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April 15, 2008

Federal prosecutors want Wesley Snipes imprisoned for three years

As detailed in this Orlando Sentinel article, federal prosecutors are looking for a maximum statutory sentence for Wesley Snipes at his sentencing next week: "Actor Wesley Snipes should go to prison for three years and pay a fine of at least $5 million, prosecutors in his tax case said in a sentencing memo filed today."  Here are more details:

Snipes was convicted in February of willfully failing to file a tax return, but he was acquitted of felony conspiracy and tax-fraud charges.  "This case cries out for the statutory maximum term of imprisonment, as well as a substantial fine," prosecutors wrote in their sentencing memo filed in federal court in Ocala, "because of the seriousness of defendant Snipes' crimes and because of the singular opportunity this case presents to deter tax crime nationwide."

As I suggested in a prior post, given that the jury rejected all the felony charges brought against Snipes, this case could present a real interesting setting for a debate over acquitted conduct sentencing enhancements.

Some related posts:

UPDATE:  Thanks to White Collar Crime Prof Blog's post here, the government sentencing brief in US v. Snipes, filed in anticipation of the sentencing hearing set for April 24, can be accessed at this link.

April 15, 2008 at 12:49 AM | Permalink


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This case cries out for a few months probation. Although, a high profile acquitted conduct case (especially when race is involved) might bring the issue to the public's attention. One doesn't have to be a lawyer to know that using acquitted conduct to enhance sentences is fundamentally unamerican and flatly unconstitutional. I hate to see anyone suffer for the "greater good" but this might be such a case.

Posted by: bruce | Apr 15, 2008 10:21:22 AM

In the past, the Supreme Court has ruled otherwise, so it is hard to argue that it is "flatly" unconstitutional.

Whether it is unAmerican is a different story. A lot of people think it *is* American to want people to go jail for a long time.

Posted by: S.cotus | Apr 15, 2008 10:24:14 AM

Three years in prison for misdemeanor convictions calls out for prison? Okay, the Justice Department lives in fantasy land. Misdemeanant sex offenders get less time in CA.

Posted by: Alec | Apr 15, 2008 10:28:53 AM

S.cotus, just because the supreme court says something is constitutional and lower courts are bound by it doesn't mean it's objectively correct. The scotus has been wrong about the scope of the Commerce Clause since the time of Wickard v. Filburn. Everyone knows it's wrong -- everyone knows the framers never intended for the Commerce Clause to be a practically universal grant of power. If you mean a position with which the soctus agrees is by that very fact debatable in its correctness ("it can't be that wacky if the supreme court sanctions it!")... well... it's a good argument but personally I don't agree with it. It assumes politics has little if any influence over the Court. But it's hard to argue against, I'll concede that much.

I'm sure most people think it is an American ideal - at the very core of the American way of life - to lock up "scumbag criminals" for a long time - the longest sentence possible. What's the opposite of parsimony? Whatever it is, that's our philosophy for criminal punishment - the longest incarcerative sentences possible... "sufficient" means "as long as possible" ... section 3553(a) notwithstanding. But even so, using crimes that a jury acquitted as the basis for such a nonparsimonious sentence shocks everyone who learns about it.

Alec, if 3 years is a possibility, it's not a misdemeanor (which is up to 1 year in jail).

Posted by: bruce | Apr 15, 2008 12:16:56 PM

Bruce and Alec, Well, multiple misdemeanors can reach over three years. I am not saying that it is wise or just, but I wouldn’t go to far as to say that it is unAmerican.

Bruce, There is no “objective” way of telling whether any construction of the constitution is correct. None.

I will take your comments in turn.

“The scotus has been wrong about the scope of the Commerce Clause since the time of Wickard v. Filburn.”

Well, you say this. The courts and Congress and the executive disagree. There is no way that you could ever prove whether you are objectively correct or not. However, there has been no effort to clarify the scope of the commerce clause by constitutional amendment. None. The only recent seriously proposed constitutional amendments dealt with gay marriage and flag burning.

