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April 24, 2008

Sentencing thoughts and predictions for US v. Snipes

This morning in Florida federal court brings the scheduled sentencing hearing for actor Wesley Snipes following his conviction on three misdemeanor tax evasion charges.  Here are some morning media links covering this interesting high-profile case:

Thanks to the wonders of the web, everyone can access the defense sentencing memorandum asking for a sentencing of probation at this link.  In addition, The Smoking Gun has available here the letters written to the sentencing judge by Denzel Washington and Woody Harrelson.

As for predictions, I would guess that the sentencing judge will split the difference here: I do not think Snipes will escape with probation, but I also doubt he will get the three-year max prison term.  In other words, I think the smart money would be on a prison sentence somewhere in the range of 12 to 24 months.  But I am really just guessing.

Some recent related posts:

April 24, 2008 at 08:47 AM | Permalink


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Why do you say 12 to 24 months when they just let the billionaire in CA pay his tax debt of 52 million with a punishment of probation. That USAO set the bar. There has to come a time where they cant pick and choose probation for one person 3 years for another what a joke.

Posted by: | Apr 24, 2008 10:38:00 AM

God, you sound like just about every client facing a large jail term every public defender ever had.

Posted by: S.cotus | Apr 24, 2008 10:53:13 AM

There has to come a time where they cant pick and choose probation for one person 3 years for another

That time will never come, at least not under this corrupt DOJ administration. Consistency? Never. God forbid they actually have to give an appropriate sentence every time. They want the max, every time they can get. Justice be damned, we're talking about promotions here. And every prosecutor wants to show they're a team player. But the really sick part is that they believe it to their core, losing any sort of independent thought or propriety or realistic sense of right or wrong. The party line is easy to identify. Let them all die in prison, and did you see me on the news?

Feel safer now?

Posted by: babalu | Apr 24, 2008 12:57:12 PM

That just is not true. There is no indication that prosecutors in this DOJ (or any DOJ) have a policy of always requesting the maximum (guideline or statutory) penalty in all cases. None.

Look, nobody is claiming that this DOJ perfect, but any US Attorney that told his men to always seek a maximum, regardless of the facts would simply not lose credibility with District Judges, as prosecutors’ would be unable to explain why any crime was substantively worse than any other.

Whatever the case, the sentence is up to the judge. Previous commentators have identified reasons in the memo that cast doubt on its effectiveness in seeking the maximum penalty.

Posted by: S.cotus | Apr 24, 2008 1:17:00 PM

I agree with you and I saw the stupid remarks by S.cotus.

The world is crumbling around us with gas and food prices and this DOJ continues to waste millions of dollars that could be used for something good. I am not saying be soft on crime. I am saying be smart about it.

Look at the time and money wasted here? Look in Pittsburgh at the Dr. Cyril H. Wecht's Case what a waste of money and after the hung jury they want to go and re try wasting more money. I wonder if it is really true that the faxes cost a total of 3.48

S.Cotus you have to admit this administration has it priorities in the wrong place

Posted by: | Apr 24, 2008 1:23:43 PM

I guess you didn't get the memo.

The DOJ in fact DID call upon federal prosecutors to be more aggressive in their charging and sentencing choices. Attorney General John Ashcroft in September, 2003 announced changes in the DOJ's charging and plea bargaining guidelines to require federal prosecutors to seek maximum criminal charges and sentences whenever possible. If you don't know that then you're not reading your emails from your boss.

THEN, In July, Ashcroft directed prosecutors to appeal ALL criminal cases in which judges depart downward and has required ALL prosecutors to begin compiling reports identifying the district judges and the sentences imposed.

And as far as Whatever the case, the sentence is up to the judge, you know better. That statement may be true, but it's hardly accurate. And you know it.

Posted by: babalu | Apr 24, 2008 1:43:04 PM

S.Cotus you are so far off base really I did not think you were out of touch like this.
The letter telling each to see the max came from the attorney general it came right from john ashcroft and is still in place today.

He in a memo that I know you can find on line said seek the max go after the charge that will result in the longest prison sentence.

It is real!

Posted by: | Apr 24, 2008 1:46:39 PM

...but any US Attorney that told his men to always seek a maximum, regardless of the facts would simply not lose credibility with District Judges, as prosecutors’ would be unable to explain why any crime was substantively worse than any other.

Well, at least you got that part right.

