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April 13, 2009

DOJ trying to identify "victims" of serious identity fraud sentencing snafu

Perhaps readers with a literary bent can help me figure out whether this story reported by Marcia Coyle in the National Law Journal reads more like a tale from Dickens or Kafka or Orwell.  Here are the basics:

The Department of Justice, working with federal courts and U.S. attorney offices, is trying to identify an unknown number of criminal defendants incorrectly convicted and sentenced under the felony provisions of a federal identification fraud statute instead of its misdemeanor provisions.

At the end of last year, Kenneth Melson, director of the Executive Office for U.S. Attorneys, notified the Administrative Office of the U.S. Courts that some defendants who have been convicted of possessing false, stolen, or unlawfully produced identification documents, in violation of 18 U.S.C. 1028(a)(4) or (6) of the identification document fraud statute, may have been incorrectly sentenced under that statute's felony penalty provisions, instead of the misdemeanor penalty provisions....

Melson explained that some U.S. attorneys' offices erroneously cited the felony penalty provisions in their indictments or plea agreements.  As a result, some defendants may have been sentenced to longer terms of imprisonment than they would have been subject to under the misdemeanor penalty provision.  In addition, the incorrect characterization of some offenses as felonies may have resulted in improper convictions for aggravated identity theft under 18 U.S.C. 1028A(a).

The problem was revealed by a U.S. attorney's office examining potential charges in a new case, according to Ian McCaleb, senior public affairs specialist for the department's Criminal Division. The department determined that two provisions in the law providing for increased penalties when the offense is the production, transfer or use of false, stolen or unlawfully produced identification documents do not apply to two other provisions of the act that criminalize the possession of false, stolen or unlawfully produced identification documents....

In cases in which judgment has become final, the department instructed U.S. attorneys to try to identify all defendants who may have received improper sentences or felony designations and are currently incarcerated, on probation, or on supervised release.  The Executive Office has been working with the Bureau of Prisons, the AO and the U.S. Sentencing Commission, to find ways to identify adversely affected defendants, according to McCaleb.

Letters were to be sent to district courts and federal public defenders about the issue.  Individual notices were to be sent to defendants who may have been affected, or their counsel. The Executive Office also sent case, sentencing and incarceration data to each district to assist the district in identifying cases which may have involved improper sentences....

McCaleb said ... the Executive Office is aware that motions for relief have been filed by defendants in nine districts.  A total of 39 defendants have filed motions. In one additional district, a court has entered orders on its own initiative in three cases.  Seven additional districts have sent notices to affected defendants, but no motions have been filed.

April 13, 2009 at 05:32 PM | Permalink


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Dickens, Kafka or Orwell? Your pen runneth over. People obviously shouldn't be sentenced to more than the law allows, but that hardly makes this worthy of such a comparison. It looks like people are actually trying to fix the problem, which makes those comparisons somewhat lacking.

Oh well, this is not surprising, given your predilection for bombastic commentary. Are we going to be treated once again to a discussion of the Founders' obsession with procedure?

Posted by: federalist | Apr 13, 2009 5:49:15 PM

Okay, federalist, do you have another author in mind? Perhaps you can send your suggested reading to the persons who served extra time in a cage with a note explaining that your are more bothered by my "predilection for bombastic commentary" than you are about the mistakes that may have cost them months or more of their lives.

If I knew who you were, federalist, maybe I would better understand why I seem to get under your skin so much. Perhaps one day you will reveal to the world who you are so that we can better understand the basis for your world view (and also figure out if you are related to Supremecy Clause).

Posted by: Doug B. | Apr 13, 2009 6:14:04 PM

federalist, I think your objections to the comparison shows a lack of understanding about the author's styles/motifs. If I'm not mistaken, I believe the point was which of these three is most applicable.

Dickens' style is to treat suffering and problems trivially, with everyone (including the audience and, oftentimes the protagonist) as knowing that everything will work out in the end.

Kafka's style is tied to existentialism; characters who wrestle with hopeless, often stemming from the absurdity and/or ineffectiveness of complex bureaucracy.

Orwell is best known for his anti-authoritarian motif, displaying characters who metaphorically suffer as a result of totalitarian oppression.

federalist, your comments suggest that you only object to the story being compared to Orwell's style. In fact, your comments suggest that an analogy to Dickens might be appropriate, so I don't understand how this is "bombastic commentary."

