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April 9, 2024
Federal district judge references selective prosecution concerns in sentencing far-right violent protestor
I just saw this notable and extensive reporting on a notable sentencing from California last week. The piece is headlined "Judge cites Antifa when rejecting prison for white supremacist’s former associate," and here are excerpts:
A federal judge who believes the U.S. Department of Justice unconstitutionally prosecuted white supremacists for violence at political rallies said Thursday he knows “the government and others” will disagree with his decision to leniently sentence a man for punching a journalist in 2017. Prosecutors wanted a year of probation and six months in prison for Tyler Laube, a former associate of Rise Above Movement founder and neo-Nazi Robert Rundo, while his lawyer asked for no prison and no probation.
During a 24-minute hearing on Thursday in Santa Ana, California, U.S. District Judge Cormac J. Carney credited Laube for 35 days already served in jail, fined him $2,000 and ordered him to be on probation for one year. Carney’s 22-page memorandum said he has “no doubt” prosecutors’ opposition to a lighter sentence is “focusing entirely on Mr. Laube’s past white-supremacist beliefs and ignoring the violent conduct of Antifa and the similar groups.”
“Viewing Mr. Laube’s actions in context, it does not appear he intended to single out and target a journalist,” Carney wrote. “Violence erupted at the rally. Mr. Laube did not start the violence. Indeed, he was slapped in the face twice before engaging in any violence,” the judge continued. “Once violence started, Mr. Laube and other RAM members reacted to the Antifa members that were harassing and physically attacking Trump supporters.”
Carney said he “cannot cast aside the Constitution and ignore the mitigating factors and sentencing objectives under Section 3353(a),” referring to the federal law governing sentencings. “The Constitution and the laws of the United States apply to everyone,” the judge wrote. “We must never forget that if the political winds change in this country, and the new government decides to turn on those not sharing the new government’s views, it will be the rights and liberties guaranteed by the Constitution and the laws of the United States that will protect us.”
The judge quoted Robert Bolt’s 1960 play A Man for All Seasons: “Yes, I’d give the Devil benefit of law, for my own safety’s sake.”... The case has a long history: In June 2019, Carney allowed Laube to withdraw his guilty plea for felony conspiracy after he dismissed Rundo and Boman’s charges on First Amendment grounds, but the U.S. 9th Circuit Court of Appeals reinstated the indictment.
Given his previous decisions, Carney likely would have allowed Laube to withdraw his plea to misdemeanor interference with a federally protected right without bodily injury, too. But the U.S. Attorney’s Office also is appealing the judge’s February dismissal order to the 9th Circuit, which already has curtailed the judge’s ability to release Rundo from jail.
If Laube withdrew his plea and Carney dismissed his charges, he could end up in court again should the 9th Circuit reverse the latest dismissal as it did in 2020 with the first dismissal. Carney also is retiring at the end of May, so the case would go to another judge. Because Laube stuck with his plea on Thursday, Carney had no choice but to impose a sentence.
I recommend the full article about these matters, which provides additional backstory and links to sentencing filings. In addition, Judge Carney's lengthy sentencing memo is a fascaniting read (with pictures). Interestingly, in a footnote toward the close of the sentencing opinion, Judge Carney explains his selective prosecution conclusions are not essential to his sentencing determination: "even ignoring the Court’s selective prosecution finding and the fact that similarly situated individuals did not face prosecution, much less any term of imprisonment, the Court would still conclude that a sentence less than six months is appropriate because the other Section 3553(a) factors weigh in favor of a lesser sentence."
April 9, 2024 at 11:59 AM | Permalink
Comments
The above article does a much better job of reporting on the nuances of the decision than most reporting that I have seen on the case.
My expectation is still that U.S. Attorney will probably appeal but the full decision makes the case a closer call than some of the individual quotes from that decision.
Posted by: tmm | Apr 9, 2024 12:23:40 PM
Judges are not the ones who should be pushing back against selective prosecution (and non-prosecution); voters should. The alternative is a one-way ratchet toward leniency for everyone, as happened here. X defendant should be sentenced based on what X defendant did. If DOJ is (disgustingly) giving a pass to BLM-types (which it might welll be), the answer is at the next election to install someone who'll appoint a different, more law-driven DOJ.
