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February 12, 2007
Judge Cassell casts spotlight on federal prosecutors "swallowing"
I noted in this weekend post an article discussing US District Judge Paul Cassell's criticism of federal prosecutors' unjustified use of sentencing discretion in a tax fraud case. I just obtained a copy of Judge Cassell's amended order in US v. Mercer, No. 2:06-CR-00161 (D. Utah Feb. 12, 2007) (downloadable below), and it is an important read. Here are the highlights from the start and end of the order:
On January 11, 2007, the court sentenced the defendant in this case — an accountant who had pled guilty to willfully aiding and assisting in the preparation and filing of a false tax return. Remarkably, however, at the sentencing hearing, the government took the position that the defendant had not used a special skill or violated a position of trust in preparing those false returns — even though the Federal Sentencing Guidelines plainly called for an enhancement in such a case. In other words, this appears to be a case of the government "swallowing the gun," in the colorful phrase that is often used to describe a decision by prosecutors to argue a position contrary to the obvious facts. A brief opinion is appropriate to highlight the government's failure to apply the Guidelines fairly here....
At the core of the Ashcroft Memorandum is the goal of fairness in sentencing. Compliance with the Ashcroft Memorandum prevents the spectacle of government attorneys arguing to the court things that are contrary to fact — it avoids prosecutors "swallowing the gun." In this case, the government did swallow the gun, as the Department's attorney ended up objecting to the court's virtually indisputable conclusion that accountants preparing tax returns either use special skills. It seems inconsistent for the Department to take that position in this particular case, while arguing before Congress that judges' "failure to comply with the [sentencing] guidelines has already meant reduced sentences in cases throughout the country, and if not addressed, will mean a steady erosion in the deterrent value of federal sentencing policy, and, ultimately, in reduced public safety." The court firmly agrees with the generally-stated position of the Department that a sentencing system that involves ignoring the obvious facts is "neither desirable nor capable of sustaining long-term public confidence."
The court has taken the trouble of writing this brief description of this case because it seems at odds with the way the sentencing process ought normally to advance. If the government wishes to recommend a sentence that differs from that recommended by the Guidelines, there are legitimate vehicles for doing so. But the facts are the facts — the government should not take disingenuous positions to the contrary in applying the Guidelines. In other words, the court fully agrees with the goals animating the Ashcroft Memorandum — ensuring the Guidelines are calculated fairly in cases before the court.
In my view, it is not at all surprising that a white-collar defendant almost got the benefit of prosecutorial "swallowing" in Mercer; it is joyfully surprising to see a judge call DOJ to the mat for its misguided act of prosecutorial leniency. What makes Mercer so potent and important is not only how it reveals DOJ's hypocrisy about the exercise of federal sentencing discretion, but also how it showcases the challenges that any sentencing system faces in trying to regulate prosecutorial discretion.
February 12, 2007 at 03:09 PM | Permalink
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Comments
I don't think it's fair to, on the basis of one case out of thousands, to call the DOJ hypocritical.
And to think that Cassell didn't get a lot of love from Dems when he was nominated . . . .
Posted by: federalist | Feb 12, 2007 3:20:51 PM
Part of the reason fair-minded prosecutors sometimes "swallow" is that the "advisory" guidelines are actually treated as pretty darn mandatory by many judges (including Judge Cassell, I suspect). To avoid the application of a too harsh guideline range, which the prosecutor believes will be followed regardless of any request for a variance, the prosecutor "swallows" a guideline fact. Until judges get it through their heads that they truly have discretion to vary from the guidelines post-Booker (and particularly post-Claiborne/Rita, one can only hope), prosecutors trying to achieve a just sentence will continue to "swallow" on occasion.
Posted by: anonafpd | Feb 12, 2007 3:25:19 PM
"But the facts are the facts — the government should not take disingenuous positions to the contrary in applying the Guidelines."
That's the courts' job!
