to some extent, that reflects an absence of respect for the guidelines,” Gleeson says.
Tuesday, June 24, 2014
How SCOTUS Halliburton ruling could have white-collar sentencing echoes
Experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) sent me an intriguing set of insights about how yesterday's Supreme Court ruling yesterday in Halliburton v. Erica P. John Fund (available here) could possibly impact some white-collar sentencing arguments. Mark kindly allowed me to reprint his analysis here:
White collar defense practitioners should be aware of today’s ruling in in Halliburton v. Erica P. John Fund. While a civil class action case, Halliburton may have some helpful applicability at sentencing.
The Court in Halliburton has expanded the application of Basic Inc. v. Levinson, 485 U. S. 224 (1988) regarding WHEN plaintiffs can prove damages in “fraud on the market cases” from a defendant’s misrepresentation. In Basic the Court, held that a class of plaintiffs could prove reliance of a defendant’s misrepresentation by “invoking a presumption that the price of stock traded in an efficient market reflects all public, material information—including material misrepresentations.” The presumption effectively allows plaintiffs to side-step proof of actual reliance on any misrepresentations for purposes of establishing damages. Without class certification, however, individual plaintiffs cannot invoke the presumption thereby making proof of damages far more difficult. The Court held that, contrary to the Fifth Circuit, Defendant/Petitioner Halliburton could introduce evidence that any misrepresentation lacked “price impact” to prevent certification of the class.
Halliburton could be helpful in securities fraud sentencing cases inasmuch as the government usually lumps all the victims together to determine a collective “loss” for sentencing purposes without introducing any evidence that any particular victim (save for those few who may have testified at any trial) relied on any misrepresentations of the defendant. Such a collectivization of victim losses, therefore, implicitly invokes the Basic efficient market presumption allowing the government to side-step having to prove reliance by any particular victim. But just as the Commission’s (relatively new and untested) modified recissory method for calculating loss in securities fraud case is subject to rebuttal, so too is the Basic presumption. In light of today’s ruling in Halliburton, counsel should consider providing the Court evidence that any misrepresentation by the defendant lacked “price impact” on the victims sufficient to overcome the de facto Basic presumption with respect to collective victim losses. In this way, the Government would be required to provide evidence how individual victims relied on any misrepresentations.
To be sure, unlike in sophisticated civil class actions that require precision, since determining loss at sentencing need only be a reasonable estimate, only those victims that would materially affect the loss amount should not be granted the Basic presumption; in those cases the Government would be required to prove reliance. But this is as it should be inasmuch as years if not decades of your client’s life could be at stake.
Monday, June 23, 2014
SCOTUS rules against defendant concerning required bank fraud intent in Loughrin
The Supreme Court this morning handed down a quasi-unanimous ruling in a federal bank fraud case this morning in Loughrin v. US, No. 13-316 (S. Ct. June 23, 2014) (available here). I call the ruling only quasi-unanimous because a few Justices only concurred in part with the opinion for the Court. Here is the vote break-down:
KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ., joined, and in which SCALIA and THOMAS, JJ., joined as to Parts I and II, Part III–A except the last paragraph, and the last footnote of Part III–B. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, in which THOMAS, J., joined. ALITO, J., filed an opinion concurring in part and concurring in the judgment.
And here is how Justice Kagan's opinion for the Court in Loughrin gets started:
A provision of the federal bank fraud statute, 18 U. S. C. §1344(2), makes criminal a knowing scheme to obtain property owned by, or in the custody of, a bank “by means of false or fraudulent pretenses, representations, or promises.” The question presented is whether the Government must prove that a defendant charged with violating that provision intended to defraud a bank. We hold that the Government need not make that showing.
Tuesday, May 27, 2014
Fascinating research on federal mortgage fraud prosecutions and sentencing in Western PA
I am pleased and excited to have learned over the long weekend that the Pittsburgh Post-Gazette and the Duquesne University School of Law collaborated on an innovative Fact Investigations class, led by associate professor and Criminal Justice Program director Wesley Oliver, to study the modern work of Western Pennsylvania's federal prosecutors in response to modern mortage fraus. As explained in this first article of a series about this work, this group "identified 144 prosecutions alleging mortgage-related crimes in the Pittsburgh area ... [and then] analyzed 100 prosecutions in which sentence had been pronounced and for which the federal sentencing guidelines could be discerned." Before getting into the findings, I want to heap praise on everyone involved in this project because it shows what valuable work can be done when law schools and traditional media team up to examine intricate and dynamic issues concerning the federal criminal justice system.
Here, from the start of the first article in the series, are the basic findings of this terrific project:
In 2008, as the housing market dragged the world economy down, orders came from Washington, D.C., to federal prosecutors nationwide: Bust the people whose lies contributed to the mess.
Six years later, the effort by Pittsburgh's federal prosecutors to punish fraudulent mortgage brokers, appraisers, closing agents, property flippers and bank employees can claim 144 people charged, more than 100 sentenced and no acquittals.
That undefeated record, though, came at a price: Some of the worst offenders got extraordinary deals in return for their testimony against others.
A review by the Pittsburgh Post-Gazette and Duquesne University School of Law students of 100 completed cases showed that the sentences of mortgage-related criminals in the Pittsburgh area were driven more by their degree of cooperation with prosecutors than by the number of people they scammed, the dollars they reaped or the damage they did to the financial system. Some of the most prolific offenders used their central places in the fraud conspiracy to secure light sentences.
• Leniency for cooperation was doled out liberally. At least 30 of the 100 defendants were the beneficiaries of prosecutorial motions to reward "substantial assistance" to the investigation. That cooperation rate is nearly double that seen in fraud cases nationwide, suggesting that prosecutors here rewarded more defendants than normal.
• Most of the mortgage criminals who assisted prosecutors got no prison time, and the average amount of incarceration for those 30 defendants was a little more than three months. By contrast, defendants who pleaded guilty but didn't provide substantial assistance to prosecutors, got average sentences of three years in prison. Those few who went to trial faced an average of 6½ years behind bars.
• Several of the figures most central to the region's mortgage fraud problem cooperated with prosecutors, and got non-prison sentences. For instance, Kenneth C. Cowden, formerly of McKees Rocks and now of Florida, performed unlicensed appraisals that exaggerated real estate values in the region to the tune of hundreds of millions of dollars. He cooperated and got nine months in a halfway house. Jay Berger of Fox Chapel, who recruited Cowden and lived lavishly from fraudulent mortgages, was sentenced in 2012 to 15 months in prison, but died this month at age 49 without serving time.
Here are links to all the article in the series:
- Mortgage fraud assault a Pyrrhic victory
- Rewards uneven in mortgage fraud cases
- She fought charges, got 10-year term
- Pleading guilty could cut defendant's sentence
Regular readers will not be at all surprised to hear me say that I view this terrific bit of investigative journalism as further proof that those who are really concerned about suspect disparities in federal sentencing ought to be much more focused on the application of (hidden and unreviewable) prosecutorial sentencing discretion than about the exercise of (open and reviewable) judicial sentencing discretion.
May 27, 2014 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack
Sunday, May 18, 2014
Identifying better DOJ prosecutorial priorities than low-level drug crimes
Perhaps the main reason I am a supporter of the Smarter Sentencing Act is my desire to have Congress send an important message about federal criminal justice priorities to the US Justice Department and others through a relatively modest revision of existing mandatory minimum sentencing provisions. Notably, the preamble to the SSA makes express mention of this goal, describing the purpose of the Act as designed to "focus limited Federal resources on the most serious offenders." By reducing (though not eliminating) mandatory minimums for various drug crimes, Congress would be effectively saying that federal prosecutors ought not prioritize federal prosecutions of first offenders who may have been involved in dealing only a few ounces of crack or meth or heroin.
Critically, under current law and after the SSA were to become law, if and whenever a drug offender has even a single prior drug offense or just possesses a firearm or causes any significant bodily harm, additional heightened mandatory sentences kick in. Thus, the only drug dealers likely to benefit significantly from the SSA are true first-offenders who deal only a few ounces of crack or meth or heroin. I feel confident that major dealers, repeat dealers, and those who use or threaten violence will still be a priority for federal prosecutors after passage of the SSA, and that the feds will still have plenty of prosecutorial tools to take down serious drug traffickers. And by making sure that lengthy prison terms are mandated only for the most serious offenders, federal prosecutorial and corrections resources can and should be better focused on other crimes, especially crimes that only federal prosecutors can effectively and efficiently prosecute.
What kinds of other crimes, you might ask, would I want federal prosecutors to prioritize over going after first offenders involved in dealing only a few ounces of crack or meth or heroin? Helpfully, old pal (and forner federal prosecutor) Bill Otis in a pair of new posts over at Crime & Consequences identifies two classes of federal fraud and corruption that ought to be a signal concern for federal prosecutors. Here I will provide links and highlights from these two posts:
A New Prosecution Priority for DOJ: "The lead story in the Washington Post today reports that possibly a million applicants for Obamacare subsidies may have 'misstated' their income.... DOJ should not allow something like that to happen again. Whether one loves Obamacare or hates it, no one has the right to bilk it by cheating. A few hundred highly publicized false statement prosecutions would go a long way toward keeping applicants honest and, therefore, keeping the program as solvent as it's going to get."
Another Prosecution Priority for DOJ: "My last post suggested that the Justice Department prosecute at least some of the thousands of Obamacare applicants who have intentionally falsified statements of their income in order to bilk the taxpayers for even more than they're being bilked out of already. There is second priority I would suggest for DOJ examination -- a priority that, it seems, the Department may have taken up. As the New York Times reports: 'The Department of Veterans Affairs' inspector general is working with federal prosecutors who are trying to determine whether criminal violations occurred at a medical center in Phoenix accused of falsifying data or creating secret waiting lists intended to hide months long delays for veterans to see doctors, a top official told a Senate committee on Thursday.'"
I suspect Bill would be quick to assert that the federal government in general and DOJ in particular has plenty of resources to keep going after all drug offenders and to now start going after Obamacare cheats and federal executive branch liars. Though it is surely true that federal prosecutions are not a zero-sum game, the fact remains that the sentencing laws on the books necessarily serve to structure and greatly influence the exercise of prosecutorial discretion for this Administration and others. Plus, state prosecutors can (and still do) go after low-level (and high-level) drug dealers, whereas state prosecutors cannot go after after Obamacare cheats and federal executive branch liars.
In short, I heartily endorse Bill's suggestion that AG Holder and his prosecutorial agents start going after Obamacare cheats and federal executive branch liars. And that endorsement of DOJ prosecutorial priorities provides an additional reason for my support of the SSA and its effort to reorient federal prosecutorial priorities accordingly.
Some prior posts about the SSA and debates over federal sentencing reform:
- Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote
- Are "hundreds of career prosecutors" (or mainly just Bill Otis) now in "open revolt" over AG Holder's support for the Smarter Sentencing Act?
- Forecasting the uncertain present and future of federal legislative sentencing reform
- House Judiciary Chair suggests Smarter Sentencing Act still facing uphill battle on the Hill
- Effective Heritage analysis of federal MMs and statutory reform proposals
- Significant collection of significant former federal prosecutors write to Senators to oppose SSA
- Another notable letter expressing opposition to SSA ... on US Senate letterhead
- How do we reconcile Senator Jeff Sessions' vocal support for the FSA and strong opposition to the SSA?
Friday, May 16, 2014
Federal judge splits the difference in sentencing former SAC money manager to 3.5 years
As reported in this Wall Street Journal article, a federal district judge in a high-profile white-collar sentencing today imposed a prison term roughly half-way between what federal prosecutors and the defense sought. Here are the basics:
A federal judge sentenced former SAC Capital Advisors LP portfolio manager Michael Steinberg to three and a half years in prison Friday, saying he hoped Wall Street would learn from this case. The term was well below what prosecutors had sought.
U.S. District Judge Richard Sullivan called the former senior SAC employee "a basically good man," citing evidence of his character supplied in 68 letters sent by his family and friends. But he also pointed to the seriousness of Mr. Steinberg's insider trading. "They are crimes that go to the heart of living in an honest society and having a market system," he said during a hearing in Manhattan federal court. Wall Street, he hoped, would "derive lessons."
Mr. Steinberg, 42 years old, is SAC's most senior former employee to be convicted of insider trading. Prosecutors had asked for a sentence of 5¼ to 6½ years to send a strong deterrent message to the market. Mr. Steinberg's lawyers had requested less than half that amount.
Mr. Steinberg was convicted in December on four counts of securities fraud and one count of conspiracy for trading on confidential information, handing prosecutors the first verdict from a federal jury to back up their allegations that there was insider trading at SAC. There is a chance Friday's sentence won't stick. A pending appeal in a related insider-trading case could bolster Mr. Steinberg's chances to overturn his conviction.
Wednesday, May 14, 2014
"Federal Judges Are Cutting Rich Tax Cheats Big Sentencing Breaks"
The title of this post is the headline of this lengthy and interesting new piece at Forbes by Janet Novack. Here are excerpts:
Increasingly, federal judges are going easy on tax cheats, or at least easier than the U.S. Sentencing Commission’ s guidelines say they should. The trend has been quietly building since 2007, but was given a high profile Forbes 400 face in January when a Chicago federal judge let billionaire H. Ty Warner off with probation for hiding as much as $106 million in UBS AG and a smaller Swiss bank for more than a decade and evading at least $5.5 million in tax on his secret accounts. According to the sentencing guidelines, the 69-year-old Warner, who made his fortune by creating Beanie Babies, should have gotten 46 to 57 months in the federal pen. Prosecutors have appealed Warner’s sentence, asserting, among other things, that the judge was unreasonably impressed by his “not so extraordinary” charity and by gushing letters from employees, and business associates....
[I]n 2005, the Supreme Court ruled in U.S. v Booker that the guidelines were merely advisory. Subsequent Supreme Court and appellate decisions have made it clear that trial judges have broad discretion to depart from the guidelines and will only be overturned if they’ve failed to properly consider the guidelines or their decision is clearly unreasonable. “Once they make the noises about calculating the guidelines, they can come up with their own numbers, and they can base it on anything they want,” says Scott A. Schumacher, a professor at University of Washington Law School who has written a new paper on tax-sentencing post-Booker that is being published in the Villanova Law Review. While the percentage of all sentences that fall within the guidelines has steadily declined since Booker, the change in tax sentences has been particularly dramatic, he adds.
For example, in fiscal 2013, judges gave below guideline sentences, without buy-in from prosecutors, to 45% of those sentenced for tax crimes, but just 28% of those sentenced for embezzlement; 26% of those sentenced for fraud; and 22% of those sentenced for forgery or counterfeiting. (Another 20% of tax offenders got sentence reductions which prosecutors sponsored, usually as a reward for providing “substantial assistance” to the government.)