“Everyone knows it's wrong”

I do not. I think that Wickard v. Filburn is correct. Therefore you are objectively wrong. Wrong. Wrong. Wrong. Wrong.

“everyone knows the framers never intended for the Commerce Clause to be a practically universal grant of power”

Well, I am not so sure. I don’t know what the framers thought. There were many of them with different political goals. Moreover, most of the recent commerce clause litigation happened after the civil war. Then, we redid a bunch of the constitution via amendment because greater federal power was considered a political necessity in keeping those evil southerners down. (An objectively good goal.)

“assumes politics has little if any influence over the Court. “

Of course the court is “political.” Even if it doesn’t admit it. However, all law is inherently political. Some laws, however, have obtained such universal acceptance that you just can’t tell that they were forged in the fire of politics.

“But even so, using crimes that a jury acquitted as the basis for such a nonparsimonious sentence shocks everyone who learns about it.”

Bulltwaddle! Eveyone I know is not shocked about the use of acquitted conduct. You would have to be living under a rock or some kind of non-lawyer to have not heard about this.

Posted by: S.cotus | Apr 15, 2008 12:41:38 PM

S.cotus, ever time I tell a nonlawyer how acquitted conduct can be used to enhance a sentence, they are shocked.

You're a really bright guy, so I'm truly surprised to hear you say Wickard is properly decided. I wonder if you're saying that just to prove a point (one person disagrees thus I am objectively wrong). One only need read the writings of the framers (Federalist papers, letters of Jefferson, Madison, etc.) to conclusively establish the fact (yes, fact) that the Commerce Clause was never intended to be such a huge grant of legislative power. Regardless of their political goals, each and every person responsible for the wording of the Constitution would object to Wickard v. Filburn. They'd roll in their graves over Raich v. Gonzalez.

I realize big, pervasive, all-powerful government has become standard in the late 20th/early 21st century. Americans like their big government, whether republican or democrat. We like our vast commerce clause so we can legislate against racism and sexism and age discrimination, so we can fight our dumb drug war, so we can ban everything that bothers us, and so goverment can actively protect everybody from everything. But that was never the intent of the commerce clause. Not even close. Prior to 1937 it was still understood that the commerce clause was a limited grant of power. The idea that the sale (let alone mere possession!) of alcohol could be prohibited without a constitutional amendment via invoking the commerce clause was laughable. Why did it take a constitutional amendment to ban the sale of alcohol but it only takes a statute to ban the mere possession of controlled substances? Selling has more to do with commerce than simple possession ever will.

Wickard was, IMHO, the beginning of unlimited federal legislative power. Now, in the year 2008, Congress can do whatever the hell it wants merely by sticking the words "in or affecting interstate or foreign commerce" in its statutes. To say any of the framers had such an intent is unjustifiable.

Posted by: bruce | Apr 15, 2008 1:53:59 PM

ever = every

Posted by: bruce | Apr 15, 2008 1:55:51 PM

First of all, I am not sure how intent of the framers is particularly relevant. I seriously doubt that the framers reached any consensus on a lot of things, yet alone how to deal with federal power over an area that wasn’t even a state at the time. But, sure, maybe some of them didn’t want the federal government doing so much. I suspect, however, that most of the framers were very pragmatic politicians that could sling the rhetoric just as much as Hillary, John, or Barak can. I am sure that if you asked them a different question, such as, say, “Should the federal government be able to punish people for child pr0n on the internet that hurts children?” a few of them (after being informed about the evils of the internet) would agree that the commerce clause should be used to punish child pr0n. They would then go back to beating their slaves or whatever it is they did for fun back then.

Secondly, the commerce clause isn’t the only means we have to legislate against racist policies or behavior. We do have the 14th amendment, which is a pretty wide grant of power as well.

Third, the substantive difference between prohibition and the commerce clause is immense. The text of the 18th amendment actually prohibits private conduct. The commerce clause, at best, is some kind of optional grant of power. Congress is under no obligation to regulate commerce, and if they did not, nobody would be violating any of the non-existent laws. The 18th amendment contains both a specific prohibition on private conduct and a grant of power to Congress. So, I wouldn’t consider them in the same breath.

