« Notable coverage of Third Circuit's latest jolt to loss calculation in federal fraud guidelines | Main | Prohibiting Punishment of Acquitted Conduct Act receives unanimous bipartisan support in US House Judiciary Committee »
November 2, 2023
You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts?
This CNBC article reports on the high-profile federal jury convictions handed down this evening. Here are the highlights with an eye on sentencing prospects:
A jury has found Sam Bankman-Fried guilty of all seven criminal counts against him. The FTX founder faces a maximum sentence of 115 years in prison.
Bankman-Fried, the 31-year old son of two Stanford legal scholars and graduate of Massachusetts Institute of Technology, was convicted of wire fraud and conspiracy to commit wire fraud against FTX customers and against Alameda Research lenders, conspiracy to commit securities fraud and conspiracy to commit commodities fraud against FTX investors, and conspiracy to commit money laundering.
He had pleaded not guilty to the charges, which were all tied to the collapse late last year of FTX and sister hedge fund Alameda. “Sam Bankman-Fried perpetrated one of the biggest financial frauds in American history,” Damian Williams, U.S. attorney for the Southern District of New York, said in a briefing after the verdicts were read. “The cryptocurrency industry might be new. The players like Sam Bankman-Fried, Fried might be new. But this kind of fraud, this kind of corruption, is as old as time and we have no patience for it.”
The trial, which began in early October, pitted the testimony of Bankman-Fried’s former close friends and top lieutenants against the sworn statements of their former boss and ex-roommate. The jury returned a swift verdict after receiving the case at around 3:15 p.m. on Thursday....
Judge Kaplan thanked the jurors for their service, and they were escorted out. Kaplan then asked about the second trial Bankman-Fried is facing on March 11. The government has until Feb. 1 to to let the court know if it it plans to still proceed. The sentencing date is March 28 at 9:30 a.m....
The monthlong trial was highlighted by testimony from the government’s key witnesses, including Caroline Ellison, Bankman-Fried’s ex-girlfriend and the former head of Alameda, and FTX co-founder Gary Wang, who was Bankman-Fried’s childhood friend from math camp. Both pleaded guilty in December to multiple charges and cooperated as witnesses for the prosecution. Most of the defense’s case was built on the testimony of Bankman-Fried himself, who told the court that he didn’t commit fraud or steal customer money, but just made some business mistakes.
The central question for jurors to consider was whether Bankman-Fried acted with criminal intent in taking customer funds from FTX and using that money to pay for real estate, venture investments, corporate sponsorships, political donations and to cover losses at Alameda after crypto prices plunged last year....
Bankman-Fried now awaits sentencing. His case has been compared to that of Elizabeth Holmes, the founder of medical device company Theranos, which ceased operations in 2018. Holmes, 39, was convicted in early 2022 on four counts of defrauding investors in Theranos after testifying in her own defense. She was sentenced to more than 11 years in prison, and began serving her punishment in May at a minimum-security facility in Bryan, Texas.
For sentencing purposes, I do not think Elizabeth Holmes is a perfect comparison for Sam Bankman-Fried. But I expect SBF's lawyers are going to be eager to argue that Holmes and her sentence provide a proper benchmark for SBF's sentencing. But I also expect the guideline range calculated for SBF to be higher than Holmes' calculated guideline range; in fact, it seem likely that the guidelines will recommend a life sentence for SBF.
But, of course, because the guidelines are only advisory, Judge Lewis Kaplan will have to assess all the 3553(a) factors to decide what sentence for SBF is "sufficient, but not greater than necessary, to comply with the purposes set forth" by Congress in 3553(a)(2). Though sentencing is not scheduled to take place for nearly five months, it is surely not too early for folks to use the comments to share their own views on a "sufficient, but not greater than necessary," sentence for SBF.
November 2, 2023 at 10:49 PM | Permalink
Comments
I would say 7-8 years. SBF is a young, smart guy with a lot of potential. That is long enough to discourage this type of activity, but not so long as to be draconian. I thought Elizabeth Holmes sentence was somewhat longer than necessary, so this feels about right. The Guidelines sentence is obviously crazy. What is the logic? If you are responsible for enough monetary loss, you will never get a chance to be a free man again -- we don't care that you are 31 and after learning a lesson you have potential to contribute to society and lead a decent life? I don't think SBF is going to be in a position to re-offend, so don't think we are looking at incapacitation as an important goal. I realize 7-8 years is probably far less than he will get because our system of justice is plainly overly-punitive, but I would to others to argue for a decades-long sentence as a matter of reason, rather than following obviously flawed precedent.
