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March 12, 2017

You be the federal sentencing judge: how long a prison term for convicted "Bridgegate" defendants?

22266537-mmmainAs I have often said in this space, I find I find high-profile, white-collar sentencing cases to be among the most interesting and dynamic because they often require a judge (and others) to balance and calibrate competing punishment theories and goals.  Because most white-collar offenders are not violent and often had a successful/productive life before getting into trouble, the need for severe punishment to incapacitate or specifically deter an offender from committing future crimes is often diminished.  But because potential white-collar offenders are likely influenced by the deterrent impact emerging from the punishment of others like them, and also because white-collar offenders typically have had a relatively advantaged background, one can reasonably believe that crime control and just punishment concerns justify throwing the book at any and all serious white-collar offenders.  

Against that backdrop, I am eager to hear various perspective on the upcoming federal sentencing of the two defendants discussed in this local New Jersey article headlined "What's at stake this week when Bridgegate defendants are sentenced." Here are the basics:

On paper, they could face up to 20 years in prison. Bill Baroni and Bridget Anne Kelly, once members of Gov. Chris Christie's inner circle who were convicted in November of conspiracy and fraud in connection with the Bridgegate scandal, are due to return to court Wednesday morning for sentencing.

While neither is expected to serve anywhere near the 20-year statutory maximum term under federal sentencing guidelines, the unusual nature of the charges in the case, including civil rights violations for interfering with the ability to travel, could have both looking at nearly four years in prison, say legal experts.

Baroni, 44, the Port Authority's former deputy executive director, and Kelly, also 44, a one-time deputy chief of staff to Gov. Chris Christie, were charged with helping orchestrate the shutdown of several local toll lanes at the George Washington Bridge in 2013 in a scheme of political retribution targeting the mayor of Fort Lee over his refusal to endorse the governor for re-election. After a seven-week trial, the two were found guilty.

Prosecutors, however, not only charged the two with conspiracy and fraud, but with violating the civil rights of those stuck in the massive traffic jams they created--which left Fort Lee frozen in gridlock for days. Those civil rights violations are now driving what could be an unusually harsh sentence, according to legal experts.

"Civil rights violations have always been treated severely by federal courts since historically they were used by the federal government to prosecute crimes that states were either unwilling or unable to prosecute," noted Robert Mintz, former deputy chief of the Organized Crime Strike Force of the U.S. Attorney's Office in New Jersey and a criminal defense attorney at McCarter & English.

The U.S. Attorney's office would not disclose the proposed sentencing range in Bridgegate case and attorneys for both Baroni and Kelly also declined comment, but the federal sentencing guidelines suggest both face upwards of 46 months, in large part due to the civil rights violations. U.S. District Judge Susan Wigenton, who presided over the Bridgegate trial, has sole discretion to set punishment.

While crimes carry statutory maximum penalties, federal judges for the most part follow set guidelines that outline a uniform sentencing policy for those convicted in the federal courts, so that individuals convicted of similar crimes generally serve the same sentence no matter where they were tried. "The guidelines are advisory only. But a lot of judges follow them very rigidly," observed Alan Ellis, a former president of the National Association of Criminal Defense Lawyers and a San Francisco attorney who specializes in sentencing and post-conviction matters.

Yet sometimes judges agree to significant departures from those guidelines. At sentencing last Monday, David Samson, the former Port Authority of New York and New Jersey chairman, faced up to 24 months in prison for bribery in connection with a shakedown of United Airlines. Instead, he walked out of court with just a year of house arrest.... Samson's guilty plea earned him a downward adjustment from the sentencing guidelines for his "acceptance of responsibility." A negotiated plea deal with the U.S. Attorney's office further limited the maximum term he faced.

"These two people went to trial," said Ellis of Baroni and Kelly. Those who go to trial are said to "pay rent on the courtroom," because they receive no downward adjustment at sentencing if they are found guilty....