Posted by: S.cotus | Apr 15, 2008 4:06:07 PM

Bruce, you often make good points, but you did not pick a very good example here in using the Commerce Clause. Wickard v. Filburn is perfectly defensible under a rational original understanding of the power to regulate international and interstate commerce. Yes, the founding fathers could not have anticipated that by 1937, a farmer growing wheat would have a substantial impact on interstate and foreign commerce - however, by the 1930s, wheat and other farm products had been part of a national market for over 50 years - thus, wheat farming was perfectly within the original understanding of Congress's power to regulate interstate commercial activity. Just because the founding fathers could not have anticipated that improvements in transportation and communication would have rendered the power to regulate interstate and international commerce almost limitless (at least as involving commercial and market activities) does not mean that it is not what the founding fathers intended. Wickard's general holding is quite sound and reasonable when you get away from the facts of the case - Congress has the power to regulate national markets - which is exactly what the language of the Constitution allows them to do, because the founding fathers intended that interstate commerce be regulated at the federal level. The fact that the power to regulate interstate commerce is much broader today than it was in 1789 is not due to the fact that the power itself has expanded - it is due to interstate and foreign commerce expanding to the point where almost everything we use originated elsewhere.

Obviously, the drug laws and the drug wars are problematic on several levels - however, to argue that they are unconstitutional is simply wrong. Even the most restrictive view of the Commerce Clause states that Congress has the power to regulate interstate and international transportation and goods being shipped in interstate or international commerce - which of course, most drugs would qualify as an object which has been shipped in interstate or international commerce. Yes, the drug laws should be drastically reformed - but arguing that Congress does not have the power to regulate drugs under the commerce clause is a position that is very much outside of the legal mainstream.

Posted by: Zack | Apr 15, 2008 4:33:14 PM

Zack, it was the farmer's own personal wheat for his own personal consumption. I might be willing to accept the fact that a significant quantity of wheat grown in one state could affect the inter-state wheat markets in a non-trivial way, and I might be willing to accept that such an affect could be considered "interstate commerce" for purposes of the commerce clause. But to say a farmer who grows some food for his own personal (intra-state) use affects interstate commerce at all, let alone in such a manner as to justify federal commerce clause power over him (power that bans him from growing said personal use wheat), is simply beyond any plausible intent of the framers. I won't even get into the drug laws.

When it comes to the degree of authority authorized by any of the enumerated powers, I am an originalist and only the power as it was understood to operate by the framers has any meaning. The framers were not idiots, they could have imagined intrastate activity affecting interstate commerce. Technology wasn't so primative that the very concept of interstate markets was beyond them.

S.cotus, the intent of the framers means everything when it comes down to how broad an enumerated power was meant to be. The 14th amendment applies to the states, not to private parties. All the cases like Heart of Atlanta Motel and the Ollie's BBQ case (argh mind blank) stopped segregation in privately owned establishments. 14th Amendment won't do that. Though, while segregation is horrible, the commerce clause shouldn't do it either.

The commerce clause is used as a basis for regulating private conduct just like the 18th amendment - in fact it regulates more private conduct (possession) than does the 18th (sale). Sure, congress can pick the legislation it writes under the commerce clause, but congress can also pick the amendments to the constitution it writes and proposes for ratification. I don't see what that has to do with it. As for the "non-existant laws" keep in mind the "dormant commerce clause".

It sounds like you're saying Congress could have used the commerce clause to pass Alcohol Prohibition instead of the 18th Amendment. Under today's c.clause jurisprudence they certainly could - if we can have drug prohibition we could have alcohol probition. In fact the commerce clause can apparently go further than a constitutional amendment! We could ban the possession of alcohol under the commerce clause, while the 18th amendment only banned the sale of alcohol. Of course the 18th amendment could have also banned possession (assuming no due process violation, which I feel occurs whenever the government bans its citizens from possessing something - I claim an absolute right to possess anything I damn well please, the government has no interest until I use it or threaten to use it).