Posted by: Mark | Nov 2, 2023 11:06:57 PM
I don't think he should get ANY sentence because, like so many other defendants we hear about, he's an innocent man set up by a bunch of thuggish prosecutors out to make a name for themselves. And don't forget that awful, dreadful, really bad trial penalty!!! And acquitted conduct (oh, wait, there were no acquittals. Gosh darn. Those AUSAs must have bribed the jury).
OK, sorry, the devil made me do it. But all that stuff has become so rote in these precincts that I wanted to make sure it didn't get left out this time.
Posted by: Bill Otis | Nov 2, 2023 11:15:55 PM
And the sentence you actually consider "sufficient, but not greater than necessary," Bill?
Posted by: Doug B | Nov 2, 2023 11:19:37 PM
Doug --
In order to give a serious answer to that question, I'd have to know the entire record, which I don't and I doubt you do. And as I'm sure you understand, the point of my comment was to toss back at the "they're-all-innocent-and-prosecutors-are-extortionists" crowd some of what they say over and over and over in the comments section. I'd like to see them say it now, too, when it's even more facially preposterous than usual. But since SBF is a white male, I guess he won't be getting quite as much of the typical warm embrace as more politically correct criminals. Well darn.
P.S. Doesn't Section 3553(a) say more than just, "sufficient, but not greater than necessary, to comply with the purposes set forth" by Congress in 3553(a)(2)? Doesn't it go on to spell out those purposes, in part as follows: "The court, in determining the particular sentence to be imposed, shall
consider—
(1) the nature and circumstances of the offense and the history and characteristics of the
defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant..."
Oddly, the parts about seriousness of the offense, respect for law, just punishment, deterrence, and protection of the public seem not to get quoted nearly as often as the part about "sufficient but not greater than." How strange!!! But if one were to take them seriously, one might not be rushing to minimize (a la' your first commenter, Mark) the sentence for this absolutely breathtaking swindler and liar.
Posted by: Bill Otis | Nov 2, 2023 11:50:49 PM
It’s amazing the consistency with which Bill Otis weighs in as, frankly, an obnoxious jerk. Bill specialize in building strawmen. Bill, I don’t think many will argue for SBF’s innocence, but many will argue for a reasoned approach to sentencing that is not overly punitive. Bill fancies himself a serious guy, he teaches at Georgetown! So, why all the snideness and sarcasm, rather than reasoned engagement on serious to try to find solutions. It’s really kind of sad and a bit pathetic. I know he is in his 70s, so it is possible he’s lost a step.
Posted by: Mark | Nov 3, 2023 12:11:35 AM
Mark,
You make Bill’s point. No one will argue his innocence because he’s a rich white guy. If he was a poor black guy or a Hamas sympathizer, it would be a different story.
Posted by: TarlsQtr | Nov 3, 2023 12:18:05 AM
SBF’s penalty should come down to money.
If he will come out of prison penniless, sure I’d let him out after 15. If he’s going to come out still rich, keep him until he is too old to enjoy it.
Posted by: TarlsQtr | Nov 3, 2023 12:20:21 AM
Master Tarls: so SBF steals many billions from customers and fights the charges at trial, and you'd "let him out after 15 years in prison," but Jared Stephens steals a cheap laptop from Best Buy and downloads some kiddie porn and you said he "deserved" 150 years for deciding to go to trial. Interesting.
Bill: like I said to federalist when he asserted race explained Bowman/J6 treatment, I think it is privilege not race (or maybe gender) that may accounts for any different attitudes about SBF. Though many people see race and privilege as inherently intertwined, Master Tarls was rightly able to see an important distinction (adding politics to the mix as well) in assessing the Bowman/J6 context, and I think the same realities have much more explanatory power here. Hunter Biden is white, and yet many on the left come to his defense. I share your view that race is not a factor that should ever be ignored in the operation of the CJ system, but it is often not the only or even a major explanatory factor.