Posted by: babalu | Apr 24, 2008 1:53:55 PM

S.Cotus wants to believe he lives in the best of all possible worlds, ignoring what goes on below his ivory tower. And it is not just promotions we're talking about; its a chance to earn millions in the private sector. The incentives are inimical to justice. Then there are the incarceration rates, which seem to be indirect proof at least of a justice system that is out of control.

Posted by: Reaching a different conclusion? | Apr 24, 2008 2:00:01 PM

a us attorney does not care one bit about credibility they could care less. They put themselves so far above the rest of the world they think they are on another level.

Until they get knocked down a few pegs there will always be this problem. We need to see the verdict in Snipes come back as probation and we need to see the judges taking advantage of the new found freedom.

We need the sentencing to come out of the hands of the DOJ. They want to sentence every defendant and now they are starting to lose that power.

Your head has to be in the sand S.Cotus. Every sentencing memorandum you read from a us attorney portrays the defendant as either Dillinger or Capone. Every single one look at the one for Snipes you would think that Charles Manson was going in front of the judge today.

How can you talk about credibility and the us attorney in the same sentence it does not match to suggest he should get 3 years because he is a celebrity is a joke. To say we have to punish him because the headlines in a newspaper was Snipes beats the rap is crazy. How in the world can you put credibility and us attorney in the same sentence.

Posted by: | Apr 24, 2008 2:06:55 PM

babalu, links please.

Also, in case you haven't noticed, John Ashcroft isn't the Attorney General.

Posted by: | Apr 24, 2008 3:02:27 PM

There have been many comments directed at me, and are more in the nature of an insult than a different perspective or even personal experience. Unfortunately, this kind of talk does not move the dialogue along or even make for a greater understanding of the situation. No, I don’t believe that we are in the best of all possible worlds. However, if we are going to improve it we can’t speak in absolute terms that lack nuance. We must understand complex situations, practices and bodies of law. In short: we can’t act like lay people.

For example, calling me “off base” and refusing to provide specifics does not prove your point. In fact, it concedes mine.

First of all, a memo calling upon prosecutors to seek “seek maximum criminal charges and sentences whenever possible” is not a memo calling directing US Attorneys to seek the highest sentence upon conviction. There is a difference here, and it is alarming that you condemn my answer when you seem to even admit this distinction.

There is no such memo directing prosecutors to appeal ALL downward departures in all circumstances. (There were memos dealing with more limited circumstances). If there was, someone missed it, because it never happened. But, let’s assume it did happen: so what? Under current law, the government can appeal whatever it wants. That doesn’t mean that it would win.

Third of all, sentencing is not in the hands of the DOJ. Sentencing decisions are made by judges. They are informed by counsel for both sides as well as the PSR. Frequently, the DOJ actually feels aggrieved by sentences and appeals.

Fourth of all, a “directive” to “be more aggressive” doesn’t mean “always seek the maximum.” In practice, as many have pointed out the directive to not engage in “fact bargaining” failed.

Fifth, Yes. The sentence is up to the judge. I know it. You have not presented any indication as to why it is not up to the judge.

Sixth, You are simply wrong. Any state or federal prosecutor that develops a reputation for not providing any intelligent analysis of a situation loses credibility. It has happened. Lawyers (for either side) are able to convince people of something by showing that the nuances of the law fit the nuances of their clients position. If your client doesn’t have a nuanced position, it is unlikely that absolute positions will gain any traction.

Posted by: S.cotus | Apr 24, 2008 3:05:57 PM

S.cotus, you fuss around the edges, and worry incremental change to death, while the New Rome burns. Many prosecutors don't deserve the benefit of the doubt you give them. Ever sat down to discuss a plea with a prosecutor? Have you ever had to struggle to talk to witnesses -- let alone get them to testify -- too scared to tell the truth and exonerate your client? Etc. This is what real lawyers have to do day in and day out. Yup, lay person or not, real life is a drag.

Posted by: Reaching a different conclusion? | Apr 24, 2008 3:20:11 PM

>>Ever sat down to discuss a plea with a prosecutor?

>>Have you ever had to struggle to talk to witnesses
Yes. I don’t see how this relates to sentencing, however.

I don’t see your point. In fact, judging my the number of recommendations made by prosecutors that are not for the statutory or guideline recommendations, it is doubtful that any prosecutor has a per se maximum rule.

