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December 11, 2009

More interesting details on the Vrdolyak appeal in the Seventh Circuit

I noted here yesterday the tough questions being asked by panel of the Seventh Circuit might concerning a lenient political corruption sentence. This new piece in The National Law Journal, which is headlined "Judge Posner Knocks Trial Judge's Judgment in Vrdolyak Appeal," provides more interesting details:

Judge Richard Posner of the 7th Circuit is not someone whom lower court judges want denigrating their rulings. But that's what the oft-cited judge did Thursday to Senior U.S. District Judge Milton Shadur.

The 7th U.S. Circuit Court of Appeals heard oral arguments on Wednesday in prosecutors' appeal of a sentence handed down to longtime (now retired) Chicago alderman Edward R. Vrdolyak. Shadur had sentenced Vrdolyak to five-years probation and a $50,000 fine for his role in an illegal kickback scheme. But the U.S. Attorney's Office in Chicago wanted the maximum 41 months jail time....

"I'm concerned also about a situation where the judge finds no loss -- on rather questionable reasoning -- and says, 'Well, if I'm wrong and there's a loss, it doesn't make any difference,' " Posner said. "Does that reflect a thoughtful sentencing process or just a determination to give a certain sentence regardless?"...

On the letters, Posner said it was "ridiculous" to give them so much weight. "I don't get the letters," Posner said. "Anyone who is prominent can gin up a lot of letters."

Newly seated Judge David Hamilton, who presided in the Southern District of Indiana before being confirmed by the U.S. Senate in November, asked if the sentence was "unreasonable" and wondered what good a remand would do, given the trial judge's flexibility in sentencing.

Posner predicted that Shadur, who took senior status in 1992, wouldn't change his mind. While the government didn't ask for a remand to a different judge, the appeals court can call for one.

The full oral argument is worth listening to, and it is available at this link.  There is one period of questioning by Judge Posner that reveal his limited understanding of usual sentencing procedures, and I think it is Judge Hamilton who jumps in to clarify matters.  Whether and how these issues will find expression in the panel ultimate opinion remains to be seen, but this is a case that is definitely worth watching.

December 11, 2009 at 02:50 PM | Permalink


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Doug, what are your views on this:


Posted by: federalist | Dec 11, 2009 4:49:46 PM

The defendant stipulated in the plea agreement to an illegal gain of $1.5 million from the criminal activity. Judge Posner is correct that the sentencing court was wrong to disregard the stipulation and "blow-off" the loss calculation and base the sentence on ginned up letters. This case is similar to the Fumo sentencing which the Third Circuit Court of Appeals is currently considering. If unchecked by the appellate courts, I believe the issue of undue leniency for white collar offenders is likely to bring down the current system of enhanced discretion for federal judges.

Posted by: mjs | Dec 11, 2009 4:53:30 PM

mjs --

I wish your prediction were true. But one cannot ignore the clout, and money, of the trial bar.

Congress as now composed is unlikely to do anything to rein in the current regime of wild discretion. The white collar defense bar has got $$$ out the wazoo. There's a reason they have reservations every night at Bookbinders.

Posted by: Bill Otis | Dec 11, 2009 5:10:25 PM

OK. I'm lost. I listened to the first part and as far as I can tell by the governments own admission no crime was committed? Does anyone have a link to the DJ's opinion? Pehaps the goverment misstaed it's case but if it's stated correctly how was there any loss attributed to anyone. I don't understand why he pleaded guilty to anything.

Posted by: Daniel | Dec 11, 2009 8:01:30 PM

Daniel: The sentencing guideline for fraud/corruption offenses is determined by a calculation of the loss to the victim--or if that can not be determined--by gain to the defendant. The government maintained that they could not accurately determine the loss caused by the offense and agreed to enter into a stipulation that the guideline calculations would be based on the illicit, $1.5 million gain to the defendant.

Apparently,(I have not listened to the entire proceeding)Judge Milton Shadur decided to forgo any loss/gain calculation as he had already decided to place the defendant on probation no matter what the sentencing guidelines were determined to be.
In so doing, he skipped a required step in sentencing after Booker--an accurate determination of the applicable sentencing guideline.

Posted by: mjs | Dec 11, 2009 8:22:42 PM

federalist, I know very little about immigration law, and I am unsure whether the fact that the case you reference involved a misdemeanor is consequential. As you know, however, I typically have very little sympathy for anyone involved in a DUI.

Posted by: Doug B. | Dec 11, 2009 8:28:21 PM

mjs. I got what the government is claiming but what the government is claiming is incredible and it knows it, otherwise it would have never agreed to stipulate to the 1.5 million. That's a very defendant friendly deal IMO and reflects the weakness of the government's case here.

The government stipulated to the 1.5 million figure as a *proxy* for the what it felt was the real loss. Now it's trying to argue that the DJ should have sentenced him based upon what the government thought the real loss was, not the actual "loss" it stipulated too.

I want to be clear here. I'm not saying if I were the DJ that I would have sentenced him to probation. But I don't feel that a probation sentence is so out of wack here that I would overturn it.

Fundamentally the government has an exceptionally weak case.

Posted by: Daniel | Dec 11, 2009 8:43:19 PM

Interesting to hear Posner take such a close look at the sentencing court's reasoning. When the government is the appellee, the sentencing court's rationale is all but immune to appellate scrutiny.

In other words: great deference is only extended to the district court when the government "wins" below. If the defendant wins, the court's reasoning is open to attack.

Judge Posner demonstrates his complete misunderstanding of sentencing procedure. He expresses great concern that the court considers letters that are, according to him, immune to challenge by the government. Of course, when the government submits written victim impact statements-- which it does in many, many cases-- the defense has no opportunity to call upon or challenge the statements. The case agent is also interviewed by the probation officer in preparing the PSR, but that agent almost never appears at the sentencing and is also rarely subjected to cross.

The court always considers evidence from both sides that isn't challenged in the manner it would have been at trial. Posner doesn't like it in this case because it supported an outcome he doesn't happen to agree with, but his personal opinion shouldn't substitute for the standard of review on appeal.

Judge Posner's dismissal of the seriousness of a sentence of probation also contravenes the Supreme Court's reasoning in Gall, where Justice Stevens opined that probation is not to be considered a slap on the wrist. Probationers cannot leave the judicial district without permission, they're subject to random drug testing, unannounced home visits, they can be placed on curfew or home confinement, they can be ordered to participate in therapy, etc. For a "prominent" person, these are very serious limitations. Judge Posner demonstrated that he has no appreciation for the curtailment of rights that comes with probation.

Posted by: Pedro | Dec 12, 2009 12:47:02 PM

I completely agree with Pedro, above and more so -

Judge Posner demands a do-over and is getting the compliant James Warrens and Sun Times Editorial Board to shout up some hate for Mr. Vrdolyak.

"If you get old enough, you can commit a white-collar crime, and nothing's going to happen to you," Tried, convitced and sentenced, Eddie V was, Judge! Not good enough? Ho, hum.

Oddly enough, I find Judge Posner's words ironically self-incriminating - were they not from such a protected legal White Elephant as the Judge his own self - but then again, I am merely a citizen helot and not a captain of the Bar.

Just working helot.

Posted by: Pat Hickey | Dec 13, 2009 1:30:35 PM

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