As for 3553(a), it says a lot more that "sufficient, but not greater than necessary, to comply with the purposes set forth" by Congress in 3553(a)(2), and it says a lot more than you quote. Rather than partially quote some but not all of 3553(a), I reprint the key operative instruction to judges, namely the overarching requirement to impose a sentence "sufficient, but not greater than necessary, to comply with the purposes set forth" by Congress in 3553(a)(2)? Critically, that operative language says BOTH "sufficient" as well as "not greater than necessary," and in so doing seems like a very balanced and astute overarching instruction to judges.
And I also share your view that it is hard to make a definitive judgment about these matters without reviewing a full record. But Master Tarls and Mark are playing along, and if you want to mock (strawman) notions of what others might say in response to the guilty verdicts, I was hoping to get at least some account of what you might think could be a sound sentence. If you do not want to play along, you are welcome to stay mute. But to mock (fake) views without offering your own is pretty weak.
Posted by: Doug B | Nov 3, 2023 7:08:09 AM
Mark --
"It’s amazing the consistency with which Bill Otis weighs in as, frankly, an obnoxious jerk."
Well THAT certainly adds to the discussion! Still, at least you didn't go after my wife, so there's that.
"Bill specialize [sic] in building strawmen. Bill, I don’t think many will argue for SBF’s innocence..."
His lawyers just finished doing exactly that, with the usual bunch of razzle-dazzle hokum. And false if outraged claims of innocence are utterly routine here, as you can't help knowing.
"...but many will argue for a reasoned approach to sentencing that is not overly punitive."
Which is why I told Doug I wanted to see the entire record -- something unmentioned in your remarks.
"Bill fancies himself a serious guy, he teaches at Georgetown!"
It's true that I tell people what I do, yes. What do you do, if anything? I also tell them my full name so they can check if they care to. What's yours? And I give my professional background. Care to fill us in with yours? Or do you prefer anonymity? Why would that be?
"So, why all the snideness and sarcasm..."
Because dozens if not hundreds of preposterous claims of innocence/mitigation have earned it.
"... rather than reasoned engagement on serious to try to find solutions."
I have argued repeatedly, using data, that the solution to crime is something we already know from an entire generation (1990 - 2015) of success: Hire more police, use more aggressive and computer-assisted policing techniques, and more incarceration for its incapacitating effect. You agree with these tested solutions, yes?
"It’s really kind of sad and a bit pathetic. I know he is in his 70s, so it is possible he’s lost a step."
Oh, OK, Tell ya what, sonny. Let's do an in-person debate. That way, people can see who you are; hiding behind the Internet screen doesn't work in debates. And since you're so macho, you'll have no trouble dispatching an old geezer, right?
I've debated Doug in person, and numerous other experts. Surely you're up to it..................I mean, you are, aren't you?
We can start now with your full name, educational background, publications, and professional experience. I'm all ears.
Posted by: Bill Otis | Nov 3, 2023 9:15:11 AM
I mean should it be mentioned that his coconspirator, Ms. Ellison, has been recommended to serve essentially no time despite being equally culpable? Its a little ridiculous Sam is facing life while a codefendant whose only distinction was a willingness to testify against a former lover is walking away scott free.
And Bill you sound like a boomer with these tough guy posts demanding other peoples dox.
Posted by: bob | Nov 3, 2023 11:29:04 AM
I have seen $10B loss amount in media reports, which would likely give rise to an advisory sentence of life (which I consider excessive and unjust), but I wouldn't take prosecutors word for it. I think the very low co-defendant sentences will likely put downward pressure on the ultimate sentence. My guess is something in the 15-20 range, but something much lower or much higher would not surprise me either.
Posted by: AFPD | Nov 3, 2023 12:59:03 PM
Doug,
You missed a key component of my statement, that I’d be OK with 15 years if he is penniless. Otherwise, no go.
Posted by: TarlsQtr | Nov 3, 2023 1:41:57 PM
My problem with trying to figure the appropriate sentence is that this case is about fraud in the cryptocurrency market. If you view cryptocurrency as a facially obvious Ponzi scheme, then a scam within a scam sounds less severe. (Of course, SBF's role in setting up the initial scam deserves something, but my understanding is that is not what these charges are about.) If you think cryptocurrency is a real investment, then stealing from investors sounds worse.
Posted by: tmm | Nov 3, 2023 1:43:11 PM
I saw your "penniless" comment, Master Tarls, but Jared Stephens was seemingly penniless his whole life and you said he "deserved" 150 years for deciding to go to trial.