Selective non-prosecution stinks, so I feel the Judge's pain here, but this is the wrong way to handle it.
Posted by: Bill Otis | Apr 9, 2024 12:55:29 PM
Bill, as noted in the post, Judge Carney's sentencing determination did not hinge only on his selective prosecution finding. And, given that people vote for Prez only every four years AND given that so many other issues matter in a Prez vote far beyond perhaps a handful of cases of selective prosecution/non-prosecution, isn't your proposed remedy really just a way of saying there is no real functional remedy for federal selective prosecution? That's a reasonable position, but I just want to be clear that it is yours in light of your comment.
Posted by: Doug B | Apr 9, 2024 1:23:42 PM
At the state level, where we charge a lot more offenses than the feds ever do, we regularly have to make close judgment calls based on our perception of the facts. Particularly, in chaotic situations, the reality is that we can't charge everyone because then everyone will take the 5th. Thus, we have to decide (at least at the charging level) who is the "bad actor" with the knowledge that a jury might reach the opposite conclusion. I would hate for a judge to say that I am going to give defendant X a break because I think you really should have charged defendant Y as well.
I also know that a lot of the evidence that we consider in making a charging decision is not, usually, going to be produced at a sentencing hearing (in part because of the rules of evidence and in part because prosecutors and judges usually do not want to have a full-blown trial at the sentencing hearing). So I really do not know of a good way for a judge to fairly apply any rule related to selective prosecution outside of the most extreme scenario.
Posted by: tmm | Apr 9, 2024 2:00:32 PM
"Judges are not the ones who should be pushing back against selective prosecution (and non-prosecution); voters should. The alternative is a one-way ratchet toward leniency for everyone, as happened here. X defendant should be sentenced based on what X defendant did. If DOJ is (disgustingly) giving a pass to BLM-types (which it might welll be), the answer is at the next election to install someone who'll appoint a different, more law-driven DOJ.
Selective non-prosecution stinks, so I feel the Judge's pain here, but this is the wrong way to handle it."
I must wholeheartedly disagree. The DOJ has gotten so out of hand that this is the only remedy. Especially here, where the Antifa people were there and were attacking Trump supporters. People should lose law licenses etc. over this.
Posted by: federalist | Apr 9, 2024 2:37:51 PM
federalist: who are you saying "should lose law licenses etc. over this"? The federal prosecutors who declined prosecutions of Antifa people or those who decided to prosecute the Rise Above Movement folks? And, assuming the prosecutors will assert that a lot of factors go into prosecutorial decisions to charge (see tmm comments), what is the basis for adjudicating license-losing prosecutorial misconduct?
Posted by: Doug B | Apr 9, 2024 3:55:47 PM
Everyone calm down. Laube pleaded guilty to a misdemeanor. The guidelines were 6 to 12 months. He was sentenced to 5 months below the bottom of the guidelines. This happens in federal courts dozens of times per day. The judge's specific reasons for a particular sentence are usually sealed; in this case, he must have considered it in the public interest to air his thinking. However one feels about the sentence here, everyone should agree that a "memorandum" of this type from the sentencing judge should be seen more often.
Posted by: a_Fed | Apr 9, 2024 4:58:23 PM
Doug, the bar can come up with anything to yank a ticket. A Fifth Amendment Equal Protection issue should be enough.
Posted by: federalist | Apr 9, 2024 5:44:24 PM
I do not think political views are a suspect class under EP doctrines, though I could be wrong on modern EP doctrines, federalist. But you have not addressed the main thrust of my question: are you eager for bar authorities to go after the federal prosecutors who declined prosecutions of Antifa people or the federal prosecutors who decided to prosecute the Rise Above Movement folks (or both)? Is any allegation of selective prosecution by any defendant going to be sufficient to call for a bar inquiry to question every federal prosecutors in the office?
Posted by: Doug B | Apr 9, 2024 6:20:34 PM
Has to be pretty egregious--from what I understand here, the Antifa guys started the violence and then weren't charged. That's a problem.
