Thursday, January 20, 2022

January 6 riot prosecutions continuing to spotlight realities of federal criminal justice case processing

This morning I saw two interesting, though not especially surprising, reviews of some of federal criminal justice realities being put in the spotlight by the many prosecutions of January 6 rioters.  Here are the headlines, links and an excerpt:

From Zoe Tillman at BuzzFeed News, "Alleged Capitol Rioters Are Getting In Trouble For Guns And Other Violations After Going Home: A common theme popping up in violations among those on pretrial release has come from defendants who are reluctant to give up access to firearms."

[Joshua] Pruitt is one of 11 people charged in connection with the attack on the US Capitol who were ordered into custody after initially being released; eight of those cases involved defendants who violated conditions of their pretrial release.  Prosecutors have a pending request to put another defendant behind bars, and BuzzFeed News identified at least 16 cases where judges tightened restrictions or issued warnings after finding defendants failed to be in full compliance with the letter, or spirit, of their release conditions.

The vast majority of people charged in the Jan. 6 investigation have been allowed to go home while their cases are pending; there are more than 550 defendants with active cases on pretrial release. Most have stayed out of trouble. The small but steady trickle of problems that have cropped up speak to some of the broader challenges judges have faced in deciding when it’s appropriate to send someone back into the community who is accused of being part of the insurrection but isn’t charged with a specific act of violence or a more serious crime.

From Roger Parloff, "Are Judges Showing Their Political Colors in the Jan. 6 Criminal Cases?"

Earlier this month, a Washington Post analysis suggested that the sentences of Jan. 6 Capitol riot defendants may reflect political bias on the part of the judges handling these cases.

Is the Post right and, more broadly, are judges showing their political colors in other ways involving these defendants? The evidence is mixed.  On the one hand, as we’ll see, judges have shown commendable bipartisanship in how they’ve handled certain key issues.  At the same time, the Post is clearly onto something. At least an undercurrent of low-grade tribalism has often surfaced in the judges’ handling of these cases....

Here’s what the Post did.  It reviewed the 74 sentences that had been handed down by the U.S. District Court for the District of Columbia (where all the Jan. 6 Capitol riot cases are being filed) as of the first anniversary of the event.  Then it compared those sentences to the terms the prosecutors had sought.

As an initial matter, the Post found that 49 defendants — two-thirds — received lighter sentences than prosecutors had recommended....

Still, when the paper drilled down, it uncovered some unmistakable trends. Of the 49 sentences that were lighter than prosecutors sought, 30 (61 percent) had been handed down by Republican appointees. This tilt could not be explained by the distribution of Republican appointees on the bench. Of all the judges who have sentenced a Capitol riot defendant, 10 were appointed by Democrats, while eight were appointed by Republicans.

Upon swiveling the tables — homing in on which judges imposed sentences that were harsher than the prosecutors requested — a mirror-image pattern emerged.  Of the 11 sentences that were tougher than the government sought, nine (82 percent) were imposed by Democratic appointees.

Some of many prior related posts:

January 20, 2022 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (7)

Sunday, January 02, 2022

Reviewing federal criminal prosecutions of January 6 rioters one year later

A few weeks ago, I flagged this CNN piece reporting on the first 50 sentences imposed on those convicted for federal crimes for their involvement in the January 6 riot at the US Capitol.  Today I see this lengthy new AP piece, headlined "Capitol rioters’ tears, remorse don’t spare them from jail," providing another overview of the state of federal prosecutions as we approach the one-year anniversary of these high-profile crimes.  Here are excerpts:

Judges are hearing tearful expressions of remorse — and a litany of excuses — from rioters paying a price for joining the Jan. 6 insurrection, even as others try to play down the deadly attack on a seat of American democracy.

The Justice Department’s investigation of the riot has now entered the punishment phase.  So far, 71 people have been sentenced for riot-related crimes.  They include a company CEO, an architect, a retired Air Force lieutenant colonel, a gym owner, a former Houston police officer and a University of Kentucky student.  Many rioters have said they lost jobs and friends after their mob of Donald Trump loyalists disrupted the certification of Joe Biden’s presidential victory.

Fifty-six of the 71 pleaded guilty to a misdemeanor count of parading, demonstrating or picketing in a Capitol building. Most of them were sentenced to home confinement or jail terms measured in weeks or months, according to an Associated Press tally of every sentencing.  But rioters who assaulted police officers have gotten years behind bars.

With hundreds of people charged, the Justice Department has taken heat for not coming down harder on some rioters, and it has failed to charge anyone with sedition or treason despite hints early on in the investigation.  But lower-level cases tend to be easier to prosecute and typically get resolved before more complex ones.

At least 165 people have pleaded guilty so far, mostly to crimes punishable by a maximum sentence of six months.  There are dozens of cases involving more serious offenses still moving through the system.  More than 220 people have been charged with assaulting or impeding law enforcement officers at the Capitol, according to the Justice Department.  Since November, three of them have been sentenced to prison terms ranging from more than three years to just over five years.

The District of Columbia federal court is overloaded with Jan. 6 cases.  More than 700 people have been charged so far and the FBI is still looking for more.  Among the most serious charges are against far-right extremist group members accused of plotting attacks to obstruct Congress from certifying the 2020 presidential election.  Their cases haven’t yet gone to trial.

The rioters’ refrains before the judges are often the same: They were caught up in the moment or just following the crowd into the Capitol. They didn’t see any violence or vandalism.  They thought police were letting them enter the building.  They insist they went there to peacefully protest.

Their excuses often implode in the face of overwhelming evidence.  Thousands of hours of videos from surveillance cameras, mobile phones and police body cameras captured them reveling in the mayhem.  Many boasted about their crimes on social media in the days after the deadly attack....

Eighteen judges, including four nominated by Trump, have sentenced the 71 defendants.  Thirty-one defendants have been sentenced to terms of imprisonment or to jail time already served, including 22 who received sentences of three months or less, according to the AP tally.  An additional 18 defendants have been sentenced to home confinement. The remaining 22 have gotten probation without house arrest.

A seemingly genuine display of contrition before or during a sentencing hearing can help a rioter avoid a jail cell.  The judges often cite remorse as a key factor in deciding sentences.

Some of many prior related posts:

January 2, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (2)

Wednesday, December 29, 2021

"How Much Prison Time Could Ghislaine Maxwell Serve After Sex Trafficking Conviction?"

The question in the title of this post is the headline of this new Newsweek article that explores a bit what I started thinking about upon hearing that Ghislaine Maxwell, Jeffrey Epstein's "helper," had been convicted on five of six federal sex trafficking charges.  The simple technical answer to the question is 65 years, and the article provides these (helpful?) additional details:

The most serious charge Maxwell was convicted of, sex trafficking of a minor, carries a maximum prison sentence of 40 years.  She was also convicted of transporting a minor with the intent to engage in illegal sexual activity, a charge punishable by up to 10 years, as well as three other charges that each carry maximum sentences of five years.... It is unclear when she could be tried on two separate counts of perjury, which could also add a five-year sentence apiece.

[I]f 60-year-old Maxwell is given a sentence anywhere near the maximum allowable term, she may spend the rest of her life behind bars, especially since the federal prison system does not include parole. If federal prison sentencing guidelines are allowed and she is ordered to serve sentences concurrently, Maxwell could face as little as 10 years.

Maxwell was sent back to Brooklyn's Metropolitan Detention Center after the verdict was read on Wednesday.  She has been held at the facility in isolation since being arrested in July 2020. Maxwell is likely to remain there until she is sentenced and assigned to a federal prison....

It is unclear whether security measures for Maxwell will be altered in light of her convictions.  Maxwell has denied all of the charges that she was convicted of on Wednesday. Plans to launch an appeal have already been set in motion, her attorney Bobbi Sternheim told reporters after the verdict. "We firmly believe in Ghislaine's innocence," Sternheim said. "Obviously we are very disappointed with the verdict, we have already started working on the appeal and we are confident that she will be vindicated."

U.S. District Judge Alison Nathan has yet to announce the date of Maxwell's pending sentencing hearing.

I think this article means to make the point that if federal sentencing guidelines are followed (not "allowed"), then Maxwell would be quite likely to get a term lower than the 65-year  statutory maximum available.  (It is perhaps worth noting that the most serious count of conviction now carries a statutory maximum sentence of life, but the stat max was "only" 40 years at the time of Maxwell's offense conduct.)

I am not an expert on guideline calculations for this set of offenses, but my sense is that the recommend range will be at least as high as 20 years, and perhaps even much higher.  It will be interesting to see the precise calculation and the sentencing advocacy by the prosecution and the defense in the months ahead.  It will also be interesting to watch if Judge Nathan's nomination to the Second Circuit, or the effort by some GOP Senators to question her sentencing work, could come to somehow impact Maxwell's eventual sentencing.

December 29, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences | Permalink | Comments (10)

Friday, December 24, 2021

Previewing sentencing facing former officer Kim Potter after manslaughter convictions for killing Daunte Wright

This extended AP article provide a helpful accounting of what we might now expect in sentencing of former Minneapolis police officer Kim Potter after a jury convicted her yesterday on two counts of manslaughter.  Here are excerpts:

The former suburban Minneapolis police officer who said she confused her handgun for her Taser when she killed Daunte Wright will be sentenced in February after a jury convicted her Thursday on two counts of manslaughter.  The most serious charge against Kim Potter — first-degree manslaughter — carries a maximum penalty of 15 years in prison....

Under Minnesota statutes, Potter, who is white, will be sentenced only on the most serious charge of first-degree manslaughter.  That’s because both of the charges against her stem from one act, with one victim.

The max for that charge is 15 years.  But state sentencing guidelines call for much less.  For someone with no criminal history, like Potter, the guidelines range from just more than six years to about 8 1/2 years, with the presumptive sentence being slightly over seven years.

Prosecutors have said they'd seek a sentence above the guideline range, while the defense said they would seek no prison time.  In order for Judge Regina Chu to issue a sentence that's outside the guideline range, she would first have to find either mitigating or aggravating factors.  Both sides are expected to file written arguments.

Prosecutors say aggravating factors in Potter's case include that she caused a greater-than-normal danger to the safety of other people when she fired into the car, including danger to her fellow officers, to Wright’s passenger and to the couple whose car was struck by Wright’s after the shooting.... Prosecutors also say Potter abused her authority as a police officer.

Defense attorney Paul Engh said the defense would be seeking a “dispositional departure” from sentencing guidelines. Under state statutes, a mitigated dispositional departure occurs when guidelines recommend a prison sentence, but a judge allows the sentence to be “stayed" — meaning the defendant doesn't go to prison....

In arguing that Potter should remain free on bail until she is sentenced, Engh said: "She is amenable to probation. Her remorse and regret for the incident is overwhelming.  She’s not a danger to the public whatsoever.  She’s made all her court appearances.” Chu was unmoved, and Potter was taken into custody after the verdicts were read....

The defense can also make the argument that as a police officer, Potter's confinement would likely be harsher than most because of the need to keep her safe.  The former Minneapolis police officer convicted in George Floyd's death, Derek Chauvin, has been in solitary confinement for that reason....

In determining a final sentence, Chu will consider the arguments made by both sides, as well as victim impact statements.  She has also ordered a pre-sentence investigation of Potter.  And Potter can make a statement at her sentencing hearing — a time when judges are typically looking to see if a person takes responsibility for the crime or shows remorse....

No matter what sentence Potter gets, in Minnesota it’s presumed that a defendant with good behavior will serve two-thirds of their penalty in prison and the rest on supervised release, commonly known as parole.  That means if Potter is sentenced to the presumptive seven years, she would likely serve about four years and nine months behind bars, and the rest on supervised release.  Once on supervised release, she could be sent back to prison if she violates conditions of his parole.  If she gets the maximum 15 years, she could be behind bars for 10 before being placed on parole.

December 24, 2021 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, State Sentencing Guidelines | Permalink | Comments (9)

Saturday, December 18, 2021

Lots of new January 6 riot sentencings producing lots of notable new headlines and sentencing stories

In this post about a week ago, I flagged this CNN piece reporting on the first 50 sentences imposed on those convicted for federal crimes as part of the January 6 riot.  That article noted that sentences were still forthcoming in the most serious cases; one such case was sentenced yesterday setting a new "record" as reported in this Washington Post article headlined "Fla. man sentenced to 5 years for attacking police, the longest Jan. 6 riot sentence yet."  Technically, the WaPo headline is off, as the defendant got sentenced to 63 months, and I am not too keen on at least one element accounting for the severity of this sentence: 

Robert S. Palmer, 54, of Largo, Fla., pleaded guilty in October to assaulting law enforcement officers with a dangerous weapon, and his original plea agreement called for a sentencing range of 46 to 57 months.  But after his plea, and his entry into the D.C. jail, Palmer arranged to make an online fundraising plea in which he said he did “go on the defense and throw a fire extinguisher at the police” after being shot with rubber bullets and tear gas.

That was a lie, Palmer admitted Friday.  He had thrown a fire extinguisher — twice — a large plank and then a four-to-five-foot pole at police before he was struck with one rubber bullet.  The falsehood indicated a failure to accept responsibility for his actions, prosecutors argued, and when U.S. District Judge Tanya S. Chutkan agreed, she increased his sentencing range to 63 to 78 months, ultimately imposing a 63-month term.

Based on the rest of the WaPo article, it seems as of the day of sentencing Palmer had truly accepted responsibility.  Though it is understandable that prosecutors and the sentencing judge may have considered previous statements trying to minimize his culpability as undercutting his claims of remorse, I find it troubling that Palmer ends up facing 1 to 2 years longer in a cage simply for a few stupid comments while trying to raise money for his defense.  I have long thought some prosecutors and judges are too eager to deny acceptance of responsibility credit under the guidelines based on a defendant's dumb statement or two, and this case highlights the stakes potentially involved in doing so.

Palmer's sentence, because of its length, generated the most recent January 6 sentencing headlines.  But I saw a few more notable headlines and stories this past week that seemed worth rounding up here:

"Judge: Lack of charges for Trump over Jan. 6 is no basis for leniency for others"

"New York man sentenced to nearly 3 years in prison for threatening Sen. Raphael Warnock"

"Judge goes beyond prosecutors' request with sentence for Jan. 6 couple"

"Jan. 6 riot ‘not patriotism’ judge says in sentencing Ga. man"

"UK student gets 30-day sentence for involvement in Jan. 6 Capitol riot"

"Federal judge ordered Fort Pierce man to serve probation for activities at U.S. Capitol Jan. 6"

"Guardsman in Jan. 6 Mob Gets Probation, Still Serving in the Guard"

December 18, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (36)

Tuesday, December 14, 2021

Death threats to Speaker Pelosi leads to 28-month (below guideline, above plea deal) federal sentence

This Politico article reports on a notable federal sentencing today under this full headline: "QAnon follower gets 28-month sentence for death threats to Pelosi: Judge says continuing election-fraud rhetoric from Republican politicians makes defendant an ongoing threat."  Here are some of the details:

A QAnon follower from Georgia who brought an arsenal of weapons to Washington just after the Jan. 6 riot at the Capitol was sentenced Tuesday to 28 months in prison for making crude threats to kill Speaker Nancy Pelosi and D.C. Mayor Muriel Bowser.

Cleveland Meredith Jr., 53, missed then-President Donald Trump’s Jan. 6 rally due to trouble with his truck, but was arrested the following day at a hotel near the Capitol after family members alerted the FBI to threatening text messages he’d sent. In a trailer outside the hotel, police found a pistol, an assault rifle and about 2,500 rounds of ammunition, as well as a telescoping gun-sight....

With credit for the more than 11 months he has already served at a D.C. jail facility since his arrest plus good behavior credit, Meredith is likely to spend roughly another 14 months in federal prison before being released....

During a sentencing hearing that spanned more than three hours, Jackson read aloud the series of texts Meredith sent during a drive from Colorado to D.C. and after he arrived in Washington. “Thinking about heading over to Pelosi [expletive]’s speech and putting a bullet in her noggin on Live TV,” Meredith wrote in a message to his uncle on Jan. 7.  “I may wander over to the Mayor’s office and put a 5.56 in her skull,” Meredith added in an earlier message....

In her statement, Jackson railed against an increase in extreme political language, and she noted that many political leaders continue to make false claims about fraud in the 2020 election. “The heated inflammatory rhetoric that brought the defendant to the district has not subsided,” the judge said. “The lie that the election was stolen and illegitimate is still being perpetrated. Indeed, it’s being amplified not only on social media, but on mainstream news outlets and…it’s become heresy for a member of the president’s—the former president’s party to say otherwise.”

During a brief, emotional statement to the court, Meredith insisted that the threats he issued and his talk of “war” in the Capitol were just overheated rhetoric. “I had no intention. It was political hyperbole that was too hyper,” Meredith said. “I was out of control that day.”...

Meredith pleaded guilty in September to a felony threat charge that carries a maximum of five years in prison. The plea deal contemplated a sentence of between six months and two years. However, Jackson found that the non-binding sentencing guidelines actually called for a stiffer sentence of between 37 months and 46 months because the threat to Pelosi targeted a government official.

“The fact that the government didn’t point to this before is odd,” said the judge, an appointee of former President Barack Obama. “It’s hard to suggest that these threats weren’t about or motivated by the victim’s performance of their official duties…The defendant was not incensed at Nancy Pelosi because she was a next-door neighbor who parked in his parking spot or a former romantic or business partner.”

Kiyonaga complained bitterly about the increase in the recommended sentencing range and suggested that the change will discourage other defendants from agreeing to plea deals. “I painstakingly negotiated a plea agreement with the government,” he said. “I think the government has gotten a windfall that it should not take advantage of. I think that will reverberate.”

The judge ultimately sentenced Meredith below the guidelines range, citing in part the harsh pandemic-related conditions at the D.C. Jail, where he is housed with others awaiting trial on charges related to the Jan. 6 Capitol riot.

December 14, 2021 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (4)

Sunday, December 12, 2021

Accounting for the first 50 sentences imposed on January 6 rioters

This new CNN piece, headlined "After 50 rioters sentenced for January 6 insurrection, a debate rages over what justice looks like," reports on a new analysis of sentences for the high-profile crimes that kicked off 2021.  I recommend the lengthy piece in full, and here are parts of how it gets started:

Of the 50-plus defendants who have been sentenced for their role in the January 6 attack on the US Capitol, fewer than half were sent to jail for their crimes. Most received an assortment of lesser penalties, including brief terms of house arrest, a couple years of probation, four-figure fines or court-ordered community service, according to a CNN analysis.

The milestone of 50 sentencings was hit on Friday, a busy day in court, with six hearings on the schedule. Four defendants got probation Friday, including a pair of veterans from Wisconsin, while one man who stole a beer from House Speaker Nancy Pelosi's office got 20 days in jail.

As federal prosecutors have brought cases against nearly 700 rioters, a heated debate has emerged over what justice should look like for such an unprecedented assault on democracy. This debate has raged on social media and in the halls of Congress. It has also played out among the two dozen judges handling the cases at the federal courthouse in Washington, DC.

After 50 sentencings, a split has developed on the bench: One group of judges has handed down stiffer punishments to rioters, including time behind bars. While a more skeptical group of judges have rebuffed the Justice Department and instead imposed fines and probation, which means the rioters will avoid jail but stay under government supervision for years to come.

This dynamic won't last forever -- this initial wave of guilty pleas and sentencings will eventually be followed up by dozens of more serious felony cases with longer prison terms. But for now, the dizzying array of outcomes has caused some headaches. Judges are questioning the department's approach to January 6, and politicians from both sides have fanned the flames....

These wings of the court don't fall along political lines. There are GOP-appointed skeptics, and some Democratic appointees handing down tough punishments. But the dynamic is nuanced. This has also forced partisan players on both sides to contort their ideological views to fit the moment.

Democratic lawmakers and activists are calling for more incarceration and want judges to throw the book at rioters, while many Republican officials and right-wing influencers have become newfound supporters of improving jail conditions for what they call "political prisoners."

Some of many prior related posts:

UPDATE: I just notice this recent AP article discussing some of the sentencings for some of the January 6 crimes under the headline "Capitol rioters’ social media posts influencing sentencings." Here is how the extended piece gets started:

For many rioters who stormed the U.S. Capitol on Jan. 6, self-incriminating messages, photos and videos that they broadcast on social media before, during and after the insurrection are influencing even their criminal sentences.

Earlier this month, U.S. District Judge Amy Jackson read aloud some of Russell Peterson’s posts about the riot before she sentenced the Pennsylvania man to 30 days imprisonment. “Overall I had fun lol,” Peterson posted on Facebook.  The judge told Peterson that his posts made it “extraordinarily difficult” for her to show him leniency.