Posted by: Doug B | Nov 3, 2023 2:27:36 PM
bob --
"And Bill you sound like a boomer with these tough guy posts demanding other peoples dox."
And you sound like another advisedly anonymous smear artist like your equally anonymous buddy "Mark" (or whoever he actually is).
If you think people who refuse to identify themselves have the same claim on a serious hearing as those who take responsibility for what they say, you go right ahead. That view of things is just as persuasive as your deference to the breathtaking swindler and liar you refer to as "Sam" -- as if you know him.
Posted by: Bill Otis | Nov 3, 2023 2:34:58 PM
$8 billion to $10 billion of losses are huge numbers. I predict SBF will receive a sentence of at least 50 years from Judge Kapllan. The cumulative losses from Bernie Madoff's PONZI scheme were about $21 billion. He received a sentence of 150 years, and died at FCI - Butner, North Carolina. My friend from prison, Sholam Weiss, received the longest white-collar sentence in American history, 845 years, for crimes that led to the collapse of a Florida-based life insurance company, with losses of up to $60 million to more than 3,200 stakeholders. After a 9-month long trial, Weiss disappeared a few days before his case went to the jury. He was convicted and sentenced in absentia. The female District Judge was palpably angry at Weiss. For the 72 counts of conviction, she gave him the statutory maximum sentence, and ran each sentence consecutive to all the other sentences, for a total of 845 years. There are many aspects of Mr. Weiss's case that the public is unaware of, including his female general counsel (who was a co-defendant) being bribed to use her Weiss signature stamp on documents he had refused to sign before going on a vacation to the Bahamas. Weiss's direct appeal was dismissed by the 11th Circuit pursuant to the Fugitive Disentitlement Doctrine, while he was a fugitive in Brazil and Austria. The Government lied to the Austrian Minister of Justice to get Weiss extradited from Austria back to the United States. The Government could not get Weiss's appeal reinstated, because the 11th Circuit denied their motion. The sentencing Judge refused to re-sentence Weiss to reduce his sentence by 35 years, because 3 of his counts of conviction (accounting for 35 years of his sentence) would not have been violations of Austria law. She told the Government that she couldn't help them because she had lost jurisdiction over the case soon after sentencing, pursuant to Rule 35 of the Fed. Rules of Criminal Procedure. The Government should have known when they made those promises to the Austrian Minister of Justice that they would not be able to perform them. SBF's case will be much simpler and straight-forward, but I am predicting 50 years.
Posted by: Jim Gormley | Nov 3, 2023 4:40:00 PM
Doug,
SBF would be living on other peoples’ money.
And another correction. You are misrepresenting my position regarding Stephens. He does not deserve 150 years for going to trial. He deserves 150 years by contributing to the market for child porn. Do you retract?
Posted by: TarlsQtr | Nov 3, 2023 4:46:06 PM
I am familiar with a case where a District Judge looked at life insurance actuarial tables concerning the defendant's estimated remaining life expectancy and took into consideration the 15% reduction in sentence for good conduct in prison. The Judge crafted a sentence calculated so that the defendant would be released from prison in his early 80s, one year before the actuarial tables said that he should die.
Posted by: Jim Gormley | Nov 3, 2023 4:55:09 PM
My back-of-the-envelope math is: BOL 7 + 30 (loss amount) + ~10 (various enhancements likely including financial hardship, sophisticated means, perhaps one of the 2B1.1(b)(17)s) + 2 (obstruction) + 4 (leader/organizer) = offense level ~53 = advisory life. Insane.
Posted by: mp | Nov 3, 2023 5:57:27 PM
I see SBF as less culpable than Holmes. They both stole money. But Holmes also lied about medical tests on a grand scale. I think that makes her worse.
That said, I don't think her sentence reflects this part of her conduct. I think she got far less time than she deserved.
A better comparison for SBF might be Jeff Skilling. After a lot of argument, Skilling ended up with 14 years. He is worse than SBF in some ways (bigger fraud), but less bad in others (he was the number 2 guy, not the number 1 guy. The guidelines may not see much difference. But I do.) I think 14 years would be reasonable.
In general, I think theft is less serious than other forms of crime. But with a theft of this magnitude, the severity goes up.