If you want courts to have the power to dodge certain tough sentencing procedures, like the crack-powder ratio or attributed drug amounts, it doesn't make a whole lot of sense to be upset when a prosecutor excercises a little subtle lenience, even when you think it's unfair. A lighter sentence helps the cause of leniency as a whole. Getting tough on tax crimes serves the cause of getting tough on crime as a whole.
I mean, wasn't everyone DEMANDING that the prosecutor in the Winslow case "swallow" the evidence (pardoning the unintentional sick pun) and let him off on a lighter charge? Did Winslow not commit the exact crime for which he was charged? Are you saying a prosecutor can ignore evidence only at the charging phase, not the sentencing phase?
If you support lenience for Winslow, don't be inconsistent like the DOJ in this case. Be happy with lenience here.
Posted by: | Feb 12, 2007 3:41:48 PM
I think the third comment is referencing the Genarlow Wilson case, and I should clarify that I want fair and proportional sentences in every case. Sometimes that means when the punishment seems much too harsh I call for leniency, but sometimes that means I criticize leniency that does not seem fair or proportional.
Posted by: Doug B. | Feb 12, 2007 3:45:04 PM
I think that Cassell's opinion is interesting, not because the Government is failing to adhere to the Ashcroft Memo and Cassell is calling them on the carpet, but because it demonstrates that even within the Department of Justice there is a sense that Guideline sentences are sometimes too high. It is unfortunate that the prosecutors in this case had to try and acheive a just punishment by arguing something so demonstrably false. But I am sure that this has something to do with Main Justice's policy that only sentences within or above the Guidelines are reasonable.
If you want to see another interesting example of an individual prosecutor trying to quietly advocate for a below-Guideline sentence, take a look at Judge Rakoff's opinion in US v. Adelson, 441 F. Supp. 2d 506 (2006). There, the government argued that the white collar defendant should receive a sentence of 30 years, as it was similar to sentences imposed in other white collar cases. Under the Guidelines, the defendant's sentence would have been life in prison. Judge Rakoff reproduced a portion of the sentencing transcript to illustrate that "Even the Government blinked at this barbarity. Pressed repeatedly by the Court as to whether he was asking for a guideline sentence (which, under the Justice Department's prevailing policy he was obligated to do), Government counsel refused to answer the question directly."
Posted by: C.Hessick | Feb 12, 2007 4:21:22 PM
One thing does trouble me about this case.
Normally, a court's job is to adjudicate disputed matters, not to create a dispute where none exists.
All plea bargains involve a trade-off of risks on both sides. I think the court has the duty to ensure the defendant isn't duped, but the government normally knows what it is doing, and shouldn't be second-guessed if both sides are in agreement.
Posted by: Marc Shepherd | Feb 12, 2007 4:31:23 PM
I disagree, Marc. The defendant and the executive are not the only interested parties here. The courts have an interest in remaining a place where people can seek the truth (the actual truth, not just some concocted version). Courts are not some glorified mediation panel or a rubber stamp for agreements reached by litigating parties.
Posted by: | Feb 12, 2007 4:45:24 PM
I disagree with March Shepherd about the court creating a dispute where none existed. No matter what the two parties in a criminal case say, there's a third party, the public. Our criminal law and procedures have the public's interest, occasionally, popping up to create a "dispute" where the prosecution and defense have tried to reach agreement. A good example is guilty pleas. Even though the government and a defendant may agree that the defendant is guilty of a crime, the court has the OBLIGATION to make sure that a factual and legal basis for the guilty plea exists (and that the government has agreed to only reasonable restrictions on the sentencing power of the court). By doing so, the court is charged with protecting the public's interest: first, by making sure that innocent people don't plea to crimes they haven't committed; second, by making sure that the sentencing range agreed to by the parties does not overly restrict the court. Agreeing to sentencing "facts" that do not conform to the truth, similarly, is an area where the public, legitimately, has a say in the outcome of a case. That's what happened here.
The Guidelines still stink, but we shouldn't pervert the truth in order to convince ourselves that they don't stink so bad.