For Baroni and Kelly, who wrote the now-infamous "time for traffic problems" message that served as a smoking gun to prosecutors, the civil rights violations will represent the most serious violations to be addressed at sentencing. "In this case, the facts are so unique that it doesn't fit the typical pattern of these type of violations so it is hard to predict how the court will factor in that violation," said Mintz. "In the end, the sentence that these defendants receive will likely turn more on how the judge views the criminal conspiracy--whether the conduct was a calculated scheme that truly endangered the public or was merely a misguided act of political retribution that went horribly awry."

Whatever the sentence, defense attorneys have already said the plan to appeal the case.

Prior related post:

March 12, 2017 at 02:48 PM | Permalink


Interesting questions--it's one thing to affirmatively stop someone by pulling them over, but constricting a route?

Also, Doug, remember the government shutdown--same sort of thing was done to tourists--with no authority. Where were the prosecutions there?

And I would not be offended by 10 years in prison. Problem is--where is the line?

Posted by: federalist | Mar 12, 2017 3:17:41 PM

Doug and Federalist, one must also consider the shame, humiliation, and loss of reputation stemming from a felony conviction. These consequences can amount to substantial collateral punishment to certain white collar defendants like these folks.See See U.S. v. Smith 683 F.2d 1236, 1240 (9th Cir. 1982) (“The stigma of a felony conviction is permanent and pervasive.”); see Wayne A. Logan “Informal Collateral Consequences” 88 Washington Law Review 1103 (2013) (“Today, convict status serves as a perpetual badge of infamy, even serving to impugn reputation beyond the grave.”). In my view this is a mitigating factor.

On the other hand, as I recall, an aggravating factor here was that the traffic jam caused a near tragedy when an ambulance was stuck in the traffic.

All in all, assuming equal culpability (and I would want to see the PSR), I would impose a sentence of four years on each, with a recommendation for a minimum facility camp.

Posted by: Michael R. Levine | Mar 12, 2017 3:55:19 PM

Six years each.

Posted by: Dave from Texas | Mar 12, 2017 9:14:10 PM

The real story here is the fact the person in the high status position gets off with house arrest and the little guys (relatively speaking) will face jail time. My own outsider's view is that this is a case of "a misguided act of political retribution that went horribly awry."

I don't believe they really intended to violate anyone's civil rights. It's just not plausible to me. I see it as recklessness--they wanted pay back and didn't care who got hurt. Still I think the should face jail time but perhaps only a year or two. Six years seems excessive to me.

Posted by: Daniel | Mar 13, 2017 4:38:35 PM

I agree with Mr. Levine's rationale but would impose no more than 24 months.

Posted by: Emily | Mar 13, 2017 6:01:47 PM

The problem, it seems to me, is that the "crime" (if it is that, and I don't know) is nebulous. Is it a civil right to have a road open? That's not so clear--especially with all sorts of discretionary functions that government performs. Not only that--this is the sort of crime that can be enforced based on naked partisanship. There were clear abuses of individuals during the government shutdowns, which were clearly violations of civil rights. Yet no one will get punished for those clear-cut abuses.

That said, this was an appalling abuse of power, and I won't feel sorry for them if they get maxed out.

Posted by: federalist | Mar 13, 2017 6:13:35 PM

federalist, are you asserting that, in this case and perhaps others, the failure of other arguably similar offenders to be prosecuted/convicted serves as a strong mitigating sentencing argument?

I sure know a whole lot of drug defendants who would surely be eager to assert that a failure to punish comparable others is a strong reason to mitigate their sentence. But I suspect you would not find such sentencing arguments compelling. Is there are unique reason you seem uniquely concerned with un-prosecuted others in this particular setting?