Posted by: William Jockusch | Nov 3, 2023 6:51:27 PM
And as I have said for years, I believe that any offense more serious than the theft of a couple hundred dollars should carry a presumptive death sentence with it up to the convict to plead why they, in particular, are especially undeserving of that fate. I would add that their explanation should also need to scale in persuasiveness along with the severity of the offense. SBF easily meets that threshold, and, given just how serious his conduct was, I am not sure any explanation short of "I gave it all to the Red Cross without keeping even a penny myself" should suffice.
Posted by: Soronel Haetir | Nov 3, 2023 11:11:56 PM
Master Tarls, your comment in the Stephens case was "If a completely sane person fights a three year sentence when caught with the goods, he deserves it." Later, when I sought clarification on your trial penalty views, you said "If I say 147 years over the plea gift could be deserved (dependent on specific facts), then it should be clear it could be deserved in any case." I perhaps inaccurately took away from these comments that you thought the decision to "fight" by going to trial when clearly guilty could make a 150-year sentence "deserved in any case."
In turn, when here you suggested a prison term of 15 years for SBF as long as he is "penniless," that struck me as interesting in light of your prior comments regarding deserved punishments after going to trial "when caught with the goods." If you are now seeking to clarify (retract?) your prior statements to assert that only persons who download child porn "deserve" 150 years in prison, that would be helpful to my understanding of your views. (I might then still wonder if you think that sentence is "deserved" for every case of CP downloading or only for those who turn down a plea after CP downloading.")
I am eager not to misrepresent or misunderstand your views, Master Tarls. I just sincerely find it interesting that you would be fine with letting SBF "out after 15 years in prison" (when he would be 46) as long as he is penniless after you suggested that someone like Jared Stephens deserved 150 years. If it was only the CP downloading driving your prior comments, I am sorry for misunderstanding your prior statements. Whatever your meaning, I still find your views on SBF (as well as Soronel Haetir's and others') on these matters interesting.
Posted by: Doug B | Nov 4, 2023 11:14:31 AM
Soronel Haetir wrote:
> And as I have said for years, I believe that any offense more
> serious than the theft of a couple hundred dollars should carry a
> presumptive death sentence with it up to the convict to plead why
> they, in particular, are especially undeserving of that fate.
I can't tell if you're serious. In case you are, there are three main
reasons why this would be a really bad idea:
1) For nearly all crimes, the risk of being convicted is much lower if
the victims and witnesses aren't available to testify. As such,
this law would incentivize criminals murdering their victims and
any witnesses, as this reduces their chances of being convicted but
doesn't increase the sentence. If someone rapes your daughter,
would you prefer that they then leave her alive or dead?
2) It makes juries less likely to convict even if they are certain the
defendant is guilty if they don't believe his crime was so severe
as to deserve death. Few people want a death on their conscience,
at least not unless the perpetrator really really deserved it.
3) There's always the risk of wrongful conviction. The current system
makes this extremely common, as most of the methods of convicting
people have little or no correlation with guilt. For instance the
extremely common technique -- used in SBF's case -- of rewarding
other defendants if they agree to testify the way the prosecution
wants them to, which of course incentivizes false testimony if the
targeted defendant is innocent. (Is he innocent? That's exactly
what they're trying to determine. I'm not claiming that SBF is
innocent. I don't know if he is. You don't know either. Even
Bill Otis doesn't know.) With reforms, the risk of wrongful
conviction could be greatly reduced, but never to zero. As such,
punishments should be finite, meaning no death penalty and no
life-long collateral consequences.
Note that Norway has a lower crime rate, and a much lower murder
rate, than the US despite having a maximum sentence of just 21 years.
Breivik, who killed 69 people, was sentenced to 21 years total, not
21 years per victim.
Jim Gormley wrote:
> Sholam Weiss, received the longest white-collar sentence in American
> history, 845 years, ...
Yes, to be followed by 3 years supervised release. But note that
he was pardoned and released after serving less than 20 years, and
remains free today.
Posted by: Keith Lynch | Nov 4, 2023 11:23:29 AM
Keith Lynch :
It is mostly that I believe that people do not have any inherent value, that the vast majority are of neutral value to society. therefore actually removing those that are of actively negative value is a worthwhile endeavor.
Your point about victims is the one reasonably good argument you make but I do not find it sufficient, those victims will just have to take their chances.