While the light sentencing of some offshore cheats has gotten attention, the larger leniency-for-tax crimes trend has been mostly obscured by Internal Revenue Service reports, which show the average prison term for “tax and tax related crimes” rising from 21 months in 2004 to 31 months in 2013. The IRS numbers, however, are skewed by the long prison sentences (some more than 10 years) being meted out to those convicted in the recent epidemic of identity theft refund fraud — a crime Kathryn Keneally, U.S. Assistant Attorney General for the Tax Division described at an American Bar Association Tax Section meeting last week as “more like street crime.”
The Sentencing Commission’s statistics, by contrast, count only pure tax crimes and not those in which identity theft, public corruption, drug dealing or some other charge is considered the primary offense and tax evasion is thrown in. By the USSC’s figuring, the average sentence for a tax convict last year was just 14 months, with a median of 12 months. In those cases where sentencing judges handed out a downward departure citing the Booker decision, the commission’s data shows, the median sentence was cut by 78.5%; in such cases the most lenient within-guideline sentence would have been a median of 16 months and the lucky convicts got a median sentence of just four months. (A side benefit: such short sentences can be served in community facilities, instead of the federal pen.)
Surprisingly, the average sentence for tax crimes hasn’t changed much, even as the percentage of tax cheats getting a sentencing break has risen. The likely explanation is found in the way the sentencing guidelines work, ratcheting up prison terms as the amount of tax the government was cheated out of rises. As prosecutors have focused more on wealthier tax cheats and bigger dollar cases involving both onshore and offshore evasion, the sentences tax offenders are supposed to get have risen too. Last Friday, for example, a federal judge sentenced Patricia Hough, a 67-year-old Fort Myers, Fla. psychiatrist, to 24 months in jail. That might sound like a lot, except her guideline sentence was 80 to 100 months....
These days, sentencing judges routinely give lip service to that need for general deterrence, but still seem sympathetic to the argument that by being prosecuted, individual defendants have already suffered more than their chiseling peers. In offshore cases, defendants’ lawyers never fail to point out that tens of thousands of people (the last count released by the IRS was, 43,000) with undeclared foreign accounts have escaped prosecution through the Offshore Voluntary Disclosure Program....
Sentencing judges also tend to be sympathetic to other arguments typically made by wealthy and successful convicts: that they have given a lot to charity; have already been publicly humiliated; have paid heavy fines (in Warner’s case a $53 million penalty for failing to file required reports of Foreign Bank and Financial Accounts ); and even that they are simply too valuable as either job creators or community volunteers to be sitting in jail. Chicago Federal District Court Judge Charles P. Kocoras, before giving Warner probation, cited all those considerations....
[S]ince the Supreme Court’s Booker decision, only one tax sentence has been reversed on appeal. In that case a sentencing judge gave probation to Frederick L. Engle, who had evaded his taxes for 16 years using shell corporations. According to sentencing guidelines, he should have gotten 24 to 30 months. The sentencing judge’s stated reason for the leniency was that Engle, a high earning sales rep for shoemaker Nine West who had relationships with Wal-Mart, Target and J.C. Penny, would be able to earn good money to pay back the IRS if he was kept out of jail and allowed to travel abroad.
In overturning the sentence, a three judge panel of Fourth Circuit Court of Appeals wrote: “Reduced to its essence, the district court’s approach means that rich tax-evaders will avoid prison, but poor tax-evader will almost certainly go to jail. Such an approach, where prison or probation depends on the defendant’s economic status, is impermissible.”
After Engle failed to appear for his new sentencing hearing and continued to evade tax, he was sentenced in absentia to 60 months in jail. When U.S. Marshals caught up with him, he got an additional year for failure to appear. Now 73, Engle is serving his time at the Butner, N.C. federal correctional institution and is not scheduled for release until October 2015.
Tuesday, May 13, 2014
Corruption nets former Israeli prime minister a six-year prison sentence
As reported here via CNN, Israel's former "Prime Minister Ehud Olmert was sentenced Tuesday to six years in prison for taking bribes while mayor of Jerusalem." Here are more details concerning this high-profile crime and punishment from the promised land:
Olmert was also fined 1 million shekels (about $289,000), Israeli state radio IB reported.
Olmert was convicted in March of receiving about $161,000 in bribes related to a controversial Jerusalem housing project called Holyland. The judge acquitted Olmert on a third count of bribery. The developer of Holyland, Hillel Cherney, had been previously convicted of bribing Olmert and other high-level officials in exchange for Holyland approvals.
Olmert was mayor of Jerusalem from 1993 to 2003. Olmert, an attorney who in 1973 became the youngest person ever elected to Israel's parliament, the Knesset, served as prime minister from 2006 to 2009. He announced his resignation shortly after police recommended corruption charges against him.
In August 2012, he was convicted of breach of trust and acquitted on two corruption-related charges after a trial that lasted nearly three years. He was given a 3-month suspended jail sentenced and fined about $19,000 in that case....
Prosecutors accused him of double-billing government agencies for travel, taking cash from an American businessman in exchange for official favors and acting on behalf of his former law partner's clients.
Sunday, May 11, 2014
Feds call probation sentence given to Beanie Babies billionaire substantively unreasonable
As detailed in this Chicago Tribune article, federal prosecutors have filed their merits brief with thr Seventh Circuit complaining about the probation sentence given to the billionaire creator of Beanie Babies after he pleaded guilty to hiding at least $25 million from U.S. tax authorities in Swiss bank accounts. Here are some details of the filing:
The U.S. government on Friday appealed the sentence of billionaire Ty Warner, the Beanie Babies creator who recently received two years' probation for tax evasion.
In January, U.S. District Judge Charles Kocoras rejected calls from prosecutors that he sentence Warner to a prison sentence of at least a year for failing to pay income taxes on millions of dollars that he hid for years in Swiss bank accounts. Kocoras said he was swayed by letters detailing Warner's acts of kindness in giving him probation instead of prison.
The government's appeal on Friday said Kocoras gave too much weight to Warner's charitable acts, considering his wealth and that many of the letter writers were current or former employees....
In a court filing on Friday, prosecutors said the district court judge's ruling was "substantively unreasonable" and that Warner's sentencing should have served as a punishment and deterrence. It also said Warner's sentence provided "unwarranted sentencing disparities" as others have been treated more harshly for tax evasion....
It also said Warner's claim that he donated $140 million to charity was overstated because the figure included the retail value of Beanie Babies he had donated. A more accurate reflection of the cost would have been $36 million, the government said. The government also estimated that Warner's charitable contributions amounted to 2 percent of his net worth -- "a not extraordinary" amount.
A spokesman for Warner said it was unfortunate that "the government is spending resources to challenge a well-reasoned and careful sentence issued by a well-respected judge."
The government filing said the founder of Ty Inc. hid $100 million in Swiss bank accounts, refused to report $24 million of it to the Internal Revenue Service, and evaded $5.5 million in taxes. At the time of his sentencing, his net worth was $1.7 billion.
Critically, though not mentioned in this article and likely not stressed in the government's appeal, in In addition to probation, Judge Kocoras ordered Warner to do 500 hours of community service at Chicago high schools, and Warner had already previously agreed to pay $27 million in back taxes and interest, and a civil penalty of more than $53 million. Though the absence of any prison time surely bothers the feds and has prompted this appeal, the fact that Warner's foolish bit of tax dodging has already seems to have cost him more ten times the taxes he sought to evade strikes me as punishment enough. For these sort of economic crimes, I tend to think an expensive economic punishment is more efficient and effective than prison time. But, obviously, federal prosecutors do not agree. And it will be interesting to see what the Seventh Circuit will have to say ultimately.
Prior related posts:
- You be the federal judge: what sentence should the Beanie Babies billionaire get for tax evasion?
- Feds to appeal probation sentence given to tax-dodging Beanie Babies billionaire
Monday, April 28, 2014
Curious SCOTUS cert calls in criminal cases continuing, though overcriminalization now on docket
I was lamenting earlier this month in this post that the Justices seem to have relatively little interest in big criminal justice issues of late (especially on sentencing fronts), though I suppose I could have reconsidered this idea after SCOTUS last week took up two new criminal cases as reported here. Today, via this new order list, SCOTUS showcases some more curious cert pool splashing around as detailed in this post at SCOTUSblog:
The Court on Monday granted review in two new cases; both will be decided next Term. One seeks clarification of what a home loan borrower must do in order to get out from under the mortgage because the lender allegedly failed to provide full disclosure of the loan terms (Jesinoski v. Countrywide Home Loans).
The second case raises a novel issue about how federal law treats fish as an object that cannot be destroyed because it may figure in a criminal investigation. At issue in Yates v. United States is whether the Sarbanes-Oxley Act’s ban on destroying a “tangible object” includes only materials like documents or other records, or also includes a physical object like a fish. A fisherman convicted of destroying undersized fish that he allegedly caught illegally in the Gulf of Mexico raised the question whether he had fair notice that the law applied to his action. The Court limited its grant to the first question raised in the petition.
The ongoing mystery of what the Court is doing with a California murder case — submitted to the Justices in twenty straight Conferences without word of any action — continued on Monday. The case is Ryan v. Hurles, testing when a federal habeas court must defer to a state court that did not hold an evidentiary hearing on a claim that the judge was biased. Presumably, that case will be listed again this week, for a twenty-first time. It has been put before the Justices in every scheduled Conference since September.
The Court also took no action on the latest attempt to get the Court to expand the Second Amendment right to possess a gun so that it applies outside the home. The case is Drake v. Jerejian, seeking to challenge a New Jersey law that requires an individual to obtain a permit to carry a handgun in public. The law requires proof that an individual has a “justifiable need” to carry a gun in public for purposes of self-defense....
In accepting review of the Yates case, the Court will be spelling out the scope of a law passed in the wake of the corporate scandals, particularly involving Enron Corp. A provision of that law made it a crime to interfere with a federal investigation by destroying, hiding or altering vidence. The law forbids destroying, multilating, altering, concealing or falsifying “any record, document or tangible object,” with the intent to impede or obstruct a federal investigation.
The case involves John L. Yates, a Floridian who captained a commercial fishing vessel, Miss Katie, working the waters of the Gulf of Mexico. An inspector boarded the vessel in 2000 to check for compliance with fishing regulations. While on board, he saw several red grouper fish, which appeared to him to be smaller than the 20-inch minimum size for taking that species. He measured them, and found 72 that he deemed were too small.
Yates and his crew were told to return to port, and not to disturb the catch. Yates later was charged with violating the law against destroying evidence, for allegedly ordering a crew member to throw the undersized fish overboard. The crew then replaced the discarded fish with other red grouper.
At his trial on criminal charges, including destroying evidence, Yates’ lawyers contended that the law against destroying evidence was designed only to deal with documentary evidence, and that its coverage of “tangible objects” meant to apply on to the same category. That argument failed in the trial court, and Yates was convicted of violating that provision by ordering the casting overboard of the small red grouper. The Eleventh U.S. Circuit Court of Appeals upheld his conviction, rejecting his challenge to the scope of the evidence law.
I have complained about the recent tendency of SCOTUS to take up lots of seemingly quirky criminal justice cases unlikely to have a huge impact, and then also dodging big issues like the reach and application of the Second, Sixth and Eighth Amendments in light of recent rulings. This new Yates case strikes me as another example of a seemingly quirky criminal justice case with only limited implications UNLESS some Justices were eager to make a big stink about the feds going criminally after a little fisherman.
If a majority of Justices were to develop some novel jurisprudence to help fisherman Yates prevail (and, as this local article highlights, he seems like a pretty sympathetic character), this Yates case could possibly become a very big part of on-going policy debates concerning the overfederalization and overcriminalization of seemingly small matters that arguably could and should be handled through civil means and without too much federal prosecutorial involvement. Indeed, I suspect (and certainly hope) that this Yates case might bring out more amici from the right than from the left, largely because the big concern raised by the case is the ability for small local businesses to conduct their affairs without facing criminal prosecution for not playing nice with federal bureaucrats.
April 28, 2014 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack
Feds in NYC corruption sentencing argue 105 and 80 years necessary for white-collar defendants
An interesting white-collar sentencing scheduled for today in Manhattan is previewed in this New York Times article last week which ran under the headline "Decades in Prison Sought for CityTime Scheme." Here are the details that prompt the title of this post:
Federal prosecutors in Manhattan have asked a judge to impose sentences of 105 years, 80 years and up to 40 years on three men who the government has said became “unbelievably rich” in connection with New York City’s scandal-marred payroll modernization project known as CityTime.
The three men were convicted in a federal corruption trial last fall in Federal District Court and are scheduled to be sentenced on Monday. T he cost of the CityTime project was originally budgeted at $63 million but exploded to about $700 million, with almost all of the more than $600 million that New York City paid to its prime contractor, Science Applications International Corporation, or S.A.I.C., tainted by fraud, a federal indictment charged.
“The CityTime fraud, kickback and money laundering scheme that these defendants orchestrated, managed and operated represents one of the worst, if not the worst, financial crimes against the city,” the office of Preet Bharara, the United States attorney in Manhattan, said in a memo filed on Sunday night recommending the sentences, which it said were appropriate under the advisory sentencing guidelines. “The need for general deterrence supports severe sentences in this case,” the office added.
The government asked the judge, George B. Daniels, to sentence Gerard Denault, 52, who was S.A.I.C.’s project manager on CityTime, to 105 years in prison. “He used his significant talents to abuse his executive position at S.A.I.C. to an extreme degree,” two prosecutors, Howard S. Master and Andrew D. Goldstein, wrote. “Testimony at trial from witness after witness reflected that he used his power and his intellect to intimidate and sideline anyone at S.A.I.C who stood in the way of his criminal scheme.”
Mr. Denault’s lawyer, Barry A. Bohrer, said his only comment on the government’s request was “not one that is printable.” He has requested a five-year sentence for his client.
Mr. Bharara’s office said in the memo that another defendant, Mark Mazer, 50, a former consultant to the city’s Office of Payroll Administration, had “abused his power as the city’s project manager to line his own pockets to a breathtaking degree rarely seen in any fraud or kickback case,” taking about $30 million over five years. The prosecutors’ office asked that he be sentenced to 80 years.
Mr. Mazer’s lawyer, Gerald L. Shargel, who is seeking a five-year sentence for his client, said in a phone interview on Monday that it was the government’s request that was “breathtaking,” and that such sentences “should be reserved for the worst offenders among us.” Mr. Shargel said that the large amounts of money in the case had helped to inflate the recommended sentences. “Just because the guidelines give the prosecutors the authority to argue for this sentence, it doesn’t mean that it’s the right thing to do,” Mr. Shargel said. “What do you give a murderer — 160 years?”
Without knowing all the facts of these cases, I cannot comment on whether these fraud defendants are really among the truly "worst of the worst" of white-collar criminals. But I can comment that federal prosecutors, at least in this case, seem to not be really committed to helping the district judge here determine what sentence would truly be "sufficient but not greater than necessary" to achieve federal sentencing goals under 18 USC 3553(a).
Given that it would be remarkable if the defendants here would be able to live even half as many years in prison as the prosecutors are urging, it is obviously ludicrous to assert that a 105-year sentence is not greater than necessary for a 52-year-old defendant. But it seems that a representative of the US government is going to stand up in to federal court today and make such a ludicrous sentencing claim.