“The ’lol’ particularly stuck in my craw because, as I hope you’ve come to understand, nothing about January 6th was funny,” Jackson added.  “No one locked in a room, cowering under a table for hours, was laughing.”

Among the biggest takeaways so far from the Justice Department’s prosecution of the insurrection is how large a role social media has played, with much of the most damning evidence coming from rioters’ own words and videos.

December 12, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (12)

Thursday, December 09, 2021

Is Jussie Smollett likely to get probation after convictions on five low-level state felony counts of disorderly conduct?

Today seemed to be the day for high-profile convictions of TV stars (or maybe not-quite stars).  Not long after the federal conviction of Josh Duggar in Arkansas (basics here), a state jury in Chicago returned a guilty verdict on 5 of 6 counts brought against Jussie Smollett.  This AP piece provides the basics, as well as a sentencing forecast:

Former “Empire” actor Jussie Smollett was convicted Thursday on charges he staged an anti-gay, racist attack on himself nearly three years ago and then lied to Chicago police about it....

The jury found the 39-year-old guilty on five counts of disorderly conduct — for each separate time he was charged with lying to police in the days immediately after the alleged attack. He was acquitted on a sixth count, of lying to a detective in mid-February, weeks after Smollett said he was attacked.

Outside court, special prosecutor Dan Webb called the verdict “a resounding message by the jury that Mr. Smollett did exactly what we said he did.” Smollett “wreaked havoc here in the city for weeks on end for no reason whatsoever," then compounded the problem by lying under oath to the jury, Webb said....

Judge James Linn set a post-trial hearing for Jan. 27, and said he would schedule Smollett's sentencing at a later date. Disorderly conduct is a class 4 felony that carries a prison sentence of up to three years, but experts have said if convicted, Smollett would likely be placed on probation and ordered to perform community service.

The damage to his personal and professional life may be more severe. Smollett lost his role on the TV program “Empire” after prosecutors said the alleged attack was a hoax, and he told jurors earlier this week, “I’ve lost my livelihood.”

This local article, headlined "Here's what could happen during Jussie Smollett's sentencing after his guilty verdict," also suggests incarceration time is unlikely in this case:

A jury at the Leighton Criminal Court Building decided Smollett was guilty on five of six charges relating to false statements prosecutors said he made to Chicago police.

Those charges are listed as class 4 felonies, which are among the least serious felonies in Illinois, but can still carry potential prison time of up to three years. Experts have said Smollett will likely be placed on probation and ordered to perform community service due to his lack of criminal history.

"Because Mr. Smollett does not have a criminal history, there is a presumption that he would be given a form of probation," said Attorney Anthony Burch. "So I don't suspect that he would be taken into custody."

December 9, 2021 in Celebrity sentencings, Criminal Sentences Alternatives, State Sentencing Guidelines | Permalink | Comments (7)

How many years and counting might reality TV star Josh Duggar now get after federal jury convictions on two child pornography charges?

The question in the title of this post is prompted by this celebrity trial news from the AP: "Former reality TV star Josh Duggar was immediately taken into custody Thursday after a federal jury convicted him of downloading and possessing child pornography." Here is more:

The jury in Fayetteville, about 140 miles (225 kilometers) northwest of Little Rock, found the 33-year-old Duggar guilty on one count each of receiving and possessing child pornography.  He faces up to 20 years in prison and fines of up to $250,000 for each count when he’s sentenced.... U.S. District Judge Timothy Brooks said sentencing will happen in about four months, Fayetteville TV station KNWA reported. “We respect the jury’s verdict and we look forward to continuing this fight on appeal,” said Justin Gelfand, one of Duggar’s defense attorneys.

Duggar and his large Arkansas family starred on TLC’s “19 Kids and Counting” until the network canceled the show in 2015 following revelations that he had molested four of his sisters and a babysitter. Authorities began investigating the abuse in 2006 after receiving a tip from a family friend but concluded that the statute of limitations on any possible charges had expired.

Duggar’s parents said he had confessed to the fondling and apologized . At the time, Duggar apologized publicly for unspecified behavior and resigned as a lobbyist for the Family Research Council, a conservative Christian group. Duggar later apologized for a pornography addiction and for cheating on his wife, calling himself “the biggest hypocrite ever.” The judge in the child porn case ruled that jurors could hear testimony about how in 2003, Duggar admitted to molesting four girls.  A family friend testified that Duggar told her about the abuse.

Federal authorities said they began investigating after a Little Rock police detective found child porn files were being shared by a computer traced to Duggar.  A federal agent testified in May that images depicting the sexual abuse of children, including toddlers, were downloaded in 2019 onto a computer at a car dealership Duggar owned.  Duggar’s attorney argued that someone else downloaded or uploaded the images onto Duggar’s computer.  But the jury wasn’t swayed.

This DOJ press release, titeld "Federal Jury Convicts Former Reality Television Personality for Downloading and Possessing Child Sexual Abuse Material," provides these additional offense details and more of the sentencing specifics:

According to court documents and evidence presented at trial, Joshua James Duggar, 33, of Springdale, repeatedly downloaded and viewed images and videos depicting the sexual abuse of children, including images of prepubescent children and depictions of sadistic abuse.  Duggar, a former reality television personality who appeared with his family on the TLC series “19 Kids and Counting,” installed a password-protected partition on the hard drive of his desktop computer at his used car lot in Springdale to avoid pornography-detecting software on the device.  He then accessed the partition to download child sexual abuse material from the internet multiple times over the course of three days in May 2019.  The password for the partition was the same one he used for other personal and family accounts.  Duggar downloaded the material using the dark web and online file-sharing software, viewed it, and then removed it from his computer....

Duggar was convicted of receipt and possession of child pornography. His sentencing date has not been scheduled yet.  Receipt of child pornography is punishable by a term of imprisonment of five to 20 years. Possession of child pornography depicting prepubescent children has a maximum penalty of 20 years of imprisonment as well.  A federal district court judge will determine any sentence after considering the U.S. Sentencing Guidelines and other statutory factors.

Though the exact sentencing range that Duggar will now face under the guidelines will depend on a lot of the particulars of his downloading activities, he is now certain to receive a federal prison term of at least five years due to his conviction on a receipt charge.  In addition, because the child porn guideline §2G2.2 has so many significant enhancement, he could be facing a guideline sentencing range of well over decade.  (Some USSC data for Fiscal Year 2020 here shows in Table 7 that the average national child porn sentence was about 8.5 years and the average sentence for child porn in the Western District of Arkansas was a few months over 7 years.  Though the child porn guidelines are quite harsh, they are the guidelines that judges depart down from most frequently.)

December 9, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (7)

Tuesday, November 30, 2021

El Chapo's wife sentenced to three years in federal prison (guidelines be damned)

This Vice article provides a thorough accounting of a notable federal sentencing with this rousing start: "Sinaloa Cartel leader Joaquín “El Chapo” Guzmán Loera became infamous for daring jailbreaks in Mexico only to end up serving life in prison in the United States. Now his wife, Emma Coronel Aispuro, has managed to avoid a similar fate."  Here is more from the piece: 

The 32-year-old Coronel was sentenced Tuesday to just three years in prison after pleading guilty earlier this year to charges that she helped her husband run his drug trafficking empire, facilitated one of his prison escapes in Mexico, and violated U.S. sanctions by spending his illicit fortune. She also paid nearly $1.5 million to the U.S. government.

It could have ended much worse for Coronel, who faced up to 14 years for her crimes under federal sentencing guidelines.  Federal prosecutors in Washington, D.C., asked her judge for leniency, calling for her to serve just four years behind bars and fueling speculation that she’d struck a deal to cooperate.

Coronel’s attorneys and federal prosecutors made the case to sentencing Judge Rudolph Contreras that she only played a minimal role in the cartel and that her crimes were committed simply because she was married to El Chapo. “The defendant was not an organizer, leader, boss, or other type of manager,” prosecutor Anthony Nardozzi said. “Rather, she was a cog in a very large wheel of a criminal organization.”

A soft-spoken Coronel addressed the court in Spanish before the judge handed down the sentence, asking for forgiveness and making a plea for leniency so that she could be free to raise her 10-year-old twin daughters, who were fathered by El Chapo....

The light sentence has raised eyebrows among ex-prosecutors who handled similar cases against high-level drug traffickers and their associates.  “Downward departure,” or a sentence below the range called for by federal guidelines, is typically reserved for individuals who agree to assist the government in some capacity, David Weinstein, a former assistant U.S. Attorney in Miami, told VICE News.  “They’re treating her like a cooperator,” said Weinstein, who now works as a defense attorney.  “These are the types of circumstances where people are involved in large-scale drug trafficking conspiracies and are benefiting the kingpin and helping the kingpin. You usually don’t get downward departure unless you’re providing substantial assistance.”

Coronel, who holds dual citizenship in the U.S. and Mexico, was taken into custody by FBI agents on Feb. 22 after arriving at Dulles International Airport near Washington, D.C.  While federal authorities announced that Coronel had been “arrested,” sources familiar with her case told VICE News she was aware of pending charges against her and came to turn herself in.

Coronel has been held since February at a jail in Alexandria, Virginia, and is now expected to be transferred into the federal prison system to serve out her sentence. She will receive credit for time served and could be released in just over two years.

If prosecutors truly believed Coronel had only played a minimal role and was merely El Chapo’s wife, it's unclear why she was even charged in the first place because her prosecution would be a waste of time and resources, according to Bonnie Klapper, a former federal prosecutor in the Eastern District of New York.  Klapper, now in private practice, said Coronel’s sentence “is a very clear demonstration of how prosecutors can manipulate the sentencing guidelines to either punish or reward a defendant.”...

In sentencing Coronel, Judge Contreras noted that putting her behind bars for a long time would do little to dissuade anyone else from joining the Sinaloa Cartel. In fact, he said, there was little indication that prosecuting El Chapo had any impact on the cartel’s operations.  “One can make a plausible argument that even the removal of Guzmán from the conspiracy has not resulted in a reduction of harm to the public,” the judge said. “There appears to be no shortage of replacements to fill the defendant’s slot in the organization.”

Contreras noted Coronel’s “impoverished” upbringing and the involvement of her family members in the drug trade, and indicated that he believed that she was a victim of her circumstances who was very young and impressionable when she married El Chapo. “I hope you raise your twins in a different environment than you’ve experienced to date,” Contreras said in his parting words to Coronel. “Good luck.”

This article is astute to note how this case highlights "manipulation" of the federal sentencing guidelines and sentencing outcomes. Indeed, the Government's sentencing memo in the case showcases how the guidelines can function more like a parlor game than as a steady guide to sensible sentencing.  According to that memo, Coronel's PSR initially "concluded that the Defendant’s applicable Guidelines range in this case was 135 months to 168 months ... [and] neither the Government nor the Defendant objected to this Guidelines calculation."  But, sometime thereafter, the Government decided "that Defendant’s applicable Guidelines range is 57 to 71 months in prison ... [and] Defendant and the Probation Office concur."

In other words, everyone in this case first determined that the guidelines recommended 11+ to 14 years in prison, but then later everyone decided the guidelines recommended less than half that length of time.  And then, guidelines be damned, the government decided to recommend a sentence of 48 months (nine months below the low end of the lower guideline range).  And then Judge Contreras decided that 36 months was a sufficient sentence. 

Of course, one might reasonably expect the guidelines to be a poor "fit" for this kind of unique case with its many unique elements.  But, then again, a quarter century ago in Koon v. US, 518 U.S. 81 (1996), the Supreme Court rightly made this closing observation: "It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue."

November 30, 2021 in Celebrity sentencings, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences | Permalink | Comments (2)

Wednesday, November 10, 2021

Feds get 41 months for one high-profile January 6 rioter and seek 51 months for another

Two new Politico articles provide updates on the latest sentencing news from the prosecution of persons involved in the January 6 Capitol riot.  Here are links and excerpts:

"N.J. man hit with toughest sentence yet in Jan. 6 attack":

A federal judge on Wednesday imposed the most serious sentence yet in connection with the Jan. 6 Capitol riot, ordering a New Jersey man to serve almost three-and-a-half years in prison for punching a police officer in the face during the melee.

Scott Fairlamb, 44, a former MMA fighter and gym owner, is the first defendant charged with assaulting an officer during the attack to face sentencing. The judge, Royce Lamberth, said he expected Fairlamb’s 41-month sentence would end up lower than others also facing charges for assaulting police that day.

That’s because Fairlamb was the first to plead guilty to such an assault and, despite initially celebrating the attack, has since expressed remorse that both prosecutors and Lamberth himself described as “genuine.”

Some of many prior related posts:

November 10, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Monday, November 08, 2021

Is longest prison term for Jan 6 rioter, and a possible new benchmark, coming this week?

The question in the title of this post is prompted by this recent AP article, headlined "Prosecutors seek 44 months in 1st sentence for riot violence," previewing a notable sentencing scheduled for this coming Wednesday. Here are the basics:

Federal prosecutors on Wednesday recommended a prison sentence of nearly four years for a New Jersey gym owner who is on track to be the first person sentenced for assaulting a law enforcement officer during the riot at the U.S. Capitol.

Scott Fairlamb’s sentencing, scheduled for next Wednesday, could guide other judges in deciding the appropriate punishment for dozens of other rioters who engaged in violence at the Capitol that day.

Prosecutors said Fairlamb, one of one of the first rioters to breach the Capitol, incited and emboldened other rioters around him with his violent actions....

If U.S. District Judge Royce Lamberth adopts the Justice Department’s recommendation for a 44-month prison term, Fairlamb’s sentence would be the longest for a rioter.  An 8-month prison term is the longest sentence among the nearly two dozen rioters who have been sentenced so far.  A man who posted threats connected to Jan. 6 but didn’t storm the Capitol was sentenced to 14 months in prison.

Defense attorney Harley Breite said during an interview Wednesday that he intends to ask Lamberth to sentence Fairlamb to the time he already has served in jail, allowing for his immediate release.  Fairlamb has been jailed since his Jan. 22 arrest at his home in Stockholm, New Jersey....

Fairlamb, a 44-year-old former mixed martial arts fighter, owned Fairlamb Fit gym in Pompton Lakes, New Jersey.  He is the brother of a Secret Service agent who was assigned to protect former first lady Michelle Obama, according to defense attorney Harley Breite.

Fairlamb picked up a police baton as he joined the mob that broke past a line of police officers and breached the Capitol, according to prosecutors. A video showed him holding the collapsible baton and shouting, “What (do) patriots do? We f——— disarm them and then we storm the f——— Capitol!”  After he left the building, Fairlamb shoved and punched a Metropolitan Police Department officer in the face, an attack captured on video by a bystander.  The officer said he didn’t suffer any physical injuries, according to prosecutors.

Fairlamb pleaded guilty to two counts, obstruction of an official proceeding and assaulting the police officer.  The counts carry a maximum of more than 20 years in prison, but sentencing guidelines calculated by the court’s probation department recommend a term of imprisonment ranging from 41 to 51 months.  Lamberth isn’t bound by any of the recommendations....

Fairlamb’s social media accounts indicated that he subscribed to the QAnon conspiracy theory and promoted a bogus claim that former President Donald Trump would become the first president of “the new Republic” on March 4, prosecutors wrote.  QAnon has centered on the baseless belief that Trump was fighting against a cabal of Satan-worshipping, child sex trafficking cannibals, including “deep state” enemies, prominent Democrats and Hollywood elites.

Some of many prior related posts:

November 8, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (2)

Thursday, November 04, 2021

Should veteran status justify reducing or increasing the sentences of January 6 rioters?

The question in the title of this post is prompted by this lengthy new AP piece headlined "Feds seek tougher sentences for veterans who stormed Capitol."  The piece merits a full read, and here are excerpts:

During his 27 years in the U.S. Army, Leonard Gruppo joined the Special Forces, served in four war zones and led a team of combat medics in Iraq before retiring in 2013 as a lieutenant colonel.

During his six minutes inside the U.S. Capitol on Jan. 6, Gruppo joined a slew of other military veterans as a mob of pro-Trump rioters carried out an unparalleled assault on the bastion of American democracy.  He’s among dozens of veterans and active-service members charged in connection with the insurrection.

Now, cases like his are presenting a thorny question for federal judges to consider when they sentence veterans who stormed the Capitol: Do they deserve leniency because they served their country or tougher punishment because they swore an oath to defend it?

The Justice Department has adopted the latter position. In at least five cases so far, prosecutors have cited a rioter’s military service as a factor weighing in favor of a jail sentence or house arrest.  Prosecutors have repeatedly maintained that veterans’ service, while commendable, made their actions on Jan. 6 more egregious....

Prosecutors’ arguments about rioters’ military service didn’t sway one of the first judges to hear them — at Gruppo’s sentencing hearing last Friday.  “I don’t view his military service that way. I just can’t bring myself to do that,” Chief U.S. District Judge Beryl Howell said before sentencing Gruppo to two years of probation, including 90 days of house arrest....

In most criminal cases, judges typically view a defendant’s military service as a mitigating factor that favors leniency, said James Markham, a professor of public law and government at the University of North Carolina at Chapel Hill.  But he recognizes how the Justice Department could conclude that rioters with military experience should be held to a higher standard than those without it.  “It’s obviously not related to their military service directly, but it’s also not entirely conceptually unrelated that somebody who is a veteran or had military service could be viewed as having a more refined understanding of the importance of civilian control and electoral stability,” said Markham, a lawyer and Air Force veteran.

More than 650 people have been charged in the Jan. 6 attack. Some of the rioters facing the most serious charges, including members of far-right extremist groups, have military backgrounds.  A handful of riot defendants were on active duty, including an Army reservist who wore a Hitler mustache to his job at at a Navy base.

More than 100 riot defendants have pleaded guilty, mostly to misdemeanors punishable by a maximum of six months of incarceration. Two dozen had been sentenced as of Friday.  At least three of the sentenced defendants are veterans, according to an Associated Press review of court records.

In September, U.S. District Judge James Boasberg sentenced Air Force veteran Derek Jancart to 45 days in jail for joining the riot.  Prosecutors had sought a four-month jail sentence for Jancart, an Ohio steelworker....  Another Air Force veteran, Thomas Vinson, was sentenced on Oct. 22 to five years of probation.  Prosecutors had recommended three months of house arrest for Vinson, a Kentucky resident who served in the Air Force from 1984 through 1988....

At least two other rioters who served in the military are scheduled to be sentenced in the coming days.  Prosecutors have recommended two months in jail for Boyd Camper, who served in the U.S. Marines from 1987 to 1990...  Prosecutors are seeking two months of house arrest for Air Force veteran Jonathan Ace Sanders Sr., who is scheduled to be sentenced on Thursday. 

Some of many prior related posts:

November 4, 2021 in Celebrity sentencings, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Wednesday, October 13, 2021

Coverage and commentary as 100th guilty plea entered for federal charges in January 6 riots

Zoe Tillman at BuzzFeed News has an impressive extended report with all sorts of linked documents to chronicle pleas entered so far on federal charges stemming from the January 6 riot at the US Capitol.  This main article is fully  headlined: "100 Capitol Rioters Have Pleaded Guilty. Here’s What Their Cases Show About The Jan. 6 Investigation.  Guilty pleas are stacking up. Here’s what rioters are admitting to, and what they and the government are getting out of these deals."  Here is a snippet:

One hundred is an arguably arbitrary number, since the total number of people charged with participating in the riots keeps growing and prosecutors haven’t announced a target for when the investigation will end. The FBI has hundreds of photos posted online of people they’re still trying to identify.

But 100 is a nice round number, and a large enough pool to understand the deals that prosecutors have offered in the months since the attack on the Capitol, who is taking them, and what both sides are getting in return.  BuzzFeed News is publishing a database of documents filed in connection with these pleas, including the agreements that outline the terms and separate statements of the criminal conduct that defendants are admitting to....

Defendants taking early deals are avoiding the greater legal risk and public exposure they’d face if they went to trial; they’re hoping to walk away with little to no time behind bars.  Prosecutors are securing a steady stream of convictions as they continue to track down more suspects and defend against legal challenges to some of the more complex cases they’ve already brought.

Judges, meanwhile, are using some of their final encounters with rioters at plea hearings and sentencings to denounce the post-election conspiracy theories that motivated the riots and the right-wing rhetoric downplaying the severity of what happened at the Capitol in the months that followed.  They’ve insisted defendants fully admit the role they played — not just the individual criminal activity they’re pleading guilty to, but also enabling the attack on Congress and bolstering Trump’s effort to disrupt the peaceful transfer of power after he lost in November.

This companion article, headlined "How To Read The Capitol Riot Plea Deals: A judge accepted the 100th guilty plea in the Jan. 6 cases on Wednesday," provides a nice primer on how to understand the particulars of all the federal filings in these cases.

