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April 9, 2007

Judge Posner provides today's great sentencing read

Judge Richard Posner is in fine form with his highly entertaining opinion in US v. Sriram, No. 05-2752 (7th Cir. Apr. 9, 2007) (available here).  Here is the opening paragraph, which foreshadows the pulse-quickening sentencing ride that follows:

The defendant, a cardiologist who had billed Medicare some $17 million over a five-year period, pleaded guilty to health care fraud and tax fraud.  He admitted having received "substantial payments" for fraudulent claims (estimated in the presentence investigation report to be between $5 and $10 million) submitted to health insurers and having defrauded the government of more than $550,000 in income tax.  After a 13-day sentencing hearing, the district judge threw up his hands and imposed an absurdly light sentence of five years' probation for both the health fraud and the tax fraud (the sentences to run concurrently) plus restitution of $1,258.

The rest of the opinion provides more heart-stopping entertainment (and also covers a lot of significant post-Booker sentencing ground).  Here are snippets that are both noteworthy and amusing:

The judge dipped far below even his erroneously calculated guidelines range to take account of what he considered to be the following mitigating factors: the defendant was "chronically inept as a businessman"; the prosecution had been protracted; the government had violated the doctrine of Brady v. Maryland, 373 U.S. 83 (1963), by failing to turn over records of the defendant's medical training; the defendant had spent a great deal of money on his legal defense; and the prosecution had stigmatized him and might cause him to lose his medical license (it has in fact been suspended). Only the last two of these factors (stigma and effect on professional opportunities) are admissible in determining a sentence, and perhaps only the last one....

A judge's sentencing discretion is constrained by 18 U.S.C. § 3553(a), which lists the factors to be considered in deciding on a sentence.  That a conviction for fraud imposes a "stigma cost" on a "respectable" professional person, such as a doctor, and may even lead to his expulsion from the profession, adds to the punishment inflicted by a prison term or fine. United States v. Dreske, 536 F.2d 188, 196 (7th Cir. 1976); Jeffrey S. Parker & Raymond A. Atkins, "Did the Corporate Criminal Sentencing Guidelines Matter? Some Preliminary Empirical Observations," 42 J. Law & Econ. 423, 426-27 (1999).  And so it may justify a limited (but we stress "limited"—see United States v. Repking, 467 F.3d 1091, 1096 (7th Cir. 2006) (per curiam)) reduction in the term or the fine, because the consequences of a sentence for the defendant's well-being are relevant to the deterrent, incapacitative, and retributive goals of sentencing, all recognized in section 3353(a).

But that a defendant spends heavily on lawyers is not a mitigating factor.  It would not only encourage overspending; it would be double counting, since the pricier the lawyer that a defendant hires, the less likely he is to be convicted and given a long sentence.  And as for governmental misconduct, nothing in section 3553(a) suggests that punishing the government is a proper goal of sentencing; two wrongs don't make a right.

The Brady claim hovers on the border of cloud-cuckooland....

I wonder if cloud-cuckooland is anywhere near Apprendi-land.  Perhaps someday CourtTV can sponsor an attorney version of The Amazing Race to visit all these legally consequential locales.

April 9, 2007 at 05:09 PM | Permalink


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Cloud cuckoo-land and Apprendi-land. That seems an unfair swipe at Scalia.

Posted by: federalist | Apr 9, 2007 5:18:35 PM

Since I like to think of myself as the blogging czar of Apprendi-land, I hardly mean to make a swipe at that location or locution. Rather, I just mean to note my amusement at how many news lands seem to get appear in great sentencing opinions.

Posted by: Doug B. | Apr 9, 2007 5:25:33 PM

"That seems an unfair swipe at Scalia."

You know what Scalia says to that? Well, I won't repeat it in polite company -- especially since it involves a certain "Sicilian" hand gesture which commands the recipient to copulate with his or her own anus -- I'm sure you can find the picture of the Honorable Justice demonstrating it in front a church.

Posted by: rothmatisseko | Apr 9, 2007 7:08:04 PM

CourtTV regularly visits cloud-cuckooland and indeed, that is its theme. CourtTV is likely the #1 reason the SCOTUS would never allow cameras in the court for oral arguments.

Posted by: George | Apr 9, 2007 7:49:16 PM

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