I, for one, think there is a great deal of Kafka in the story: an AUSA noticed the problem, who notified his boss, who notified the Executive Office for U.S. Attorneys, who notified the Administrative Office of the U.S. Courts, who in an "attempt" to fully correct the problem has contacted the BOP, the USSC, and the federal defenders. This sounds like the epitome of "kafkaesque bureaucracy," even if the mistakes are eventually resolved.

In essence, I think you are wrong to believe that analogies to Dickens and Kafka are inappropriate merely because "people are actually trying to fix the problem." They are very separate literary styles and you should not group them into one when attempting to criticize the inquiry.

Posted by: DEJ | Apr 13, 2009 7:18:51 PM

Federalist, you have alot of anger inside. Try to loosen up. You'll be better for it. If you think you can do better than Prof. Berman, why not start your own blog? Instead of tearing down, try building up.

best regards,

Posted by: anon | Apr 13, 2009 9:27:00 PM

This series of law prof blogs is a propaganda organ for West Thompson. I wonder if a boycott of their products or services would persuade them to get more balance, less bias, less left wing hate speech in their law prof series. There is zero tolerance for substantive dissent. I await being banned by Prof. Berman.

The law prof selects student for and carries out the indoctrination of the criminal cult enterprise. By their bullying and other indoctrination methods they get modern people to believe in the supernatural. In exchange for total allegiance to the criminal cult, they get lucrative indoor jobs, power, and immunity from responsibility. Naturally, once indoctrinated, the cult victim uses West Thompson products and services at prices about three times their real value. So, does anyone not now understand the game going on here?

Posted by: Supremacy Claus | Apr 13, 2009 9:46:02 PM

Anon: There are no mainstream law prof blogs. The Family Law blog is written by homosexuals. These are people who will never have legitimate families. What is the explanation for such an anomalous arrangement?

This is a criminal sentencing blog written by a left wing extremist would wants to loose all our criminals onto the streets, as he lives in a lawyer neighborhood, where there is virtually no crime. This is as perverse as a family blog written by homosexuals.

Why is there no crime where Berman lives, and so much crime where he works? The lawyer has herded crime into black neighborhoods, and those of poor white people. In his neighborhood, the death penalty is dealt by the police at the scene of any crime. There is no excessive force litigation where the lawyer lives.

This whole sick arrangement maintains the authority of central government, as it destroys the authority of all competing institutions. As the lawyer profession grows along with government, the profits of West Thompson grow right along.

Posted by: Supremacy Claus | Apr 13, 2009 9:52:41 PM

I am perplexed.

Ike warned us abount the military-industrial complex.

Now Supremacy Claus is warning us about the West Thompson-Government legal complex.

Are these complexes real or just people exhibiting a predilection for bombastic commentary?

Posted by: perplexed | Apr 13, 2009 10:39:30 PM

This is not a complex nor a conspiracy theory. It is a criminal cult enterprise theory. About 15,000 people are in its hierarchy. It makes about 99% of policy decisions. The elected officials make the rest and are figureheads. This hierarchy looks out only for itself, has no competence to run anything, and abuses the law. It has all the goals of all law subjects in utter failure, save for what will never be said out loud, rent seeking. It is the cause of every social, economic, and political problem in our besieged nation.

It indoctrinates a group of modern student lawyers into its sick, supernatural, Medieval garbage doctrines, that devastate every sector of our nation. It loves evil. It grows evil. It is evil itself. There is no recourse. It has government and the law rigged airtight. Violence can bring it down because it has no legitimacy save that at the point of a gun. However, violence gambles 1776.

Posted by: Supremacy Claus | Apr 13, 2009 11:01:02 PM

supremacy clause, you're off your meds again. remember: three times a day--first the blue, then the red, then the orange.

Posted by: anon | Apr 13, 2009 11:35:22 PM

Anon -- it's likely that SC does have some mental issues, so perhaps you shoulnd't taunt him for that? There's no need to engage him (or, frankly, federalist).

Posted by: another anon | Apr 14, 2009 3:13:01 AM

Getting back to the original post, I wonder if the improper felony/misdemeanor designation (and/or an improper sentence of one year or greater) will have immigration consequences for some of these defendants, or will skew possible future sentencings by changing criminal histories and whether the immigration and defense bars will be able to spot these cases when they show up collaterally in removal proceedings or later criminal cases.