And, somewhat relatedly, Carissa Byrne Hessick has this effective new Lawfare piece titled "Are the Jan. 6 Plea Deals Too Lenient?".  Here is its concluding paragraph:

In short, it may be too soon to judge how federal prosecutors are using their plea bargaining leverage in the Jan. 6 cases.  Only a small fraction of those cases have resulted in guilty pleas at this point.  And it appears that so far the government has been prioritizing those defendants who did little more than enter the Capitol, walk around and leave. More generally, defendants who plead guilty sooner tend to get shorter sentences than those who plead guilty later. In fact, some prosecutors make “exploding” plea offers that expire if a defendant takes too long to plead guilty.  All of these factors suggest that the bulk of the Jan. 6 defendants may end up receiving far less lenient plea bargains than we’ve seen so far.  Although it seems like a safe prediction that other Jan. 6 defendants will get lenient plea deals, whether that is what actually happens is in the hands of the government.  When it comes to plea bargaining, prosecutors hold all the cards, and so while a handful of Jan. 6 defendants may choose to go to trial, prosecutors will get to dictate what the guilty pleas look like for the rest of them.

Some of many prior related posts:

October 13, 2021 in Celebrity sentencings, Data on sentencing, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Friday, October 08, 2021

With two defendants now convicted after trial, how steep might the "trial penalty" be in the Varsity Blues cases?

As reported in this Bloomberg piece, the first jury trial in the Varsity Blues prosecutions ended this afternoon: "Two parents accused of cheating to get their children into elite U.S. universities were found guilty of all charges, in the first trial stemming from a national college admissions scandal that ensnared dozens of families."  Here is more:

Former Wynn Resorts Ltd. executive Gamal Abdelaziz, 64, was convicted Friday of two counts of conspiracy by a Boston jury after prosecutors alleged he paid $300,000 in bribes to get his daughter into the University of Southern California as a purported basketball player.

Private equity investor John B. Wilson, 62, was convicted of conspiracy, bribery, fraud and filing a false tax return after prosecutors alleged he paid more than $1.2 million in bribes to get his son into the University of Southern California and his twin daughters into Stanford and Harvard as star athletes.

After a three-week trial, the jury deliberated for about 11 hours before rendering the verdict. Abdelaziz and Wilson will be sentenced in mid-February. For both men, the most serious charge carries a maximum prison sentence of 20 years.

The verdict is a victory for prosecutors who charged 57 parents, coaches and others for taking part in the alleged scheme, which involved doctoring entrance exam scores, faking athletic prowess and bribery to gain seats at universities. An FBI sting unveiled in March 2019 swept up several prominent figures, including “Desperate Housewives” star Felicity Huffman and former Pimco chief executive Douglas Hodge. The case unfolded as the nation debated questions of privilege and inequality.

Thirty-three of the parents have pleaded guilty, with prison sentences ranging from two weeks to 9 months. Former U.S. attorney for Massachusetts Andrew Lelling, who oversaw the case, said he hoped the dozens of jail sentences would deter would-be scammers. He acknowledged it wouldn’t change what he said was parents’ unhealthy obsession with colleges as brands.

During the trial, prosecutors alleged that both Abdelaziz and Wilson had worked with college counselor William “Rick” Singer, the admitted mastermind of the scheme. The U.S. said both paid Singer to guarantee a “bulletproof” way of getting their kids into elite colleges. Prosecutors called 14 witnesses and showed jurors scores of emails they said was proof both men knew and understood Singer’s plan....

The government never called Singer, who proved a problematic cooperator. He kept some of the money parents paid him, tipped some off about the investigation and erased about 1,500 text messages from his mobile phone. He made notes saying federal agents wanted him to “bend the truth” when drawing the parents out and “retrieve answers that are not accurate.” Lawyers for both defendants assailed Singer as a con man who duped them into believing their funds were legitimate donations going to schools or sports facilities....

Four more parents are due to go on trial next year. One father was pardoned by former president Donald Trump.

I have done numerous posts about some of the defendants who were among the first to plead guilty and received relatively short sentences in this high-profile college admissions scandal (some of those posts are linked below).  I have not closely followed some of the more recent sentencings, but the question in the title of this post highlights why I will have extra interest in how Abdelaziz and Wilson are treated by both the Justice Department and the sentencing judged.  Helpfully, DOJ has assembled here all the cases charged and sentenced in the Varsity Blues investigation.  From a quick scan, it does not appear that DOJ has sought a sentence in any of the plea cases of more than 18 months in prison; the longest imposed sentence has been nine months. 

I would guess that the DOJ sentencing recommendations for Abdelaziz and Wilson will longer than 18 months, but how much?  Does the high-profile nature of this case make it a bit less likely that DOJ will seek to go hard after these defendants, who seem like so many others save for their decision to test the government at a trial?  (The amount of money and number of kids involved in the Wilson case may the the reason DOJ will cite for a longer recommended term.)  In addition to wondering about DOJ recommendation, of course, it will be interesting to see how the sentencing judge decides to follow the requirement in 3553(a)(6) to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."   It seems we have to wait until 2022 for final answers to these question, but I welcome speculation in the comments.

A few of many prior posts on other defendants in college admissions scandal:

October 8, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Monday, October 04, 2021

Recent Jan 6 rioter sentencings showcase different judges with different sentencing perspectives

The AP has effective coverage of the latest sentencings of January 6 rioters, and they highlight how different judges have different takes on how these unique offenders ought to be punished.

From Friday: "Judge questions whether Jan. 6 rioters are treated unfairly." Excerpts:

Rejecting the recommendation of prosecutors, a federal judge sentenced a Jan. 6 rioter to probation on Friday and suggested that the Justice Department was being too hard on those who broke into the Capitol compared to the people arrested during anti-racism protests following George Floyd’s murder.

U.S. District Court Judge Trevor McFadden questioned why federal prosecutors had not brought more cases against those accused in 2020 summertime protests, reading out statistics on riot cases in the nation’s capital that were not prosecuted.  “I think the U.S. attorney would have more credibility if it was even-handed in its concern about riots and mobs in this city,” McFadden said during Danielle Doyle’s sentencing for entering the Capitol on Jan. 6 with a throng of other rioters.  Prosecutors recommended two months of home confinement for Doyle, who is from Oklahoma.

The statements by McFadden, an appointee of former President Donald Trump, were a major departure from the other federal judges overseeing insurrection cases so far, despite other Trump appointees on the court assigned to the hundreds of cases.... 

The Associated Press analyzed more than 300 criminal cases stemming from the protests incited by Floyd’s murder, showing that many leftist rioters had received substantial sentences, rebutting the argument that pro-Trump defendants were treated more harshly than Black Lives Matter protesters....

By contrast, U.S. District Judge James Boasberg on Friday sentenced another rioter, Andrew Ryan Bennett, to three months of home confinement, accepting the request by prosecutors. Bennett was accused of espousing conspiracy theories about the election and used “pugnacious rhetoric” in posting about his plans to be in Washington. 

From Monday: "Judge slams claims that Jan. 6 rioters are treated unfairly." Excerpts:

A Texas man who joined the mob that stormed the U.S. Capitol on Jan 6. was sentenced Monday to 45 days behind bars even though prosecutors weren’t seeking jail time, after the judge blasted comparisons between the riot that day and the Black Lives Matter protests over racial injustice.

U.S. District Judge Tanya Chutkan called it a false equivalence “to compare the actions of people protesting, mostly peacefully, for civil rights” to the mob that “was trying to overthrow the government.”  She said doing so “ignores the very real danger that the Jan. 6 riots pose to the foundation of our democracy.”...

Chutkan, who was appointed by former President Barack Obama, said she “flatly” disagreed with the suggestion raised by “some people” that the Jan. 6 defendants were being treated unfairly.  In fact, she said she believes those who joined the pro-Trump mob were being treated more leniently than many other defendants.

Some of many prior related posts:

October 4, 2021 in Celebrity sentencings, Offense Characteristics, Who Sentences | Permalink | Comments (6)

Wednesday, September 29, 2021

Two misdemeanants get 45-day jail terms at latest January 6 riot sentencings

In this post a few weeks ago, I noted that federal prosecutors had started talking up the prospect of seeking jail time even in some of the January 6 riot cases that were resolved through only misdemeanor charges.  Today, as reported in this new AP piece, headlined "Ohio friends sentenced to 45 days for U.S. Capitol riot Jan. 6," jail time for two January 6 misdemeanants became a reality:

Federal prosecutors assert that everybody who stormed the U.S. Capitol on Jan. 6 should be evaluated individually when deciding whether a prison sentence is warranted.  On Wednesday, a judge accepted the Justice Department’s assessment that two friends from Ohio fall into a category of rioters who deserve to be incarcerated.

U.S. District Judge James Boasberg sentenced Derek Jancart and Erik Rau to 45 days in jail. Prosecutors had recommended four months of imprisonment for both men.  They must report to jail by Nov. 29.  The jail sentences for Jancart and Rau could become benchmarks for how the courts resolve many other Capitol insurrection prosecutions, a caseload that tops 600 defendants and grows by the week.

Like most of the insurrectionists who have pleaded guilty so far, Jancart and Rau aren’t accused of engaging in any violence or destruction at the Capitol or of conspiring to stop Congress from certifying President Joe Biden’s electoral victory. Defense attorneys compared their actions to those of other Capitol riot defendants who avoided prison sentences after pleading guilty to non-violent misdemeanors.

But prosecutors cited several factors in arguing that prison, not probation, was the appropriate sentence for both men — and will be in many other cases.  They said Jancart, an Air Force veteran, prepared for violence on Jan. 6 by bringing a gas mask and two-way radios to Washington. Rau, a steel mill worker, brought a medical kit and Kevlar-lined gloves.

They said Jancart and Rau spent 40 minutes inside the Capitol, reaching House Speaker Nancy Pelosi’s conference room. Jancart celebrated the violence on social media and didn’t show any remorse when the FBI arrested him, according to prosecutors.  They said Rau screamed, “We have you surrounded!” at police officers and shouted, “Go, go, go!” and “Yeah, they just pushed through the guards!” Those statements are “akin to inciting a riot and contributed to the environment of terror on that day,” prosecutors said.

“This was not a protest,” prosecutors wrote. “And it is important to convey to future rioters and would-be mob participants — especially those who intend to improperly influence the democratic process — that their actions will have consequences.”

The judge told Jancart and Rau that they and other rioters tried to undermine the peaceful transfer of power after a democratic election.  “There are few actions that are as serious as the one this group took on that day,” Boasberg said.

Jancart and Rau apologized and expressed remorse for their actions. “I did get caught up in the moment,” Jancart said.  “I just kind of followed the crowd and let my curiosity get the best of me.”

“There is no excuse for my actions on Jan. 6,” Rau said. “I 100% know better than to do what I did that day.”

Jancart was arrested at his Ohio home in February. Rau was arrested in July. Both men pleaded guilty to disorderly conduct in a Capitol building, a misdemeanor that carries a maximum sentence of six months’ imprisonment.

Over 80 defendants have pleaded guilty to riot-related offenses, but only seven others besides Jancart and Rau have been sentenced so far. A Florida man who entered the U.S. Senate chamber was sentenced to eight months in prison.  Two were sentenced to time served after six months in jail. Two were sentenced to house arrest. Two others received probation.

Probationary sentences “should not necessarily become the default,” prosecutors wrote.  “Those who trespassed, but engaged in aggravating factors, merit serious consideration of institutional incarceration. While those who trespassed, but engaged in less serious aggravating factors, deserve a sentence more in line with minor incarceration or home confinement,” they added....

More than 50 other rioters are scheduled to be sentenced before the end of 2021.

Some of many prior related posts:

September 29, 2021 in Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (2)

Monday, September 27, 2021

R. Kelly now likely facing a long sentence after convictions on all federal sex trafficking charges

I have not been following the federal prosecution of R. Kelly closely, but a whole bunch of news alerts today let me know he is now entering the sentencing stage.  This CNN piece sets out the specifics of the guilty verdict: "Kelly was found guilty of nine counts -- one count of racketeering and eight counts of violating the Mann Act.  Of the 14 underlying acts for the racketeering count, he needed to be found guilty of at least two to be convicted of that count.  Jurors found prosecutors had proven all but two of the 14 underlying racketeering acts."  And, based in part on this NBC News account and other discussions of his wrongdoing, federal sentencing is likely to be grim for Mr. Kelly:

R. Kelly, the R&B superstar who has long been trailed by accusations of sexual misconduct and abuse, was found guilty Monday on all counts in a high-profile sex-trafficking case, capping a trial that featured hours of graphic testimony from the singer’s accusers.

Kelly, who has been in custody for much of the time since he was formally charged in 2019, was convicted on one count of racketeering and eight counts of violating the Mann Act, a law that bars the transport of people across state lines “for any immoral purpose.”

Kelly, best known for the 1996 hit “I Believe I Can Fly,” pleaded not guilty to all charges in the case. The singer, whose real name is Robert Sylvester Kelly, did not take the stand in his own defense.

The prosecutors in the trial, which centered around the allegations of six people, alleged that the singer was a serial sexual predator who abused young women as well as underage girls and boys for more than two decades. Prosecutors further alleged that the singer and his entourage led a criminal enterprise that recruited and groomed victims for sex, arranging for them to travel to concerts and other events across the U.S.

In a closing argument that lasted two days, Assistant U.S. Attorney Elizabeth Geddes accused Kelly and his entourage of using tactics from “the predator playbook” to control his victims. Kelly’s alleged tactics included confining victims in hotel rooms or his recording studio, managing when they could eat and use the bathroom, and forcing them to follow various “rules,” including demanding they call him “Daddy.”

“It is now time to hold the defendant responsible for the pain he inflicted on each of his victims,” Geddes said Thursday in federal court in Brooklyn.  “It is now time for the defendant, Robert Kelly, to pay for his crimes. Convict him.”...

​​The singer’s lawyers attempted to portray his accusers as “groupies” who sought to exploit his fame and take advantage of the #MeToo movement.  Deveraux Cannick, one of Kelly’s defense lawyers, argued that testimony from several of his client’s accusers was false, saying in his closing argument: “Where is the fairness to Robert? Where’s the integrity of the system?”...

“Surviving R. Kelly,” a Lifetime documentary series released in 2019 that featured testimony from several accusers, intensified calls for the singer to face legal consequences for his alleged pattern of abuse.  Kelly was previously acquitted on child pornography charges in 2008.

Though I doubt anyone will make a follow-up documentary titled "“Sentencing R. Kelly,” I will certainly plan to keep an eye on this case in the months to come because I suspect the feds will be seeking a pretty steep sentencing term (based on what should be severe guideline calculations) while the defense will surely seek a way below-guideline sentence.  The sentencing is apparently not scheduled until May 2022, so we will all have plenty of time to make predictions.

September 27, 2021 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (4)

Wednesday, September 15, 2021

Convicted January 6 rioter, who got (below-guideline) sentence of eight months in federal prison, seeks to undo his plea and sentence

This new Politico piece, fully headlined "First Jan. 6 rioter sentenced for a felony seeks to unwind plea deal; Paul Hodgkins is claiming through a new attorney that his signature on the deal was forged," reports on a notable post-sentencing effort by a notable defendant to undo his plea.  Here are just some of the interesting details:

The first Jan. 6 rioter sentenced for a felony charge began mounting a desperate bid Wednesday to unravel his plea agreement, claiming through a newly retained attorney that his signature on the deal was forged.  But the federal judge in the case, Randy Moss, expressed skepticism about the claim and noted it could even put Paul Hodgkins at legal risk, since he said under oath that he had reviewed and accepted the plea deal.

Hodgkins was charged with felony obstruction of Congress for breaching the Capitol and making his way to the floor of the Senate, where images show him donning gloves and rifling through some papers left in the evacuated room.  He pleaded guilty to the charge in June, while being represented by attorney Patrick Leduc, a JAG Reserve officer who later deployed to Qatar, where he is assisting with Afghan refugee rescue operations.

Moss sentenced Hodgkins in July to an eight-month jail term, far below the government’s recommended 16-month sentence, an acknowledgment that Hodgkins was among the first to accept responsibility for his role in the breach.  But Hodgkins’ new claim puts the matter into turmoil.  Hodgkins had asked Moss to delay his jail sentence, which is set to begin on Sept. 20, until January, giving him time to mount his effort to unwind the plea agreement.  But Moss rejected that attempt Wednesday afternoon, saying Hodgkins "has not demonstrated good cause for the requested four-month delay."

His new attorney, Carolyn Stewart, made the forgery allegation during a hearing called by Moss to address Hodgkins’ claim that Leduc provided ineffective counsel. She said she retained handwriting expert Curt Baggett to review the document and confirmed that it was not Hodgkins’ signature on the agreement.  Baggett, she said, would be willing to testify to it in court.  Stewart suggested that the allegedly forged signature was one of many irregularities tainting the case. “It’s mind boggling,” the defense attorney said, mentioning that she is attuned to such patterns because of her work as an intelligence analyst in Afghanistan. “These kinds of things keep popping up ... I’m floored.”

LeDuc said in an email to POLITICO that the claim of a forged signature was "insane" and that he painstakingly reviewed the deal with Hodgkins.  "I went over every single line of that plea agreement with Paul for about three hours to include the factual stipulations and he signed the thing in front of me and then came back and [re-signed] the other form as well," he said.  "Nothing happened in the case without Paul’s consent.  I don’t understand any of this this. It is insane and I am just so over it all."

In a phone interview, Baggett confirmed he conducted the analysis of Hodgkins’ handwriting at Stewart's request and indeed concluded the signature had been forged.  It’s unclear, though, what bearing the allegation has on Hodgkins’ guilt, since he entered the plea in an open court hearing and acknowledged his guilt for the alleged offenses, and Moss ran through many of the provisions of the deal with him.

The judge didn’t opine directly on the forgery allegation Wednesday, but he did note that the reason “a lot of time” was spent on the colloquy with Hodgkins is to “guard against” subsequent claims that the defendant didn’t understand the agreement or the consequences of pleading guilty.  Moss also warned Stewart that by claiming the signature was forged she could be suggesting that her client lied under oath in his statements at the plea hearing in June....

Stewart’s allegation appeared to rankle prosecutor Mona Sedky, who called the Florida-based lawyer a “relatively new” attorney and said some of the messages she’d gotten from the lawyer were unconventional.  “I’ve been tolerant of a lot of very strange and and unorthodox communications, for lack of a better word, and I’ve been not putting it in my pleadings and not raising it with the court out of respect to her,” the prosecutor said.

Prior related posts on Hodgkins:

September 15, 2021 in Celebrity sentencings, Procedure and Proof at Sentencing | Permalink | Comments (13)

Monday, September 13, 2021

Federal prosecutors signal they will be seeking jail time for some Capitol riot misdemeanants

This post from a few months ago, headlined "Federal judges expressing some concern about lenient plea deals for some Capitol riot defendants," spotlighted some comments by some federal judges about whether federal prosecutors we not being sufficiently "tough" in their prosecutorial approach to some January 6 rioters.  This recent Politico article, headlined "Prosecutors: Jan. 6 defendants should expect jail time," suggests that federal prosecutors got the message as they are now talking up the prospect of seeking jail time even in some cases that are resolved through only misdemeanor charges.  Here are the details:

Federal prosecutors indicated Friday that those who breached the Capitol — even those charged only with misdemeanor offenses like parading — should expect to face jail time, not probation, for their role in the assault.  "Misdemeanor breaches of the Capitol on January 6, 2021 were not minor crimes," Assistant U.S. Attorney Kevin Birney wrote in a sentencing memo for Valerie Ehrke, one of more than 600 defendants charged for participating in the Capitol mob.  "A probationary sentence … should not necessarily become the default."

Birney, however, did recommend probation for Ehrke, describing her as "the rare case where a probationary sentence is appropriate."  Ehrke entered the Capitol for just one minute, exiting quickly after police began repelling the crowd. She committed no violence or property destruction, according to surveillance videos, and she voluntarily spoke to law enforcement, expressing remorse and ultimately becoming one of the first to plead guilty. All of those factors, Birney wrote in the filing, should result in a probation-only sentence.

Few of the Jan. 6 defendants have reached sentencing so far, with Paul Hodgkins — the first felony case to get to the sentencing stage — facing an eight-month jail term, the longest doled out by judges to date.  Anna Morgan Lloyd, the first Jan. 6 defendant sentenced, received 36 months of probation for a misdemeanor guilty plea from Judge Royce Lamberth.  Judge Thomas Hogan sentenced Jessica and Joshua Bustle, a couple charged with misdemeanor offenses for entering the Capitol, to home confinement and probation, in part because they are expecting the birth of a child soon.

Like prosecutors, though, Lamberth emphasized that other defendants shouldn't necessarily expect probation for participating in the breach of the Capitol. “I don’t want to create the impression that probation is the automatic outcome here because it’s not going to be," Lamberth said during Morgan-Lloyd's sentencing, a comment that Birney pointed to in his sentence recommendation for Ehrke.