UPDATE: The headline of this AP article about the now-completed sentencings in this matter reports the basic outcome: "NYC payroll scandal defendants each get 20 years."
Wednesday, April 02, 2014
Is there any likely sentencing or (private) prison reform aspect to big SCOTUS political speech ruling?
The question in the title of this post highlights that I am always a blogging criminal justice hammer seeing every important SCOTUS ruling as a possible sentencing nail. Without even reading the full opinion, I wonder if this ruling might end up helping (1) some white-collar defendants and their wealthy friends better support federal legislators and candidates who advocate sentencing reform in arenas that impact these kinds of defendants, and/or (2) private prison companies and their executives support federal legislators and candidates who advocate for continued or expanded reliance on private prisons.
The Supreme Court on Wednesday freed wealthy donors to give more money directly to congressional candidates, extending its controversial 2010 Citizens United decision that opened the door for unlimited independent spending on political issues.
In a 5-4 decision, the court’s conservative majority struck down Watergate-era aggregate limits that barred political donors from giving more than $123,000 a year in total to candidates running for seats in the House of Representatives or Senate. The court said this limit violated the free-speech rights of the donors, and it was not needed to prevent “corruption” of the political process. The justices noted that donors mush still abide by rules that prevent them from giving more than $2,600 per election per candidate.
Chief Justice John G. Roberts Jr., speaking for the court, said the 1st Amendment protects a citizen’s free-speech right to give to candidates. “Money in politics may at times seem repugnant to some, but so too does much of what the 1st Amendment protects,” he said. If it protects “flag burning, funeral protests and Nazi parades — despite the profound offense such spectacles cause — it surely protects political campaign speech despite popular opposition.”
Justice Stephen G. Breyer, speaking for the four dissenters, said the court had opened a huge legal loophole that threatens the integrity of elections. “Taken together with Citizens United, today’s decision eviscerates our nation’s campaign finance laws,” he said.
As usual, I am sure I am stretching a bit to view a non-sentencing story as having significant potential sentencing echoes. But maybe readers agree that there could be something to these early post-McCutcheon speculations.
Thursday, March 20, 2014
"Sentencing in Tax Cases after Booker: Striking the Right Balance between Uniformity and Discretion"
The title of this post is the title of this new paper by Scott Schumacher now available via SSRN. Here is the abstract:
It has been nearly ten years since the Supreme Court’s seminal decision in United States v. Booker, in which the Court invalidated the mandatory application of the United States Sentencing Guidelines. In the cases that followed, the Court addressed subsidiary issues regarding the application of the Guidelines and the scope of appellate review. However, despite — or perhaps because of — these opinions, there is little consensus regarding the status and extent of appellate review, as well as the discretion afforded sentencing courts. More troubling, what consensus there is seems to permit judges to impose any sentence they wish, as long as the appropriate sentencing procedures are followed. As a result, we are in danger of returning to “the shameful lack of parity, which the Guidelines sought to remedy.”
The Sentencing Reform Act and the Sentencing Guidelines were designed to reduce disparity in sentencing and to reign in what one commentator described as a “lawless system.” However, the Guidelines as ultimately conceived drastically limited the sentencing judge’s ability to impose a sentence that was appropriate for the conduct and culpability of the defendant, creating a different kind of sentencing disparity. The current, post-Booker system provides more guidance than the pre-Guidelines system, but permits sentencing judges to disregard the Guidelines and develop their own sentencing policy. As a result, rather than having a system that allows for sentences to be tailored to individual defendants, the current system allows sentences to be imposed based on the penal philosophy of individual judges. This will inevitably lead to unwarranted sentencing disparity.
This article traces the recent history of criminal sentencing and, relying on the influential works of John Rawls and H.L.A. Hart on theories of punishment, argues for a better system that allows for both guidance to sentencing judges and appropriately individualized sentencing. My recommendation, although equally applicable to any federal sentence, will be examined through the lens of tax sentencing.
March 20, 2014 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Tuesday, March 18, 2014
Infomercial celebrity to be selling in federal prison for next decade
As reported in this local article, headlined "TV pitchman Kevin Trudeau sentenced to 10 years in prison," a salesman many have seen on late-night television will now only be seen in federal prison for a long time. Here are the sentencing details:
When TV huckster Kevin Trudeau stood in a packed federal courtroom to make one final sales pitch Monday, he hardly resembled the tanned, dapper figure seen hawking miracle diets and natural cancer cures on so many late-night infomercials. After spending four months in jail for contempt of court, Trudeau’s trademark jet black coif was thin and gray. His usual tailored suit was replaced by rumpled orange jail clothes. Even his typical air of defiance had turned to contrition, a change he said washed over him during his sleepless first night in custody.
“If I ever write a book again, if I ever do another infomercial again, I promise no embellishment, no puffery and absolutely no lies,” Trudeau told U.S. District Judge Ronald Guzman in a remorseful tone. “I know going forward I will be a better person.”
But the judge wasn’t buying a word. Moments after Trudeau’s plea for leniency, a visibly irritated Guzman sentenced the best-selling author to 10 years in prison, citing Trudeau’s decades-long history of fraud and calling him “deceitful to the core.”
“He has treated federal court orders as if they were mere suggestions...or at most impediments to be sidestepped, outmaneuvered or just ignored,” Guzman said in handing down an unusually lengthy prison term for a contempt conviction. “That type of conduct simply cannot stand.”...
Trudeau has been jailed since Nov. 12 when he was convicted by a federal jury of criminal contempt for lying in several infomercials about the contents of his hit book, “The Weight Loss Cure 'They' Don't Want You to Know About.” Prosecutors said he ignored a previous court order by describing the program as easy when it actually called for punishing calorie restrictions and a crippling list of food restrictions. Meanwhile, U.S. District Judge Robert Gettleman has repeatedly found Trudeau in civil contempt for failing to pay anything toward a $37.6 million fine imposed by the Federal Trade Commission in spite of continuing to live a lavish lifestyle.
On Monday, prosecutors cited Trudeau’s history of fraud that goes back to a state conviction in 1984. “He is a habitual liar and a fraudster,” Assistant U.S. Attorney April Perry said. As a result of the size of the fraud and Trudeau’s two previous felony convictions, federal sentencing guidelines called for 20 to 25 years in prison, a range that Guzman said he thought was “appropriate.” However, he eventually agreed with prosecutors who said a 10-year term was sufficient since -- unlike in many fraud cases -- no one who bought Trudeau’s book was financially ruined.
Trudeau’s attorneys argued that prosecutors vastly inflated the amount of harm done by Trudeau’s misleading infomercials, saying many buyers were satisfied with the weight loss book. In his lengthy statement to the court, Trudeau said he has been “completely wiped out” financially and that he and his wife Nataliya Babenko, 26, are “effectively homeless.” He said his time at the Metropolitan Correctional Center has changed his perspective and led him to realize he had made many errors. While he wouldn’t wish incarceration on anyone, the experience has wound up being “one of the best, most positive things in my life,” Trudeau said.
“In the past four months I have been stripped of all ego, defiance, arrogance and pride and for that I am thankful,” Trudeau said as he stooed at a lectern and read from typed notes.
But Judge Guzman was unimpressed, noting that in his three decades of fraud, Trudeau had taken on more than a dozen different aliases and even used his mother’s Social Security number to perpetrate a scam. “That doesn’t happen by accident, and it doesn’t happen by good intentions,” the judge said. “It is a reflection of a person’s character.”
Monday, March 17, 2014
You be the federal sentencing judge: months, years or decades in prison for notable Medicaid fraudsters?
White-collar crimes, especially when there are few if any individual victims, oft raise especially tough and dynamic issues concerning how to weigh and balance offense- and offender-related sentencing consideration. These realities seem especially true in an interesting federal health care fraud case from South Carolina described in this local article. The piece is headlined "As Medicaid fraud sentencing nears, SC youth agency founder seeks leniency so he can be positive role model for his children," and here are excerpts:
The founder of the Helping Hands Youth and Family Services agency, guilty of bilking the federal Medicaid program for millions of dollars, has asked a federal judge for leniency when he is sentenced Wednesday for six felony charges related to health care fraud.
Truman Lewis — who founded the for-profit youth mentoring agency that had offices in Conway, Georgetown, Columbia and Rock Hill — said in court documents that he still maintains his innocence and deserves no more than a six-month prison sentence.
Lewis and his brother, Norman Lewis, were found guilty in an August jury trial of conspiracy to commit health care fraud, conspiracy to commit money laundering and four counts of wire fraud. They each face up to 10 years in prison for committing health care fraud and up to 20 years in prison for the money laundering and wire fraud charges. Both men will be sentenced Wednesday in Charleston by Judge Richard Gergel.
The jury found that the Lewises billed Medicaid for $8.9 million — much of it fraudulent — over a nearly two-year period starting in 2009, and then used the money to buy luxury cars, a beachfront condominium and homes. At the time of their indictment in June 2012, the Lewises had $1 million in certificates of deposit and bank accounts. The jury determined that all of those assets can be seized to help pay back the money taken through fraudulent billings.
Helping Hands — which was supposed to provide mentoring services to low-income children with family or behavioral problems — had hundreds of youth clients in Horry and Georgetown counties. Those clients were referred to the agency by the state’s Department of Social Services and area school officials, even though the agency’s counselors were not licensed.
Truman Lewis, in a court document filed on Friday, said he “may have made mistakes along the way but does not believe he did so with a malevolent intent and is wanting to work his way out of this position he finds himself in.”
At age 35, Truman Lewis is the oldest of 14 siblings who were “sometimes forced to live on food stamps,” the court document states, adding that the youth mentoring agency he founded allowed him “to pave the way for his siblings in school and work to show them there was a way out of poverty.” Truman Lewis said he never should have faced criminal charges because his agency had entered into a repayment plan with state officials who oversee the Medicaid program before any charges were filed. He said a long prison sentence would be detrimental to the government because he would not be able to work and pay restitution.
If the court allows Truman Lewis “to serve a sentence below the guidelines range, he may be able to seek employment to help work on restitution to the government,” the court document states. Truman Lewis said he also wants a minimum prison sentence so he and his wife can continue to be positive influences on their four children. “The entire family is extremely religious and attend church regularly, sometimes four to five times weekly as a family,” the court document states, adding that Truman Lewis and his wife “have a deep abiding belief in their religious convictions and are trying to pass their beliefs on to the children.”
David McCann, a court-appointed lawyer representing Norman Lewis, filed a document Monday asking for leniency for his client, but the filing does not recommend a specific prison sentence. A lengthy sentence for the 32-year-old Norman Lewis “interrupts his young family and presents the unnecessary cost to taxpayers for confinement and treatment, if available,” McCann said in the court filing.
Norman Lewis’ previous court appearances have been marred by outbursts and repeated requests to represent himself at trial. Norman Lewis initially told Gergel he wanted to be represented by God and Jesus rather than a court-appointed defender. He also spoke during an arraignment hearing about more than 100 songs and poems he has written about his work with Helping Hands, “doing so in a manner that left the court concerned with the defendant’s mental capacity.”
A psychiatric exam in December 2012 showed Norman Lewis was competent to stand trial, prompting Gergel to approve his request to represent himself. Gergel rescinded that request in February 2013 after Norman Lewis repeatedly refused to accept boxes of discovery documents needed for trial preparation. Norman Lewis’ refusal to meet with a probation officer led to his incarceration three months later and he was charged with contempt of court in July for speaking to potential jurors.
Norman Lewis’ wife, Melanie Lewis, pleaded guilty last year to one conspiracy charge in a plea agreement to avoid a trial. That charge carries a maximum five-year prison sentence. Melanie Lewis will be sentenced on Thursday in Charleston.
Testimony during the August trial showed Helping Hands officials — most of them Lewis family members — falsified records and submitted bills for ineligible or non-existent clients in order to boost Medicaid payments. Lewis family members then transferred that money to personal bank accounts and purchased items such as 10 automobiles, including an $89,000 Bentley and a $55,900 Mercedes....
Bank records included in court documents show Helping Hands billed Medicaid a steadily increasing amount starting in January 2009, when the agency received $13,500 from the federal health program. By April 2010, Helping Hands was billing Medicaid for $1 million per month. The agency closed for good in 2011.
Based on the amount of money apparently involved in this federal fraud (as well as enhancements for leadership role and other aggravating guideline factors), I would guess that the guidelines recommend a sentence of a decade or more for Truman and Norman Lewis. But would it be more effective and efficient for them to get a shorter prison sentence coupled with a rigorous set of restitution obligations to help ensure federal taxpayers are made whole?
You be the judge (and, ideally, propose in the comments a sentence that makes a clever pun about Helping Hands).
March 17, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack
Tuesday, February 25, 2014
With intriguing coalitions, SCOTUS limits right to challenge pre-conviction asset seizure
The Supreme Court handed down an opinion this morning in Kaley v. US, No. 12-464 (S. Ct. Feb 25, 2014) (available here), which is notable for its holding and the groups of Justices joining together. Here is the start of the opinion for the Court, which was authored by Justice Kagan and joined by Justices Scalia, Kennedy, Thomas, Ginsburg and Alito:
A federal statute, 21 U. S. C. §853(e), authorizes a court to freeze an indicted defendant’s assets prior to trial if they would be subject to forfeiture upon conviction. In United States v. Monsanto, 491 U. S. 600, 615 (1989), we approved the constitutionality of such an order so long as it is “based on a finding of probable cause to believe that the property will ultimately be proved forfeitable.” And we held that standard to apply even when a defendant seeks to use the disputed property to pay for a lawyer.
In this case, two indicted defendants wishing to hire an attorney challenged a pre-trial restraint on their property. The trial court convened a hearing to consider the seizure's legality under Monsanto. The question presented is whether criminal defendants are constitutionally entitled at such a hearing to contest a grand jury's prior determination of probable cause to believe they committed the crimes charged. We hold they have no right to relitigate that finding.
Here is the start of the lengthy dissent in Kaley which was authored by Chief Justice Roberts and joined by Justices Breyer and Sotomayor:
An individual facing serious criminal charges brought by the United States has little but the Constitution and his attorney standing between him and prison. He might readily give all he owns to defend himself.
We have held, however, that the Government may effectively remove a defendant’s primary weapon of defense — the attorney he selects and trusts — by freezing assets he needs to pay his lawyer. That ruling is not at issue. But today the Court goes further, holding that a defendant may be hobbled in this way without an opportunity to challenge the Government’s decision to freeze those needed assets. I cannot subscribe to that holding and respectfully dissent.
The Court also handed another criminal defendant another 6-3 loss today in a Fourth Amendment case from California. Here is how the majority opinion, per Justice Alito, gets started in Fernandez v. California, No. 12-7822 (S. Ct. Feb. 25, 2014) (available here):
Our cases firmly establish that police officers may search jointly occupied premises if one of the occupants1 consents. See United States v. Matlock, 415 U. S. 164 (1974). In Georgia v. Randolph, 547 U. S. 103 (2006), we recognized a narrow exception to this rule, holding that the consent of one occupant is insufficient when another occupant is present and objects to the search. In this case, we consider whether Randolph applies if the objecting occupant is absent when another occupant consents. Our opinion in Randolph took great pains to emphasize that its holding was limited to situations in which the objecting occupant is physically present. We therefore refuse to extend Randolph to the very different situation in this case, where consent was provided by an abused woman well after her male partner had been removed from the apartment they shared.