Posted by: federalist | Apr 10, 2024 9:26:52 AM
So you are calling for the disbarment of every federal prosecutor who worked in the US Attorney's Office for the Central District of California from 2017 to the present (until the SOL has run on the Antifa guys not being charged)? I am not asking whether you have feelings about not charging the Antifa guys, I am asking you to better explain this statement: "People should lose law licenses etc. over this." Or perhaps I should again remember that you are often just expressing you feelings, not legally sensible advocacy.
Posted by: Doug B | Apr 10, 2024 12:49:28 PM
Doug --
Better no remedy than one which (1) provides, on a strictly ad hoc, lucky-you-goy-this-judge-case basis, a spasmodic and undeserved on the merits shrunk-down sentence, and (2) because of its luck-of-the-draw nature, cannot act as or even be understood as a systemic remedy, and (3) which, if it could so be seen, would be even worse, since the judicial and political branches are equal, meaning none has the power to act as the school marm to the others.
Like I say, right sentiment, wrong remedy.
Posted by: Bill Otis | Apr 12, 2024 3:06:04 PM
Bill, how reasonable concerns could apply to lots of federal prosecutions: eg, "Better no federal prosecution than one which (1) provides, on a strictly ad hoc, unlucky-you-got-this-prosecutors-case basis, a spasmodic and undeserved on the merits federal sentence, and (2) because of its luck-of-the-draw nature, cannot act as or even be understood as a systemic sanction..." The ACCA cases and lots of other gun and drug cases certainly reflect a lot of luck-of-the-draw reality thanks to unguided, hidden, unexplained and unreviewed discretion of prosecutors. But we've discussed this before -- you trust the unguided, hidden, unexplained and unreviewed discretion of federal prosecutors, but not the guided, on-the-record, explained and reviewed discretion of judges.
Posted by: Doug B | Apr 12, 2024 3:38:56 PM
Doug --
You keep wanting to give the judicial branch a chancellor's foot veto over the executive's charging decisions, and keep whiffing on the language in the Constitution that comes anywhere close to authorizing such a thing.
And it's not what I trust and don't trust; it's what the Constitution provides and doesn't provide.
Posted by: Bill Otis | Apr 12, 2024 10:42:30 PM
Bill, most of the text of the Constitution addressing criminal justice issues functions to set out (judicially enforced) limits on prosecutorial charging/punishment decisions in various ways: eg, the habeas suspension clause (and ex post facto/attainer clauses) of Article I, the jury trial provision in Article III; substantive limits on crimes and punishments in Amendments I, II, VIII (as well as, arguably IX and X); the Grand Jury clause in Amendment V as well as all the (judicially enforced) prosocedures set forth Amendments IV-VI. I read all that text as clear evidence that the Framers greatly disfavored giving, and did not in any way want to authorize, unguided, hidden, unexplained and unreviewed discretion to federal prosecutors to charge, convict and punish absent robust judicial review.
What provisions of the constitutional text, Bill, do you see as favoring unguided, hidden, unexplained and unreviewed discretion for federal prosecutors to charge, convict and punish absent judicial review? The pardon power in Article II has been interpreted to give the Prez unreviewable discretion to eliminate convictions/punishment, so I can see building a claim from that provision that federal prosecutors must have unreviewable discretion to reduce/dismiss any and all charges/punishment. But I am sincerely interested in what constitutional text serves as the basis for your assertion that the Constitution provides for unguided, hidden, unexplained and unreviewed discretion of prosecutors to charge, convict and punish absent robust judicial review.
Posted by: Doug B | Apr 13, 2024 1:52:21 PM
Doug --
"But I am sincerely interested in what constitutional text serves as the basis for your assertion that the Constitution provides for unguided, hidden, unexplained and unreviewed discretion of prosecutors to charge, convict and punish absent robust judicial review."
Could you quote where I said the Constitution allows prosecutors to "charge, convict and punish absent robust judicial review?"
I don't expect to see any quotation because I never said any such thing. Why do you persist in attributing to me stuff I never said?
That's an actual question. And the answer is........................?
It's true that I've said and will say again that the Constitution makes charging an exclusively executive branch function. At no point have I said or even slightly implied that the Constitution provides prosecutors with the power to convict. Never -- and you know it. And at no point have I said that the Constitution provides prosecutors with the power to punish. That power is shared between the legislative (in broad measure) and judicial (in specific cases).