Hogan, too, echoed that sentiment, telling the Bustles, "I think the presumption should be that these offenses were an attack on our democracy and that jail time is usually — should be expected."

None of the Jan. 6 defendants facing the most serious charges, including dozens accused of assaulting police officers and a growing contingent charged with conspiring to block the certification of President Joe Biden's victory in the 2020 election, have been sentenced yet. Prosecutors say misdemeanor defendants bear responsibility for some of the more egregious crimes committed that day, in part because the sheer size of the mob helped provide cover for the most dangerous participants in the attack.

Some of many prior related posts:

September 13, 2021 in Booker in district courts, Celebrity sentencings, Who Sentences | Permalink | Comments (3)

Monday, September 06, 2021

"If Democrats don't think Robert Kennedy’s assassin deserves parole, do they really support criminal justice reform?"

The question in the title of this post is the subtitle of this new MSNBC commentary authored by Chris Geidner.  The main headline is "California may parole Robert Kennedy's assassin. Liberals aren't happy."  Here are excerpts:

Sirhan Sirhan, who was convicted of murdering Robert F. Kennedy 53 years ago, has been recommended for release by the California Board of Parole Hearings.  But, in a misguided effort that serves to reinforce the harsh practices that led to our incarceration explosion, some Democrats are fighting against the 77-year-old’s release. In doing so, they’re helping fuel the tough-on-crime rhetoric most often voiced these days by Republicans.

Sirhan was originally sentenced to death for murdering the presidential candidate and former attorney general as he campaigned in Los Angeles, but in 1972 his sentence was commuted to life in prison with the possibility of parole.

Sirhan has been denied parole 15 times — most recently in 2016. But on Aug. 27, the California parole board recommended his release.  After that recommendation, we quickly were reminded that the assassination from 53 years ago remains a present and painful memory to many Americans. It also became clear that some Democrats and progressives are willing to make exceptions to the criminal justice reforms they’ve claimed to support.

“I can’t pretend to know what’s going on in people’s minds,” Sirhan’s lawyer, Angela Berry, told me after the parole board’s recommendation.  “I think that wound is just so strong for people. They just can’t see that the board followed the law.”

That “they” includes opportunistic, “tough on crime” conservatives — but also liberal and progressive Democrats. “The news of Sirhan’s potential release hit me hard this weekend,” filmmaker Michael Moore wrote. “No, this assassin must not be set free.”

Few have voiced their opposition as loudly as Harvard Law School Professor Emeritus Laurence Tribe.  A longtime prominent liberal voice, Tribe has been on a nonstop campaign to stop Sirhan’s parole. Before the parole panel even met — with no apparent investigation, let alone evidence — Tribe, referring to Sirhan, wrote on Twitter, “Even at 77, he could be a threat.”...

Sirhan has been eligible for parole for several decades.  “The law presumes release unless the person poses a current unreasonable risk to the public,” Berry said.  “There wasn’t one iota of evidence to suggest this man is still dangerous.” The documents Sirhan submitted to the parole board included evidence from the state’s own experts that Sirhan “represents a Low risk for violence” and noted that his current age qualifies him for “elderly prisoner consideration” and the age at which he committed his crime means he should be treated as a “youthful offender.”...

Our system has become extremely carceral, but in 1972, when Sirhan was sentenced to life with the possibility of parole, the idea that someone would serve more than 50 years in prison was way outside the norm.  As his submission to the parole board noted, “The proscribed punishment for first degree murder in 1968 was life with parole eligibility after 7 years.”  Throughout the country, we've not only increased sentences exponentially since then, but we've also decreased the use and availability of parole and clemency and deemed more activities criminal.

Democratic opposition to letting California’s parole system work as intended is a problem for a party that claims to support criminal justice reform.  Reformers in both parties have set goals to end over-sentencing, expand the use of clemency and parole and end overcriminalization.  But when Tribe, and even the Kennedys, speak in opposition to Sirhan’s parole, opponents of reform hear their “tough on crime” refrains being justified....

After initially arguing against Sirhan’s release, Moore wrote that his sister, a public defender, persuaded him to think more deeply about his position.  “If the Governor decides to let him go, I will try to find my peace with that,” Moore wrote.  “While offering my love to Kennedy’s family. And recommitting myself to the efforts of bringing about a more just system.”

A more just system means so many things, but, specifically here, it means letting parole work, and it means understanding that turning prisons into nursing homes for people who were practically children when they committed crimes is not only a financial mistake, it misunderstands our knowledge that people change and that older people overwhelmingly do not commit crimes.

Prior related posts:

September 6, 2021 in Celebrity sentencings, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Friday, August 27, 2021

RFK killer. Sirhan Sirhan, recommended for parole after decades of denials

As the saying goes, if at first you do not succeed, try, try again.  As detailed in this Los Angeles Times article, after trying again and again to get a positive parole recommendation, the assassin of Robert Kennedy, Sirhan Sirhan, today finally succeeded:

Sirhan Sirhan, the man convicted of assassinating Robert F. Kennedy at a Los Angeles hotel more than 50 years ago, was recommended for release by a California parole board Friday, the first step toward making him a free man.

The two-person panel Sirhan appeared before Friday granted parole, but the decision is not final.  Parole staff still have 90 days to review the matter.  After that, Gov. Gavin Newsom — or whoever might replace him following next month’s recall election — could still decide to block Sirhan’s release.

Sirhan, then a 24-year-old Palestinian immigrant who had written a manifesto calling for Kennedy’s death, shot the senator at the since-demolished Ambassador Hotel on Wilshire Boulevard in Los Angeles in 1968. Kennedy was considered a leading candidate for president and had just won primaries in South Dakota and California at the time of his assassination.  Sirhan admitted to the killing in 1969 and has been in prison for 53 years.

The board granted his release Friday, in part, after receiving letters of support from two members of the slain senator’s family. Robert F. Kennedy Jr., who has previously expressed doubt about Sirhan’s guilt, said he believed his father might extend mercy to his own killer.  “While nobody can speak definitively on behalf of my father, I firmly believe that based on his own consuming commitment to fairness and justice, that he would strongly encourage this board to release Mr. Sirhan because of Sirhan’s impressive record of rehabilitation,” Kennedy Jr. wrote in a letter submitted in advance of Friday’s hearing.

Douglas Kennedy said that while he’d lived in fear of Sirhan for years, he saw him now as “worthy of compassion and love.” “I really do believe any prisoner who is found to be not a threat to themselves or the world should be released,” Douglas Kennedy wrote. “I believe that applies to everyone, every human being, including Mr. Sirhan.”

The Los Angeles County Sheriff’s Department submitted a letter opposing Sirhan’s release, on behalf of the Kennedy family.

Erin Mellon, a spokeswoman for Newsom, said the governor will review Sirhan’s case if it is presented to him....

Angela Berry, Sirhan’s attorney, says the 77-year-old has not been accused of a serious violation of prison rules since 1972 and that prison officials have deemed him a low risk for violence. Sirhan first became eligible for parole in 1972. Between 1983 and 2006, he was granted parole hearings every one to two years, but was always denied. Beginning in 2006, those hearings were held just twice a decade. He was last denied release in 2016.

The recommendation for Sirhan’s release also came without opposition from L.A. County prosecutors, who are barred from fighting release at parole hearings under a policy enacted by Dist. Atty. George Gascón. While Gascón’s policy had been in effect for nearly nine months, it attracted new scrutiny this week because of Sirhan’s case. Gascón has said it should be up to the parole board to determine an inmate’s suitability for release, rather than prosecutors who are simply relitigating the facts of old cases, sometimes decades later....

Critics of Gascón have said the parole policy is indicative of a broader abandonment of victims under his administration. Some victims have complained to The Times that they felt helpless without an advocate present when they went to oppose the release of a loved one’s killer earlier this year. L.A. County Sheriff Alex Villanueva, a staunch opponent of Gascón, has also said he would send staff to aid victims at parole hearings if Gascón wouldn’t send prosecutors, but he has yet to explain how often he’s done so or what impact, if any, the move has had in such cases....

While critics of Gascón have claimed the parole policy will end with a flood of violent criminals returning to the streets, data suggest otherwise. Records show the state parole board only granted release in about 19% of all cases it heard from 2018 to 2020, and that does not factor in cases where Newsom later blocked an inmate’s release.

It will be interesting to see if Gov. Newsom says anything publicly about this case before the recall election in a few weeks at a time when his rivals are accusing him of being "soft on crime."

August 27, 2021 in Celebrity sentencings, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Lots of interesting sentencing issues as South Dakota's Attorney General avoids any incarceration after killing pedestrian

This AP piece, headlined "An Attorney General Won't Serve Any Jail Time For A Crash That Killed A Pedestrian," reports on the details of a notable resolution to a high-profile criminal case involving the top legal official in the Mount Rushmore State. Here are some details:

South Dakota Attorney General Jason Ravnsborg pleaded no contest Thursday to a pair of misdemeanor traffic charges over a crash last year that killed a pedestrian, avoiding jail time despite bitter complaints from the victim's family that he was being too lightly punished for actions they called "inexcusable."

Circuit Judge John Brown had little leeway to order jail time.  Instead, he fined the state's top law enforcement official $500 for each count plus court costs of $3,742.  Brown also ordered the Republican to "do a significant public service event" in each of the next five years near the date of Joseph Boever's death — granting a request from the Boever family.  But he put that on hold pending a final ruling after Ravnsborg's attorney objected that it was not allowed by statute.

Ravnsborg said in a statement after the hearing that he plans to remain in office.  The plea capped the criminal portion of a case that led Gov. Kristi Noem — a fellow Republican — and law enforcement groups around the state to call for his resignation.  But he still faces a likely lawsuit from Boever's widow and a potential impeachment attempt.

Ravnsborg's statement accused "partisan opportunists" of exploiting the situation and said they had "manufactured rumors, conspiracy theories and made statements in direct contradiction to the evidence all sides agreed upon."  Noem, in a statement afterward, pushed the Legislature to consider impeachment and said she ordered the House speaker be given a copy of the investigative file. Impeachment proceedings halted in February after the judge barred state officials from divulging details of the investigation. Lawmakers indicated then that they might resume after the criminal case ended.

The attorney general was driving home to Pierre from a political fundraiser on Sept. 12 when he struck Boever, who was walking on the side of a highway. In a 911 call after the crash, Ravnsborg was initially unsure about what he hit and then told a dispatcher it might have been a deer. He said he didn't realize he struck a man until he returned to the crash scene the next day and discovered the body of Boever, 55.

Ravnsborg pleaded no contest to making an illegal lane change and using a phone while driving, which each carried a maximum sentence of up to 30 days in jail and a $500 fine. Prosecutors dropped a careless driving charge.

Ravnsborg didn't attend the hearing — he didn't have to and was represented by his attorney, Tim Rensch. That angered Boever's family. "Why, after having to wait nearly a year, do we not have the chance to face him?" Boever's sister, Jane Boever, asked the court. She said "his cowardly behavior leaves us frustrated."

She said her brother was "left behind carelessly" the night he died. She accused Ravnsborg of running down her brother and then using his position and resources to string the case along. She said he has shown no remorse, and only "arrogance toward the law." Jane Boever called the punishment "a slap on the wrist."

"Our brother lay in the ditch for 12 hours," she said. "This is inexcusable." Boever's widow, Jennifer Boever, said Ravnsborg's "actions are incomprehensible and ... cannot be forgiven."

Rensch pushed back hard on the family's criticism, calling the attorney general an "honorable man." Rensch said Ravsnborg had been consistent from the beginning that he simply did not see Boever. And he noted that the case was "not a homicide case, and it's not a manslaughter case."

"Accidents happen, people die. It should not happen. No one wants anybody to die," he said. Rensch told reporters after the hearing that Ravnsborg had cooperated fully with investigators by sitting down for two interviews and allowing his phones to be analyzed. "Basically just take your shirt off and say, 'Here I am, bring it on.' I'll answer anything you've got, and that's what this guy did," Rensch said.

Beadle County State's Attorney Michael Moore, one of the prosecutors, agreed that the attorney general had been cooperative. He was also satisfied with Ravnsborg's punishment and the crash investigation. "Because of who it was and the high profile nature of the case, the investigation was a lot more thorough," he said.

After a months-long probe led to prosecutors charging Ravnsborg with the three misdemeanors in February, Noem put maximum pressure on Ravnsborg to resign, releasing videos of investigators questioning him. They revealed gruesome details, including that detectives believed Boever's body had collided with Ravnsborg's windshield with such force that part of his eyeglasses were deposited in the backseat of Ravnsborg's car.

Prosecutors said Ravnsborg was on his phone roughly one minute before the crash, but phone records showed it was locked at the moment of impact. Ravnsborg told investigators that the last thing he remembered before impact was turning off the radio and looking down at the speedometer. A toxicology test taken roughly 15 hours after the crash showed no alcohol in Ravnsborg's system, and people who attended the fundraiser said he was not seen drinking alcohol.

Ravnsborg adamantly denied doing anything wrong. He insisted he had no idea he hit a man until returning to the crash site and that he is worthy of remaining the state's top law enforcement officer. "Joe's death weighs heavily on me and always will," Ravnsborg said in his statement. "I've often wondered why the accident occurred and all the things that had to have happened to make our lives intersect."

Ravnsborg's insistence on remaining in office has opened a divide among Republicans, with him retaining support among some GOP circles. The attorney general has been spotted working booths for local Republican groups at county fairs in recent weeks. But popular predecessor Marty Jackley is already running for his old job and has collected the support of most of the state's county prosecutors. Political parties will select candidates for attorney general at statewide conventions next year....

Boever's family said they hope Ravnsborg is driven from office one way or another. "It is not too late for the state Legislature to resume impeachment proceedings," Jane Boever said. "And if they fail us, then it's left to the voters of South Dakota to remove him from the ballot box."

The sentencing nerd in me is struck by the fact that Judge Brown, in response to a request from the victim's family, "ordered the Republican to 'do a significant public service event' in each of the next five years near the date of Joseph Boever's death." I am not sure what that exactly means, but apparently the SD AG's lawyer thinks it is "not allowed by statute."  I also wonder if the possible, but not certain, prospect of Ravnsborg losing his job may have influenced the prosecutors to accept this deal.  (And, the Criminal Law professor in me also thinks this might be a good hypo when I teach omission liability next week.)

Because the exact facts are a bit opaque (e.g., was the victim killed instantly and why and how was he walking on a "highway"), I am still not sure what to make of this sentencing outcome.  But I would certainly be eager other perspectives.

August 27, 2021 in Celebrity sentencings, Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (6)

Thursday, July 29, 2021

Federal judges expressing some concern about lenient plea deals for some Capitol riot defendants

This new BuzzFeed News article, headlined "A Judge Questioned If Capitol Rioters Are Getting Off Too Easy For 'Terrorizing Members Of Congress'," reports on some notable comments by some notable federal judges about the plea deals being given to some of the Capitol rioters.  Here are excerpts:

A federal judge on Thursday pushed back on the government’s decision to ink deals in the Capitol riot cases that involve low-level misdemeanors, questioning whether that was appropriate for people involved in “terrorizing members of Congress.”

The unusual exchange came during a plea hearing for Jack Jesse Griffith, who was charged solely with misdemeanor crimes for going into the Capitol on Jan. 6; he wasn’t accused of violence or property destruction.  As Griffith prepared to plead guilty to one count of parading, demonstrating, or picketing in a Capitol building — a class B misdemeanor with a maximum sentence of six months in jail — US District Chief Judge Beryl Howell asked the prosecutor to explain why Griffith’s deal involved a class of crime typically reserved for people who did things like trespass in a national park at night.

“I'm just curious — does the government have any concern given the factual predicate at issue here, of the defendant joining a mob, breaking into the Capitol building through a broken door, wandering through the Capitol building and stopping a constitutionally mandated duty of the Congress and terrorizing members of Congress, the vice president, who had to be evacuated?” Howell asked.  “Does the government, in agreeing to the petty offense in this case, have any concern about deterrence?”

It was the second time this week that a judge questioned whether defendants charged in connection with Jan. 6 are getting off too lightly in plea deals, even if they’re not accused of more serious criminal activity, such as attacking police.  On Tuesday, US District Judge Reggie Walton, one of Howell’s colleagues on the federal bench in Washington, DC, briefly pondered whether he should jail two defendants who signed a deal similar to Griffith’s, given their involvement in the “atrocious act” of storming the Capitol; he ultimately allowed them to go home until they’re sentenced in October.

Griffith is the 27th defendant charged in the Jan. 6 riots to appear before a judge to plead guilty, and the 21st person to plead guilty to a single misdemeanor as part of an agreement with prosecutors — either the parading count that Griffith pleaded guilty to or disorderly conduct in a Capitol building, which also has a maximum sentence of six months in jail.

Howell in the end accepted Griffith’s guilty plea, but, like Walton, put the government and defense through several paces before she did. She asked whether the government was concerned that an agreement involving a low-level misdemeanor was enough not only to deter Griffith from participating in a similar event in the future but also the broader universe of the hundreds of people who descended on the Capitol that day.  The circumstance that led to the Jan. 6 insurrection, a presidential election, happens every four years, the judge noted.

Assistant US Attorney Mitra Jafary-Hariri and Griffith’s lawyer H. Heather Shaner defended the deal, telling Howell that Griffith had expressed interest in pleading guilty early on — something defendants throughout the criminal justice system typically get credit for — and had cooperated with law enforcement officials by turning over his devices and giving them access to his social media. Jafary-Hariri said that under those circumstances, the government decided it was “willing to resolve it this way.”

Some prior related posts:

July 29, 2021 in Celebrity sentencings, Who Sentences | Permalink | Comments (3)

Monday, July 19, 2021

First Jan 6 rioter to be sentenced on felony charges gets (below-guideline) sentence of eight months in federal prison

As noted in this preview post on Friday, this morning was the scheduled sentencing day for Paul Allard Hodgkins, who carried a Trump flag into the well of the Senate during the January 6 riot at the Capitol.  Hodgkins' sentencing has been seen as particularly significant because he is the very first person to be sentenced on felony charges stemming from his actions on January 6 — one misdemeanor defendant has been sentenced to probation — and because Hodgkins' sentencing memo and the Government's sentencing memo made notable arguments as he sought probation and as the government urged an 18-month prison term (at the midpoint of the calculated guidelines range of 15 to 21 months).

This AP piece reports via its headline that the federal sentencing judge here did what often happens in these kinds of cases, namely he came quite close to splitting the difference: "Capitol rioter who breached Senate sentenced to 8 months."  Here are more details on this notable federal sentencing:

A Florida man who breached the U.S. Senate chamber carrying a Trump campaign flag was sentenced Monday to eight months behind bars, the first resolution for a felony case in the Capitol insurrection.

Paul Allard Hodgkins apologized and said he was ashamed of his actions on Jan 6. Speaking calmly from a prepared text, he described being caught up in the euphoria as he walked down Washington’s most famous avenue, then followed a crowd of hundreds up Capitol Hill and into the Capitol building. “If I had any idea that the protest … would escalate (the way) it did … I would never have ventured farther than the sidewalk of Pennsylvania Avenue,” Hodgkins told the judge. He added: “This was a foolish decision on my part.”

Prosecutors had asked for Hodgkins to serve 18 months behind bars, saying in a recent filing that he, “like each rioter, contributed to the collective threat to democracy” by forcing lawmakers to temporarily abandon their certification of Joe Biden’s 2020 election victory over President Donald Trump and to scramble for shelter from incoming mobs.

His sentencing could set the bar for punishments of hundreds of other defendants as they decide whether to accept plea deals or go to trial. He and others are accused of serious crimes but were not indicted, as some others were, for roles in larger conspiracies. Under an agreement with prosecutors, Hodgkins pleaded guilty last month to one count of obstructing an official proceeding, which carries a maximum 20-year prison sentence. In exchange, prosecutors agreed to drop lesser charges, including entering a restricted building and disorderly conduct.

Video footage shows Hodgkins wearing a Trump 2020 T-shirt, the flag flung over his shoulder and eye goggles around his neck, inside the Senate. He took a selfie with a self-described shaman in a horned helmet and other rioters on the dais behind him.

His lawyer pleaded with Judge Randolph Moss to spare his 38-year-old client time in prison, saying the shame that will attach to Hodgkins for the rest of his life should be factored in as punishment. The lawyer argued in court papers that Hodgkins’ actions weren’t markedly different from those of Anna Morgan Lloyd — other than Hodgkins stepping onto the Senate floor. The 49-year-old from Indiana was the first of roughly 500 arrested to be sentenced. She pleaded guilty to misdemeanor disorderly conduct and last month was sentenced to three years of probation.