Posted by: Doug B. | Mar 13, 2017 8:52:26 PM

I do not understand the crime. How would bridge trapped motorists blame the local mayor? They do not even know the name of the nearby towns. Then, how long would they recall this traffic jam, which is frequent anyway, at the time of the next election if voters of the very small town? There are Port Authority signs all over. That is the agency that would be blamed. The bridge is beautiful, and the views are too. I would prefer to be stuck there than on the Cross Bronx Expressway. People will travel from around the world to jump off it. It is a favorite suicide destination.

I do not understand the long time it took to investigate the charges. How long does it take to review seized emails? In a federal conspiracy, should one be using permanently available emails and texting?

I do not understand a grand jury investigation for months.

I do not understand the charges. If there was a crime, it was the unrelated steering of contracts to the law firm of the head of the Port authority, without open bidding. No charges there. If the charges below have some validity, why is the Mayor of New York not being investigated for the same? From the NY Post, "Time for some traffic problems in Manhattan! City officials have intentionally ground Midtown to a halt with the hidden purpose of making drivers so miserable that they leave their cars at home and turn to mass transit or bicycles, high-level sources told The Post."

"Count 1

Charges Baroni and Kelly with conspiracy to obtain by fraud, knowingly convert and intentionally misapply property of the Port Authority, an organization receiving federal benefits.

The count charges Baroni and Kelly agreed with Wildstein and with each other to take unauthorized control of Port Authority property and misuse it. The property they allegedly misused falls into two categories: Physical property and money.

The physical property they are accused of misusing are the local access lanes and the toll booths. The money they are accused of misusing stems from the time and services of Port Authority employees related to scheme, including the employees' salaries and the overtime paid to toll booth operators to manage the single toll booth.

Count 2

Charges Baroni and Kelly with the substantive offense of obtaining by fraud, knowingly converting and intentional misapplying property of the Port Authority.

The count goes beyond the conspiracy and/or agreement, and relates to the actual misuse of Port Authority resources. Like the previous count, the property they are accused of misusing falls into two categories: Physical property and money.

Count 3

Charges Baroni and Kelly with conspiracy to commit wire fraud.

Refers to the alleged conspiracy to commit wire fraud, or lie, in order to obtain Port Authority property.

Count 4 & 6

Charges Kelly with wire fraud.

The charges are tied to Kelly's emails. Count 4 charges Kelly for her "time for some traffic problems in Fort Lee" email on Aug. 13, 2013, and Count 6 charges her for a subsequent email allegedly tying her to the scheme.

Count 5 & 7

Charges Baroni with wire fraud.

The charges are tied to Baroni's emails. Count 5 charges Baroni for his email to Wildstein indicating that Mayor Sokolich had called about an urgent matter in Fort Lee. Count 7 charges Baroni for forwarding an email from Sokolich to Wildstein about the alleged scheme.

Count 8

Charges Baroni and Kelly with conspiracy against civil rights.

Refers to the conspiracy that Baroni and Kelly allegedly agreed on together with Wildstein.

Count 9

Charges Baroni and Kelly with depriving the residents of Fort Lee of their civil rights.

The charge accuses the defendants of conduct that "shocks the conscience," which means Baroni and Kelly had to willfully act to deprive Fort Lee residents of their rights."

Could partisan politics be involved in this Obama administration prosecution? I think, there should be an investigation of the investigation. What did President Obama know, and when did he know it? That way the spending of tax payer $millions on lawyer employment would not have to end.

Posted by: David Behar | Mar 14, 2017 10:00:51 AM

Prof. B. I do not speak for federalist.

I think prosecutors should be sued in lawyer malpractice for violations of their acts of commission breaching the dozens of duties to defendants, enumerated in multiple statutes.

They should also be liable for acts of omission, or failure to prosecute, and for the resulting damage to a plaintiff or a class. In the above comment, it should be malpractice to fail to prosecute the Mayor of NYC for intentionally interfering with interstate commerce by intentionally causing additional traffic jams in the city.