Monday, February 24, 2014
You be the federal sentencing judge: "tough call" in sentencing former police chief
The title of this post is drawn from the headline of this notable local story about tomorrow's scheduled federal sentencing for Pittsburgh's former police chief. The piece is headlined "Former Pittsburgh police chief's sentencing a tough call for judge Ex-chief Nate Harper's sentencing 'difficult'." Because I am never quite sure whether I think a law-enforcement background justifies a harsher or lighter sentence, I am very interested in hearing reader instincts about what might be a fitting federal punishment for this former cop. Here are some of the details the federal judge must consider in this case:
When former New York City police commissioner Bernard Kerik -- who once ran the Big Apple lockup Rikers Island -- walked into a federal penitentiary as a prisoner in 2010, it was, he said, like "dying with your eyes open."...
At the Federal Correctional Institution Cumberland, in Maryland, where he served his sentence, he lived among the kinds of people he spent his life locking up. That's what former Pittsburgh police chief Nate Harper could face following his sentencing, set for Tuesday.
Mr. Harper's fate is in the hands of U.S. District Judge Cathy Bissoon, who rose to that post in late 2011 after three years as a magistrate judge. She faces a decision in which she must weigh Mr. Harper's history, his precise role in the conspiracy to commit theft and the importance of deterring others from similar dips into the public cookie jar.
Though federal guidelines suggest a sentence of 1.5 to two years, she can go as low as probation or as high as five years. "It comes down to a very difficult call for a judge," said Bruce Antkowiak, a former federal prosecutor and now a law professor at Saint Vincent College in Latrobe. "The strongest cards [Mr. Harper's attorneys] have to play are his history with the department, the decades of work he has put in, the numbers of other people from law enforcement who evidently respect him."
Those same factors, though, could count against him. "Either you think this is a fundamentally decent guy who did something wrong, or you think this is a public official who should be held to another standard," said Wesley Oliver, the Criminal Justice Program director at the Duquesne University School of Law.
Mr. Harper could argue that his lawman background puts him at risk in prison. The U.S. Supreme Court found in the case of police sergeant Stacey Koon, sentenced to prison in the beating of Los Angeles motorist Rodney King, that judges can give lighter sentences to defendants who are "unusually susceptible to prison abuse."
In the recent case of former corrections officer Arii Metz, though, prosecutors countered that argument by showing that the federal prisons already house many former police in relative security. As of last month, there were 1,269 former law enforcement officials in federal custody, according to the Bureau of Prisons. "There are guys who are going to hate him because he was a cop," Mr. Kerik said. "There are going to be guys who are going to respect him because he was a cop."
Mr. Harper pleaded guilty in October, confirming that he failed to file tax returns for four years and diverted $70,629 in public funds into an unauthorized credit union account and spending $31,987 on himself. The prosecution has maintained that Mr. Harper told two civilian subordinates to open and handle the account, making him a supervisor in the conspiracy, and subject to a harsher sentence.
The defense has countered that Mr. Harper had no co-conspirators, but also that the unauthorized account wasn't his idea. They haven't yet named the alleged mastermind. "The government's response is going to be: Who cares?" Mr. Antkowiak said. "When you admit that you told two city employees to open these accounts and draw the Visa cards on them, you're a supervisor" of the crime....
Two defendants -- both of whom were given credit for cooperation -- publicly blamed Mr. Harper for a separate bid-rigging scheme in hearings before Judge Bissoon. The former chief has never been charged in relation to the incident, a contract won by Alpha Outfitters -- a company controlled by the chief's long-time friend -- to install and maintain computers and radios in police cars.
The judge shouldn't give much weight to their accusations, Mr. Oliver said, though he noted that the charge "tends to tear down the narrative that the defendant is trying to tell" about a good man with a bad debit card.
With the eyes of the public, and especially of law enforcement, on the case, the judge may carefully weigh the deterrent effect of the sentence. "Look, one of the things a judge always considers is what kind of message [she's] sending with this sentence," said John Burkoff, a law professor at the University of Pittsburgh. " 'What's the message I'll be sending to police officers who may be tempted to do something bad if I'm lenient?' "
Mr. Kerik, now an advocate for sentencing reform, suggested that the message has already been sent. It could be amplified, he said, if the judge gives Mr. Harper probation but orders him to speak to police recruit classes about his crime and punishment. "They're going to take his pension," Mr. Kerik said. "You've taken his reputation. He's now a convicted felon. He's going to have legal fees he'll have to pay for. That guy has been destroyed."
UPDATE: This local report details the sentencing outcome in its headline: "Former Pittsburgh chief Harper gets 18-month prison sentence."
February 24, 2014 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack
Thursday, February 13, 2014
Feds to appeal probation sentence given to tax-dodging Beanie Babies billionaire
As reported in this new AP article, the "U.S. attorney's office in Chicago said Thursday that it's appealing a sentence that included no prison time for the billionaire creator of Beanie Babies for hiding at least $25 million from U.S. tax authorities in Swiss bank accounts." Here is more:
At H. Ty Warner's sentencing last month, Judge Charles Kocoras heaped praise on the toymaker for his charitable giving, declaring society was better served by letting him go free and giving him two years' probation instead of sending him to prison. Warner had faced up to five years in prison.
Warner, 69, of Oak Brook, Ill., was one of the highest profile figures snared in a long-running investigation of Americans concealing funds in Swiss bank accounts. Others convicted of squirreling away less money in Switzerland than Warner have done prison time. Warner, who grew up poor, created the animal-shaped Beanie Babies in the mid-'90s, triggering a craze that made Warner spectacularly rich. Forbes recently estimated his net worth at $2.6 billion.
A one-page notice of appeal signed by U.S. Attorney Zachary Fardon was filed with the U.S. 7th Circuit Court of Appeals, and a full brief will be submitted later. Justice officials in Washington still must OK the appeal, but that's usually considered a formality.
At a Jan. 14 sentencing hearing, Kocoras spent most of his 20-minute explanation of the sentence expressing admiration for Warner. He also said the businessman had already paid a price in "public humiliation." In addition to probation, Kocoras ordered Warner to do 500 hours of community service at Chicago high schools. Earlier, Warner agreed to pay $27 million in back taxes and interest, and a civil penalty of more than $53 million....
During sentencing, assistant government attorney Michelle Petersen urged Kocoras to put Warner behind bars for at least a year. "(Without prison time), tax evasion becomes little more than a bad investment," she told him. "The perception cannot be that a wealthy felon can just write a check and not face further punishment."
This should be a VERY interesting sentencing appeal to watch in the months ahead, and I am already super stoked to read the coming Seventh Circuit briefs from the parties concerning what will surely be differing views on what federal sentencing law demands in a case of this nature.
Prior related post:
February 13, 2014 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
Wednesday, February 12, 2014
Will (and should) former mayor Ray Nagin get a sentence making it likely he dies in federal prison after his corruption convictions?
The question in the title of this post is the first sentencing question that came to mind upon hearing this criminal justice news from a Louisiana federal court this afternoon:
Ray Nagin, the former two-term mayor of New Orleans indicted after he left office, was convicted Wednesday of 20 federal corruption charges for illegal dealings with city vendors, dating back to 2004. A jury delivered its verdict just before 1 p.m., after six hours of deliberations that followed a nine-day trial.
Nagin, 57, joins a list of Louisiana elected officials convicted of misdeeds while in office, but he is New Orleans' first mayor to be convicted of public corruption. Under federal sentencing guidelines, he could face a 20-year prison term, possibly more, lawyers have said.
In a case that relied heavily on the testimony of businessmen-turned-convicts -- and a paper trail that showed money changing hands and lucrative city contracts doled out -- prosecutors described a public official "on the take." Nagin was an opportunist who pursued businessmen under pressure to get government work, targeting them to line his own pockets, prosecutors said....
Nagin was somber and silent as he made his way through a crush of reporters outside of the courthouse -- a far cry from the confidence he showed when he first arrived more than two weeks ago at the start of his trial. Addressing the press, Jenkins said, "Obviously, I'm surprised. Now we're moving on to the appeal process."
Assistant U.S. Attorney Matt Coman, the lead prosecutor on the case, gave a brief statement. "We are pleased with the verdict and obviously we are very thankful to the jury and the court," he said....
Nagin, a Democrat, was the public face of the city during Hurricane Katrina, making national headlines as he lambasted the federal government for its response to the storm and subsequent flood.
He lives in Frisco, Texas, where he has avoided the spotlight, staying quiet save for an occasional tweet, since his indictment a year ago. Sentencing is set for June 11 before U.S. District Judge Ginger Berrigan.
As the title of this post suggests, I would urge now-convicted Nagin to urge his lawyers to get very focused on the federal sentencing process before they start "moving on to the appeal process." As the article above notes, federal prosecutors are likely to argue that the guidelines applicable here recommend a sentence of decades for Nagin, and judges within the Fifth Circuit tend to be drawn toward imposing within guidelines sentences. Ergo, unless and until Nagin's lawyers start developing some strong sentencing arguments on his behalf, the former mayor of New Orleans may be looking at the real possibility that he gets a federal prison sentence later this year that amounts to a functional life sentence.
Wednesday, January 22, 2014
Highlights from Federal Sentencing Reporter issue on “White-Collar Sentencing”
I noted in this recent post that I have the honor of speaking this coming Friday morning at a sentencing seminar in New York City sponsored by Proskauer’s White Collar Defense & Investigations Group. This event has been planned in conjunction with the publication of Federal Sentencing Reporter's latest issue on “White-Collar Sentencing” (Vol. 26.1, October 2013). Helpfully, FSR's publisher has made these two articles from this issue available for download without a subscription:
The Current State of White-Collar Sentencing by Mark D. Harris, Anna G. Kaminska and Samantha Springer
Why the Federal Sentencing Guidelines Should Be Scrapped by Judge Jed S. Rakoff
Sunday, January 19, 2014
Terrific white-collar sentencing event highlighting terrific FSR issue on white-collar sentencing
For reasons that should be obvious, I may be showing a bit of bias in my positive description of an event in New York City at which I will be speaking this coming Friday and which is promoting this recent white-collar sentencing issue of a publication that I help manage. Nevertheless, as highlighted by the invitation and links in this announcement of the event, I do not think my inherent bias undermines the validity of my excitement and praise for this event:
The Current State of White-Collar Sentencing
Please join Proskauer’s White Collar Defense & Investigations Group and the Federal Sentencing Reporter (FSR) for a seminar on criminal sentencing, presented in conjunction with the publication of FSR’s latest issue “White-Collar Sentencing” (Vol. 26.1, October 2013).
Friday, January 24, 2014
Registration and Breakfast: 8:00 a.m. - 8:30 a.m.
Program: 8:30 a.m. - 11:30 a.m.
Eleven Times Square (41st Street and 8th Avenue)
New York, NY 10036
Featured speaker Professor Douglas A. Berman, of The Ohio State University Moritz College of Law, author of the nationally acclaimed Sentencing Law and Policy blog, will lead off the program with a discussion of current topics in white-collar sentencing. This program will feature a review of recent developments in the field, the latest data and statistics, and proposals from distinguished thought leaders on potential improvements to current sentencing policies and procedures. Our panelists will include current members of the U.S. Sentencing Commission’s Practitioners Advisory Group, academics, and practitioners:
- Mark D. Harris – Partner, Proskauer Rose LLP, Board of Editors, Federal Sentencing Reporter
- Sharon Cohen Levin – Chief, Asset Forfeiture Unit in the Criminal Division of the U.S. Attorney’s Office for the Southern District of New York
- Seetha Ramachandran – Deputy Chief, Asset Forfeiture and Money Laundering Section of the DOJ’s Criminal Division
- Mark H. Allenbaugh – Partner, Law Offices of Mark H. Allenbaugh
- Wes Reber Porter – Associate Professor, Golden State University School of Law
- Matthew Benjamin – Associate, Gibson, Dunn & Crutcher LLP
- Mei Lin Kwan-Gett – Partner, Wilkie Farr & Gallagher LLP
- David Deitch – Member, Ifrah Law
- Marcus A. Asner – Partner, Arnold & Porter LLP
Tuesday, January 14, 2014
You be the federal judge: what sentence should the Beanie Babies billionaire get for tax evasion?
As reported in this short AP article, today "the billionaire creator of Beanie Babies is in a Chicago federal courtroom for his sentencing on a tax evasion charge." Here is more:
H. Ty Warner could get up to five years in prison Tuesday for evading taxes on $25 million in income. The 69-year-old Warner was told when he pleaded guilty last year that he would have time at his sentencing to apologize for stashing money in Swiss bank accounts.
Warner's attorneys have asked the judge for a sentence of probation, not prison. They pointed to Warner's unhappy childhood and his charity work. Prosecutors say Warner should spend some time in prison, though they haven't recommend how much. They also say his philanthropy shouldn't be "a get-out-jail card."
Though perhaps not authorized by federal law, my proposed punishment for this billionaire would be a week in jail, a maximum (lifetime?) term of supervised release (for which he has to pay the costs), plus a fine of $100 million (four times the amount of income he tried to hide). According to Forbes here, Warner's net worth is 2.6 billion, and thus a $100 million fine for him is the equivalent of only a $100,000 fine for someone worth $2.5 million. Ergo, such a fine should clearly not be considered constitutionally excessive for Warner and it should better help deter rich folks from illegally trying to avoid paying their fair share.
Importantly, the maxed out term of supervised release is a big aspect of my proposed ideal sentence. Though some may think a few years in prison for a white-collar offender is more onerous than other punishments, I suspect a billionaire like Warner would be much more bothers by forever being subject to control of his liberty by probation officers. (I would also like to order Warner to a community service requirement of coming to my house each year to clear the dust off my kids' stuffed animals, but I am not sure I would be able to get away with such a term of service even if I was a federal judge.)
UPDATE: This Reuters article indicates that Warner's sentencing outcome in federal court on Tuesday is resulting in him paying for his nonviolent crime in a lot of ways, but not with any time in prison:
The billionaire creator of Beanie Babies, Ty Warner, will serve two years of probation, including mentoring high school students, following his guilty plea on a tax evasion charge, but no jail time, a federal judge ruled on Tuesday. Warner, 69, who pleaded guilty in October, told U.S. District Court Judge Charles Kocoras in Chicago that his crime was the "biggest mistake" of his life. Warner already had agreed to pay a civil penalty of nearly $53.6 million.
Ranked as the 209th richest American by Forbes with a listed net worth of $2.6 billion in 2013, Warner failed to report more than $24.4 million in income and evaded nearly $5.6 million in federal taxes from millions hidden in Swiss bank accounts, according to Chicago prosecutors.