As for juries, I suspect that once people had grown up with such a system that jurors would not, in general, be so squeamish. The transition would take a decade or two and would, admittedly, be quite painful.
As for wrongful convictions, you are going to have an extraordinarily difficult time convincing me that"most of the methods of convicting
people have little or no correlation with guilt".
Posted by: Soronel Haetir | Nov 4, 2023 11:58:21 AM
Soronel Haetir wrote:
> It is mostly that I believe that people do not have any inherent
> value, that the vast majority are of neutral value to society.
Society consists entirely of individuals. So if individuals have no
inherent value, then neither does society, hence there's no value in
having value to society.
Also, if "the vast majority are of neutral value to society" then
society would be no more pleasant than its absence. Imagine what your
life would be like if you were suddenly teleported to a parallel Earth
in which our species had never evolved. There would be some benefits,
such as your in some sense owning everything in the world, and a total
lack of anthropogenic climate change. But the negatives would far
outweigh the positives. You'd probably quickly either freeze to
death, starve, or be killed by an animal.
Also, societies built around the principle that the purpose of human
life is to benefit society (e.g. communism and fascism), rather than
vice versa, tend to be very unpleasant places to live.
> therefore actually removing those that are of actively negative
> value is a worthwhile endeavor.
So do you also favor executing people when they retire? And also the
ones whose medical bills exceed their income?
> Your point about victims is the one reasonably good argument you
> make but I do not find it sufficient, those victims will just have
> to take their chances.
So you don't care about victims or their loved ones. Got it.
> As for juries, I suspect that once people had grown up with such a
> system that jurors would not, in general, be so squeamish.
I don't think people being too squeamish is something that should be
discouraged. Quite the opposite, judging by recent events in Ukraine
and Israel. And by pretty much all of human history.
> As for wrongful convictions, you are going to have an extraordinarily
> difficult time convincing me that "most of the methods of convicting
> people have little or no correlation with guilt".
The methods typically used to convict people in the US include:
* The Reid Technique. When used on people stupid enough to trust the
police, this gaslighting method can get a confession from about a
third of guilty people about about two thirds of innocent people, who
are left believing they're criminally insane as they have no memory of
the crime the cops claim they have "overwhelming proof" they committed.
* Coercive plea bargains. Plead guilty and get a few years, or go to
trial and unless you can afford a million-dollar defense, get a much
longer sentence.
* Pre-trial custody. Defendants who can't afford bail are held in
jail awaiting trial, often for years despite the "speedy trial"
clause. After a few months or years of this, they're often told that
they can be released immediately with "time served" if they simply
plead guilty.
* Prisoner's Dilemma. Falsely accuse someone else to get your charges
reduced or eliminated, or risk that someone else will do this to you
first. This was already ancient when used in the Salem Witch Trials.
(Nobody who confessed to being a witch and testified against others
was executed.)
* Reverse Prisoner's Dilemma. Nice wife (or parent, or adult child)
you have there. It would be a shame if something happened to them.
Something like being charged for your crime if you don't confess.
* Prosecutors tampering with defense witnesses, threatening to charge
them with perjury if they provide you with an alibi.
* Bogus Forensic Science. Not a crackpot theory of mine, but the
conclusion of The President's Council of Advisors on Science and
Technology's recent report, "Forensic Science in Criminal Courts:
Ensuring Scientific Validity of Feature-Comparison Methods."
* "Dry labbing." Forensic technicians are often rewarded for speed,
rewarded for convictions, given an impossible case load, and told
what result prosecutors want, creating a massive conflict of interest.
Ideally, they would never be told what result either side wants, and
would often be given known samples as a test of their accuracy. And
would not be rewarded for convictions (or for acquittals).
* Hiding exculpatory evidence. This is often done with expiring plea
bargains. "Today only, plead guilty and you get five years. Tomorrow
it will go up to twenty." You plead guilty, and a week later learn
that the police had video showing someone else commit the crime.
Congratulations, you still have to serve the full five years, and will
forever have a felony record.
* Base rate fallacy, also known as prosecutor's fallacy, a misuse
of statistics.
* It is very difficult, often impossible, to reverse even the most
obvious miscarriage of justice.
I could go on and on. The system is not designed to seek truth or
justice, but to seek and maintain convictions. It completely lacks
both the religious/humanist virtue of humility and the scientific
virtue of falsifiability. For these they substitute the bogus virtues
of "finality" and "closure."