Hodgkins was never accused of assaulting anyone or damaging property. And prosecutors said he deserves some leniency for taking responsibility almost immediately and pleading guilty to the obstruction charge. But they also noted how he boarded a bus in his hometown of Tampa bound for a Jan. 6 Trump rally carrying rope, protective goggles and latex gloves in a backpack — saying that demonstrated he came to Washington prepared for violence.

Prior related posts:

July 19, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (6)

Friday, July 16, 2021

Feds advocate for (mid-guideline) prison term of 18 months for first Jan 6 defendant due to be sentenced on felony charge

As noted in this Washington Post piece, a notable federal sentencing is scheduled for Monday and federal prosecutors have a notable sentencing recommendation for the judge: "U.S. prosecutors on Wednesday urged a federal judge to impose an 18-month prison term on the first defendant to face sentencing for a felony in the Jan. 6 Capitol breach, citing the need to deter domestic terrorism."  Here is more:

“The need to deter others is especially strong in cases involving domestic terrorism, which the breach of the Capitol certainly was,” Special Assistant U.S. Attorney Mona Sedky said in a government sentencing request for Tampa crane operator Paul Allard Hodgkins, 38, who carried a Trump flag into the well of the Senate....

Hodgkins’s sentencing, scheduled for Monday, could set the bar for what punishment 100 or more defendants might expect to face as they weigh whether to accept plea offers by prosecutors or take their chances at a trial by jury.  About 800 people entered the building, U.S. officials have said, with more than 500 individuals charged to date and charges expected against at least 100 others.  About 20 people have pleaded guilty, and one misdemeanor defendant has been sentenced to probation.

In Hodgkins’s case, Sedky cited FBI Director Christopher A. Wray’s testimony in March to the Senate that the problem of homegrown violent extremism is “metastasizing,” with some actors growing emboldened by the Capitol riot....  Sedky also asked U.S. District Judge Randolph D. Moss of Washington to recognize prior court findings that though individuals convicted of such behavior may have no criminal history, their beliefs make them “unique among criminals in the likelihood of recidivism.”

Hodgkins pleaded guilty on June 2 to one felony count of entering the Capitol to obstruct Congress, a common charge being used by prosecutors.  Unlike other defendants, he was not accused of other wrongdoing or involvement with extremist groups, nor did he enter a cooperation deal with prosecutors.  Under advisory federal guidelines, he could face a prison sentence of 15 to 21 months.

Hodgkins poses an intriguing example for defendants against whom prosecutors have threatened to seek enhanced domestic terrorism penalties, lawyers said.  Such enhancements, if found to apply, could more than double a defendant’s guidelines range or otherwise increase recommended penalties, although judges would have the final say. In Hodgkins’s case, prosecutors did not ask the judge to apply the enhancement, even though they wrote Wednesday that his conduct met the definition of violence “calculated to influence or affect the conduct of government by intimidation or coercion.”  Instead, prosecutors said a “midpoint” sentence in Hodgkins’s existing range was appropriate, but still urged Moss to consider the importance of dissuading future acts of domestic terrorism.

Hodgkins has asked for a below-guidelines sentence of probation.  His attorney urged Moss to follow the example of President Abraham Lincoln’s planned approach to the defeated South after the Civil War, before he was assassinated.  “Today, this Court has a chance to make a difference,” Tampa attorney Patrick N. Leduc wrote, asserting that America now is “as divided as it was in the 1850s” on racial and regional lines.  “We have the chance to be as Lincoln had hoped, to exercise grace and charity, and to restore healing for those who seek forgiveness. Alternatively, we can follow the mistakes of our past: to be harsh, seek vengeance, retribution, and revenge, and continue to watch the nation go down its present regrettable path,” Leduc said.

Lawyers familiar with the Capitol probe have said the case illustrates how prosecutors are taking a carrot-and-stick approach in plea talks, threatening to hit some defendants with tougher sentencing guidelines calculations while showing some flexibility for those not accused of any violent conduct in a bid to resolve cases short of trial.

For example, another Jan. 6 defendant pleaded guilty Wednesday to the identical charge as Hodgkins. However, Josiah Colt, 34, of Idaho, faced a sentencing guidelines range three times as high, 51 to 63 months, after admitting that he came armed to Washington and was with others accused of violently interfering with police. Colt, however, entered a cooperation deal, implicating two men he was with in plea papers and agreeing to aid investigators in exchange for a recommendation of leniency.

Several defense attorneys in the probe privately called prosecutors’ tactics draconian in some cases, saying they are threatening years of prison time for individuals not charged with violence and giving them little choice but to face trial.

The Post has also helpfully provided links to Hodgkins' sentencing memo and the Government's sentencing memo.  They both make for interesting reads.  And, as always, I welcome reader views on how they think the 3553(a) factors ought to play out in sentencing in this high-profile case.

Prior related posts:

July 16, 2021 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Wednesday, July 14, 2021

Joe Exotic (of "Tiger King" fame) prevails on technical guideline issue to secure resentencing on Tenth Circuit appeal

It seems like a very long time ago that everyone was talking about Joe Exotic and Carole Baskin.  The must-see Netflix documentary "Tiger King" about their ugly rivalry dropped just as we were all going into pandemic lock down, and it was only about 18 months ago that we were all talking about Joe and Carole and their cats.  That is a lot less time than the 264 months (22 years) that Joe Exotic was sentenced to after his federal jury convictions for multiple wildlife crimes and two counts of using interstate facilities in the commission of murder-for-hire plots to kill Carole Baskin.

But what is old is new again thanks to today's Tenth Circuit panel decision in US v. Joseph Maldonado-Passage, No. 20-6010 (10th Cir. July 14, 2021) (available here).  Here is how the panel opinion gets started:

It was a rivalry made in heaven.  Joseph Maldonado-Passage, the self-proclaimed “Tiger King,” owned what might have been the nation’s largest population of big cats in captivity. Carole Baskin was an animal-rights activist who fought for legislation prohibiting the private possession of big cats.  He bred lions and tigers to create big-cat hybrids — some the first of their kind.  She saw the crossbreeding of big cats as evil.  He built his business around using cubs for entertainment.  She protested his events as animal abuse and urged boycotts.

The rivalry intensified after Baskin sued Maldonado-Passage for copyright and trademark infringement and won a million-dollar judgment.  Maldonado-Passage responded by firing a barrage of violent threats at Baskin, mostly online.  And he didn’t stop there.  Before long, he was plotting her murder.  Twice, within weeks, he set about hiring men to kill Baskin — one, an employee at his park; the other, an undercover FBI agent.

Maldonado-Passage soon faced a federal indictment charging him with twenty-one counts, most for wildlife crimes, but two for using interstate facilities in the commission of his murder-for-hire plots.  A jury convicted Maldonado-Passage on all counts, and the court sentenced him to 264 months’ imprisonment.

On appeal, he disputes his murder-for-hire convictions, arguing that the district court erred by allowing Baskin, a listed government witness, to attend the entire trial proceedings.  He also disputes his sentence, arguing that the trial court erred by not grouping his two murder-for-hire convictions in calculating his advisory Guidelines range.  On this second point, he contends that the Guidelines required the district court to group the two counts because they involved the same victim and two or more acts or transactions that were connected by a common criminal objective: murdering Baskin.

We hold that the district court acted within its discretion by allowing Baskin to attend the full trial proceedings despite her being listed as a government witness, but that it erred by not grouping the two murder-for-hire convictions at sentencing.  Accordingly, we affirm the conviction but vacate the sentence and remand for resentencing.

As noted by the 10th Circuit panel, correction of the guideline error will shift Joe Exotic's advisory sentencing range down to 210 to 262 months from the 262 to 327 months used at his initial sentencing.  So Joe will still be facing a hefty guideline range, but maybe he will be better able to advocate and secure a below-guideline range at an upcoming resentencing.

July 14, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Sentences Reconsidered | Permalink | Comments (0)

Thursday, July 08, 2021

AGAIN: You be the judge: what sentence for Michael Avenatti (and do the guidelines merit any respect)?

IA3T7J6NQRFSHDKM6SW26QQ5JAUP AGAIN:  I posted this discussion of a notable scheduled sentencing last month just before Michael Avenatti secured a short postponement.  This new Wall Street Journal article, headlined "Michael Avenatti Faces Sentencing for Trying to Extort Millions From Nike," provides an updated review of this high-profile federal sentencing now scheduled for today.  In addition to the prior posting, folks may want to check out the interesting comments from various folks that it generated last month.

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It has been a while since I have done a "you be the sentencing judge" post, but a high-profile fallen lawyer provides juicy grist for this mill.  Specifically, as two recent postings at Law & Crime highlight, Michael Avenatti's upcoming sentencing presents a notable set of facts and arguments for SDNY US District Judge Paul Gardephe:

Michael Avenatti Seeks Light Prison Sentence Because His ‘Epic Fall and Public Shaming’ Are Punishment Enough

Feds Seek ‘Very Substantial’ Prison Term for Disgraced Lawyer Michael Avenatti

Valuably, these two postings include the extended sentencing memoranda filed by the parties in this case, and the second posting summarizes the terms of the sentencing debate (with some of my emphasis added):

Scoffing at the one-time celebrity lawyer’s claim that his “epic fall and public shaming” should be taken into account at sentencing, federal prosecutors urged a judge to deal Michael Avenatti a “very substantial” prison sentence for attempting to extort Nike out of millions of dollars by threatening to expose their corruption scandal.

Quoting the probation office, prosecutors noted that Avenatti “often put himself forth as a champion for the Davids of the world, facing off with those Goliaths who would bully the small, the weak, the victimized.”

“And it was precisely this reputation, and the enormous influence that the defendant wielded on the national stage and across media platforms, that he weaponized,” Assistant U.S. Attorney Matthew Podolsky wrote in a 19-page sentencing brief on Wednesday night. “He used his skills as a lawyer and his power as a media figure not to benefit his client, but instead to threaten harm in an effort to extract millions of dollars from a victim, which, while sophisticated, [Avenatti] believed would be forced into acquiescing secretly to his demands.”

Once a fixture of the cable TV commentary rounds, Avenatti previously depicted his prosecution as another David-versus-Goliath fight, pitting him against the combined might of the Nike corporation and the Trump administration. Southern District of New York prosecutors rejected that, and a federal jury convicted him on all counts in February 2020.

Earlier this month, Avenatti’s defense attorneys Scott A. Srebnick and E. Danya Perry argued that a six-month maximum sentence would be enough for their client. They also said the court could take “judicial notice” that Avenatti’s well-documented “epic fall […] played out in front of the entire world.” Federal prosecutors found that sort of sentence would be far too light, and though they did not propose another number, their sentencing memorandum leaves a few clues into their thinking.

The probation office proposed an eight-year sentence, which dips below the 11.25-to-14-year guideline range.  “While the government, like the probation office, believes that a below-guidelines sentence would be sufficient but not greater than necessary to serve the legitimate purposes of sentencing, the government asks this court to impose a very substantial sentence,” prosecutors wrote....

During the trial, prosecutors played a tape for jurors that they called a picture of extortion. “I’ll go take $10 billion off your client’s market cap,” Avenatti was seen warning attorneys for Nike in the videotape, referring to capitalization. As the jury found, Avenatti had been talking about confidential information he learned about Nike from his former client Gary Franklin, an amateur basketball coach.  Avenatti threatened to expose the embarrassing information relating to the corruption scandal unless the Nike paid $15 million—”not to Franklin, but directly to the [Avenatti] himself,” prosecutors noted. According to the memo, the deal represented 10 times more than Avenatti asked Nike to pay Franklin, and it would have resolved his client’s claims against Nike....

Franklin wrote separately to the U.S. District Judge Paul Gardephe harshly criticizing Avenatti. “Mr. Avenatti quickly abused that trust when he announced on Twitter, without my knowledge and without my consent, that he would be holding a press conference to discuss a scandal at Nike that ‘involved some of the biggest names in college basketball,'” Franklin wrote in a two-page victim impact statement. “I never imagined that Mr. Avenatti would proceed to post on Twitter details of the information I had relayed to him as part of our attorney-client privileged discussions, including the names of the players I coached.

Franklin is not alone among Avenatti’s spurned former clients. Avenatti continues to face another federal prosecution in New York accusing him of defrauding Stormy Daniels in a book deal, plus a case in California alleging tax offenses and other misconduct.

There are so many elements to both the Avenatti crime and his background that may (or many not) be considered important in his upcoming sentencing.  But, as my post title and emphasis seek to highlight, there is seemingly a consensus that the federal sentencing guidelines come nowhere close to recommending a proper sentence.  It is, of course, not especially surprising when a criminal defendant requests a sentence way below the applicable guideline range.  But here, notably, both the probation office and seemingly federal prosecutors also believe a proper sentence should be many years below the bottom of the applicable guideline range.

So I sincerely wonder, dear readers, what sentence you think would be, in the words of the prosecutors, "sufficient but not greater than necessary to serve the legitimate purposes of sentencing"?  Do the guideline merit any respect in this analysis?

July 8, 2021 in Celebrity sentencings, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (11)

Wednesday, June 23, 2021

Notable education efforts prior to sentencing of minor participant in Capitol riot (who seems likely to get probation)

This local article, headlined "Indiana woman to plead guilty in Capitol riot wrote reports on 'Schindler's List,' more," provides the interesting backstory leading up the scheduled sentencing of one person prosecuted for involvement in the Capitol riot on January 6. Here are some details:

A Bloomfield woman will plead guilty this week for her role in the U.S. Capitol riot after appealing to the court that she has learned from her participation from movies and books such as "Schindler's List" and "Just Mercy."  Anna Morgan-Lloyd has agreed to plead guilty to one of her pending federal charges in the Jan. 6 insurrection in exchange for three years probation, $500 in restitution and community service.

The 49-year-old attended what initially began as a rally with her friend Dona Sue Bissey — also federally charged in the riot.  Bissey, whose case is still pending, is scheduled to appear in court July 19.

In a letter to the judge, Morgan-Lloyd apologized for entering the U.S. Capitol and said she feels “ashamed” about how the march that day turned violent.  She attached movie and book reports to her letter, summarizing “Schindler’s List” and “Just Mercy.” Her attorney recommended them, she said, to learn “what life is like for others in our country.”...

Bissey and Morgan-Lloyd referred to Jan. 6 as the “most exciting day” of their lives in Facebook posts, tagging one photo inside the Capitol building.  The FBI arrested the two women in late February, making them among six Hoosiers criminally charged in the aftermath of the insurrection.

Court records show the Acting U.S. Attorney has agreed to the plea, calling Morgan-Lloyd’s participation a serious violation of the law, but noted she did not engage in physical violence or destroy government property.  “To be clear, what the Defendant initially described as “the most exciting day of (her) life” was, in fact, a tragic day for our nation — a day of riotous violence, collective destruction, and criminal conduct by a frenzied and lawless mob,” Acting U.S. Attorney Channing Phillips wrote in court records.

The U.S. listed Morgan-Lloyd’s apparent remorse, no prior criminal history and cooperation with law enforcement after her arrest as some of the reasons for the government’s acceptance of the plea agreement.

This extended HuffPost piece, headlined "A Lawyer For Jan. 6 Defendants Is Giving Her Clients Remedial Lessons In American History," provides additional details on this defendant and the valuable efforts of her defense attorney to turn her prosecution into a "teachable moment."  I recommend this piece in full, and here is an excerpt: 

This week, Morgan-Lloyd will become the first of nearly 500 defendants arrested in connection with the Jan. 6 attack on the U.S. Capitol to face sentencing. She wants a judge to know she’s changed, and her book report-style filings are meant to illustrate that growth. “I’ve lived a sheltered life and truly haven’t experienced life the way many have,” Morgan-Lloyd wrote to the judge. “I’ve learned that even though we live in a wonderful country things still need to improve. People of all colors should feel as safe as I do to walk down the street.”

The remedial social studies program that Morgan-Lloyd is following was created by her D.C.-based lawyer, H. Heather Shaner....  Shaner is one of many D.C. lawyers assigned to represent Capitol defendants who can’t afford their own attorneys, as guaranteed by the U.S. Constitution and as laid out in the Criminal Justice Act.

In addition to representing her clients in court, Shaner has seized an opportunity to try and educate them on the history their teachers glossed over.  Shaner regularly sends her clients who are incarcerated pretrial books to read: “They’re a captured audience, and it’s life-changing for a lot of them.”  But she decided to take an even more intensive approach with her Capitol clients, who were part of another ugly, historical event in American history.

“Reading books and then watching these shows is like a revelation,” Shaner told HuffPost. “I think that education is a very powerful tool ... So I gave them book lists and shows that they should watch.” In addition to Morgan-Lloyd, Shaner represents Capitol defendants Annie Howell, Jack Jesse Griffith (aka Juan Bibiano), Israel Tutrow and Landon Kenneth Copeland, a veteran with post-traumatic stress disorder who had a major episode during a virtual hearing in his case and cursed out everyone on the call. (Copeland, who was filmed assaulting officers at the Capitol on Jan. 6 and is facing the most serious accusations of any of Shaner’s Capitol clients, was ordered to undergo a competency evaluation and remains in custody.)

Shaner said her clients had poor educations and knew very little about the country.  Her two female clients took to the task with zeal, Shaner said, and got library cards for the first time in their lives.  “Both my women are like, ‘I never learned this in school. Why don’t I know about this?’” Shaner said.  (A couple of the male clients weren’t quite as eager students, she said. “The men are very much like ‘Oh, I’ll get to it.’”  But she said some of her male clients have been doing some self-education.)

Here are some links to some of the court filings discussed above:

Government's Memorandum in Aid of Sentencing

Defense's Memorandum in Support of Probationary Sentence

Anna Lloyd Statement (and reports here and here)

Prior related posts:

June 23, 2021 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (7)

Tuesday, June 15, 2021

New plea deals sets possible new precedent for resolving low-level Capitol riot prosecutions with single misdemeanor with 6 month jail maximum

As reported in this Politico piece, headlined "Virginia couple pleads guilty in Capitol riot," the first set of pleas for low-level participating in the January 6 riots were entered in federal court yesterday.  Here are the details:

A Virginia couple on Monday became the third and fourth defendants to plead guilty in the sprawling investigation stemming from the Capitol riot in January.  However, Jessica and Joshua Bustle of Bristow, Va., became the first to plead guilty in federal court who faced only misdemeanor charges as a result of their actions at the Capitol as lawmakers were attempting to certify President Joe Biden’s electoral college victory.

Under a deal with prosecutors, the Bustles each pleaded guilty to one of the four misdemeanor charges they faced: parading, demonstrating or picketing in a Capitol building. They could get up to six months in jail and a fine of up to $5,000, but will be spared the potential of back-to-back sentences on multiple counts.

The arrangement could serve as a template for hundreds of other misdemeanor-only cases filed related to the Jan. 6 events.  Defense attorneys say it also suggests that prosecutors will not readily agree to more lenient resolutions in Capitol riot cases, such as deferring the case and dismissing it following a period of good behavior.

“There’s no guarantee what the sentence will be in this case,” Judge Thomas Hogan told the Bustles during the afternoon hearing, conducted by videoconference. “I can give a sentence that’s legal up to the maximum in the statute: six months.”

According to a complaint filed by an FBI agent in March, Jessica Bustle posted on her Facebook page on Jan. 6: “Pence is a traitor. We stormed the capital.  An unarmed peaceful woman down the hall from us was shot in the neck by cops.  It’s insane here….Pray for America!!!!”  In another post, Jessica Bustle — who said she’s opposed to taking the coronavirus vaccine — indicated she and her husband were attending a “health freedom” rally separate from then-President Donald Trump’s rally. They later decided to check out what was happening at the Capitol, she wrote.  “My husband and I just WALKED right in with tons of other people.” Bustle also wrote: “We need a Revolution.”...

The Bustles have also agreed to pay $500 apiece in restitution, Hogan said.  Both the Bustles' attorneys and a prosecutor said they were prepared to proceed with sentencing Monday, but the judge declined, saying he would set a sentencing date in 4 to 6 weeks.  “I’m not prepared to do sentencing today. I think we have to look at the case a little bit,” said Hogan, an appointee of former President Ronald Reagan. The judge said he wanted to ensure “consistency and comparability” of sentences among the Capitol riot defendants, none of whom have been sentenced thus far.

Many Capitol riot defendants face the four typical misdemeanor charges the Bustles faced plus a felony charge of obstruction of an official proceeding.  The latter charge carries a potential 20-year prison term. It is not clear how prosecutors have distinguished between nonviolent defendants who face only the misdemeanors and those who had the felony charge added on.

The first guilty pleas in the Capitol riot came in April from Jon Schaffer, a heavy-metal guitarist and self-described lifetime member of the Oath Keepers. He admitted to two felonies: obstruction and entering a Secret Service-restricted area while carrying a dangerous weapon.  Schaffer agreed to cooperate in the government’s ongoing conspiracy case against fellow Oath Keepers.  A total of 16 people are now charged in that case.

