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October 8, 2008

"Calculating Loss Under the Guidelines"

The title of this post is the title of this new article in the New York Law Journal by Robert Morvillo and Robert Anello.  Here is how this effective piece starts and ends:

Prosecutors sometimes appear to vie for placement in the Guinness Book of World Records for the longest sentence in a white-collar case. They are aided by the amorphous concept of loss calculation under a sentencing guidelines structure that equates jail time with often-inflated assessments of loss caused by the crime.

In one recent case in Connecticut, the government argued for a finding of a $1.4 billion loss based on a fraudulent transaction that had no monetary impact on the earnings or revenues of the corporation in question.

In a securities law setting, loss calculation for public corporation cases can be complex, requiring the retention of experts and incorporating such abstruse concepts as leakage, corrective disclosure, event studies and efficient markets. Some courts have begun to recognize the complexity of loss calculation analyses and have attempted to temper their consequences....

Loss calculation often artificially inflates the guidelines to unrealistic proportions. Even as a starting point, a white-collar guideline calculation of life or greater (a sentence best left for murderers), although absurd, casts a heavy pall on the ยง3553(a) concepts which are more appropriate sentencing criteria.

October 8, 2008 at 09:51 AM | Permalink


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Tracked on Oct 8, 2008 6:53:27 PM


Given that I've argued that any felony should make the convict death eligible I fail to see how a life sentence for at least some white collar criminals is unreasonable.

Posted by: Soronel Haetir | Oct 8, 2008 10:03:05 AM

I am a 1987 graduate of Univ. of Virginia Law School, and was released from Federal prison in September 2007, after serving 7 2/3 years. See, U.S. v. Bollin, Gormley & Tietjen, 264 F.3d 391 (4th Cir.2001). During my time in prison, I served 2 years with a man, Sholam Weiss, who is serving the longest white collar prison sentence ever given -- 845 years! Look it up at bop.gov, under the "inmate locator". Mr. Weiss was sentenced by Chief Judge Patricia Fawcett from the Middle District of Florida at Orlando. Mr. Weiss absconded a few days before the end of his 9+ month trial. He was convicted and sentenced in absentia. Judge Fawcett gave him the maximum statutory sentence for each of 74 counts of conviction, and ran them all consecutive to one another. Mr. Weiss's appeal to the 11th Circuit was dismissed under the "fugitive disentitlement doctrine". He filed no 2255 Habeas Corpus Motion within 1 year of the time his convictions became final. He is presently represented by Prof. Stephen A. Saltzburg in a 2241 Habeas Corpus action pending before Senior Judge Hodges in Ocala, Florida. Prof. Saltzburg is the 2008 Chair of the ABA Committee on Criminal Justice. The 2241 Petition concerns the fact that the U.S. Dept. of Justice lied to the Austrian Minister of Justice to secure Mr. Weiss's extradition back to the U.S., and seeks to unwind his extradition and have him returned to Austria. Austria recently provided the State Dept. with a Diplomatic Note confirming the Justice Dept.'s misrepresentations and stating that the Justice Minister relied on those misrepresentations in agreeing to extradite him. A decision from Judge Hodges is expected soon, as the parties have recently provided him with briefs on the remedies available under the circumstances. 845 years for white collar crimes? It's crazy. Jim Gormley

Posted by: James Gormley | Oct 8, 2008 10:18:41 AM

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