There have been thousands of exonerations, often after 20, 30, or even
40 years in prison. But exonerations typically require freakishly
unlikely circumstances, such as DNA being collected before DNA
analysis was a thing and preserved for decades despite the case being
closed, or a false accuser spontaneously confessing. So for every
prisoner who is exonerated there are probably thousands just as
innocent who are never exonerated, for a total of millions of falsely
convicted people in the US.
Posted by: Keith Lynch | Nov 5, 2023 12:16:50 PM
I would direct your attention to the case of R. Allen Stanford, the former board of directors chairman of Stanford International Bank (SIB). Stanford was sentenced to a total of 110 years in prison for orchestrating a 20-year investment fraud scheme in which he misappropriated $7 billion from SIB to finance his personal businesses. In 2022, the 5th Circuit denied his appeal (in which he sought compassionate release). I see no difference between SBF and Stanford as to culpability.
However, in non-violent fraud cases, I do not agree with a life sentence without any possibility of parole during the criminal's expected life span, with exceptions (example: the defendant is already elderly, such as Madoff, in which case, a tacit life sentence would be appropriate).
Therefore, in SBF's case, a sentence of life with possibility of parole after a minimum of 40 years would be reasonable and appropriate, in my opinion. And to an extent, I agree with Tarls, as far as disgorgement of all ill-gotten gains. Although, should he inherit monies from his parents' estate, and it is found those monies had not originated from SBF's criminal acts, then he should be entitled to PART of those monies - enough to allow him to survive in a very, very modest lifestyle.
Posted by: SG | Nov 5, 2023 4:52:03 PM
Keith Lynch: It seems most unlikely that SBF would ever get a Presidential commutation, as came to Sholam Weiss. There are two major reasons that Weiss's sentence was commuted, after he had served about 18 years in prison. First, the DOJ made promises to the Austrian Minister of Justice to obtain Weiss's extradition to the U.S., which it ultimately could not and did not keep. Austria is a party to the European Convention of Human Rights, which requires the right to appeal criminal convictions and sentences. Weiss's appeal had already been dismissed by the 11th circuit under the Fugitive Disentitlement Doctrine, so this was an impediment for Austria in extraditing him. The DOJ promised the Austrian Minister of Justice that if he would hand Weiss over, they would get his appeal reinstated, so Austria could fulfill its obligations under the ECHR. After Weiss was extradited, the DOJ filed a Motion asking the 11th Circuit to reinstate Weiss's appeal, but the 11th Circuit balked and refused to reinstate Weiss's appeal, causing serious diplomatic problems with Austria. Three of Weiss's counts of conviction (for obstruction of justice) had no counterpart under Austrian law, so they were non-extraditable. The DOJ told the Austrian Minister of Justice that if he would hand Weiss over, they would get the 15 years of his sentence arising from those convictions removed. After Weiss was extradited, the DOJ filed a Motion in the trial court (Orlando, Florida) asking the Judge to reduce Weiss's sentence by 15 years, so that they could keep their promise to Austria. But the District Judge advised the DOJ that under Rule 35 of the Fed. Rules of Criminal Procedure. she did not have jurisdiction over the case any longer, and could not help them. This caused additional diplomatic problems with Austria. Even after the Austrian Minister of Justice left that office, he was still a member of the Austrian National Parliament (the equivalent of a U.S. Senator) and he was angry over the Weiss extradition matter. He felt like the DOJ had lied to him to get Weiss, and he used his influence with the Austrian Foreign Ministry to maintain pressure on the U.S. Government on these issues for the entire time that Weiss was incarcerated. Weiss hired Prof. Steve Saltzburg to represent him in filing a 2241 Habeas Corpus Motion in the M.D. of Florida. Their position was that since the DOJ did not keep its promises to the Austrian Minister of Justice, Weiss's extradition should be reversed and unwound, and Weiss should be returned to Austria. Ultimately, the Judge subtracted 15 years from Weiss's sentence and Weiss got to appeal the case to the 11th Circuit, which affirmed the District Judge. Notably, Weiss was denied a full resentencing by the District Judge, which mattered, because taking off those three convictions lowered Weiss's sentencing range. Ultimately, Weiss lucked out having Donald Trump as President, since Weiss and Trump had done business together and had known one another socially for decades in NYC. Weiss was one of the Founders of "Studio 54" (a bar and dancing venue in Manhattan), which Trump and his friends frequented during the 1980s and '90s. Second, Weiss made his original fortune with a plumbing supply business, which had sold a lot of plumbing supplies to the Trumps over the years, for their use in their office and apartment buildings. Although it is not well known, Weiss had a personal relationship with Trump that made it easier for him to get a commutation, from 830 years to 18 years, time served. Ultimately, a U.S. District Judge determined that Weiss had paid his $110 million of restitution (as Weiss had predicted, the value of the junk mortgages he had advised the life insurance to buy had turned around and came up to par, which was credited to Weiss), but Weiss remains constrained today by his $110 million fine, which he cannot pay. Weiss has now completed his Supervised Release, and has some significant health problems. SBF is unlikely to ever get a commutation like Weiss eventually received after serving 18 years in prison (many of those years were served in a maximum security penitentiary, which was very dangerous for Weiss).