The second guilty plea was from a Florida man who went onto the Senate floor during the Jan. 6 unrest, Paul Hodgkins.  At a hearing earlier this month, he pleaded guilty to a felony obstruction charge.  Prosecutors agreed to drop the misdemeanor charges against him, but there was no cooperation element to the deal.  He is tentatively set for sentencing on July 19.

This Reuters piece about these latest pleas details a bit more some of the sentencing specifics around the two earlier pleas:

The first guilty plea came in April, when a founding member of the right-wing Oath Keepers, Jon Schaffer, pleaded guilty to two felony charges of obstructing the certification of the 2020 election and breaching a restricted building. Prosecutors are recommending a sentence of between 3-1/2 and 4-1/2 years of prison time for Schaffer, but his sentence will ultimately be decided by a District of Columbia judge.

A Florida man on June 2 became the second person to plead guilty to storming the Capitol. Paul Allard Hodgkins pleaded guilty to one felony count of obstructing an official proceeding. A judge said federal sentencing guidelines call for Hodgkins to receive sentence in the range of 15 to 21 months.

Prior related posts:

June 15, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, June 02, 2021

Second Capitol rioter reaches plea deal with reported guideline range of 15 to 21 months in prison

As reported in this Politico piece, a "38-year-old man from Tampa, Fla., on Wednesday became only the second defendant charged in relation to the Jan. 6 Capitol riot to plead guilty to obstructing Congress’ certification of the 2020 election results — an agreement that could shed light on the government’s strategy for prosecuting the hundreds of other alleged perpetrators of the insurrection." Here is more:

In a virtual plea hearing before the U.S. District Court for the District of Columbia, prosecutors told Judge Randolph Moss they would drop the four misdemeanor charges against Paul Allard Hodgkins in exchange for the defendant’s guilty plea on the obstruction charge, his only felony count, which carries a statutory maximum penalty of up to 20 years in prison.

However, defendants are typically sentenced in accordance with federal sentencing guidelines, and in most cases — especially for defendants with little or no criminal record — those standards call for sentences far shorter than the maximum. Hodgkins, who has no prior criminal convictions, is tentatively scheduled to be sentenced on July 19.

On Wednesday, attorneys for both the defense and the prosecution said the guidelines were likely to call for a 15- to 21-month sentence for Hodgkins. Moss would ultimately be free to impose a shorter or longer sentence, and Hodgkins’ attorney said he would likely argue for less time behind bars for his client.

The guidelines also call for a fine of between $7,500 and $75,000 for the obstruction charge — in addition to the $2,000 in restitution Moss said had been calculated as Hodgkins’ share of the roughly $1.5 million worth of damage done to the Capitol during the riot.

Although more than 450 people have been charged in relation to the storming of the Capitol, the only other defendant to accept a plea deal was Jon Schaffer, a 52-year-old man from Columbus, Ind., who pleaded guilty last month to two counts: obstruction of Congress and entering a Secret Service-restricted area with a deadly or dangerous weapon....

It is not clear, however, what information Hodgkins could offer prosecutors as part of his plea deal, and there was no discussion at the hearing about a cooperation aspect to his agreement. But taken together, Schaffer and Hodgkins’ pleas seemingly indicate that prosecutors will likely insist on a felony obstruction plea as the minimum plea deal for many defendants.

This official DOJ press release, headed "Man Pleads Guilty to Obstruction of an Official Proceeding for Breaching U.S. Capitol on Jan. 6," provides some more details about the defendant's offense conduct:

According to court documents, Paul Hodgkins, 38, of Tampa, Florida, entered the U.S. Capitol building at approximately 2:50 p.m. on Jan. 6. Around 3 p.m., Hodgkins entered the Senate chamber, walked among the desks, and then removed eye goggles. He took a “selfie-style” photograph with his cell phone and walked down the Senate well where, a few feet away, several individuals were shouting, praying and cheering using a bullhorn. Hodgkins walked toward the individuals and remained standing with them while they continued commanding the attention of others. At approximately 3:15 p.m., Hodgkins exited the Senate chamber and the U.S. Capitol Building.

Prior related posts:

June 2, 2021 in Celebrity sentencings, Offense Characteristics | Permalink | Comments (1)

Friday, May 28, 2021

High-profile reminder that parole is rarely a given, especially for a prisoner claiming innocence

Though decided earlier this month, a high-profile denial of parole is garnering headlines this week.  This USA Today story, headlined "Bill Cosby denied parole after he refuses sex offender treatment program," provides these details:

Bill Cosby will not be released from prison anytime soon.  The 83-year-old actor, who is currently serving three to 10 years in Pennsylvania state prison after being convicted of sexual assault in 2018, has been denied parole nearly three years into his sentence.

The Pennsylvania State Parole Board declined Cosby's parole request on May 11 partly over his need to participate in "a treatment program for sex offenders and violence prevention," and "failure to develop a parole release plan," according to a state board action letter provided to USA TODAY.  The board also cited a "negative recommendation" from the Department of Corrections.

Cosby's representative, Andrew Wyatt, told USA TODAY Thursday that the decision "is not a surprise" to the disgraced TV star because the board explicitly stated he would be denied parole "if he did not participate in SVP (Sexually Violent Predator) courses."  But Wyatt said Cosby, who has maintained his innocence, has no plans to attend the therapy programs. "The Cosby Show" star has previously said he expects to serve his full 10-year sentence and vowed to show no remorse for crimes he said he didn't commit.

"Mr. Cosby has vehemently proclaimed his innocence and continues to deny all allegations made against him, as being false, without the sheer evidence of any proof," Wyatt said in a statement to USA TODAY on Thursday.  "Mr. Cosby continues to remain hopeful that the Pennsylvania State Supreme Court will issue an opinion to vacate his conviction or warrant him a new trial."

Cosby was the first celebrity to go on trial in the #MeToo era and was convicted of drugging and raping Andrea Constand, a former professional basketball player who worked for his alma mater, Temple University, in Philadelphia in 2004.  Cosby appealed his conviction, citing multiple alleged "errors" by the trial judge in his case, but the state appeals court upheld his verdict in December 2019.  The Pennsylvania Supreme Court accepted Cosby's appeal in June 2020, thus raising the possibility it might be overturned in the future....

He's currently serving out his sentence at State Correctional Institution at Phoenix, a state prison in Skippack Township, Pennsylvania.  He will be eligible for parole in September after serving the three-year minimum of his sentence.  To be considered for parole, the Pennsylvania State Parole Board said Cosby not only needs to complete a treatment program, but he must maintain a "clear conduct record."

May 28, 2021 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (4)

Saturday, May 22, 2021

Noticing a lack of pleas, so far, in Capitol riot prosecutions

I keep saying that the high-profile Capitol riot prosecutions provide an interesting lens on how a set of distinctive cases work their way through the federal criminal justice system.  This recent Reuters piece, headlined "Few plea bargains in U.S. Capitol riot cases as prosecutors stand firm," provides another interest update on these cases:

Nearly four months after the U.S. Capitol attack, just one of more than 440 people charged has pleaded guilty, a sign of tough conditions set by prosecutors for plea deals and resistance by defense lawyers to their demands.  This reflects the high stakes of cases stemming from the worst violence at the Capitol in modern history, which left five people dead.

U.S. officials have suggested in court hearings that defendants might be interested in pleading guilty, a move that typically can result in a shorter sentence.  Prosecutors routinely seek to resolve cases through plea bargains.  But legal experts said it is relatively early in this process for either prosecutors or defense lawyers to be reaching quick deals.

Lawyers for more than a dozen defendants said plea talks so far have foundered because prosecutors demanded their clients turn over social media data, cell phones and other evidence, while also pushing for prison sentences they would not accept.  Without plea deals, hundreds of separate trials will move forward, a time-consuming process now extended by a case backlog resulting from the COVID-19 pandemic.

Moreover, without evidence provided under plea bargains, federal prosecutors may have a harder time building cases against leaders of the violence on more serious charges such as conspiracy or violation of laws intended to fight organized crime....

The charges have ranged widely, from disorderly conduct to assaulting officers and conspiracy. Key conspiracy cases have largely focused on leaders of the right-wing Oath Keepers and Proud Boys groups. They face charges of obstruction of an official proceeding, destruction of government property and occupying a restricted building.

Some defendants facing lesser charges have been surprised by prosecutors' demands. Defense lawyers have complained that their insistence on obtaining cell phones and other physical and digital evidence is excessive. That data could be used to build cases against planners of the violence.

Attorney Steven Metcalf said he rejected a plea deal that would have sent his client Richard Barnett to prison for several years. The man from Gravette, Arkansas was seen in a widely circulated photograph sitting at a desk with his feet up in House of Representatives Speaker Nancy Pelosi's office. "We might consider something more reasonable," Metcalfe said....

Former federal prosecutor Laurie Levenson, a law professor at Loyola Law School in Los Angeles, said that by taking a tough stand in plea-bargain negotiations, prosecutors are "sending a message" about how seriously they take the riot cases. "It is still relatively early in the process," Levenson said. "Prosecutors don't want to ... set the standards too low. There's not a lot incentive for prosecutors to give a sweetheart deal."

Prosecutors are also likely focused on amassing as much evidence as they can, she said, hence the requests for defendants to surrender phones and other data. The one person who has pleaded guilty so far, Oath Keepers founding member Jon Schaffer, agreed to turn over "any and all evidence" of crimes that he was aware of and to fully cooperate with prosecutors, according to his plea deal filed in federal court.

The lawyer for Jacob Chansley, the man nicknamed the "QAnon Shaman" who was photographed wearing a horned headdress inside the Capitol, said the prosecutors he has talked to appear to have less leeway to negotiate deals without consulting Washington than he normally encounters in federal cases. "We have been working as collaboratively as we can with the government," said Albert Watkins, a St. Louis lawyer who represents Chansley and three other Jan. 6 defendants....

At a court hearing this month, prosecutors indicated that senior officials had approved possible plea deal offers for four defendants charged with attacking police in a Capitol tunnel with firecrackers and chemicals. But lawyers for some of them said no offers have materialized....

Plea discussions appear to be advanced in the case of at least one other accused rioter, court records showed. Douglas Jensen of Des Moines, Iowa, faces charges including violent entry of the Capitol and disrupting government business. Court records showed that a conference in early May was postponed until June while the parties decide if they want to proceed with a plea. Jensen’s lawyer declined to comment.

I am quite confident that many of these cases will be resolved via pleas and that there will not be "hundreds of separate trials" moving forward.  Indeed, because prosecutors are still building more cases and likely still figuring out relative culpability, it is not all that surprising that they are aggressively seeking cooperation and information in the plea negotiation process before agreeing to reduced sentences.  Also, as Prof Levenson rightly highlights, federal prosecutors are likely disinclined to have early pleas involve less serious charges with what may be perceived as light sentencing outcomes, both because of the optics of any deal perceived to be "sweetheart" and because early plea deals often set benchmarks for later plea negotiations and sentencings.  In other words, these case still reflect classic federal prosecutorial dynamics, even if plea deals are being struck a little more slowly.

Prior related posts:

May 22, 2021 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, May 06, 2021

Covering some interesting developments in some Capitol riot prosecutions

I have previously noted that the high-profile Capitol riot prosecutions provide an interesting lens on how a set of distinctive cases work their way through the federal criminal justice system.  And today I noticed a bunch of recent press pieces with interesting accounts of certain parts of this federal case processing story for certain defendants.  Here are links and headlines:

From BuzzFeed News, "They Said Trump Told Them To Attack The Capitol. Judges Are Keeping Them In Jail Anyway."

From CNN, "Justice Department preps plea deals for rioters from viral video of cops trapped in Capitol tunnel"

From Law & Crime, "Federal Appeals Court Upholds Decision to Keep Proud Boy Behind Bars Ahead of Trial for Pepper Spraying Police"

From NBC News, "FBI still after 'worst of the worst' in Capitol riot as new arrests come at steady pace"

From the New York Times, "‘There Was a Big Battle in Here’: Lawyers Tour Capitol as a Crime Scene"

Prior related posts:

May 6, 2021 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Tuesday, May 04, 2021

Notable NY politician gets furlough from BOP as he is "considered for home confinement"

When I saw the headline of this new New York Post piece, "Sheldon Silver released early on furlough after less than a year in prison," I thought the paper was misusing a term because furloughs from federal prison seem extraordinarily rare. But the story explains it has the right term:

Disgraced former New York Assembly Speaker Sheldon Silver has been sprung from federal prison early on furlough — while he awaits a decision from the agency on whether he can serve out the remainder of his term in home confinement, a report said Tuesday.

Silver — who has served less than a year of his 6 1/2-year sentence — was cut loose from Otisville Prison, in Orange County, New York, and released to his home while awaiting the decision, a source familiar with the matter told the Associated Press.

The 77-year-old crooked former pol was released under DOJ’s expanded powers to grant inmates release amid the coronavirus pandemic, according to the report. In a statement, the Bureau of Prisons said Silver is still “designated” to Otisville Prison, but added that it has the power to transfer inmates to their home on furlough.

“We can share that the Bureau of Prisons (BOP) has authority to transfer inmates to their home on furlough for periods of time while they may continue to be considered for home confinement designation,” a spokesperson said.

The BOP recently notified prosecutors in the Southern District of New York that it was considering cutting Silver loose on home confinement, a spokesperson for the district told The Post. n an email response sent yesterday, the prosecutor’s office — which secured a guilty verdict against Silver for corruption-related crimes during his run as an Albany power broker — stressed that it ardently opposes the move, the spokesperson said.

In a memo last year, former Attorney General Bill Barr gave the director of BOP expanded discretion to release vulnerable inmates from federal lockups amid the pandemic. BOP officials need to take into account a host of factors when determining if an inmate qualifies for home confinement, including “age and vulnerability of the inmate to COVID-19,” according to the memo. In addition, a BOP medical official is supposed to sign off on home confinement releases based on risk factors for a specific inmate, according to the memo....

Silver was sentenced last summer after avoiding lockup for more than five years after he was first convicted. At his sentencing, Judge Valerie Caproni admonished the crooked politician, who was convicted of illegally using his office to benefit two real estate developers in exchange for cash.

“This was corruption pure and simple,” Judge Caproni told the disgraced ex-speaker, whom she had already sentenced twice. “The time, however, has now come for Mr. Silver to pay the piper,” Caproni added.

Because there is always much mystery around the working of the BOP, I have no notion of whether any lower-profile prisoners might get similar treatment.

May 4, 2021 in Celebrity sentencings, Impact of the coronavirus on criminal justice, Prisons and prisoners, White-collar sentencing, Who Sentences | Permalink | Comments (3)

Sunday, May 02, 2021

Another effective (but still incomplete) look at possible sentencing outcomes for those prosecuted for Capitol riot

This new AP article, headlined "Charged in Jan. 6 riot? Yes, but prison may be another story," reviews potental sentencing outcomes for their role in the January 6 Capitol riot.  Here are some excerpts, to be followed by a bit of contextual commentary:

More than 400 people have been charged with federal crimes in the Jan. 6 attack on the Capitol.  But prison time may be another story.

With new defendants still flooding into Washington’s federal court, the Justice Department is under pressure to quickly resolve the least serious of cases.  While defendants charged with crimes such as conspiracy and assaulting officers during the insurrection could be looking at hefty sentences, some members of the mob who weren’t caught joining in the violence or destruction could see little to no time behind bars.

“The people who were just there for the ride and somewhat clueless, I think for most of them they probably will not get prison time. And for what it’s worth, I think that’s appropriate,” said Rachel Barkow, a professor at the New York University School of Law. “Having a misdemeanor on their record, going through all this is probably a pretty big wake-up call for most of the folks,” she said.

The siege was like nothing the country had ever seen, as the mob of supporters of then-President Donald Trump descended on the Capitol to stop the congressional certification of Joe Biden’s election victory.  But in the months since, Trump loyalists have worked to minimize the assault, while Democrats and others want justice for what they saw as a crime against democracy and the rule of law....

It’s a formidable task for lawyers and judges alike to determine the appropriate punishment to seek and hand down. Many defendants had steady jobs and no criminal records, factors typically rewarded with leniency in the criminal justice system.  As plea negotiations ramp up, the Justice Department must work to differentiate between the varying actions of the members of the mob that day without making it seem like some are getting away with mere slaps on the wrist....

Of the more than 400 federal defendants so far, at least 100 are facing only lower-level crimes such as disorderly conduct and entering a restricted area that do not typically result in time behind bars for first-time offenders.  Hundreds more were also charged with more serious offenses — like conspiracy, assault or obstruction of an official proceeding — that carry hefty prison time of years behind bars, but theses defendants could take pleas that would wipe those charges from their cases. Prosecutors have said they expect to charge at least 100 more people.

It’s going to be a test of racial fairness. The majority of the defendants are white.  Black and Latino defendants tend to face harsher sentences for the same crimes, and from the moment the mob marched on the Capitol, there were questions about whether the law enforcement response would have been different had the rioters been people of color....

If prosecutors seek stiff sentences for the lowest level Capitol riot defendants, they could lose their credibility with judges, said Laurie Levenson, a former federal prosecutor who now teaches at Loyola Law School.  And if they set the standard too high, they’ll be juggling hundreds of cases going to trial instead of focusing on the major offenders. Those most serious cases are where prosecutors can and should send a strong message, Levenson said. “If there’s any pressure on the Justice Department, it’s to deal with these cases in a way so that you never have to see them again,” she said. “And if people think that the price isn’t too high, who knows?”

At least one judge has expressed frustration at the pace of the prosecutions, which have overwhelmed the federal court already backlogged because of pandemic-related delays. On Tuesday, U.S. District Judge Christopher Cooper ordered the pretrial release of a man who was photographed sitting with his feet on a desk in House Speaker Nancy Pelosi’s office. The judge expressed concern that the case is moving too slowly.

Cooper noted that Richard Barnett has been jailed for nearly four months and questioned whether his time behind bars while the case is ongoing could exceed a possible sentence should Barnett plead guilty. The prosecutor estimated that the government would recommend a prison term ranging from nearly six years to 7 1/4 years if Barnett is convicted, though he could get credit for accepting responsibility if he pleads guilty.

All high-profile prosecutions, particularly when they involve persons without significant criminal histories, provide interesting settings to explore sentencing purposes and practices. These Capitol riot prosecutions have the added political intrigue of having those who usually advocate for harsher forms of justice likely being much more sympathetic to these defendants, while at least some usually most troubled by harsh sentencing may be more supportive of prison terms this unique setting.  And, as this AP article rightly notes, there overarching surely concerns about racial and social equity in light of historic patterns of prosecution and sentencing practices.

But the equity issue leaves me eager to see more comprehensive and consistent coverage of punishments being handed out to others involved in criminal behavior during other protests through 2020.  For example, consider these sentencing reports from local press in recent weeks:

I am certain that this is NOT anything close to a thorough accounting of the sentences that have been already handed down to persons who have engaged in criminal activity during protests and riots (e.g., here is a press report from Dec 2020 of a few case outcomes in Oregon).  I am even more certain that it could provide incredibly valuable for ultimately examining and assessing Capitol riot outcomes to have some kind of thorough overview of outcomes in these other (similar?) cases.   

Prior related posts:

May 2, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (8)

Friday, April 30, 2021

Counsel file initial sentencing briefs on "Blakely factors" in preparation for Derek Chauvin's sentencing

As reported in this local article, headlined "Prosecutors seek aggravated sentence against Derek Chauvin, argue George Floyd was ‘treated with particular cruelty’," the sentencing phase of the prosecution of the former police office convicted of killing George Floyd is now at the first briefing stage.  Here are the basics:

Prosecutors asked a judge Friday to give Derek Chauvin a longer prison sentence for killing George Floyd, arguing that the crime was particularly cruel....

Chauvin will be sentenced on June 25. Minnesota sentencing guidelines suggest that an individual without any prior criminal history should be sentenced to 12.5 years in prison for second-degree murder. However, prosecutors have signaled their intent for months to seek an aggravated sentence against Chauvin.

If Hennepin County Judge Peter Cahill grants the prosecution’s request, Chauvin could face a maximum of 30 years in prison.

Prosecutor Matthew Frank argued in a 26-page memorandum that an aggravated sentence is warranted because Floyd was a “particularly vulnerable victim” and “treated with particular cruelty.” Frank also said Chauvin “abused his position of authority,” committed the crime with three or more others and in front of children.

Chauvin’s attorney Eric Nelson filed a 10-page memorandum Friday opposing the prosecution’s ask, arguing against each of their five points. Nelson wrote that Floyd being handcuffed did not make him “particularly vulnerable.” Nelson pointed to how Floyd was over 6 feet tall and weighed more than 200 pounds and said he was resisting arrest.