If the standard of conduct is set by this Bridgegate prosecution, then discretion to not prosecute the Mayor of NYC is lawyer malpractice. The claim against the federal prosecutor would be per se, since the standard was set in a tribunal.

It is just false that government workers have no duty to individuals, since individuals are the sole physical reality, and general populations have no definition or empirical measurability.

Posted by: David Behar | Mar 14, 2017 10:15:45 AM

Doug, I don't believe that I said that the fact that others weren't prosecuted means that the court should go easy on them. What I said was that selective enforcement is a real concern for crimes like this (surely you cannot be blind to the possibility of abuse here).

I find what these guys did absolutely appalling and a gross abuse. The issue for me is whether opening up actions like this to criminal sanction (by way of creative charging) is a cure worse than the disease. There is not a lot of distance between this prosecution and the prosecution of Rick Perry or Tom DeLay. This prosecution isn't in the John Edwards category (a bullshit prosecution if I ever saw one), but the rationale here can really be abused.

Doug, I will give you a hint--you can go through every single post I have ever made--hypocrisy is not something you will find here.

Posted by: federalist | Mar 14, 2017 10:50:35 AM

I was not suggesting you were a hypocrite, federalist. But one possible way to deal with "disease" of unjustified/inconsistent political prosecutions is to have sentences on the back end be low so as to not turn such prosecutions into huge scalps for politically motivated prosecutors. And low sentences could be potentially justified by the failure to prosecute those similarly situated. I was trying to see if you think, based on your comments, that this should be a viable argument here.

Posted by: Doug B. | Mar 14, 2017 1:19:24 PM

We had mandatory sentencing guidelines. They dropped crime 40% across the board.

We need mandatory prosecutorial guidelines, preventing false or trivial prosecutions, and forcing prosecutions of lawyer privileged parties, such KKK lynch mobs, mayors who block traffic, and murderers of black people.

These should be applied by robots running legislative enacted algorithms. Judges and prosecutors may be rehired to wheel such robots into grand jury panels and into trial court rooms.

Posted by: David Behar | Mar 14, 2017 1:45:07 PM

doug, the question was tendentiously put, and had a clear hypocrisy angle

you can walk back, and that's fine . . . .

And no, I don't think the lack of significant jail time is a deterrent to "political" prosecutions--think Edwards would have gotten much time?

I would be interested to know if you have any thoughtful criticisms (or support) of the charges brought here. They seem a stretch to me, at first blush, but I am not an expert. Let's say state official gets to make decisions about road maintenance and decides to favor localities that voted for the governor? Prosecutable? Or let's say an Obama appointee wants to make life difficult for tourists in a hotel in a national park so as to help make the political case against the shutdown--ok, from a criminal law standpoint, to lock them in the hotel?

Posted by: federalist | Mar 14, 2017 2:00:31 PM

federalist, this post asks about what folks think would be the proper sentence here, and you twice lamented the failure to prosecute comparable in the wake of government shut downs. That led me to think, perhaps inaccurately, that the failure to prosecute others in arguably similar cases influences your view of what you think would be the proper sentence here. My question was to inquire on that front, and I remain interested to know your answer, and I remain primarily interested in talking about the sentencing issues in this case not that we are at the sentencing stage.

Perhaps the related sentencing question you that may better connect to what you are getting at in your comments is whether you think it proper for the sentencing judge in this kind of case (who has no direct control over a prosecution that arguably fits the applicable statutory definition) could and should have his sentencing determination influenced in part by his concern that the prosecution in harmfully stretching a statute and/or applying it in an improper or biased way. I tend to like judges at sentencing acting as a kind of check of prosecutorial overreach, so I am comfortable with judges exercising sentencing powers this way if/when doing so in a transparent and deliberative manner consistent with applicable sentencing statutes.

As for you more general question, I think the civil rights charges in this case are a troublesome stretch, but there were also I believe more traditional fraud charges on which the defendants were convicted. I did not follow the issues/trial closely, both those charges seemed more in light with a traditional type of prosecution.

