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March 14, 2012

Interesting fraud testimony submitted to US Sentencing Commission for amendment hearing

Today, as detailed in this official agenda, the US Sentencing Commission is in the midst of a full-day public hearing concerning possible guideline amendments.  That agenda includes links to all the submitted written witness testimony, and the discussion of the fraud guidelines and how loss should be calculated in a variety of context should be of extra interest to any and all white-collar practitioners. 

Not surprisingly, the Justice Department's testimony on these fronts seems (based on my too-quick scan) to support additional or revised guideline enhancements on a variety of fronts while also apparently opposing the potential adoption of any loss calculation provisions that might favor defendants.  Meanwhile, private and public defense attorneys seem to be saying in their testimony (here and here and here) that the fraud guidelines are already too severe.  And, providing a distinct (and somewhat parochial) perspective, the testimony from the Probation Officers Advisory Group appears to be (perhaps justifiably) much more concerned with how the guidelines can ensure already complicated loss calculations do not get even more complicated.

For a whole host of reasons, I do not envy the challenges facing the USSC in trying to sort out a clear and sensible path forward in this arena.  I strongly feel that the loss rules are a mess and the source of considerable problems, but I fear that sensible reform requires a broad (and difficult) reassessment of just when and how loss should be a key factor in the sentencing of white-collar offenders and also requires much greater attention to mens rea factors that, problematically, rarely get enough attention at sentencing because these factors are impossible to readily quantify.

March 14, 2012 at 02:05 PM | Permalink


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