Prosecutors had argued that Warner should serve time in jail given the extent of the cover-up, and federal guidelines called for up to five years in prison. "I am truly sorry," said the slightly-built Warner, who wore headphones to compensate for hearing loss. He told Kocoras the letters of support he received "made my feelings of shame and embarrassment that much more unbearable."
Kocoras cited Warner's many acts of charity before imposing probation rather than prison. Kocoras said he had reviewed letters from people helped by the billionaire, including a woman with a kidney disease Warner had stopped to ask for directions. After learning of her condition, Warner paid for her treatment. "Society will be best served by allowing him to continue his good works," Kocoras said.
Warner was sentenced to at least 500 hours of community service, which will include mentoring students at Leo High School, a Catholic boys' school in a poor, mostly African-American neighborhood in Chicago....
The federal charge to which Warner pled guilty alleged that, in 2002, Warner earned more than $3.1 million through investments held in his UBS account, but did not tell his accountants and failed to report it on his tax form.
Thursday, December 19, 2013
Another high-profile insider trading conviction tees up another high-profile federal sentencing
As reported in this New York Times article, headlined "Former SAC Trader Is Convicted of Insider Trading," federal prosecutors got another notable conviction yesterday in a high-profile setting:
Prosecutors lacked the incriminating wiretaps that underpinned past insider trading cases. The emails pointed to no smoking gun. And the government’s star witness, a felon who testified to avoid prison time, fumbled his way through five days of cross-examination.
And yet a federal jury in Manhattan on Wednesday still convicted Michael S. Steinberg, the highest-ranking employee at SAC Capital Advisors to stand trial for insider trading. The verdict, delivered minutes after Mr. Steinberg, 41, fainted in the courtroom, underscored the futility of challenging the government’s crackdown on some of Wall Street’s most vaunted hedge funds.
On the eve of trial, prosecutors conceded that the case was not a slam dunk. But tapping into an anti-Wall Street sentiment — in opening arguments the lead prosecutor claimed that Mr. Steinberg broke the law “to get an illegal edge over ordinary investors who played by the rules” — apparently resonated with a jury of nine women and three men, including two accountants and a former postal worker.
The verdict hands the government a signature victory in its pincerlike pursuit of SAC, the giant fund run by the billionaire stock picker Steven A. Cohen. Coming just weeks after SAC pleaded guilty to insider trading charges and agreed to pay a record $1.2 billion penalty, Mr. Steinberg’s conviction further clouds the future of a firm that was once the envy of Wall Street. And it may also embolden federal authorities in their decade-long investigation of SAC.
Here are the post-conviction and sentencing basics noted in this article:
Judge Sullivan set Mr. Steinberg free on bail until his April 25 sentencing. Mr. Steinberg faces a maximum of 85 years in prison, but will almost certainly receive a sentence of only a few years. Mr. Steinberg’s lawyer, Barry H. Berke, did not immediately comment on the verdict but is expected to appeal.
Monday, December 16, 2013
You be the disparity judge: very different prison sentences for (similar?) fruadsters in different courts
One reason I never fully understand nor fully appreciate very aggressive efforts to try reduce sentencing disparities is because I never fully understand nor fully appreciate whether and when very different sentences for somewhat similar crimes represents warranted or unwarranted disparities. And these two notable headlines reporting on two notable white-collar sentences imposed today in two different courtrooms have me thinking about these matters yet again:
Here, respectively, are the basics of the crimes and punishments in these two cases taken from the above-link press accounts, the first of which is a report from a state court in Ohio:
Bobby Thompson, convicted mastermind of a national veterans charity scam that bilked donors out of an estimated $100 million, was sentenced to 28 years in prison this morning by Cuyahoga County Common Pleas Judge Steven Gall. Thompson is a stolen identity used by John Donald Cody, 67, to set up the U.S. Navy Veterans Association, based in Tampa, which solicited donations in Ohio and 40 other states from 2002-2010.
Gall, who addressed Thompson as Mr. Cody, additionally levied a $6.3 million fine against Thompson, plus a $330,778 judgement to cover the cost of prosecution by the Ohio Attorney General. The judge said factors he considered in determining the sentence included the eight-year duration of Thompson's charity "charade," the amount of money swindled from donors, the efforts Thompson made to hide his identity, and Thompson's lack of remorse or acceptance of responsibility for his actions.
Citing the damage done to veterans who could have been aided by the money that Thompson's charity raised, Gall also ordered that Thompson spend each Veterans Day in solitary confinement for the duration of his prison term....
Prior to the sentencing Joseph Patituce, Thompson's attorney, had suggested a possible sentence of 14 years. After his client got twice that number, Patituce said Thompson still denies that he committed a crime and will appeal.... Patituce said Thompson's refusal to testify in the trial on his own behalf was pivotal. "If he would have testified the verdict would have been different," Patituce said.
Brad Tammaro, an assistant attorney general prosecuting the case, argued against Patituce's suggested 14-year sentence for Thompson, calling that sentence "totally inappropriate." Tammaro also said that "the evidence in the case demonstrates a complete lack of remorse" on the part of Thompson.
And now, from a federal court in Rhode Island:
A federal judge sentenced a Rhode Island lawyer to six years in prison Monday for his role in a $46 million investment fraud that preyed on terminally ill people, calling him the architect of the scheme and saying he didn't seem to recognize the harm he had caused.
Joseph Caramadre was sentenced in Providence after pleading guilty to wire fraud and conspiracy. His lawyers asked for two years in prison and two years in home confinement. Prosecutors sought 10 years. Judge William E. Smith also ordered Caramadre to perform 3,000 hours of community service to help the elderly and terminally ill. He put off the question of restitution because Caramadre's lawyer has objected to the amount.
Caramadre was a prominent lawyer and philanthropist. Prosecutors say he and former employee Raymour Radhakrishnan paid terminally ill people cash, passing it off as charity, then used their personal information to purchase bonds and annuities that would pay out when the person died.
Caramadre pleaded guilty last year but a few months later tried to withdraw his guilty plea. He testified during a hearing on that request that he had committed perjury when he pleaded guilty, prompting the judge to say at the time: "It's amazing to watch a defendant perjure himself by saying he committed perjury the first time." Smith turned down his request to withdraw his plea in May and ordered him immediately into custody.
On Monday, Caramadre stuck with his contention that the plea was a lie, telling the judge he could not say he was sorry for anything although he felt terrible if some terminally ill people felt the investment strategy was not explained to them. "I wish I could play the game," he said, referring to his lack of contrition.
Still, he said, he took responsibility for his guilty plea. Smith said Caramadre seemed to recognize that people were hurt but didn't seem to recognize that he was the one that hurt them.
To the extent I can understand these stories, it seems that many millions of dollars were lost in the fraud on veterans over many years, whereas apparently a lot less money was lost in the fraud on the terminally ill during a shorter period. Also, of course, one defendant was convicted after a lengthy (state) trial and the other was convicted after a (now regretted) federal plea.
Still, is there really any sound way for anyone to assess whether the huge disparity in these two fraud sentences imposed today, one of which is nearly five times as long as the others, are warranted or unwarranted? More broadly, does anyone think it problematic that one defendant was prosecuted in Ohio state court and thus subject to Ohio's sentencing laws that are much different than the other defendant was subject to as a result of his federal prosecution?
Friday, December 13, 2013
SCOTUS grants cert to clarify required intent for federal bank fraud
As reported in this SCOTUSblog post, the Supreme Court this afternoon granted cert on two cases, one of which involves the required mens rea for federal bank fraud charges. Here is part of Lyle Denniston's summary of the case now officially before the Justices:
The Supreme Court agreed on Friday to clarify ... the kind of proof prosecutors must offer to get a conviction for bank fraud under federal law.... The bank fraud case is Loughrin v. United States....
The newly granted case on federal bank fraud involves a man, Kevin Loughrin, who was sentenced to three years in prison for engaging in a scheme to steal bank checks from peoples’ mailboxes, altering them and then using the checks to buy things at retail stores like Target and Wal-Mart, and then returning the merchandise for cash.
Prosecutors charted him with violations of two provisions of bank fraud law: defrauding a financial institution, and obtaining money from financial institutions by fraud. Both were apparently based on evidence that the checks were drawn on Bank of American and Wells-Fargo Bank and on three credit unions.
Loughrin’s lawyers tried to have the jury told that, in order for him to be convicted on either count, there had to be proof that he intended to defraud a bank or other financial institution....
The Tenth Circuit Court rejected his challenge. Under the bank fraud provision on which he was convicted, the Circuit Court ruled, it was enough that Loughrin had sought to defraud someone else — the retail stores — but there was no need for prosecutors to offer evidence of intent to defraud a bank directly.
Sunday, December 08, 2013
Victims provide some recent historical perspectives on two worst crimes in recent American history
As regular readers may know, I am a huge believer in having criminal justice systems give special attention to victims' interests, rights and perspectives (in part because I believe actual victims, generally speaking, are often interested in a much more dynamic and sophisticated government response to wrong-doing than just the lock-em-up-and-throw-away-the-key attitudes too often claimed to be in their interest by politicians and prosecutors). For that reason, I am always pleased when victim-oriented matters become big legal cases (as with the SCOTUS Paroline case concerning restitution for child porn victims), and also when the media gives special and extended attention to crime victims.
For these (and other) reasons, I am pleased and intrigued to see today's New York Times has these two extended articles discussing victims' perspectives on two of the worst crimes in recent American history:
I have long felt very fortunate that I personally have only been the victim of relatively minor property crimes (though I do have a number of family members and friends who have had their lives shattered by serious violent crimes). I also feel very fortunate to live in a society that, at least in some high-profile settings for some victims, seeks to be attentive to the unique needs and enduring challenges that all too many crime victims face.
Saturday, November 23, 2013
Another notable white-collar defendant gets another below-guideline federal sentence
This New York Times article, headlined "Ex-Credit Suisse Executive Sentenced in Mortgage Bond Case," reports on a notable federal sentenced handed down yesterday:
A former top executive at the Credit Suisse Group was sentenced to two and a half years in prison on Friday for inflating the value of mortgage bonds as the housing market collapsed. The prison term makes the executive, Kareem Serageldin, one of the most senior Wall Street officials to serve time for criminal conduct during the financial crisis.
Wearing a dark suit and blue tie, Mr. Serageldin remained stoic as Judge Alvin K. Hellerstein of the United States District Court in Manhattan handed down the sentence, which was less than the roughly five-year sentence called for by nonbinding sentencing guidelines. Judge Hellerstein showed mercy on Mr. Serageldin in part because of what he said was a toxic culture at Credit Suisse and its rivals.
“He was in a place where there was a climate for him to do what he did,” the judge said. “It was a small piece of an overall evil climate inside that bank and many other banks.”
A spokesman for Credit Suisse disagreed with the judge’s remarks, noting that when regulators decided not to charge the bank in connection with Mr. Serageldin’s actions, they highlighted the isolated nature of the wrongdoing, the bank’s immediate self-reporting to the government and the prompt correction of its results.
Mr. Serageldin, 40, led a group at Credit Suisse that traded in mortgage-backed securities. As the housing market soared, his group made hundreds of millions of dollars for the bank by pooling mortgage assets, slicing them up and selling the pieces to investors. Many of those were subprime loans that went to shaky borrowers, however, and banks found themselves holding billions of dollars in sour mortgages when the market collapsed.
Federal authorities began their investigation into Credit Suisse in 2008 after the bank disclosed that Mr. Serageldin’s team had mismarked its mortgage portfolio. The bank suspended the team and cooperated with authorities. Two other traders in that group, David Higgs and Salmaan Siddiqui, were also charged alongside Mr. Serageldin. They all pleaded guilty; Mr. Higgs and Mr. Siddiqui have yet to be sentenced....
“This is the worst day of my life,” Mr. Serageldin told the judge. “I am terribly sorry for what I have done.”
In an unusual moment during the hearing, Judge Hellerstein allowed Mr. Serageldin’s mother to speak about her son. Holding back tears, she told the judge her son had always worked hard to make the family proud. “Please see him in the context of his whole life history,” she told the judge, who commiserated with Ms. Serageldin by telling her that he, too, was the child of immigrants. “Whatever sentence he serves, I will serve.”
The judge asked Mr. Serageldin’s lawyer to explain his client’s misconduct. “This is a deepening mystery in my work,” the judge said. “Why do so many good people do bad things?” Sean Casey, a lawyer at Kobre & Kim, said that Mr. Serageldin was under great pressure during the credit crisis and made a big mistake when confronted with failure for the first time.
Judge Hellerstein said that his sentence was necessary to deter misconduct on Wall Street. “Each person has to look within himself and ask himself what is right, what is wrong,” the judge said. “Even in the worst of times, what is right cannot be sacrificed.”
Monday, October 21, 2013
SCOTUS grants cert on federal restitution and state Atkins application casesI was actually starting to get a bit sad and worried that the US Supreme Court, after a few consecutive years of taking up a host of interesting and important sentencing issues, had decided this term to give little or no attention to the kinds of issues that serve as an obsession for me and this blog. But, thanks to two cert grants this morning, my belief that the Justices love the sentencing issues I love (or at least my faith that these issues are often too important for SCOTUS to ignore) has been restored. Here is the early report on these latest grants via SCOTUSblog:
The Supreme Court moved on Monday to settle a long-lingering issue: the legal standard for judging whether a person is too retarded mentally to be executed for a murder. That is the issue in Hall v. Florida (docket 12-10882). The Court also agreed to hear a second case, on the scope of restitution as a penalty for bank loan fraud. That is the issue in Robers v. U.S. (12-9012).....
The new death penalty case from Florida raised this issue: “Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia.” In that 2002 decision, the Supreme Court had ruled that it is unconstitutional under the Eighth Amendment to execute individuals who are found to be mentally retarded. The Court, however, left it to the states to decide who is mentally retarded and thus cannot be given the death penalty.
In the new case, attorneys for Freddie Lee Hall contended that Florida courts have adopted a “bright line” rule that a person is not mentally retarded unless their IQ falls below 70. The state Supreme Court found that Hall had an IQ of 71. In an earlier stage of Hall’s case, before the Supreme Court had decided the Atkins case, he had been found to be mentally retarded, the petition said.
The Hall case is certain to get lots of attention, and perhaps justifiably so. That case is, arguably, the first "major" capital criminal procedure case to be taken up by the Supreme Court in a number of years (and certainly the biggest one I can think of since Justices Kagan and Sotomayor joined the Court). And a ruling in Hall will necessarily have a some impact on all post-Atkins litigation in all death-penalty states.
Robers, in contrast, will likely get very little attention because the case appears only focus on a relative narrow and technical issue as to the application of a federal restitution statute. Nevertheless, even if the briefing in Robers ends up focused only on narrow and technical issues, I suspect the white-collar bar (as well as corporate counsel in various industries) will want to keep an eye on this case because its resolution could impact an array of corporate crime and punishment issues.