Here are links to these new filings with their opening paragraphs:

State's Memorandum of Law In Support of Blakely Aggravated Sentencing Factors

The State respectfully requests an aggravated sentence for Defendant Derek Chauvin, a former police officer convicted of second-degree murder, third-degree murder, and second-degree manslaughter in connection with the death of George Floyd.  See Blakely v. Washington, 542 U.S. 296 (2004); Minn. Stat. § 244.10; Minn. R. Crim. P. 7.03.  The facts proven beyond a reasonable doubt at trial demonstrate that five aggravating factors support an upward sentencing departure.

Defendant's Memorandum of Law Opposing Upward Durational Departure

On April 20, 2021, a jury convicted Defendant Derek Michael Chauvin of all three counts alleged in the Complaint against him in connection with the death of George Floyd: unintentional second-degree murder, third-degree murder, and second-degree manslaughter.  The State has moved for an upward sentencing departure, alleging that facts support five different reasons for which the Court may impose an aggravated sentence.  Mr. Chauvin, through his attorney Eric J. Nelson, Halberg Criminal Defense, submits the following in opposition to an upward durational sentencing departure.

April 30, 2021 in Blakely in the States, Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2)

Tuesday, April 20, 2021

Derek Chauvin found guilty on all three homicide charges in killing of George Floyd, now on to sentencing phase with Blakely factors

The high-profile trial of Derek Chauvin for killing George Floyd resulted in a jury verdict this afternoon in a Minnesota court with guilt verdict on all three homicice charges of second-degree unintentional murder, third-degree murder, and second-degree manslaughter. It is my understanding that, under Minnesota state sentencing guidelines, Chauvin would get a prison term of 12.5 years absent proof of aggrvating circumstances, so-called Blakely factors.

I believe that the the prosecution was prepared to argue numerous aggravating Blakely factors to the jury, but that CHauvin's legal team waived its right to jury determination on these issues so that they will now be argued to the judge. Though I am not an expert on Minnesota law, I believe that a judicial finding of aggravating factors in the coming weeks could make Chauvin eligible to receive a sentence up to the 40-year maximum on the second-degree unintentional murder conviction.

The Robina Institute has this helpful primer on Minnesota sentencing law, and it makes this important point about the usual approach to sentences increased based on aggravating factors under the state's sentencing guidelines:

The Guidelines do not themselves limit the degree of durational (length-of-custody) departure, but case law provides that upward departures may not exceed twice the presumptive prison term (the middle figure in grid cells above the disposition line; the sole figure in cells below the line) except in rare cases of extremely aggravated circumstances. (Cite to:  State v. Evans, 311 N.W.2d 481, 483 (Minn. 1981). See also State v. Jackson, 749 N.W.2d 353 (Minn. 2008) (upholding the rule from Evans despite 27 years of changes to the guidelines).)

April 20, 2021 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Harsh penal treatment of some Capitol rioters being criticized by notable progressive

Politico continues its terrific coverage of prosecution of the Capitol rioters with this lengthy new piece fully headlined "Jan. 6 defendants win unlikely Dem champions as they face harsh detainment; 'Solitary confinement is a form of punishment that is cruel and psychologically damaging,' Sen. Elizabeth Warren said."  I am always pleased to see politicians who express concerns about the operation of our justice systems do so no matter who the defendants happen to be.  Here is how this story starts: 

Sen. Elizabeth Warren fled the Capitol on Jan. 6 from a mob she later called domestic terrorists. Now she and another Senate Democratic leader are standing up for their attackers' rights as criminal defendants.

Most of the 300-plus people charged with participating in the Jan. 6 Capitol riot have been released while they await trial, but dozens of those deemed to be dangerous, flight risks or at high risk of obstructing justice were ordered held without bond. D.C. jail officials later determined that all Capitol detainees would be placed in so-called restrictive housing — a move billed as necessary to keep the defendants safe, as well as guards and other inmates.  But that means 23-hour-a-day isolation for the accused, even before their trials begin.

And such treatment doesn't sit well with Warren or Senate Majority Whip Dick Durbin (D-Ill.), two of the chamber's fiercest critics of solitary confinement.  “Solitary confinement is a form of punishment that is cruel and psychologically damaging,” Warren said in an interview.  “And we’re talking about people who haven’t been convicted of anything yet.”

The Massachusetts Democrat, a member of Senate Majority Leader Chuck Schumer's leadership team, said that while some limited uses of solitary confinement are justified, she’s worried that law enforcement officials are deploying it to “punish” the Jan. 6 defendants or to “break them so that they will cooperate.”

Her sentiments are shared by Durbin, who also chairs the Senate Judiciary Committee and expressed surprise that all of the detained Jan. 6 defendants were being kept in so-called “restrictive housing.”  While their defense of accused rioters' rights as criminal defendants is unlikely to change the Justice Department's handling of those cases, it's a notable case of prominent progressives using their political clout to amplify their criminal justice reform calls even on behalf of Donald Trump supporters who besieged the entire legislative branch in January.

Durbin, who has long sought to eradicate solitary confinement, told POLITICO that such conditions should be a “rare exception," for accused insurrectionists or any other prisoners. “There has to be a clear justification for that, in very limited circumstances,” he said.

D.C. government officials say the pandemic already has sharply limited freedom of movement in the jail where most Jan. 6 defendants are held.  In fact, the entire jail has been subject to strict lockdown procedures since the onset of the pandemic, a determination that has caused broader controversy about prisoners' rights.  But restrictive housing is a maximum-security designation, and the blanket designation for the Capitol defendants — which isn't expected to ease even if pandemic era restrictions do — is a notable decision for a large group of inmates who have yet to be tried for their alleged crimes.

Asked about the Democratic senators’ concerns, a spokesperson for the D.C. Department of Corrections touted the growing number of educational programs and limited amenity access that inmates are now offered.  “We appreciate the concern, patience and support of our neighbors as we work to keep all within DOC safe, as well as support the public safety of all in the District,” said spokesperson Keena Blackmon.

Warren and Durbin's interest in the conditions facing detained Jan. 6 defendants come amid a massive Justice Department push to arrest and prosecute the hundreds of people who breached the Capitol and threatened the peaceful transfer of power to the Biden administration.

Prior related posts:

April 20, 2021 in Celebrity sentencings, Offense Characteristics, Prisons and prisoners | Permalink | Comments (0)

Friday, April 16, 2021

First public plea deal struck by Capitol rioter, who agrees to cooperate and to reported guideline range of 41 to 51 months in prison

As reported in this Fox News piece, headlined "Capitol rioter takes first public plea deal, agrees to cooperate with authorities: sources," the first big plea in the Capitol riot cases has been announce by the Justice Department. Here are the basics with a few points highlighted:

An alleged member of the Oath Keepers militia group who was "among the first five or six" rioters to enter the U.S. Capitol Building on Jan. 6 is the first person to agree to take a plea deal, Fox News has learned. Jon Schaffer has also agreed to cooperate against others involved in the riot, officials said.

Speaking in court Friday morning, a federal prosecutor told U.S. District Court Judge Amit Mehta that Schaffer was "among the first five or six" rioters to enter the Capitol during the Jan. 6 siege. Schaffer is also the frontman of the band Iced Earth. The central Indiana native who was photographed with the mob that stormed the U.S. Capitol is accused of spraying police officers with a pepper-based bear spray irritant, the FBI previously said.

He was charged with several felony counts, including engaging in an act of physical violence and knowingly entering or remaining in any restricted building or grounds without lawful entry. Schaffer, 53, pleaded guilty to obstruction of an official proceeding and entering and remaining in a restricted building or grounds with a deadly or dangerous weapon.

He faces up to 30 years in prison if convicted, but Mehta said Friday sentencing guidelines call for 41 to 51 months in prison....

A sentencing hearing date has not yet been set.  Schaffer was released and will be allowed some travel for work.  He must stay out of Washington, D.C., other than for court-related matters and may not possess any firearms.

I have not yet been able to find a plea agreement or other public document that details how the guideline range of 41 to 51 months was determined. But I still find those numbers interesting, as well as the fact that this defendant, even after pleading guilty, is to be free pending sentencing.

This official DOJ press release, headed "Lifetime Founding Member of the Oath Keepers Pleads Guilty to Breaching Capitol on Jan. 6 to Obstruct Congressional Proceeding," provide some more context:

Jon Schaffer, 53, of Columbus, Indiana, today admitted that he breached the Capitol on January 6, 2021, wearing a tactical vest and armed with bear repellent, and pleaded guilty to unlawfully entering the U.S. Capitol to obstruct Congress’ certification of the U.S. presidential election results.

"On this 100th day since the horrific January 6 assault on the United States Capitol, Oath Keepers member Jon Schaffer has pleaded guilty to multiple felonies, including for breaching the Capitol while wearing a tactical vest and armed with bear spray, with the intent to interfere with Congress’ certification of the Electoral College results," said Acting Deputy Attorney General John P. Carlin. "The FBI has made an average of more than four arrests a day, seven days a week since January 6th. I commend the hundreds of special agents, prosecutors and support staff that have worked tirelessly for the last hundred days to bring those who committed criminal acts to justice."

"The defendant in this case admits forcing his way into the U.S. Capitol on January 6 for the express purpose of stopping or delaying congressional proceedings essential to our democratic process. These actions are disgraceful and unacceptable" said FBI Deputy Director Paul M. Abbate.  "The FBI and our partners will continue to utilize all available authorities to aggressively investigate, pursue and hold accountable those who committed acts of violence or otherwise violated the rule of law that day."...

Schaffer pleaded guilty to a criminal information charging him with obstruction of an official proceeding and entering and remaining in a restricted building or grounds with a deadly or dangerous weapon. Combined, he faces up to 30 years in prison if convicted. The Honorable Amit P. Mehta accepted Schaffer’s guilty plea.

A few prior related post:

UPDATE:  A helpful colleague got me a copy of the plea agreement, which can now be downloaded here:

Download PleaSchaffer

April 16, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

Wednesday, April 14, 2021

Infamous Ponzi schemer Bernie Madoff dies in prison after spending his final dozen years behind bars

As reported in this Fox Business piece, headlined "Bernie Madoff, mastermind of vast Ponzi scheme, dies in federal prison at age 82," an infamous white-collar offender passed away behind bars today.  Here are the basics:

Bernie Madoff, the notorious architect of the biggest investment fraud in U.S. history, has died at age 82.

Madoff was serving a 150-year sentence at the federal medical care center in Butner, North Carolina, where his attorney said he was being treated for terminal kidney failure. Last year, Madoff's attorney filed court papers seeking the 82-year-old's release during the coronavirus pandemic, saying he suffered from end-stage renal disease. The request was denied....

A decades-long force on Wall Street, Madoff shocked the world when he pleaded guilty in 2009 to running a vast Ponzi scheme that prosecutors said swindled thousands out of their life savings. The scheme began in the early 1970s, and by the time Madoff was arrested in December 2008, had defrauded as many as 37,000 people in 136 countries out of up to $65 billion.

His victims included the famous – film director Steven Spielberg, actor Kevin Bacon and Nobel Peace Prize winner Elie Weisel – as well as ordinary investors.

Madoff said he started the fraud, in which he appeared to deliver steady returns to clients, but was actually using money from new investors to pay off existing shareholders, in the 1990s because he felt "compelled" to give investors solid returns despite the recession and weak stock market. (Prosecutors contend he started defrauding investors much earlier)....

Prior to his downfall, Madoff was viewed as a self-made and respected figure among financial professionals as the head of the seemingly successful Bernard L. Madoff Investment Securities firm. He also served as the chairman of the Nasdaq Stock Market in 1990, 1991 and 1993.

In addition to being sentenced to the maximum 150 years in prison, Madoff and his family took a major financial hit: A judge issued a $171 billion forfeiture order in June 2009 requiring the disgraced financier to give up his interests in all property, including real estate, investments, car and boats. Under the arrangement, the government also obtained his wife's interest in all property, including $80 million that she claimed belonged to her, leaving Ruth Maddoff with $2.5 million in assets.

The decline and fall of Madoff also took a toll on his family. The oldest of his two sons, Mark Madoff, died by suicide on the second anniversary of his father's arrest in 2010. His other son, Andrew, died from cancer at age 48 in 2014. Mark Madoff's suicide prompted his mother, Ruth Madoff, to cut off all communications with her husband....

Meanwhile, Madoff's younger brother, who helped run the business, was sentenced to 10 years in prison after pleading guilty to one count of falsifying false records and one count of conspiracy to commit securities fraud. He was released from federal custody last year. "You know there hasn’t been a day in prison that I haven’t felt the guilt for the pain I caused on the victims and for my family," he told The Washington Post in 2020 when his attorney asked for his compassionate release. He said his dying wish was to reconcile with his grandchildren and explain his actions.

I will be interested to see if anyone has anything especially new or interesting to say, circa 2021, about Madoff's crimes and federal punishment.  In addition to linking to some prior posts below, I will be content here to just note that Madoff's lawyer back in June 2009 requested a "prison term of 12 years — just short of an effective life sentence."  Madoff died almost exactly 12 years since the time of that request, though he had served less than 10% of the 150-year prison sentence that Judge Chin gave him back in June 2009.

Some of many prior posts about his initial sentencing:

Some prior posts about his request for compassionate release:

April 14, 2021 in Celebrity sentencings, Prisons and prisoners, White-collar sentencing | Permalink | Comments (4)

Friday, January 29, 2021

In high-profile sentencing, victim input and collateral consequences push judge away from prison term for misconduct by former FBI attorney

This lengthy Politico piece, headlined "Ex-FBI lawyer spared prison for altering Trump-Russia probe email," reports on an interesting high-profile federal sentencing today in DC.  Here are excerpts, with a bit of commentary to follow:

The only person charged in the Justice Department's investigation into the origins of the probe of former President Donald Trump's 2016 campaign and its ties to Russia was spared prison time for altering an email used to support a surveillance application.  Former FBI attorney Kevin Clinesmith, 38, received the sentence of 12 months probation and 400 hours community service from U.S. District Court Judge James Boasberg Friday during a video hearing.

Clinesmith admitted that in June 2017 he sent an altered email to an FBI agent that indicated a target of court-ordered FBI surveillance, former Trump campaign adviser Carter Page, was "not a source" for the Central Intelligence Agency. The statement, passed along as the FBI was applying for a third extension of surveillance of Page, made Page's actions seem more suspicious by downplaying his past cooperation with the CIA.

Clinesmith insisted that he thought the statement was true at the time and only altered the message to save himself the hassle of procuring another email from the CIA. Prosecutors contested that claim, arguing that the FBI lawyer intended to mislead his colleague, but Boasberg sided with the defense on that point.  "My view of the evidence is that Mr. Clinesmith likely believed that what he said about Mr. Page was true," Boasberg said. "By altering the email, he was saving himself some work and taking an inappropriate shortcut."

While Trump and his GOP allies have suggested that Clinesmith was engaged in a political vendetta against Trump, Boasberg noted that a Justice Department inspector general investigation failed to establish that political considerations played a role in Clinesmith's actions or numerous other errors and omissions that impacted filings with the Foreign Intelligence Surveillance Court....

Clinesmith pleaded guilty last August to a felony false statement charge in a plea deal with John Durham, the prosecutor then-Attorney General William Barr tapped in 2019 to investigate the origins of the Trump-Russia probe. Barr formally designated Durham as a special counsel last fall, in an apparent bid to complicate any attempt by a new administration to shut down Durham's inquiry.

Prosecutors argued that Clinesmith's misconduct was so serious that he deserved between about three and six months in prison. Clinesmith's lawyers asked that he not receive any prison time.  The maximum sentence on the false statement charge is five years in prison, although judges usually sentence in accord with federal guidelines that called for Clinesmith to serve between zero and six months in prison. "The defendant's criminal conduct tarnished and undermined the integrity of the [Foreign Intelligence Surveillance Act] program," Assistant U.S. Attorney Anthony Scarpelli told the court.  "It has lasting effects on DOJ, the FBI, the FISC, the FISA process and trust and confidence United States citizens have in their government...The resulting harm is immeasurable."

Clinesmith's lawyer Justin Shur called his client's actions "inexcusable," but said they were "aberrations" in a life of dedicated public service.  He also said they played a relatively small part in the overall surveillance process and the broader probe. "There were many people involved in these applications and many mistakes that were made," Shur said....

Clinesmith also addressed the court, expressing contrition and describing his career as essentially destroyed by his misconduct and the ensuing prosecution. "I am fully aware of the significance of my actions and the crucial error in judgment I made," the lawyer said. "I let the FBI, the Department of Justice, my colleagues, the public and my family down. I also let myself down.  I will live with the consequences and deeply-held feeling of regret, shame and loss caused by it for the rest of my life."

While prosecutors urged the judge to send Clinesmith to prison to send a message to others in government not to try something similar, Boasberg said he believed that message had already been sent. He noted that Clinesmith has lost his job, may be disbarred and may never be able to work in the national-security field again. "He went from being an obscure government lawyer to standing in the eye of a media hurricane," the judge said. "He's not someone who ever sought the limelight or invited controversy other than by his criminal action here....Anybody who's watched what Mr. Clinesmith has suffered is not someone who would readily act in that fashion."

The 90-minute sentencing hearing also featured an impassioned speech from Page, in which the energy industry analyst complained that his life was also turned upside down by the media firestorm that followed public disclosure that he was a focus of the FBI probe into potential Russian influence on the Trump campaign. "My own personal life has been severely impacted," Page said. "I was frequently harassed on the street and even under the street such as in the Washington metro beneath the courthouse....It was deadly serious. At the time I received many death threats as a 'traitor.'"

However, Page did not ask for imprisonment for Clinesmith. "I hope the defendant can get back to his family as soon as you deem appropriate," the former Trump campaign adviser told the judge. That seem to strike a chord with Boasberg, who mentioned twice during the hearing that Page wasn't seeking prison for the ex-FBI lawyer.

The politics surrounding this case account for why this matter will be covered in many newspapers, but I am drawn to this tale as a notable sentencing story.  Tellingly, while federal prosecutors argued that some prison time was needed, the person victimized by the offense (Carter Page) had the magnanimous and impactful view that the defendant need not serve any prison time.  In addition, the federal district judge here recognized, as should every sentencing judge in every case, that the defendant was already subject to a wide array of significant and persistent collateral consequences which function to punish and deter in ways that transcend a short period in prison.

January 29, 2021 in Celebrity sentencings, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, White-collar sentencing | Permalink | Comments (1)

Tuesday, January 19, 2021

Some news and notes and rulings on federal compassionate release

I know that lots of people are eagerly awaiting the reported forthcoming list of clemency grants from Prez Trump on his last full day in office (including, it seems, Joe Exotic).  As we wait, I have noticed a number of recent pieces about so-called compassionate relief motions in the federal system, a mechanism which serves as a means now for federal judges to modify the prison sentences of some federal prisoners.  Here is a round up of some of these new pieces, included a few discussing grants and denials of compassionate release to notable individuals:

From Law360, "Pandemic Is Changing Compassionate Release Calculus"

From Colorado Politics, "Federal judges in Colorado denied overwhelming majority of requests to release inmates for COVID-19"

From Uerweb, "Bill Underwood is FREE! Former Music Exec Granted Compassionate Release from Prison After 33 Years"

From the AP, "Jailed kids-for-cash judge loses bid for pandemic release"

From Reuters, "U.S. judge rejects 'Pharma Bro' Shkreli's bid for compassionate release from prison"

January 19, 2021 in Celebrity sentencings, FIRST STEP Act and its implementation, Sentences Reconsidered | Permalink | Comments (0)

Thursday, January 07, 2021

Celebrity (gossip) edition of criminal justice round-up

In a weak effort to bring a smidge of lightness at a time when it is pretty easy to feel dark, here are some recent headlines at the intersection of celebrity stories and criminal justice developments:

January 7, 2021 in Celebrity sentencings, Who Sentences | Permalink | Comments (0)

Tuesday, December 22, 2020

Split Michigan appeals court upholds sentencing of mass molester Larry Nassar over claims of misconduct by sentencing judge

As detailed in posts here and here from nearly three years ago, there was a lot of chatter and commentary about the high-profile conduct of the Michigan state sentencing judge during the high-profile state sentencing of Larry Nassar, the former USA Gymnastics team doctor who sexually abused many girls under his care.  Today, as reported in this local press piece, Michigan appeals court judges opined on the sentencing judge's conduct in a split ruling upholding Nassar's sentencing.  Here are the details from the press report:

The Michigan Court of Appeals on Tuesday denied an appeal from serial sex offender Larry Nassar but one judge chastised the conduct of Ingham County Circuit Judge Rosemarie Aquilina during his sentencing. In a 22-page opinion, a three-judge panel split 2-1 against Nassar's effort to be resentenced by a new judge.  The former Michigan State University doctor was accused of sexually assaulting hundreds of women under the guise of medical treatment over more than two decades.  He also collected 37,000 images and videos of child pornography on his computer.