Mark
Posted by: Mark | Feb 12, 2007 4:55:03 PM
That's bull. The courts are an ajudicatory branch. How can a judge remain unbiased and neutral if he's "representing" "the public" or some other amorphous entity. Answer is he can't, and Cassell isn't here. If he's going to reject this plea agreement because he's already decided that certain facts have been proven, then he needs to recuse himself from all future proceedings in this case because he's prejudged any "issues" that need to be litigated.
Posted by: A | Feb 12, 2007 5:31:08 PM
If you think the law for accepting guilty pleas or sentencing agreements (or the many other occasions, in both civil and criminal cases, where the judge has a duty to the public) is "bull," then your problem is with the law, not with us. The idea that judges are passive ciphers merely processing the views of the advocates and witnesses before them is naive; they are public servants, paid out of the public purse, and they OFTEN owe a duty to the public that is separate and apart from their duty to decide the individual disputes before them. This duty doesn't make them advocates; it makes them judges. The substance of your argument ("bull") shows how little you understand the system.
Your recusal argument is almost as weak, although less colorful. A judge who has a filing before him showing that a defendant is an accountant has not "prejudged" the case by taking that information and asking whether the defendant possessed unusual technical skill in the course of his crime sufficient to warrant a sentencing enhancement. There was no disagreement to adjudicate regarding whether the defendant was an accountant, only whether the fact that he was an accountant should lead to a sentence enhancement. It was the government's disingenuous argument (that accountants do not have a special skill that makes them better at financial fraud), used in an effort to try to manipulate the law, that ticked off the Judge.
But the Guidelines still stink.
Mark
Posted by: Mark | Feb 12, 2007 6:06:50 PM
If the DOJ can't "swallow", we are moving even further towards a system where no one has
discretion.
That said, in this particular case, I can't see any good reason for the DOJ to "swallow".
Posted by: William Jockusch | Feb 12, 2007 11:14:59 PM
Notwithstanding A's perhaps inelegant phrasing, A, AFPD, and Marc have a point here. It's an adversary system, and the judge is a neutral, not an advocate. It is not the judge's job to enforce the Ashcroft memorandum--it's the prosecutor's. It is also not the judge's job to represent the public interest--that job again belongs to the prosecutor. While a judge has every right to be sure he's not deceived, and may have the authority to reject a deal under Rule 11 if he doesn't agree that justice is served, he shouldn't be going too far either to "backtstop" the prosecutor or to "call the prosecutor out." Both of those are functions for the prosecutor's (elected) superiors--not for the neutral third branch.
AFPD's also right that a prosecutor exercising discretion might be foolish to trust that a recommendation for departure or variance will be acted upon by the courts. Many courts do treat the guidelines as "pretty darn mandatory," and Judge Cassell is the leader among them. He issued an opinion saying so after Blakely, and did it again before the ink on Booker was dry. It's not that surprising, then, that prosecutors will occasionally "eat" a fact if it gets them to a sentence that, in their discretion, they believe is fair.
Yes, it's unprincipled. Yes, the judge is supposed to sentence, not the prosecutor. But as long as the guidelines are still viewed as nigh-mandatory (by courts like Judge Cassell's), the prosecutor is going to retain this functional power. We shouldn't get all outraged just because sometimes he or she will use it in a defendant's favor.
Posted by: defense atty | Feb 13, 2007 10:57:58 AM
Good points, all. I would only add a few thoughts: first, let's not suggest this plea bargain was so burdensome on the Court. All the judge had to do was compute the guidelines according to the "obvious" facts and overrule both parties objections to them; second, if the judge was so troubled by this plea agreement so obviously contrary to fact, why didn't he inquire as to the guidelines recommendations at the time of the plea; third, I am suprised that such a tricked-up plea agreement came out of a tax case, in which the charging and plea bargainig process is typically much more formal and centralized in DC as other cases.
On the whole, I am biased as a prosecutor, but this appears to be a judge writing for the academic press rather than truly struggling with a particularly difficult case or particularly unprofessional advocacy....
Posted by: Tom | Feb 14, 2007 10:31:04 AM