As I will surely cover in future posts as these cases get briefed and argued in early 2014, Hall and Robers both could become "super sleepers" of the current SCOTUS Term because both cases have lurking Fifth and Sixth Amendment issues that could (but likely will not) grab some Justices' attention. In both cases, critical facts that impact a defendant's sentence exposure are to be assessed and resolved by judges. Though I do not believe Apprendi-type Fifth and Sixth Amendment claims are being pressed by the defendants in these cases, it is certainly possible that some amici and some Justices will contend that Fifth and Sixth Amendment jurisprudence ought to impact how the issues in Hall and Robers get resolved.
Friday, October 11, 2013
Record-long political corruption sentence for former mayor of DetroitAs reported in this New York Times article, headlined "Kwame M. Kilpatrick, Former Detroit Mayor, Sentenced to 28 Years in Corruption Case," a remarkable case of political corruption culminated yesterday in a remarkable federal sentence. Here are excerpts from the press account of the sentencing:
Kwame M. Kilpatrick, the former mayor of Detroit, stood before a federal judge on Thursday and apologized for putting the people of his city through a corruption scandal so vast that prosecutors say it helped accelerate Detroit’s march toward bankruptcy. “They’re hurting,” Mr. Kilpatrick said. “A great deal of that hurt I accept full responsibility for.”
They were solemn words from the formerly boisterous figure, a bear of a man at 6 feet 4 inches who many believed would lead Detroit out of its long economic downturn. But on Thursday he stood slouched, wearing a tan prison uniform instead of the flashy suits he once favored. Court officers replaced the entourage of bodyguards that used to follow him around. The diamond that once studded his ear, an emblem of his reputation as the “hip-hop mayor,” was gone.
Then, declaring an end to the bribery and thieving that marked the Kilpatrick administration, Judge Nancy G. Edmunds of United States District Court imposed the sentence prosecutors had sought: 28 years in prison.
Mr. Kilpatrick, 43, was convicted in March of two dozen counts that included charges of racketeering and extortion, adding his name to a list of at least 18 city officials who have been convicted of corruption during his tenure. His punishment ranks among the harshest major state and local public corruption cases. Lawyers for Mr. Kilpatrick said that they intend to file an appeal of the convictions and sentence.
The hearing came at a sobering moment for the city he once led, which is now remaking itself in bankruptcy court as residents wrestle over whom to blame for the fiscal mess. For Detroiters, Mr. Kilpatrick’s meteoric fall — from potential savior of a struggling city to prison-bound symbol of financial mismanagement — may be the closest they will get to holding past leaders accountable for decades of disappointment and poor fiscal decisions....
In 2008, Mr. Kilpatrick resigned after he lied under oath during a police whistle-blower lawsuit and approved an $8.4 million settlement to try to cover it up. After pleading guilty to charges of obstruction of justice, Mr. Kilpatrick served four months in jail and was ordered to pay $1 million to the city. He was soon behind bars again for hiding assets from the court and telling a judge that he could afford to pay only $6 a month in restitution.
The former mayor and Bobby W. Ferguson, a city contractor and a friend, were indicted in 2010 on sweeping federal corruption charges. All told, prosecutors contend that Mr. Ferguson received $73 million worth of city contracts as a result of an extortion scheme that involved Mr. Kilpatrick, netting $9.6 million in illegal profit. Mr. Ferguson was convicted of nine counts and will be sentenced on Friday. “The amount of crime, it was astonishing and it had a huge impact on this city,” Mark Chutkow, one of the prosecutors, said as he left the courthouse on Thursday.
Mr. Kilpatrick’s lawyer, Harold Z. Gurewitz, who pushed for a sentence of no more than 15 years, argued in court that Mr. Kilpatrick was being unfairly targeted as a scapegoat for Detroit’s insolvency, with people trying to “send him out with the sins of the city over the last 50 years.” The sentence, he said in an interview later, was tougher than necessary and stiffer than some people get for violent crimes.
Among some of the highest penalties for recent public corruption convictions, James C. Dimora, former commissioner of Cuyahoga County in Ohio, was sentenced last year to 28 years in prison for racketeering and bribery. A year before, Rod R. Blagojevich, former governor of Illinois, was sentenced to 14 years in prison for convictions that included trying to sell the Senate seat President Obama left open when he went to the White House.
In her ruling on Thursday, Judge Edmunds said her decision was another strong warning to elected officials. “That way of business is over,” she said. “We’re done. We’re moving forward.”
Wednesday, September 18, 2013
US Attorney defends fraud guidelines while others urge reform in USSC eventToday notable events in the federal sentencing reform arena were not confined only to today's U.S. Senate Judiciary Committee hearing on federal mandatory minimums (discussed here and here). Also starting today was a two-day event in NYC in which the U.S. Sentencing Commission is discussing potential reform to the federal fraud guidelines. This Reuters report, headlined "U.S. prosecutor cautions against white-collar sentencing revamp," provides a few notable highlights from the events in NYC:
The U.S. Justice Department opposes a wholesale revamping of white-collar criminal sentences that defense lawyers and some judges have urged, a top federal prosecutor said on Wednesday.
But Melinda Haag, the U.S. attorney in San Francisco, said the department was open to limited changes in white-collar sentencing that could reduce sentences in some fraud cases. The comments came as the U.S. Sentencing Commission is weighing revisions to advisory sentencing guidelines used by judges for securities, healthcare, mortgage and other fraud offenses.
Defense lawyers, the American Bar Association, some judges and others have criticized the guidelines, saying they emphasize financial losses caused by crime over all other factors, sometimes resulting in sentences that are too severe.
Haag, speaking at a symposium on white-collar sentencing in New York, said the Justice Department believes the current guidelines "result in tough but fair sentences in the vast majority of the cases." But she suggested that the department may be open to some changes, saying certain categories of cases, such as securities cases involving frauds on the market, warrant "careful study" by the commission. "Despite our questions and concerns, however, we do agree that in some cases, loss may overstate the seriousness of the offense," Haag said.
A growing number of judges have imposed terms less than prescribed by the guidelines, which became advisory rather than mandatory following a U.S. Supreme Court decision in 2005.
U.S. District Judge Loretta Preska, sitting on a panel with Haag, cited the case of Joseph Collins, a former partner at the law firm Mayer Brown, who was convicted for his role in a fraud at commodities broker Refco Inc. With losses calculated at $2.4 billion, Preska said under the guidelines Collins faced life in prison. She instead sentenced him in July to a year in prison, citing his community service and the fact he didn't financially benefit from the scheme. "This was absurd, absolutely absurd," she said.
Haag said the Justice Department recognized there "may be issues in some high-loss cases." But she said the department didn't believe a wholesale change was needed to the fraud sentencing guidelines or the loss table used to calculate sentences. She said it was a relatively small number of cases that had caused judicial concern. Citing commission statistics, she said 54 percent of economic crime cases involve less than $120,000 in losses and 83 percent involve less than $1 million.
Haag also argued that in some big cases involving investment fraud like Ponzi schemes, judges "don't seem to hesitate in imposing lengthy prison terms, noting the devastation these fraud schemes wreak on other people and the greed that motivated most of the defendants before them."...
In the last 18 months, federal prosecutors have handled investment fraud cases involving 800 defendants and more than $20 billion, she said. For the FBI, investment fraud is now 60 percent of its white-collar case load, she said.
Nonetheless, she said "certain categories of cases warrant careful study by the commission and potentially narrowly tailored amendments" to the fraud sentencing guidelines. Among the suggestions she gave would be for the Sentencing Commission to review how the guidelines treat loss in certain securities fraud cases where a drop in stock value by a few dollars per share can turn into a billion dollar loss.
Friday, September 13, 2013
Corporate official gets above-guideline sentence for conspiracy to hide safety violationsA helpful reader alerted me to this federal sentencing story from West Virginia which provides a useful reminder that federal judges sometimes use their increased post-Booker sentencing discretion to impose sentences above recommended guideline ranges (and may do so even for a defendant who has pleaded guilty and cooperating with authorities). Here are the notable particulars from a lengthy article about a notable white-collar sentencing that followed a high-profile workplace disaster:
A former longtime Massey Energy official will spend 3 1/2 years in prison for his admitted role in a decade-long conspiracy to hide safety violations from federal safety inspectors. David C. Hughart, 54, of Crab Orchard, was sentenced Tuesday afternoon to 42 months in jail and three years of supervised release after he pleaded guilty to two federal charges as part of an ongoing federal probe of Massey's safety practices.
U.S. District Judge Irene Berger ordered Hughart to serve a full year more than the high end of the 24- to 30-month recommended under advisory federal sentencing guidelines. The judge said the stiffer sentence was needed to account for the safety risks Hughart's crimes created and to serve as a warning to other mining officials not to put production before safety. "This sentence will promote respect for the law," Berger said.
The Hughart sentencing is another step forward as U.S. Attorney Booth Goodwin and his top assistant, Steve Ruby, continue what is likely the largest criminal investigation of a coal-mine disaster in modern times. The probe started with the deaths of 29 miners on April 5, 2010, in an explosion at Massey's Upper Big Branch Mine in Raleigh County, and has so far prompted four convictions and expanded well beyond Upper Big Branch....
Hughart is cooperating with prosecutors, having pleaded guilty to one felony count of conspiracy to defraud the government by thwarting U.S. Mine Safety and Health Administration inspections and one misdemeanor count of conspiracy to violate MSHA standards.
During a plea hearing in February, Hughart had implicated former Massey CEO Don Blankenship in the conspiracy, and Hughart's family has said Hughart is being wrongly scapegoated while Blankenship and other top Massey executives have faced no criminal charges. "He was a slave to this industry, and Don Blankenship will never see the inside of a courtroom," Hughart's son, Jonathan Hughart, told reporters after Tuesday's sentencing hearing.
Through his lawyer, Blankenship has denied any wrongdoing. And on his blog, Blankenship has said Hughart lied about him and was fired from Massey for drug use and stealing from the company.
Prosecutors have said that former executives and board members of Massey "may be, or may become" targets in the ongoing federal criminal investigation....
Earlier Tuesday, Hughart's $10,000 personal recognizance bond was revoked by U.S. Magistrate Judge R. Clarke VanDervort after Hughart was arrested on Aug. 30 on charges of possession of painkillers and anti-anxiety medication without a valid prescription. Hughart's bond required him to comply with all local, state and federal laws....
While Hughart hasn't been convicted of the drug charges, the arrest increased his recommended sentence under federal advisory guidelines by nine months. Hughart's lawyer, Michael R. Whitt, had urged Berger to issue a lighter sentence, arguing that Hughart's crimes could not be linked to any mining injury -- let alone to the Upper Big Branch Disaster -- and that his client was caught up in the "corporate culture" at Massey.
Whitt told Berger that Hughart's life has been ruined, with him going from an affluent lifestyle and a six-figure mine official salary to losing his home and becoming essentially destitute. "I think he has the message already," Whitt said. "He already knows without spending another day in jail."
Prosecutors, though, had asked for a stiff sentence, noting the "risk to human life and health" created by the conspiracies that Hughart participated in at Massey. "The defendant risked the lives and health of hundreds of coal miners," Ruby told Berger during Tuesday's hearing.
Previously in the Upper Big Branch probe, a former miner at the operation, Thomas Harrah, was sentenced to 10 months in jail after he admitted to faking a foreman's license when he performed key mine safety examinations at the mine between January 2008 and August 2009, and then lied to investigators about his actions.
Berger sentenced a former Upper Big Branch security director, Hughie Elbert Stover, to 36 months in jail after Stover was convicted of two felonies: making a false statement and obstructing the government probe of the mine disaster.
And in January, the judge sentenced former Upper Big Branch superintendent Gary May to 21 months in jail and a $20,000 fine after he pleaded guilty to plotting to skirt safety rules and cover up the resulting hazards....
During Tuesday's hearing, Hughart apologized for his actions and told Berger he had learned from his early days as a miner that "advance notice" of inspections was the way things were done. "I accepted that as the practice, and I understand now it is a serious issue, and it is against the law," Hughart said.
Berger noted previous evidence in the Upper Big Branch cases that suggested MSHA inspectors knew about -- and perhaps even cooperated with -- mine operators having pre-inspection notice. "Advance notice was apparently a common practice in the industry," Berger said. "It's difficult to believe that the only people who were unaware of these practices were the MSHA inspectors."
Terry Ellison, whose brother, Steve Harrah, died at Upper Big Branch, attended Tuesday's court proceedings. "I came for the 29 miners," Ellison said. "I don't want them to be forgotten. There was no reason they should have been killed that day."
September 13, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack
Wednesday, September 04, 2013
Florida prosecutors considering pursuing death penalty for doctor deemed responsible for overdose deathsI am always looking for notable and interesting modern cases to use with my 1L Criminal Law class when covering the topic of causation. Thanks to this local story, headlined "Former West Palm Beach doctor could face death penalty in patients' deaths," it looks like Florida prosecutors not only have presented me with a good classroom candidate, but also are talking up a possible punishment that could ensure the case garners national attention. Here are the details:
State prosecutors have filed court documents announcing their intent to seek the death penalty against a former West Palm Beach doctor facing two counts of first-degree murder for the overdose deaths of his patients.
Authorities with the state attorney's office said Tuesday they have not made a final decision about whether to pursue the ultimate punishment for former West Palm doctor John Christensen, 61, but want to keep that option open. The case will go before the office's death penalty committee, which is expected to review it and decide whether to pursue the penalty within the next month, Chief Assistant State Attorney Brian Fernandes said. "This is a case that's potentially eligible for the death penalty," he said. "We want to make sure that we preserve our rights."
If the state does pursue a death sentence against the doctor, it would be highly unusual. Just a handful of Florida physicians have faced homicide charges for the overdose deaths of their patients, and the majority have been manslaughter cases.
West Palm Beach defense attorney Grey Tesh, who until last month represented Christensen, said he was surprised when the state sent its notice of intent to seek the death penalty. The doctor's new attorney, Richard Lubin, did not return a call seeking comment Tuesday. "At least in Palm Beach County, I don't know of any doctor who has faced the death penalty on a case like this," Tesh said.
In 2002, West Palm Beach doctor Denis Deonarine became the first in the state to be indicted for first-degree murder in the death of a patient who was prescribed painkiller OxyContin. He was ultimately acquitted of first-degree murder charges, and released from prison in December, according to the state Department of Corrections. After the trial ended, one juror told the Sun Sentinel the jury ultimately believed the patient was responsible for his own death.
Christensen, who operated medical offices in West Palm Beach, Port St. Lucie and Daytona Beach, was arrested in July, after a two and-a-half year investigation that focused on the deaths of 35 of his patients. He's facing multiple charges, including the two counts of first-degree murder for prescribing oxycodone, methadone and anti-anxiety drugs to two patients who later overdosed....
Tesh said he expects it will be an uphill battle for the state to get a conviction against Christensen, making the death penalty irrelevant. He said it will be difficult to connect the deaths to him, noting that one of the patients had other substances in her system when she died. "I would be surprised if he's convicted," Tesh said. "The evidence is just not going to be there, not to be proved beyond reasonable doubt."