Among the many things I find interesting about your comments, federalist, is that you suggest the prosecutions here may be hinky in some sense, but also state you are fine with these defendants getting a decade in prison.

Posted by: Doug B. | Mar 14, 2017 6:07:44 PM

Prof. B. Should prosecutors, at will employees, under the control of political appointees, prosecute their political opponents of another party, and use discretion to not prosecute members of their own party doing far worse?

Should prosecutors immunize members of the Democratic Party who lynched 5000 black men, each in front of hundreds of witnesses, and prosecute Yankees going 1 mph over the suddenly changed speed limit in a town, without any warning? Then should prosecutors send such Yankees to indentured servitude on cotton farms, wearing iron balls on chains on their ankles for two years?


What should be done about such rogue prosecutors and their supervisors if no legal recourse is possible?

Posted by: David Behar | Mar 14, 2017 10:16:47 PM

Prof. B. Is OK to argue about trivial personal remarks with federalist, and to ignore claims of massive failures and toxicities of the prosecutorial system?

How would you like a mechanic that fails to fix 90% of broken cars, and does the wrong repairs on 20% of the 10% of cars he does repair? Should there be any legal recourse against such a mechanic?

Posted by: David Behar | Mar 15, 2017 6:26:07 AM

Obviously, the fact that I am fine with a decade in prison is predicated on the assumption that this was conduct governed by the statutes---from a quick read, I find it a stretch, particularly the fraud piece. Obviously, if it's not a crime, then ten years would be tyranny.

And Doug, I think it plain that I NEVER argued that the lack of prosecution elsewhere should mitigate the sentences. I just raised the issue of selective prosecution.

In any event, as you can probably tell, I am highlighting my lack of detailed knowledge about this area of the law---but my antennae are up. No doubt about that.

Posted by: federalist | Mar 15, 2017 9:33:43 AM

David: this blog often discusses, in various ways, what you call the "massive failures and toxicities of the prosecutorial system." It does not discuss often what seems your desired remedy, namely tort liability for prosecutors. You have your own blogs to discuss what you consider most important, and I think it bad form in this cyber world to spend a lot of time lamenting that others do not want to talk endlessly about what you want to talk endlessly about.

federalist: I generally share your concerns about the legality/wisdom of these Bridgegate prosecution, but I generally do not share the instinct that once you reach a satisfactory answer to the binary legality issue (e.g., you decide the convictions are technically legal), then the defendants here ought to have their sentences maxed out. I am not saying this is an implausible or unjustifiably way to look at the world --- indeed, the federal sentencing guidelines often essentially demand looking at the world this way in a lot of white collar cases. But I see a a lot of reasons to connect, formally an informally, concerns about selective prosecution, guilt and punishment.

One setting where perhaps this might be considered more crisply (and could become a real issue real soon) could be to imagine the federal prosecution now of a prominent recreational marijuana business in Colorado. If the feds went after one major state-licensed dealer (and only one), would you feel comfortable with that one dealer (and only that one) getting an LWOP sentence? Would your answer to this matter in any way if the one dealer selected to be the subject of prosecution was an especially prominent supporter of Dems and/or vocal critic of federal drug laws?

Posted by: Doug B | Mar 15, 2017 10:05:07 AM

"If the feds went after one major state-licensed dealer (and only one), would you feel comfortable with that one dealer (and only that one) getting an LWOP sentence? Would your answer to this matter in any way if the one dealer selected to be the subject of prosecution was an especially prominent supporter of Dems and/or vocal critic of federal drug laws?"

There are a lot of issues in that question. A lot of issues. But yeah, I would worry about selective prosecution in that case.

Why I think the Bridgegate defendants should be maxed out (assuming there was a crime)--this was a truly evil thing to do.

Posted by: federalist | Mar 15, 2017 11:04:15 AM

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