Posted by: Jim Gormley | Nov 5, 2023 5:39:05 PM
For me, two interrelated factors put SBF in a different category of culpability than Stanford, the Enron people, etc. First, the FTX victims were closer to bank depositors than to equity investors or lenders. I think the wickedness of stealing from psuedo-depositors is greater than the wickedness of defrauding investors. Second, SBF would have know that his depositors included a lot of ordinary people, including those who were seeking refuge from unsafe or unstable financial regimes in their own countries. Not only that, FTX purposefully courted ordinary folk as depositors, what with the Super Bowl ad, the small-time bonuses ("get a free coin when you trade $10 worth") and so on.
There's also SBF's choice to double down by tampering with witnesses and baldly lying (and "forgetting") on the stand. That's not a trial penalty, that's a perjury penalty.
I'm hoping for 35+ years on this one. SBF stood to gain many billions from his fraudulent scheme, another differentiator from other scammers who only stood to realize a portion of the gains. A strong deterrent signal is needed here.
Posted by: Anon | Nov 5, 2023 9:52:59 PM
Isn't Bernie Madoff an apt comparison?
Posted by: federalist | Nov 6, 2023 3:22:43 PM
Doug,
For someone so eager to not misrepresent views, you sure do it a lot. You prove yourself a lawyer constantly, more comfortable trying to win a debate than having the open discussion.
You are comparing apples to sofas.
I have zero issue with SBF doing 150 years. I’m just willing for him to do significantly less if we can be sure he lives in near poverty, with all money earned beyond enough to survive going towards repayment. He would be no further threat to society, as his crime is nonviolent and any profit from working would go for repayment. He would have no motive to cheat again.
Stephens is a different matter. He deserves 150 for the crime. If they have the goods on him and he does not accept a 147 year plea reward, do every minute of that time, for sure.
Of course the crime is the context.
Posted by: TarlsQtr | Nov 6, 2023 3:42:31 PM
Master Tarls, I am sorry if I misconstrued what you said in the prior thread, namely that "If I say 147 years over the plea gift could be deserved (dependent on specific facts), then it should be clear it could be deserved in any case." Though I am still unclear what you think is "deserved" in the SBF case, now I think I understand that you consider a single instance of downloading CP to "deserve" 150 years (whether one goes to trial or pleads guilty). Can you clarify what prison term you think is "deserved" for a multi-billion dollar fraud as in the SBF case?
federalist: Madoff's fraud(s) lasted many decades and he pleaded guilty, though I suspect federal prosecutors will bring up Madoff's crimes and sentences in their sentencing memo in the SBF case.
Posted by: Doug B | Nov 6, 2023 4:31:32 PM
I think Judge Chin's sentencing remarks in Madoff show that he was fully aware that anything over a certain point was symbolic, and that the symbolism of giving Madoff the maximum mattered. So I don't think Madoff properly stands for the proposition that a 150-year sentence is some sort of benchmark; it stands for the proposition that 25+ years was appropriate (without any indication of how much, if any, more was appropriate).
In other words, if Madoff had an estimated 40-50 years of life left, I'm not convinced Judge Chin would have issued the same sentence.
Posted by: Anon | Nov 6, 2023 11:52:48 PM
What would the likely sentencing outcome be in Germany? England? Italy? Spain?
Posted by: federalist | Nov 7, 2023 10:14:24 AM