Posted by: Third anon | Apr 14, 2009 9:52:16 AM

Doug, you don't get under my skin. I just like my commentary sharp. (And no, I am not related to Supremacy Claus.) Let's see, a governmental agency makes some mistakes and is working hard to fix them. And this is Dickensian, Kafkaesque or Orwellian? I think not. I think "human" is the best descriptor. No one is perfect, nor is any bureaucracy. And this is hardly the stuff of Dickens, Kafka or Orwell.

DEJ, I think you meant apotheosis instead of epitome.

Posted by: federalist | Apr 14, 2009 10:29:36 AM

In Michigan, where I practice, the Corrections Department keeps, and publishes, statistics on every felony statute under which people are convicted and sentenced, even if there's no jail or prison time imposed. If there's something similar in the Justice Department (probably through the pre-sentence report process),identifying the people wrongly sentenced should be a fairly simple matter of doing a computer search. If there's not something similar, it's an awful mess to try to straighten out.

Posted by: Greg Jones | Apr 14, 2009 11:10:24 AM

Supremacy, I sort of await you being banned by the professor as well. I support forums for many views, and your point of view is certainly different. However, your comments are often so wrapped up in the lingo of your viewpoint that I cant really figure them out. You may have succumbed to one of the worst diseases that we lawyers have; saying things in such a convoluted way that no one gets what you are saying.

Posted by: guy | Apr 14, 2009 11:42:43 AM

In Northern New York we have amended 14 erroneous 1028(a) judgements. The USA flagged them, the FPD filed motions (after court appointment), and the USPO drew up amended judgements for the district court. I don't know if that makes this district especially negligent at their original convictions or particularly observant and diligent now. However, that would be a significant portion of the 39 cited in the NLJ article.

Posted by: Alex Bunin | Apr 14, 2009 11:45:35 AM

It's the indoctrination. It blinds you to the self-evident from 10th Grade World History and Western Civ 101. It makes you attack dissenters ad hominem. Then shunning of the dissenter follows.

Explain why the lawyer and the judge should have legal immunity from adverse third party claims for legal and judge malpractice. In simple declarative sentences, list the justifications either in the law or in policy. 1,2,3.

I know you are cult victims. So, personal attacks are just cult adhesion. Any interventionist expects the flinging of insults, personal attacks, has to remember to duck when the body fluids are flying. Still, these repartees are not lawyerly.

Posted by: Supremacy Claus | Apr 14, 2009 12:11:12 PM

Actually, Supremacy, the Supreme Court just decided a case on prosecutoral immunity, it gives a pretty good thumbnail sketch of the rationale. Basically, the idea is that we want vigorous prosecutors unafraid of litigation, and that means that we tolerate some injustice.

Posted by: federalist | Apr 14, 2009 1:15:23 PM

Here is the decision.


The documents.


[this criminal cult maintained Wiki does not allow editing by the public]

Without addressing the hypocrisy of the self-dealing and invalid opinion, an aim of torts is to substitute for violence. This decision morally and intellectually justifies violence as a recourse against prosecutors and against the Supreme Court itself.

I suggest something else. Boycott prosecutors, defense lawyers, and judges, especially Justices of the Supreme Court, by all product and service providers. Put their names on a black list. Let them grow their own food, cut their own hair, and do their own surgery.

Posted by: Supremacy Claus | Apr 14, 2009 9:41:55 PM

Here is a partial list of duties of the lawyer to the adverse third party, including prosecutor duty to the criminal defendant.


Posted by: Supremacy Claus | Apr 14, 2009 10:11:53 PM

The court extended immunity from Section 1983 claims to supervisory prosecutors, contradicting Supreme Court precedent.

Are prosecutors immune from procedures inside the trial? For example, total e-discovery on the federal thugs' work and personal computers, same for their bosses as high up as the office of the President, back to their kindergarten MySpace entries.

Every untoward utterance should be reported to the Disciplinary Counsel separately, and a motion to disqualify the Federal thug should ensue, with demands for sanctions against the personal assets of the federal thug. A publicity campaign should proceed to drive the thug out of town by peasants bearing torches. These are self-dealing enemies of crime victims, and rent seekers.

Posted by: Supremacy Claus | Apr 14, 2009 10:21:58 PM

The problem, Supremacy, is that we live in a society, so we have to accept certain things. Are we going to tolerate the public safety risks of tying prosecutors in knots? It's life in a society. And I agree that we need to evaluate the morality of things and that we always need to remember that we have been asked to give up natural rights, but living in a complex society requires give and take.