Even without knowing much about the particulars of Florida homicide law, I share the perspective that state prosecutors are likely to face an uphill battle getting a first-degree murder conviction, let alone a death verdict, from a jury in this kind of case. But I also can identify lots of potential (utilitarian) benefits flowing from just a prosecutorial decision to talk up possible capital charges in this case.
As this very post reveals, simply mentioning the possibility of a death sentence ensures this case gets a lot more attention, and that attention should (and likely will) lead many more doctors in Florida and elsewhere to be at least a bit more careful when writing scripts for potent and potentially lethal prescription drugs. In addition, as in many other cases involving lots of human carnage, the prospect of capital charges might encourage a guilty defendant to plead guilty to lesser (and more fitting) charges. (Of course, some may view the potentially coercive impact of capital charges in a case like this to be an injustice, but I suspect prosecutors might well concluse that such charges are a fitting prescription for this kind of case.)
September 4, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (11) | TrackBack
Thursday, August 29, 2013
Second Circuit upholds huge securities fraud restitution award (without any real Sixth Amendment discussion)A unanimous Second Circuit panel opinion this morning in US v. Gushlak, No. 12-1919 (2d Cir. Aug. 30, 2013) (available here) upholds a restitution award of over $17 million based on seemingly debatable fact-finding by a federal district judge. Here is how the lengthy opinion starts and ends:
Defendant-appellant Myron Gushlak challenges, on various grounds, the May 15, 2012, restitution order entered against him in the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, Judge). The order, which was entered pursuant to the Mandatory Victims Restitution Act of 1996, 18 U.S.C. § 3663A, awarded a total of $17,492,817.45 to victims for losses stemming from Gushlak's role in the manipulation of the price of a publicly traded security. We affirm....
We return to where we began, the inexpertness of most judges in most technical matters, including the forces afoot in the securities markets and their impact on the prices for any particular security at any particular time. We must therefore rely on the testimony of professionals with appropriate expertise. The district court took great pains in addressing the restitution issues over an extended period of time, requiring repeated efforts by the government to obtain a proper valuation for losses under the particular circumstances, and in light of the peculiar challenges, presented by the case before it. It relied on a qualified expert as a guide. We can identify no clear error of fact or mistake of law that the court committed in reaching, with such care, its result.
Based on a quick scan of the opinion, I see no obvious basis to fault or even question the panel's formal analysis of restitution here in Gushlak. But, as the title of this post suggests, I am quite surprised that the defendant apparently here did not argue that the Supreme Court's June 2012 opinion in Southern Union now requires reconsideration of the circuits' prior rulings that the Sixth Amendment jury trial right is not implicated by judicial fact-finding in support of statutory-based restitution punishment.
Though I am not aware of any major rulings reconsidering this Aprrendi-land issue after Southern Union, I am sure that the decision in Southern Union included significant language that provides a strong basis for such reconsideration. And, with over $17 million dollar at stake and with judicial fact-finding apparently so challenging and contestable in a case like Gushlak, I think a Sixth Amendment argument could have had at least some extra traction in a case like this.
Wednesday, August 21, 2013
Bradley Manning gets 35 years from military judge for espionage convictionsAs reported in this breaking news update from USA Today, "Army Pfc. Bradley Manning was sentenced to 35 years in prison after being convicted of espionage and other charges in connection with a massive leak of classified material." Here is more:
The judge in the case, Army Col. Denise Lind, announced the sentence in a military courtroom in Fort Meade, Md. He also received a dishonorable discharge, will forfeit his pay and benefits and was reduced in rank.
Manning faced a maximum of 90 years in prison after his conviction last month on charges of espionage, theft and fraud. Manning was convicted of the largest leak of classified material in U.S. history and was at the center of a growing debate over government secrecy.
Prosecutors urged the judge to sentence Manning to 60 years as a deterrent to others who might be tempted to leak secret documents. "He betrayed the United States, and for that betrayal, he deserves to spend the majority of his remaining life in confinement," Capt. Joe Morrow had said during the sentencing hearing.
Manning's defense had urged the military to sentence Manning, who served as an intelligence analyst in Iraq, to no more than 25 years in prison....
The U.S. government said his actions jeopardized U.S. interests and exposed informants and sources to danger. Manning's defense painted him as a misguided idealist who opposed the war in Iraq. "He had pure intentions at the time that he committed his offenses," defense attorney David Coombs said during the sentencing hearing. "At that time, Pfc. Manning really, truly, genuinely believed that this information could make a difference."
Manning's defense attempted to "play up the human aspect" of Manning by highlighting mental health issues, said Phil Cave, a former military lawyer now in private practice. Defense witnesses testified about Manning's "gender-identity disorder," which contributed to the mental stress he was under....
Under military law, the sentence will be automatically appealed. He would probably be eligible for parole after he served one-third or 10 years of his sentence, whichever is longer.
I have blogged very little about this high-profile sentencing case in large part because I am very ignorant about US military sentencing law and procedure. For example, I did not realize that parole remained available for lengthy military sentences (given that federal civilian law eliminated parole from the sentencing system three decades ago), nor am I conversant on what formal rules or guidelines may have impacted the seemingly broad sentencing discretion of Army Col. Denise Lind or could still play a role in the automatic appeal provided by military law.
Both due to my basic ignorance and due to the high-profile nature of this case, I welcome both informed and uninformed opinions on this sentencing outcome. Do folks think 35 years in prison (with parole eligibility in less than 12 years when Manning will still be in his mid-30s) is a fair and effective sentence in this case? Why or why not?
August 21, 2013 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (22) | TrackBack
Wednesday, August 14, 2013
"Both Jacksons get prison terms, Jackson Jr. to serve first"The title of this post is the headline of this Chicago Tribune report on today's high-profile federal sentencing in DC. Here are some of the details:
Former Rep. Jesse Jackson Jr. was sentenced today to 30 months behind bars and his wife, Sandi, got a year in prison for separate felonies involving the misspending of about $750,000 in campaign funds.
In addition to the 2.5 years in prison, Jackson Jr. was sentenced to three years of supervised release. Sandi Jackson was ordered to serve 12 months of supervised release following her prison term.
The judge emphasized that Sandi Jackson was sentenced to exactly 12 months, not the year-and-a-day sentence that some criminals get. Defendants sentenced to a year or less cannot qualify for time off for good behavior in prison. But those sentenced to a year and a day can qualify, which means they may end up serving only about 10 months. Under this rule, Sandi Jackson must serve the full year.
Both Jacksons wept in court as they addressed the judge before sentencing. Jackson Jr. apologized for his crimes and expressed special regrets to his mother and father. “Your honor, throughout this process I’ve asked the government and the court to hold me and only me accountable for my actions,” he said.
When Jackson Jr. spoke, he voice was firm except for the few times he wept openly and paused to dry his eyes with tissue, blow his nose and collect himself. “I am the example for the whole Congress,” he said. “I understand that. I didn’t separate my personal life from my political activities, and I couldn’t have been more wrong.”
Talking about his desire to be sent to a federal prison camp in Alabama, he said: “I want to make it a little inconvenient for everybody to get to me.” He said he hoped that his wife could earn enough money in his absence to keep the family together. “When I get back, I’ll take on that burden,” Jackson Jr. said. “By then I hope my children will be old enough that the pain I caused will be easier to bear.”
After a break in the hearing, Sandi Jackson, a former Chicago alderman, got her opportunity to address the court. She started by telling the judge: “I am a little nervous, so I have a written statement that I would like to read to you.”
She continued: “I want to begin by apologizing first to my family, to my friends, my community and my constiuents for the actions that brought me here today." She said she had caused “disappointment in my community” and had “put my family unit in peril.”
“My heart breaks every day with the pain this has caused my babies,” she continued, weeping. “I ask to be parent, provider and support system that my babies will require in the difficult months ahead.” Their children are ages 13 and 9.
Earlier, Jackson Jr.’s lawyer Reid Weingarten said his client felt “horror, shame and distress” over his crimes. But Weingarten also attempted to downplay the impact of Jackson Jr.’s actions, since he took money from his own campaign fund. It’s not as if there are widows and orphans outside the courthouse who are victims and asking for his head, Weingarten said. “This is not a Ponzi scheme,” he said.
Weingarten asked for an 18-month sentence for Jackson Jr. and noted, “He suffers from a very, very serious mental health disease.” He identified the ex-congressman’s illness as bipolar disorder, and conceded that it was relevant even though “we didn’t plead guilty by reason of insanity.”
Matt Graves, an assistant U.S. attorney, countered that Jackson Jr.’s crimes represented one of the largest cases of theft from a campaign treasury that had ever been prosecuted. Graves also took a shot at Jackson Jr.’s reported condition of bipolar disorder, saying normally when mental health issues are litigated in court, there was expert testimony, discovery and an examination of the defendant — and said none had occurred in this case.
“When one looks at the facts,” Graves said, “it’s quite clear that there’s no there there.” He decried Jackson Jr.’s “wasted talent” and “what he threw away.”
Graves said Sandi Jackson's crimes were serious and had occurred over many years. He also pointed out that defendants in federal courts across the country with children were given prison terms.
Jackson Jr., 48, and his wife, Sandi, 49, stood before federal Judge Amy Berman Jackson, who is no relation to the defendants. He pleaded guilty to a felony conspiracy count involving the $750,000 and she pleaded guilty to a related charge of failing to report about $600,000 in taxable income....
The Jacksons, both Democrats, pleaded guilty in February after a yearslong spending spree with campaign funds. Among the loot: a $43,000 Rolex watch, furs, vacations, two mounted elk heads and memorabilia ranging from a Michael Jackson fedora to an Eddie Van Halen guitar.
Prosecutors urged that he serve four years in prison and her 18 months. Defense lawyers wanted probation for her and a lighter term for him.
Jackson Jr. was in the House of Representatives from 1995 to 2012. Sandi Jackson served on the City Council from 2007 until last January. Both resigned their positions leading up to their guilty pleas.
August 14, 2013 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack
Tuesday, August 06, 2013
Eighth Circuit panel, though requiring more explanation, suggests probation could be reasonable sentence when guideline range was 11-14 yearsBecause the Eighth Circuit has a well-earned reputation for being pretty tough on criminal defendants in sentencing appeals in the post-Booker era, I find especially notable its nuanced ruling today in US v. Cole, No. 11-1232 (8th Cir. Aug. 8, 2013) (available here). The start of the panel opinion in Cole sets out the basics of the ruling:
A jury found Abby Rae Cole guilty of conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. § 1349; tax evasion, in violation of 26 U.S.C. § 7201; and conspiracy to commit tax fraud, in violation of 18 U.S.C. § 371. The mail and wire fraud conspiracy conviction stems from her company’s theft of nearly $33 million from Best Buy over a four-year period. The tax fraud conspiracy and tax evasion convictions stem from understating tax liability by more than $3 million between 2004 and 2007 by using various schemes to conceal her company’s true profitability. Cole’s advisory Guideline range was 135 to 168 months imprisonment, but the district court varied downward and sentenced her to three years probation on each count, with all terms to be served concurrently. The government appeals Cole’s sentence, arguing it is substantively unreasonable. Cole cross-appeals, challenging her convictions. We affirm Cole’s convictions but remand her case to the district court to provide a fuller explanation of her sentence.
Co-conspirators much more responsible than Cole for the big fraud here got lengthy sentences (15 and 7.5 years), which seems to help explain why the district court decided to give this defendant such a big break. And, as this final key paragraph of the sentencing discussion reveals, the panel here thinks such a big downward variance could be justified, but needs to be more fully explained:
Because Cole’s probationary sentence represents a “major departure” from the advisory Guidelines range, the court’s brief and contradictory explanation of Cole’s sentence is not sufficient “to allow for meaningful appellate review and to promote the perception of fair sentencing.” See Gall, 552 U.S. at 50. Consequently, we cannot evaluate the government’s claim of substantive unreasonableness at this time, and we remand for the district court to more fully explain the defendant-specific facts and policy decisions upon which it relied in determining that the probationary sentence is “sufficient, but not greater than necessary,” § 3553(a), to achieve the sentencing objectives set forth in section 3553(a).
August 6, 2013 in Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (1) | TrackBack
Thursday, July 25, 2013
Waaaaay below federal guideline prison sentences (but big fines) for UBS bid-riggersAs reported in this Wall Street Journal, headlined "US set back on bid-rig sentencing," a federal district judge in NYC yesterday handed down a set of white-collar sentences that were far below calculated guideline ranges and far below the sentences being sought by federal prosecutors. Here are the details:
US District Judge Kimba Wood of the Southern District of New York handed Peter Ghavami, the former co-head of UBS' municipal-bond reinvestment and derivatives desk, an 18-month sentence. Prosecutors had sought at least 17½ years and as long as 21 years, 10 months for Ghavami, who also served as the Swiss bank's head of commodities at one point.
The much harsher sentence proposed by the government would have been longer than the 11-year term given in 2011 to Galleon hedge-fund founder Raj Rajaratnam for his insider-trading conviction.
But Judge Wood, a one-time nominee to become US attorney general who also sentenced former Drexel Burnham Lambert executive Michael Milken to 10 years in prison, raised questions about the government's method of calculating losses in the case, which it had pegged at about $25 million.
She also praised Ghavami's "admirable history" and noted that he faces other penalties including a $1 million fine and deportation to Belgium, where he is a citizen. Because Ghavami, 45 years old, is not a US citizen, he also has to serve in a "low security" prison instead of a "miminum security" camp.
One of Ghavami's former colleagues, Gary Heinz, 40, a former vice president on UBS' municipal-bond reinvestment desk, was given a 27-month sentence Wednesday, while Michael Welty, 49, another former vice president, got 16 months. Prosecutors had asked for at least 19½ years for Heinz and about 11 years or more for Welty.
Last summer, a New York jury found the three former UBS employees guilty of leading a scheme that caused municipalities to pay millions of dollars more for bond deals than they needed to pay. The case dealt with an obscure corner of the bond market in which local governments raise money from investors through bond deals, then invest the proceeds in investment products that banks and others are supposed to sell in a competitive process....
In the UBS bond-rigging case however, prosecutors sought stiff penalties for actions that took place before the financial crisis, from 2001 to 2006. The three former UBS employees caused cities, states and other municipalities to lose $25 million, the government alleged. "For years, these executives corrupted the competitive bidding process and defrauded municipalities," said Scott D. Hammond, deputy assistant attorney general in the Antitrust Division's criminal-enforcement program, in a statement.....
"We're extremely pleased with the sentence," said Charles Stillman, a lawyer for Ghavami. Ghavami intends to start serving his sentence as soon as possible, instead of waiting to see how his appeal of the case turns out, Stillman added. Ghavami's fine of $1 million was five times greater than the maximum suggested by the government.
Heinz and Welty were fined $400,000 and $300,000, respectively, both more than the government suggested. Marc Mukasey, Heinz's lawyer, said "We're happy that the government's outrageous sentencing request was soundly rejected." Welty's lawyer, Gregory Poe, said that the jury acquitted Welty of wire fraud and said he will appeal the conspiracy convictions, and "we hope to clear his name." He added that his client is grateful that Judge Wood rejected the government's sentencing position.