Of course the gist of it is that you resent the Constitutional plan of having CO-EQUAL branches. You want judicial supremacy, in which the executive is the poor second fiddle. But that is not what the Framers wanted or created.
If you want more visibility, accountability, etc.. fine, go for it. Perhaps you could post here your letter to Chairman Durbin and AG Garland saying exactly what you hope for and how it should be implemented. Because I know a mature and seasoned scholar like yourself wouldn't just fret on the Internet and instead would have a specific action plan.
P. S. The reason the Framers kept the judiciary out of charging decisions is that they understood, as you and all the rest of us should, that to have the same branch of government both writing and then adjudication a criminal charge is the fast road to tyranny.
Posted by: Bill Otis | Apr 13, 2024 9:41:14 PM
Bill, it is good to have you clarify that you recognize the Constitution does not provide for prosecutors to convict or punish absent judicial review. Now can you point to any constitutional text showing "that the Constitution makes charging an exclusively executive branch function" absent any judicial review?
And what do you mean by the claim that "the Constitution makes charging an exclusively executive branch function"? Could a federal prosecuter pursue a charge based on a civil law provision (or a state statute) without being subject to judicial review? Could a federal prosecutor, immediately after a jury acquittal, pursue a new indictment on the exact same charge on the exact same facts without judicial review?
I agree that federal judges cannot bring federal criminal charges. But are you really asserting that judges cannot review criminal charges? How, then, is SCOTUS reviewing Jack Smith's charges based on Trump's claim of absolute immunity?
Posted by: Doug B | Apr 13, 2024 10:25:17 PM
Doug stated:
“Now can you point to any constitutional text showing "that the Constitution makes charging an exclusively executive branch function" absent any judicial review?”
Can you point to any constitutional text showing that the judiciary has any role in charging decisions?
It already has its “checks.” Overly harsh charges may be thrown out at the grand jury level. Judges don’t have to accept plea deals if they feel a prosecutor “tricked” a defendant into pleading guilty to a charge not committed.
I see nothing granting them the right of broad oversight coming from COTUS.
Posted by: TarlsQtr | Apr 16, 2024 6:15:40 PM
Master Tarls, I am just claiming that the text of the Constitution authorizes the judiciary, in various ways, to "check" how federal prosecutors use their charging powers. For example, since Bruen, federal district court judges have been throwing out various federal gun possession charges brought by federal prosecutors based on the Second Amendment. Given recent SCOTUS rulings, district judges ressonably understand the text of the Second Amendment to require rejection of certain federal criminal charges brought by federal prosecutors, even though federal prosecutors believe those charges are constitutional.
Similarly, the text of the First Amendment is surely another critical check here: eg, suppose federal prosecutors, at the prodding of local cops, were to charge the Long Island Audit guy with the federal crime of Stalking (18 USC § 2261A). I think a federal district judge must have authority to decide, at the time of charging, whether such a charge/prosecution would violate the First Amendment.
Other examples of federal judges reviewing federal charges on various grounds are before SCOTUS this week: the feds are looking to stretch the reach of various criminal laws in Snyder and Fischer. If SCOTUS rules as a matter of law in these cases that certain criminal statutes do not reach certain conduct, it would surely be a (judicially enforceable) Due Process problem if federal prosecutors tried to keep moving forward with identical charges in other or future cases.
I surmise you agree that the US Constitution provides many textual bases for "checking" federal prosecutorial charging decisions. That is why I struggle --- and seek more clarity --- regarding Bill's claim that "the Constitution makes charging an exclusively executive branch function." If what he means is that only the executive branch can START criminal charges, I largely agree -- although (suspect?) Rule 42 of the Federal Criminal Rules of Criminal Procedures seems to allow judges to initiate certain contempt crimes. But, as I see it, the judiciary can and must consider and rule on any and all claims by charged defendants that charges are unconstitutional or unlawful.
Critically, I do not frame any of this in terms of any "right" of judges in the Constitution. This is about protecting the rights and liberties of individuals against federal criminal powers. I struggle to read the Constitution, or our constitutional history, to support that the whims of the executive --- in essence the King now in the form of federal prosecutors --- could result in criminal prosecution without allowing some for of review from an independent judical authority.
Posted by: Doug B | Apr 17, 2024 9:04:41 AM