Posted by: federalist | Apr 14, 2009 11:42:07 PM

Yes. What these lazy government workers are doing actually harms our nation. They are in utter failure. They spend $millions prosecuting Martha Steward on a $100 beef, to get their names in the paper. They do nothing about illegal alien gangs that behead people who disrespected them.

What a welder does is far more valuable. It is the welder that should not be disturbed or distracted by frivolous litigation. No prosecutor or judge should be sued without a certificate of merit from a prosecuting or judging expert. I oppose tort reform, but am willing to allow the shield of a certificate of merit. If prosecutors or judges do not want to be sued, they should avoid deviating from professional standards of due care. They should avoid harming people by their carelessness. What is so hard about that? What is unjust about that?

If the Federalist is a prosecutor, he should tell us.

Either lawyers believe torts can improve the service or product or do not. Immunity requires a belief that the sovereign speaks with the voice of God. That belief is psychotic. Law school cult indoctrination did that to law students.

Beyond delusional reasoning, immunity and liability are a stealthy form of unauthorized industrial policy. That decision is not within the competence of judges in the common law. Immunity grows a sector, liability shrinks it. We have eradicated manufacturing by its liability. We have exploded, by self-dealt immunity, the lawyer profession. Its only output is rent seeking, a polite phrase for armed robbery.

Posted by: Supremacy Claus | Apr 15, 2009 12:53:43 AM

The answer is Kafka. Absurdity and hopelessness are at the heart of what passes for a criminal justice system these days.

The federalist is here to represent the authoritarian view of things and he does it well.

But I'm guessing neither the federalist nor anyone he cares about has had to cope personally with deified, cynical FBI agents in hot pursuit of real or imaginary bad guys or breathtakingly powerful, hyper ambitious prosecutors.

The federalist's views on "vigorous prosecutors unafraid of litigation" and tolerance for injustice will be far more interesting to me after he or loved ones acquire some personal experience with such things.

From what I've seen, lots of actions that not so long ago might have prompted civil lawsuits, regulatory fines or, at worst, misdemeanor charges, end up forming the basis of felony indictments.

Hundreds, perhaps thousands of folks wrongfully convicted under such circumstances will never have their fortunes, liberty or honor restored.

Posted by: John K | Apr 15, 2009 11:11:19 AM

"From what I've seen, lots of actions that not so long ago might have prompted civil lawsuits, regulatory fines or, at worst, misdemeanor charges, end up forming the basis of felony indictments."

And because of that legislative overreach, we're going to junk immunity for state prosecutors. Gotcha.

Posted by: federalist | Apr 15, 2009 1:23:19 PM

I’d prefer to junk mandatory minimums and sharply restrict the use of racketeering statutes. That way cops and prosecutors would be compelled to build honest cases capable of being tested at trial instead of relying on draconian laws to strong-arm plea agreements.

I’d prefer to restore the rights of the accused to where they were before Nixon made demagoguing crime issues so popular with politicians.

But since those options aren’t in the cards, yes, federalist, I’d rather junk prosecutors’ immunity than ask citizens to accept injustices as you suggested.

Posted by: John K | Apr 16, 2009 2:27:35 PM

Federalist: Immunity for these government is illegal, unconstitutional, and harmful to them. There is no objective policy reason for immunity of judges, or prosecutors, nor of legislators. Their immunity is a self-dealt abuse of power.

Reverse Hans by statute. Repeal the Eleventh Amendment. Allow the out of state victims of juries to sue the juries, the court, the owner of the court. To deter. They do not speak with the voice of God, and are actually far less competent than the average provider of strict liability products.

Posted by: Supremacy Claus | Apr 16, 2009 3:40:04 PM

All immunities are unlawful, being based on speaking with the Voice of God in violation of the Establishment Clause. All are unjust, throwing the victims of careless government hacks to the wolves. They are bad for government, isolating it from any force for progress. Reverse Hans by statute. Repeal the Eleventh Amendment, one passed in a shady, corrupt manner.

There should also be an obverse side to the liability coin. A citizen should be able to have a judge mandamus a prosecution. These lazy government hacks refuse to do their jobs protecting the public. Have a judge offer the lazy incompetent, either the criminal goes to jail or you do.

Posted by: Supremacy Claus | Apr 18, 2009 5:24:25 PM

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