Over the past half-decade, the Justice Department has pursued the muni-bond cases as part of an effort to punish Wall Street banks for shortchanging cities and states. Prosecutors have enjoyed some victories, so far gathering six convictions and 13 guilty pleas. Several were sentenced before Wednesday, with prison terms ranging from six months to four years. Firms affected by the investigation have paid $745 million in restitution, penalties and disgorgement....
It remains to be seen whether this week's sentencing setback will affect the government's strategy in the other pending sentencing hearings. Two former JP Morgan Chase. employees, two former Bank of America employees and three others involved with the case await sentencing. One case remains pending and awaiting trial.
Last year, three former employees of General Electric were convicted for their roles in conspiracies related to bidding for municipal-bond-proceeds reinvestment. Two were sentenced in October to three years in prison and the third received a four-year term.
At the hearing Wednesday, prosecutors argued that the former UBS officials deserved more prison time than the former GE employees, while Judge Wood said she didn't see the cases as that different. She also expressed doubt that anyone could accurately quantify losses in cases where the bidding process had been corrupted. In the case of the three UBS officials sentenced Wednesday, federal prosecutors also sought fines of $20,000 to $250,000 in the case. Prosecutors called their actions a "sophisticated financial fraud" that went on for years and "victimised municipalities and other bond issuers".
There are obviously lots of interesting aspects to this sentencing story. I am especially eager to praise Judge Wood for using big financial penalties — which make the government money and seem especially fitting for crimes of greed — while refusing to use big imprisonment terms — which cost the government money and seem unlikely to impact public safety for non-violent white-collar criminals. Relatedly, given that this article suggests that all other comparable big-rigging defendants have received sentences ranging from 6 to 48 months, I find stunning and deeply troubling that federal prosecutors were advocating in these cases for sentences ranging from more than 130 months to 260 months. Nice effort to avoid unwarranted sentencing disparities via your advocacy here, DOJ. (Not!)
July 25, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Tuesday, July 23, 2013
Second Circuit finds stat max white-collar sentences procedurally unreasonableThe Second Circuit panel has today handed down a significant reasonableness ruling in US v. Juncal, No. 10-1800 (2d Cir. July 23, 2013) (available here), which should be of special interest to all white-collar sentencing practitioners. The last seven pages of the per curiam panel opinion and the entire nine pages of the concurrence by Distict Judge Underhill (sitting by designation) are must reads for sentencing fans, and the few paragraphs I will reprint here help highlight why.
The per curiam panel opinion find procedurally unreasonable 20-year sentences given to defendants who were part of a conspiracy "which involved a scheme to obtain a three billion dollar loan supposedly intended to finance construction of a pipeline across Siberia [that] resulted in no actual loss." Here is part of the panel opinion's explanation for why these sentences were procedurally unreasonable:
Here, appellants’ lawyers highlighted significant issues with the intended loss calculation both in their briefs and at sentencing. Given the low risk that any actual loss would result — what hedge fund would fall prey to a purported coalition of Buryatian nationals and Yamasee tribesmen using AOL email accounts to offer five billion dollars in collateral for a loan to build a pipeline across Siberia? — counsel argued that a 30 point mega-enhancement vastly overstated both the seriousness of the offense, and the danger of appellants to their community. The Guidelines acknowledge that potentiality; application note 3(C) to U.S.S.G. § 2B1.1 indicates that a downward departure may be warranted where the offense level resulting from a loss calculation overstates the seriousness of an offense. But the sentencing court never resolved appellants’ significant arguments. At Sampson’s hearing the District Court did draw a comparison between other financial crimes and this case, but it never resolved the question raised by the appellants — whether treating intended loss like actual loss under all the circumstances of this case leads to a sentence consistent with the dictates of section 3553(a).
The concurring opinion by Judge Underhill is even more potent as it advocates for a broader ruling that the sentences here are substantively unreasonable, and here is how it gets started
In my view, the loss guideline is fundamentally flawed, and those flaws are magnified where, as here, the entire loss amount consists of intended loss. Even if it were perfect, the loss guideline would prove valueless in this case, because the conduct underlying these convictions is more farcical than dangerous. If substantive review of sentences actually exists other than in theory, it must be undertaken at least occasionally. This would have been an appropriate case in which to do so, because it raises so starkly the problems with the loss guideline. Until this Court weighs in on the merits of the loss guideline, sentences in high-loss cases will remain wildly divergent as some district judges apply the loss guideline unquestioningly while others essentially ignore it. The widespread perception that the loss guideline is broken leaves district judges without meaningful guidance in high-loss cases; that void can only be filled through the common law, which requires that we reach the substantive reasonableness of these sentences.
Friday, July 19, 2013
Local judge gives poll worker five-year prison term for voter fraudA colleague alerted me to this notable sentencing story from the Cincinnati area about a woman who received what seems to be a quite severe sentence for voter fraud. The piece is headlined "Illegal voter gets 5-year prison term," and here are the details:
Calling her a common criminal who abused her authority as a poll worker by violating the principle of “one person, one vote,” a judge sent Melowese Richardson to prison Wednesday for five years following her illegal voting conviction.
“This is not a little thing. It’s not a minor thing. This is what our country’s based on – free elections,” Hamilton County Common Pleas Court Judge Robert Ruehlman told Richardson.
In a case watched around the country, Richardson was a Hamilton County poll worker from 1998 until her arrest earlier this year when she was charged with eight counts of illegal voting. In May, she accepted a plea deal and was convicted of four counts in exchange for the other four being dismissed.
She was convicted of voting twice in the 2012 election and voting three times – in 2008, 2011 and 2012 – for her sister, Montez Richardson, who has been in a coma since 2003.... Richardson told the judge she was bothered that Amy Searcy, the Board of Elections director, had criticized her moments before the sentencing....
The conservative, outspoken judge responded with scathing comments, blasting Richardson for suggesting she was being prosecuted because she was a black Democrat helping a black Democratic presidential candidate. “It has nothing to do with race. It has nothing to do with politics. It has nothing to do with disrespecting you. You did this to yourself,” Ruehlman told her.
“You’re very selfish, self-centered. I really believe President Obama, if he were asked about this today, he would be appalled. He would not want anybody to cheat to get elected.”
Ruehlman noted that two others convicted of illegal voting before Richardson got much lighter sentences but stressed their cases were different. The judge noted Richardson deserved a prison sentence, which was one year less than the maximum possible, because she has a lengthy criminal record, schemed repeatedly over five years to cast several illegal votes and used her training and expertise as a poll worker to try to evade detection.
“‘I’m Melowese Richardson. I can take the law into my own hands,’” the judge said, mocking what he believes is Richardson’s attitude.
Richardson previously was convicted of threatening to kill a witness in a criminal case against her brother, of stealing, of drunken driving and of beating someone in a bar fight.
Anything short of a prison sentence, Assistant Prosecutor Bill Anderson told the judge, would be an attack on the voting system. As a poll worker, “her job is actually to protect the integrity and sanctity of the voting system,” Anderson said. “(She) is an ideologue who was hell bent on stuffing the ballot box with as many Obama votes as possible.”
Bill Gallagher, Richardson’s lawyer, suspected she would be sent to prison but was surprised by the sentence. “I thought prison was a real possibility because of her record of 25 years ago,” Gallagher said. “I don’t think that the length of it was any where near what we expected.”
Tuesday, July 09, 2013
Third Circuit affirms record-long insider-trading sentenceAs reported in this Forbes piece, headlined "Inside Trader Matthew Kluger's 12-Year Prison Term Affirmed," a panel of the Third Circuit today rejected a range of arguments against a lengthy federal sentence for insider trading. Here are the basics:
The prison term given to Matthew Kluger by U.S. District Judge Katharine Hayden (New Jersey) represented the longest ever given to a person pleading guilty to charges of insider trading. Upon his arrest in April 2011, Kluger quickly decided to enter negotiations to plead guilty and throw himself on the mercy of the court. That strategy landed him in prison for 12 years.
Kluger was a lawyer (NYU Law) who worked on mergers and acquisitions of publicly traded companies at prestigious law firms, including Wilson Sonsini Goodrich & Rosati PC. He then passed that confidential information on to a middle man (Kenneth Robinson), who then passed it on to a trader, Garrett Bauer. The scheme worked for 17 years because there was no direct communication between Kluger, the source, and Bauer, the trader. In fact, the two had only met once at the beginning of their illegal trading. The Securities and Exchange Commission had suspicions of Bauer’s trading activities but could never tie him to a source for the information. However, when Bauer backed out of the trading scheme in 2010, Robinson and Kluger continued … that was when the SEC and the FBI pulled everything together. As David Voreacos (Bloomberg) noted in his excellent profile of Kluger, the scheme succeeded for so long because of its simplicity, the discipline of its limited number of people and its essential amoral nature.
The basis of Kluger’s appeal was that Bauer was supposed to buy only small number of shares, to avoid detection from authorities, and then the three would equally share in the profits. However, Bauer, unknown to Kluger, was trading large blocks of shares for his own benefit, resulting in millions in profits. Whereas Kluger believed that the profits were just around $2 million (a little of $600k each), the total profits from the information he provided to the conspiracy approached $37 million with Bauer receiving the majority of the money. Kluger was sentenced by Judge Haydan according to the Federal Sentencing Guideline based on the amount of the total gain and not the amount he personally realized from the trades. His guideline range at sentencing was 11-14 years … so 12 seemed fair to the judge.
The 3rd Circuit agreed with Judge Hayden, stating that Kluger, “… truly was a career criminal.” Upon being notified of the decision, U.S. Attorney Paul J. Fishman (District of New Jersey) released a statement, “We argued at sentencing that a severe penalty was appropriate for one of the longest running insider trading schemes ever prosecuted, and are gratified the Court of Appeals saw it the same way.”
Kenneth Robinson, who recruited Bauer and hatched the initial plan with Kluger, did not appeal his prison term of 27 months. Robinson was the first to cooperate with authorities and recorded conversations with both Bauer and Kluger, which sealed their fate. Note to file; It pays to cooperate early.
The full panel opinion in US v. Kluger, No. 12-2701 (3d Cir. July 9, 2013) (available here) runs 48 pages, and this paragraph from the start of the opinion provides an effective accounting of the sentencing issues raised (and ultimately rejected) on appeal:
On June 13, 2012, Kluger filed a timely appeal, raising the following arguments. First, he challenges the District Court's calculation of his sentencing guidelines range. Second, he contends that the Court procedurally erred in imposing the sentence on him by (1) improperly denying him an evidentiary hearing prior to his sentencing; (2) failing to resolve his objections to the presentence investigation report; and (3) not ordering discovery of materials that the govern ment turned over to the probation department for use in preparing the presentence report. Finally, he contends that the District Court imposed a procedurally and substantively unreasonable sentence
Wednesday, July 03, 2013
"China threatens death penalty for serious polluters"The title of this post is the headline of this notable Reuters article from a few weeks ago that I just came across. Here is how it gets started:
Chinese authorities have given courts the powers to hand down the death penalty in serious pollution cases, state media said, as the government tries to assuage growing public anger at environmental desecration.
An increasingly affluent urban population has begun to object to China’s policy of growth at all costs, which has fuelled the economy for three decades, with the environment emerging as a focus of concern and protests.
A new judicial interpretation ... would impose “harsher punishments” and tighten “lax and superficial” enforcement of the country’s environmental protection laws, the official Xinhua news agency reported. “In the most serious cases the death penalty could be handed down,” it said.
“With more precise criteria for convictions and sentencing, the judicial explanation provides a powerful legal weapon for law enforcement, which is expected to facilitate the work of judges and tighten punishments for polluters,” Xinhua said, citing a government statement. “All force should be mobilised to uncover law-breaking clues of environmental pollution in a timely way,” it added.
Previous promises to tackle China’s pollution crisis have had mixed results, and enforcement has been a problem at the local level, where governments often heavily rely on tax receipts from polluting industries under their jurisdiction.
Tuesday, July 02, 2013
Does postponement of Jacksons' sentencing suggest big rulings are in the works?High-profile white-collar federal sentencing proceedings always intrigue me, especially when they involve a cocktail of dynamic doctrinal and policy issues as is the case in the upcoming sentencings of former Rep. Jesse Jackson Jr., and his wife Sandi. But , as reported here by the Chicago Tribune, it now appears we will have to all wait a bit longer for the Jacksons' day of sentencing reckoning:
The South Side Democrats had been scheduled to learn their fates Wednesday, until the delay was announced by U.S. District Judge Amy Berman Jackson, who is not related to the pair. A court spokesman said neither the prosecution nor defense asked for the postponement.
"The matter was rescheduled to accommodate the court's schedule and workload — neither side requested a continuance," said Jenna Gatski, a spokeswoman for the U.S. District Court.
Jackson Jr. pleaded guilty to misusing about $750,000 in campaign cash. Sandi Jackson, a former Chicago alderman, pleaded guilty to failing to report about $600,000 on income tax returns over several years.
The postponement was announced after a telephone conference call between the judge and the Jacksons, the court said. Bill Miller, a spokesman for the U.S. attorney for the District of Columbia, said the sentencings would not take place this week.
Jackson Jr., 48, faces 46 to 57 months in prison under federal sentencing guidelines, which are not mandatory. His lawyers want a sentence lower than what the guidelines suggest and assert that Jackson Jr., who reportedly has bipolar disorder, could not get proper medical care in prison. Federal prosecutors want him to serve a four-year sentence and to be placed on supervised release for three years after that.
Sandi Jackson, 49, faces one to two years in prison. Her attorneys want her sentenced to probation, saying the couple's two children, ages 9 and 13, need their mother. Prosecutors want her imprisoned for 18 months and put on supervised release for a year.
The question in the title of this post is my reaction to report that neither side sought a postponement and the indication that the change was "to accommodate the court's schedule and workload." I would be very surprised if Judge Amy Berman Jackson had a trial or lots of other litigation matters crop up in the middle of this summer holiday week; reading these latest tea leaves now has me wondering (and weirdly excited) that this postponement is based in part on the judge's plans to issue a significant written opinion on federal sentencing law, policy and practice along with her sentencing ruling. (Or maybe the judge just has tickets to see Bryce Harper back playing again for the Washington Nationals during their homestand this week, and she decided it was more fitting to catch a baseball game than to deprive liberty right before we all celebrate Independence Day.)
- You be the prosecutor: what federal sentence should be sought for Jesse Jackson Jr. and his wife?
- Jacksons plead guilty and federal prosecutors recommend significant prison terms for both
- Noteworthy new lawyer and now a new judge for Jesse Jackson Jr. sentencing
- Months before scheduled sentencing, lawyers buzzing about Jesse Jackson Jr.'s mental health
- "Will the Jacksons get a slap on the wrist, or will their heads be mounted?"
UPDATE: This local article now reports that the Jacksons' sentencings have now been set for August 14.