It's the SCOTUS that's made the commerce clause more powerful, not increased commerce. It's not the volume/number of laws I'm opposed to, it's the power those laws purport to give the federal government.

Posted by: bruce | Apr 15, 2008 7:54:32 PM

Having been to prison for tax fraud, Snipes will see the inside of a federal prison. The government can't afford for him not too. His attitude about taxation would catch on like wild fire should he get a slap on the wrist. He can pay the fine, but avoiding prison would send the wrong message - so you can bet he'll be there just like I was. By the way, I'm not proud of my past, but today use it to help others understand that EVERY CHOICE HAS A CONSEQUENCE. Perhaps, had I learned that sooner, I would have avoided that unpleasant part of my past.

Posted by: Chuck Gallagher | Apr 15, 2008 11:18:46 PM

Not every choice has a consequence, only the choices you don't get away with. Crime and Punishment can't be summed up by aphorisms.

I'm sure you would have learned your lesson merely by being handcuffed, frogwalked, booked, fingerprinted, held in jail for a day or so, and publicly embarassed. You would have learned your lesson even if you didn't have to pay a fine and/or back taxes.

Prison simply isn't necessary for normal people and nonviolent crimes. Merely being arrested is punishment enough.

Snipes is just a dumbass who got tricked by tax protesters who had the nerve to charge for their advice. There's no way tax protester arguments will "catch on like wild fire" because they've already been sufficiently discredited. And snipes was arrested for it! You think people would want to do what he did just beacuse he didn't have to go to prison? That's ridiculous.

Posted by: bruce | Apr 16, 2008 12:18:46 AM

Chuck, The government doesn't really have the final say in whether he goes to prison, anyway. Whatever the case, Snipes is but one of many "dumbasses" that get tricked by tax-protesting nuts every year.

His attitude about taxation (if it was his) is nothing new, and most Americans know that it is stupid. In fact, few Americans would ever want to be convicted of any misdemeanor.

On top of that Chuck, he still has to pay the taxes he owes.

Posted by: S.cotus | Apr 16, 2008 6:20:28 AM

By the way, I detest tax protesters -- even more than sex criminals. But, in the grad scheme of things, the things that Snipes has been convicted of, are not as serious as they could be.

Posted by: S.cotus | Apr 16, 2008 6:54:19 AM

I too hate tax protesters (far more than sex offenders), and I don't think snipes was one - I think he got suckered by one (or a whole firm of them). When he tried to defend his tax return, the government got pissed at him. Worst of all, he was apparently using the "foreign income" tax protester line of bullshit. Most courts will sanction you for even mentioning it.

Posted by: bruce | Apr 16, 2008 9:11:25 AM

Wow! Don't you think they are going a little overboard sentencing him to a SUPERMAX prison? Come on...this guy is an ACTOR:


Posted by: Grayheck | Apr 25, 2008 2:08:46 AM

Why Wesley Snipes Was Wrong:

Posted by: Benson, 2L | Apr 25, 2008 2:50:38 PM

Back to the point about "using acquitted conduct to enhance sentences is fundamentally unamerican and flatly unconstitutional." That's just plain silly. The Defendant can be acquitted based on the fact that the government did not prove all elements of the crime. However, several elements of the crime may in fact have been proven beyond a reasonable doubt. The proven elements might include some factors which would aggravate a lesser crime. Moreover, the fact that the jury decided that the evidence didn't lead to the conclusion that a particular element had been proven beyond a reasonable doubt does not mean that the evidence is completely wanting. It just means the government didn't prove the element beyond a reasonable doubt (there's plenty of area there between reasonable doubt and more likely than not). Moreover, even if the evidence didn't didn't prove the element, the evidence still may show aggravating circumstances to a different offense.

On another note, how many times does the government have to tell you that your tax protester arguments are completely devoid of any legal merit and that you're getting scammed by these people before you can be held responsible for your ignorance? You can't unreasonably refuse to listen to fact and still claim ignorance of that fact.

Posted by: Telly | Apr 26, 2008 2:59:44 PM

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