In fact, the very fact that a prosecutor is even discussing a plea agreement means they are willing to be happy (which I am using for a shorthand for different sentencing regimes) with something less than the maximum they could have gotten.

Posted by: S.cotus | Apr 24, 2008 3:24:20 PM

"The sentence is up to the judge. I know it. You have not presented any indication as to why it is not up to the judge."

It's not in any meaningful sense in many cases since the prosecutor is the one who determines what charges to bring.

Posted by: | Apr 24, 2008 3:28:04 PM

S.cotus, you just don't understand what goes on in the real world of criminal prosecutions. Is it insulting to say that? (I find it insulting that you equate the conclusions drawn from real life experience with being a lay person.) For example, that a prosecutor sits down to talk a plea doesn't suggest reasonableness and/or a sense of proportion. That meeting often only happens after that same prosecutor has over-charged your client and threatened a maximum sentence based on those bountiful counts. Then, at sentencing, that same prosecutor pushes for the maximum sentence, telling the judge -- and appearing to folks like you reasonable -- that he or she could have gotten a much longer sentence if he or she had taken your client to trial on all the original counts. And it doesn't matter if one's client is guilty or not; it's the application of overwhelming force, and eventually the slammer.

But, please do tinker around the edges; maybe some incremental good will come out of it. The smoke out there, however, is of your beloved institutions up in flames.

Posted by: Reaching a different conclusion? | Apr 24, 2008 3:40:46 PM

RADC, I don’t really think that lay people that have contact with the criminal justice system as defendants have anything meaningful to contribute to the discussion. Nothing.

Telling a judge that “could” have happened is a rhetorical tactic. Heck, it is understood that the government didn’t did not initially charge someone with something that the lawyers involved didn’t think they could win. (There is a little nuance here about jurisdictions where charging is not done by lawyers, but I will leave that aside.) Whatever the case, by the same token, a defense attorney can tel the judge that this was a “triable” case. This doesn’t really meant too much. And, outside the military, there only need be some basis for accepting such a plea.

Now, you might be getting into the deeper questions of uncharged conduct, but I doubt that you are going there. There is also a lingering question (which I don’t take too seriously) of whether it is fair for a prosecutor to agree not to prove up some facts, even if directly asked by the judge.

Like it or not, most people that practice criminal law are professional – in that this is what they do. Day in and day out. In fact, it is very normal. Everyone knows what the score is with given crimes. Everyone knows what can be expected from which judges under what circumstances. This is pretty much what drives plea agreements.

Posted by: S.cotus | Apr 24, 2008 3:49:57 PM

Wow, hope somebody has the time to tee off on S.cotus' appalling ivory tower perspective on lay defendants. In the meantime, I've got people who have been wrongfully convicted and/or grossly over-sentenced to worry about. That's what the score is.

Posted by: Reaching a different conclusion? | Apr 24, 2008 4:00:41 PM

Why don't you just provide specific citations. I don't do "vague."

Posted by: S.cotus | Apr 24, 2008 4:11:35 PM

I've negotiated with the USDOJ in criminal misdemeanor cases, I've written sentencing memos for an FPD office in both misdemeanor and felony cases. I spent a year working in one office as a law clerk. The DOJ does not demand the maximum, except in child pornography cases where they use the threat of a receipt charge to get defendants to plea down to five years on a possession charge. I don't know who did the lobbying on that one but it has been instrumental in getting longer sentences for those guys. That is the only area where I've seen what resembles an absolutist policy, in practice if not in the abstract.

While they don't max people out in every case, they can be unreasonable. When they pull obvious stunts they're often condemned from the bench.

As far as what defendants have to offer to the discussion, well, the people facing long sentences know their numbers. They have nothing else to do all day so playing around with the guidelines and comparing notes is a pretty common habit.

I will conclude with this: I believe the system is cracking all around us and that the time for a major policy overhaul, and along with that limits on prosecutorial discretion, is here, whether we want it or not. I am frustrated by the system every day. The ship already sank; it is the whirlpool left in its wake that is dragging us down.

Posted by: Alec | Apr 24, 2008 4:23:01 PM

Folks, S.cotus is a Tax attorney. He was probably an accountant who figured getting a law degree would help him make more money. I really doubt he has more experience than a criminal lawyer. Which in my opinion make him a lay person.

Posted by: | Apr 27, 2008 11:25:25 AM

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