Nassar was sentenced in three courts to what amounted to a life sentence but appealed a 2017 sentence of 40-175 years issued by by Aquilina.  Though Nassar admitted guilt, he argued that his Ingham County sentence was invalid due to Aquilina's bias based on comments she made during his sentencing.

"Although Nassar argues that the judge 'made numerous statements throughout the proceedings indicating that she had already decided to impose the maximum allowed by the sentence agreement even before the sentencing hearing began,' the fact of the matter remains that the judge imposed a minimum sentence that fell within the range of Nassar’s agreed-upon plea," wrote appeals court Judges Thomas C. Cameron and Michael F. Gadola, who ruled against Nassar's appeal.

"Once a defendant has been adjudged guilty in a fair proceeding, 'the presumption of innocence disappears,'" Cameron and Gadola wrote. "A trial judge 'may, upon completion of the evidence, be exceedingly ill disposed towards the defendant, who has been shown to be a thoroughly reprehensible person.' We conclude that the judge’s imperfect articulation of these principles does not establish bias or an appearance of impropriety."

But appeals court Judge Douglas Shapiro dissented, saying the case is "bad facts making bad law." He wrote that Nassar is guilty for abusing his position of trust and the sentence is not disproportionate outside the range of his plea agreement. "I therefore sympathize with the majority’s wish to overlook the trial court’s errors," Shapiro wrote. "However, doing so makes bad law. The process by which this sentence was imposed challenges basic notions of judicial neutrality, due process, the right to counsel, and the use of social media by judges. The errors at sentencing were neither minor nor isolated and by approving of them, even if reticently, the majority invites further distortions of sentencing procedures."

Shapiro also said, "contrary to the prosecution’s argument on appeal, the responsibility of a judge to render decisions impartially does not end with a guilty verdict or plea."  "The facts that come to light during a trial or sentencing may be grounds for a fair and impartial judge to impose a harsh sentence, but even when doing so, it is the judge’s responsibility to maintain judicial neutrality, and determine a proper sentence on the basis of the defendant’s crimes and character rather than the judge’s personal anger, or the extent of revenge sought by the defendant’s victims," Shapiro wrote....

As the decision spread on Twitter, some expressed relief at the court's ruling. Kaylee Lorincz, one of the women abused by Nassar, tweeted that the decision was, "the best christmas gift I could ever ask for."

Jacob Denhollander, the husband of Rachael Denhollander — the first woman to publicly accuse Nassar — said he was glad he lived in America where someone like Nassar can seek appeals and find due process.  "The reminders, trauma, & triggers for victims means that the justice system is not primarily the place where victims find closure & peace," Denhollander tweeted. "Closure and peace comes from the communal response of belief and validation of the victims and their own ability to construct an identity apart from what was done to them. The justice system can be part of that, but can also be traumatizing."

Nassar was charged in Ingham County in 2017 with multiple counts of first-degree criminal sexual conduct for abuse that occurred from 1998 to 2015. He was also charged in Eaton County with multiple counts of criminal sexual conduct, and also in federal court for possessing child pornography. In addition to his physician role at MSU, Nassar treated scores of athletes including the nation's top gymnasts while working for USA Gymnastics and the U.S. Olympic Committee....

Nassar argued that Aquilina showed bias in numerous ways such as saying that she had signed his "death warrant" during sentencing and also saying that the law did not allow her to impose cruel and unusual punishment on him. "If it did, I have to say I might allow what he did to all of these beautiful souls, these young women in their childhood, I would allow someone or many people to do to him what he did to others," said Aquilina.

In addressing Aquilina's comments, and other comments, during sentencing, the Cameron and Gadola wrote that Nassar had admitted guilt so the presumption of innocence had ended. "The sentencing judge’s statement was wholly inappropriate," they wrote. "In essence, the judge stated that she would allow physical retribution against Nassar if it were not constitutionally prohibited."

"Nassar has failed to establish plain error given that the sentencing judge’s comments did not indicate actual bias or prejudice," the majority judges continued. "We further conclude that Nassar has failed to establish that the alleged actual bias and/or prejudice affected his substantial rights. Specifically, as part of the plea agreement, Nassar agreed to a guidelines minimum sentence range between 25 and 40 years’ imprisonment for each count, with the sentencing judge having the discretion to determine the minimum sentence within that range as well as the discretion to determine the maximum sentence for all seven counts.

But Shapiro said Aquilina erred. "A guilty verdict terminates the presumption of innocence but it does not terminate a judge’s responsibility to exercise her judicial responsibilities consistent with the law and the Code of Judicial Conduct," he wrote.

I have quoted at length from this article because I cannot yet find the opinion online.  But that opinion is surely not to be the last work on these matters: I presume Nassar will appeal this decision up to the Michigan Supreme Court and perhaps thereafter in federal habeas (even though his various state and federal sentences for his many crimes surely ensure he will never see the outside of a prison even if he were to prevail on some of these matters).

Prior related posts:

UPDATE: A helpful reader via the comments flagged that the 16-page "unpublished" majority opinion is available here, and the six-page dissent is available here.

December 22, 2020 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, September 30, 2020

Heiress involved in NXIVM group gets way-above-guideline sentence

I have not really been following the NXIVM saga at all, but today brought a first federal sentencing case that caught my attention. This local article, headlined "Clare Bronfman receives more than six years for NXIVM crimes Federal judge exceeds sentence prosecutors had been seeking," provides these details:

Heiress Clare Bronfman was sentenced Wednesday to six years and nine months in federal prison for crimes related to her leadership role in NXIVM. She was taken directly into federal custody at the end of the court proceeding.

The sentence was handed down to the 41-year-old daughter of late Seagram's tycoon Edgar Bronfman in a Brooklyn courtroom after several victims related their painful experiences dealing with the well-heeled backer of Keith Raniere’s cult-like organization.

A number of former NXIVM members delivered victim impact statements to Senior U.S. District Judge Nicholas Garaufis. One of those women was Barbara Bouchey, a former girlfriend of Raniere's who faced years of retaliation by NXIVM after she left the group more than a decade ago. She called Garaufis' sentence justice served: “When I heard him say 81 months, I was speechless,” Bouchey said.

Bronfman, who has homes in Clifton Park and Manhattan, was anticipating a sentence of just 21 to 27 months in prison under sentencing guidelines for her guilty plea to conspiracy to conceal and harbor illegal aliens for financial gain, and fraudulent use of identification.

Garaufis had made it clear he was considering an "above guidelines" punishment. Her recently hired attorneys, Ronald S. Sullivan Jr. and Duncan Levin, have asked for three years of probation. Federal prosecutors in Brooklyn’s Eastern District have asked for a five-year prison sentence. Garuafis went beyond both requests. He also levied a $500,000 fine on Bronfman.

Prosecutors said Bronfman, who was in NXIVM alongside her older sister, Sara Bronfman-Igtet, used her wealth to recruit immigrants – usually women – into NXIVM-related groups under the idea that they would get a scholarship or work. But Bronfman instead got a work-force of recruits desperate to earn a living and who were dependent on her and NXIVM to stay in the country.  Prosecutors have said Bronfman helped Raniere target the company’s perceived enemies, which included members of the organization who defected....

Raniere, 60, a longtime Halfmoon resident known in NXIVM as “Vanguard,” was convicted at trial last year of all charges, which included sex trafficking, forced labor conspiracy and racketeering charges that included underlying acts that included child exploitation, possession of child pornography, identity theft, extortion, fraud and other crimes.  He faces the possibility of life in prison at his sentencing on Oct. 27.

This New York Times article reporting on the sentencing notes why this case may end up in the Second Circuit: "Ronald Sullivan, a lawyer for Ms. Bronfman, said he would appeal the sentence, calling it an 'abomination'."

September 30, 2020 in Celebrity sentencings, Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (1)

Thursday, September 17, 2020

At re-re-re-sentencing, Amy Locane gets eight years in New Jersey state prison for drunk driving vehicular manslaughter

Because it is such an interesting case (and perhaps because I watched Melrose Place way back when), I have blogged repeatedly about the sentencings saga of Amy Locane after her conviction in a tragic and deadly drunk driving case.  Today, Locane was sentenced for the fourth time in this matter, and this Fox News piece provides the details:

Amy Locane has been resentenced to eight years in state prison for a fatal 2010 drunk driving crash that occurred in New Jersey. The former “Melrose Place” actress, 48, has already served a prison sentence but a judge agreed with prosecutors Thursday that her initial sentence was too lenient.

State Superior Court Judge Angela Borkowski said Locane still refuses to fully acknowledge her culpability in the crash that killed 60-year-old Helene Seeman and severely injured Seeman's husband.  State law requires her to serve more than six years before being eligible for parole.  Locane apologized to the Seeman family in a brief statement.  She was placed in handcuffs and taken into custody by court deputies after the proceeding in state court in Somerville.

It was a startling development in a case that has bounced around the New Jersey court system for nearly a decade and has now featured four sentencings in front of three judges, plus numerous appeals.

Locane — who acted in 13 episodes of the popular 1990s Fox series and has also appeared in several movies — was convicted on several counts including vehicular manslaughter, and faced a sentencing range of five to 10 years on the most serious count. The state initially sought a seven-year sentence, but a trial judge sentenced her to three years in 2013.  An appeals court ruled he misapplied the law, but at a resentencing, the same judge declined to give her additional time.

Last year, a different judge sentenced her to five years, but an appeals court ruled he didn't follow guidelines it had set and ordered yet another sentencing.  Locane's attorney, James Wronko, had argued unsuccessfully that sentencing her again would violate double jeopardy protections since she had already completed her initial sentence and parole term.

According to witnesses, Locane had consumed several drinks before she headed home on the night of the accident and slammed into the Seemans' car as it turned into their driveway in Montgomery Township, near Princeton.  The actress contended a third motorist, whose car Locane had bumped into at a traffic light minutes earlier, distracted her by honking at and chasing her.  Locane wasn't indicted for drunken driving, but a state expert testified her blood alcohol level was likely about three times the legal limit and that she was driving roughly 53 mph (85 kmh) in a 35-mph (56-kmh) zone at the time of the crash.

Fred Seeman, who nearly died from his injuries suffered in the crash, attended Thursday's proceeding and said Locane's shifting of blame "shows contempt for this court and the jury that rendered the verdict.”  The judge took a similar view, and said Locane's past alcohol abuse makes her a risk for reoffending.

“You made a conscious decision to drink that day and continued to drink, recognizing at the onset that you needed a ride but didn’t obtain one," Borkowski said.  "If you hadn’t gotten behind the wheel of your vehicle on this night, the incident never would have happened.” Wronko called the sentence “outrageous.  She has always taken full responsibility," and criticized the judge for not taking into account Locane's current sobriety and her work counseling others against alcohol abuse.

Locane has 45 days to appeal her sentence. Wronko said he is waiting to see if the state Supreme Court decides to hear his appeal on the double jeopardy question.

Prior related posts:

September 17, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Saturday, August 22, 2020

Via video, Lori Loughlin and her husband get agreed fixed short prison sentences in college admission scandal

Unnamed-2As reported in this CBS News piece, headlined "Lori Loughlin gets 2 months in prison in college admissions scandal. Her husband Mossimo Giannulli will serve 5 months," a high-profile (but low-drama) sentencing took place in federal court yesterday.  Here are the basics:

Actress Lori Loughlin will serve two months in prison and her husband, fashion designer Mossimo Giannulli, will serve five months after the couple pleaded guilty to conspiracy charges in the college admissions scandal. A federal judge on Friday accepted plea deals from the famous couple in a video sentencing hearing.

After initially vowing to fight the charges, Loughlin and Giannulli reversed course after a judge denied their motion to dismiss the case in May. Prosecutors said the couple paid $500,000 to secure their daughters' admission to the University of Southern California by masquerading them as fake athletic recruits.

"I made an awful decision. I went along with a plan to give my daughters an unfair advantage in the college admissions process. In doing so, I ignored my intuition and allowed myself to be swayed from my moral compass," Loughlin said in the video call.

Loughlin, 56, will also pay a $150,000 fine, serve 100 hours of community service, and be under supervised release for two years. Giannulli, 57, is required to pay a fine of $250,000, serve 250 hours of community service, and serve two years of supervised release.

Earlier in the day, Giannulli apologized for the harm his decisions caused his family. "I'm ready to accept the consequences and move forward with the lessons I've learned from this experience," he said. Prior to rendering the sentence, U.S. District Court Judge Nathaniel Gorton ripped into Giannulli for committing a "crime motivated by hubris" that is "defined by wanton arrogance and excessive pride."

In addition to really liking the aesthetic of this "courtroom sketch" of this video sentencing, I reprinted the picture here in order to wonder aloud whether the US Sentencing Commission is keeping track of which sentencings are taking place via video these days and which ones are taking place in person.  Because six months into this pandemic the USSC still has not even reported how many sentencings are taking place, I am not especially optimistic the USSC is collecting, or will anytime soon be reporting, special granular data on COVID-era sentencing realities.  But my hope for the USSC springs eternal.

A few prior posts focused on these defendants:

A few of many prior posts on other defendants in college admissions scandal:

August 22, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (5)

Wednesday, August 05, 2020

"#MeToo and the Myth of the Juvenile Sex Offender"

The title of this post is the title of this notable new paper authored by Cynthia Godsoe recently posted to SSRN. Here is its abstract:

The #MeToo movement has brought much needed attention to the widespread and systemic nature of sexual harm. However, the broad, uncritical push to connect “#MeToo” to criminal prosecution has real downsides, revealing the pathologies and ineffectiveness of the criminal system and re-inscribing the very gendered and racialized hierarchies the movement seeks to eradicate.  The mainstream understanding of #MeToo amplifies the omission of sexual harm from most conversations on decarceration and criminal legal reform.  This side of the movement focuses almost exclusively on individual blame and punishment, ignoring the structural causes of gender violence, as well as meaningful survivor healing and offender accountability.  This is true both as to the scope of criminalization, which is ever-expanding particularly as to sexual harms, and to the response once harm occurs, which is almost always to advocate for longer prison sentences and more restrictions post-release, such as sex offender registration.

This Symposium essay explores these issues by thinking through the way that the mainstream #MeToo movement treats and responds to youth who either engage in or are victims of sexual harm.  Despite the fact that much of the #MeToo reckoning has focused on high-profile men who repeatedly exploit minors — think Jeffrey Epstein, R. Kelly, Kevin Spacey — minors themselves, some as young as eight, constitute one third of those adjudicated sex offenders and one quarter of those required to register, sometimes for life.  At the same time, harm to young people who do not fit a mainstream mold is ignored.  Thus, although girls of color are sexually assaulted at much higher rates than white girls, their victimhood continues to be overlooked and their responses to it even criminalized.

In this essay, I join abolitionist advocates in urging caution about the direction the #MeToo movement is taking, particularly with regard to young people.  Our punishment of sexual harm with respect to youth reveals three significant pathologies of the broader criminal legal system.  First, we rely almost exclusively on criminalization and punishment to address societal problems that have multiple causes beyond individual culpability.  Second, the system is immensely costly, in fiscal and, most importantly, human terms, with very low effectiveness, both at preventing and at redressing harm.  Indeed, punishing youth for sex offenses puts them at much greater risk for being sexually abused themselves by adults — undermining the primary stated goal of the sex offense criminal framework.  Third, the criminal treatment of “sex crimes” reinforces the very gendered and racialized hierarchies that animate them.  Girls and women of color continue to be undervalued and unprotected, while male survivors continue to be stigmatized and disbelieved.  Indeed, Tarana Burke, founded the #MeToo movement to recognize non-normative victims, particularly girls and women of color, and recently lamented the current movement’s public face: “We have to shift the narrative that it’s a gender war, that it’s anti-male, that it’s men against women, that it’s only for a certain type of person — that it’s for white, cisgender, heterosexual, famous women.”

I conclude with the counterintuitive suggestion that decriminalization and decarceration efforts should not only include conduct labelled as “sex offenses,” but likely should begin with them. Transforming our approach to sexual harm is one key piece of an abolitionist vision that seeks to move beyond carceral approaches to achieving racial and gender justice.

August 5, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (0)

Tuesday, July 28, 2020

At resentencing, Senator Rand Paul's attacker gets additional 13 months (eight to be served in federal prison, six in home confinement)

This local article, headline "KY man who tackled U.S. Sen. Rand Paul sentenced to another 13 months confinement," provides some details from a high-profile resentencing that took place yesterday and included a number of interesting elements:

The neighbor who lost his temper and attacked Republican U.S. Sen. Rand Paul in 2017, breaking six of his ribs, has been sentenced to an additional 13 months confinement.  A federal judge initially sentenced Rene Boucher to 30 days in jail for the November 2017 attack, along with 100 hours of community service and a $10,000 fine.

During a video hearing Monday, U.S. District Judge Matthew F. Leitman handed down the new sentence against Boucher — eight months in prison and six months on home confinement.  However, Leitman gave Boucher credit for the 30 days he already served, so he will have seven more months behind bars.

Prosecutors had appealed the initial sentence for Boucher, arguing it was unreasonably light, and won the right to try to get a longer sentence.  That led to Monday’s hearing.  The new sentence for Boucher still wasn’t as long as the government wanted.  Assistant U.S. Attorney Brad Shepard objected to the sentence, which could lead to yet another appeal by the government for stiffer sentence for Boucher.

The attack made national news because of Paul’s position, but prosecutors have acknowledged it had nothing to do with politics.  Rather, Boucher, who lived next door to Paul in a gated community in Bowling Green, attacked Paul because he got angry over Paul stacking limbs and other yard waste near their shared property line, according to the court record....

Police first charged Boucher with misdemeanor assault in state court, but the federal government stepped in and prosecuted him under a law barring assaults on members of Congress.  Under advisory guidelines, Boucher faced a potential sentence of 21 to 27 months. Federal judges can impost sentences below those guidelines.

In handing down a lower sentence, U.S. District Judge Marianne O. Battani cited Boucher’s military service, his involvement in his church and her belief that the attack was out of character for Boucher.  However, the U.S. 6th Circuit Court of Appeals ruled that Battani didn’t give sufficient weight to the seriousness of Paul’s injuries or the need for deterrence, and didn’t sufficiently address the issue of the big difference in Boucher’s sentence and others involving federal assault cases.

Shepard renewed a call for a 21-month sentence for Boucher because of the severity of Paul’s injuries.  The punishment also should to be tough enough deter similar attacks, Shepard said.  “The court I think needs to send the message . . . that we cannot continue as a society to resort to violence,” Shepard said.

Paul and his wife, Kelly, submitted written statements about the attack the first time Boucher was sentenced, but spoke in person during the video hearing Monday.  Paul said he’d never had cross words with Boucher and so had no idea he was unhappy before Boucher blindsided him.  Paul described the intense pain and his struggles to breathe after the attack, as well as the history of physical problems since, including bouts with pneumonia, night sweats and fever; coughing up blood; surgery to remove part of his scarred lung; and still more surgery to drain infected fluid.  Paul said his lung capacity will likely be reduced the rest of his life, and he has chronic pain.  “I don’t know what a night without pain is like, or a day without pain,” Paul said....

Boucher’s attorney, Matthew J. Baker, said Boucher is “profoundly sorry” for the attack, but argued against any additional time for Boucher, a physician.  Baker said Boucher’s initial sentence was appropriate, and that he had faced additional punishment by way of a judgment of more than $600,000 in a state civil lawsuit Paul filed against him over the attack.  That judgment included $375,000 in punitive damages, which by definition are to punish a defendant....

Lietman said it was heartbreaking to hear Paul and his wife describe the fallout from the attack. But the judge said he was choosing a sentence below the guideline range for several reasons, including Boucher’s long record of work with his church, his eight years as a U.S. Army doctor, the fact that the attack was out of character, and the damage to his reputation from the crime.  Leitman said $375,000 punitive damage award in state court also figured into his decision. “That’s a lot of punishment,” he said.

Leitman did not set a date for Boucher to begin the sentence.

I would be surprised if the feds go through with another appeal, and I would be even more surprised if they would prevail on a second appeal.  The Sixth Circuit panel opinion reversing the initial 30-day sentence made much of the original "dramatic downward variance" from a guideline minimum of 21 months, and Judge Lietman seems to have addressed some of the panel's chief concerns when imposing a longer sentence closer to the bottom of the advisory range.  And Judge Lietman's reliance on the civil punishment from the sizable punitive damage award would seem to be a distinctive additional factor supporting the reasonableness of a sentence below the guideline range.

Prior related posts:

July 28, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)