Sentencing Law and Policy

The process is the punishment: Donald Trump receives sentence of "unconditional discharge" in New York state prosecution

I have just finished listening to today's hearing as part of the state court sentencing in Trump v. New York, at the end of which he received the expected sentence of "unconditional discharge."  The event was full of interesting elements and ironies (eg, Trump was given the sentence recommended by prosecution, and now can move forward with appeals).   If time and energy permits in the coming weeks, I may turn to the Sentencing Matters Substack for some longer commentary/reflection on this historic event. 

For now, I am just going to note that sentence imposed got me thinking about the title of a famous 1979 criminal justice book by Malcolm Feeley, "The Process is the Punishment: Handling Cases in a Lower Criminal Court."  One big theme of the book, as put in this linked summary, is that "the real costs to those accused of misdemeanors and lesser felonies are not the fines and prison sentences meted out by the court, but the costs incurred before the case even comes before the judge."  That theme came to mind when Trump began his statement to the court today by stating "This has been a very terrible experience."  I suspect that statement resonates with so many criminal defendants and their friends and family, and maybe even more than a few judges and prosecutors.   

Judge Merchan upholds Donand Trump's NY state convictions, suggests he will impose sentence of "unconditional discharge" next week

As reported in this AP piece, "a judge Friday set President-elect Donald Trump’s sentencing in his hush money criminal case for Jan. 10 — little over a week before he’s due to return to the White House — but indicated he wouldn’t be jailed." Here is more:

Manhattan Judge Juan M. Merchan, who presided over Trump’s trial, signaled in a written decision that he’d sentence the former and future president to what’s known as an unconditional discharge, in which a conviction stands but the case is closed without jail time, a fine or probation. Trump can appear virtually for sentencing, if he chooses.

Rejecting Trump’s push to dismiss the verdict and throw out the case on presidential immunity grounds and because of his impending second term, Merchan wrote that only “bringing finality to this matter” would serve the interests of justice.

He said he sought to balance Trump’s ability to govern, “unencumbered” by the case, against other interests: the U.S. Supreme Court’s July ruling on presidential immunity and the public’s expectation “that all are equal and no one is above the law,” and the importance of respecting a jury verdict. “This court is simply not persuaded that the first factor outweighs the others at this stage of the proceeding,” Merchan wrote in an 18-page decision.

Judge Merchan's full 18-page ruling, which is available at this link, is primarily concerned with rejecting the defense team's various arguments for dismissing all charges. As the very end, here is is how he explains his sentencing thoughts at the end of the decision:

While this Cout as a matter of law must not make any determination on sentencing prior to giving the parties and Defendant an opportunity to be heard, it seems proper at this juncture to make known the Court's inclination to not impose any sentence of incarcetation, a sentence authorized by the conviction but one the People concede they no longer view as a practicable recommendation.  As such, in balancing the aforementioned considerations in coniunction with the undetlying concerns of the Presidential Immunity doctrine, a sentence of an unconditional discharge appears to be the most viable solution to ensure finality and allow Defendant to pursue his appellate options.  Further, to assuage the Defendant's concerns regarding the mental and physical demands during this transition period as well as the considerations set forth in the 2000 OLC Memorandum, this Court will permit Defendant to exercise his right to appear virtually for this proceeding, if he so chooses.  People v. Reyes,72 Misc 3d 1133 [Sup Ct New York County 2011].

Infamous mother, serving life with parole for killing her two son 30 years ago, denied parole in South Carolina

This CBS News piece reports on a high-profile murderer being denied her bid for parole today after having served 30 years in prison.  Here are the basics:

A parole board decided unanimously Wednesday that Susan Smith should remain in prison, despite her plea that God has forgiven her for infamously killing her two young sons 30 years ago by rolling her car into a South Carolina lake while they were strapped in their car seats.

It was the first parole hearing for Smith, 53, who is serving a life sentence after a jury convicted her of murder but decided to spare her the death penalty. She is eligible for a parole hearing every two years now that she has spent 30 years behind bars.

Smith made her case by video link from prison. She started by saying she was "very sorry," then broke down in tears and bowed her head. "I know what I did was horrible," Smith said, pausing and then continuing with a wavering voice. "And I would give anything if I could go back and change it."  In her final statements, Smith said God has forgiven her. "I ask that you show that same kind of mercy, as well," she said.

Smith made international headlines in 1994 when she insisted for nine days that a carjacker drove away with her sons.  Prosecutors have long argued that Smith killed 3-year-old Michael and 14-month-old Alex because she believed they were the reason the wealthy son of the owner of the business where she worked broke off their affair.  Her attorneys blame her mental health.

A group of about 15 people urged against parole.  They included her ex-husband and the father of the boys, David Smith; his family members; prosecutors; and law enforcement officials.  Along with a few others, David Smith had a photo of Michael and Alex pinned to his suit jacket.  He struggled to get out words at first, pausing several times to compose himself.  He said he has never seen Susan Smith express remorse toward him. "She changed my life for the rest of my life that night," he said. "I'm asking that you please, deny her parole today, and hopefully in the future, but specifically today," he said, adding that he plans to attend each parole hearing to make sure Michael and Alex aren't forgotten.

A decision to grant parole requires a two-thirds vote of board members present, according to the state. Parole in South Carolina is granted only about 8% of the time and is less likely with an inmate's first appearance before the board, in notorious cases, or when prosecutors and the families of victims are opposed.  

What could (and what should) happen with Prez-Elect Trump's upcoming New York state sentencing?

Various media outlets today are reporting, as articulated in the headline of this article in The Hill, that "Trump’s victory likely means curtains for criminal prosecutions."  For three of Prez-Elect Trump's four on-going criminal prosecutions, that basic analysis seems largely right.  But for his New York state case, with jury verdict of multiple convictions and sentencing scheduled for later this month, I think the dynamics are more uncertain and perhaps more interesting.  

I am inclined to presume that Trump's lawyers will now seek an (indefinite?) delay of the sentencing now scheduled for November 26.  And yet, I can construct an argument for why Trump and his lawyers might want the sentencing to just go forward now.  If NY criminal procedure does not allow Trump to appeal his convictions until a sentence is imposed, perhaps he would want the sentencing to go forward so he can then seeking to have all his convictions overturned on appeal.  I assume Trump could get his sentence, whatever its terms, stayed while appealing his conviction.

Speaking of possible sentencing terms, if the sentencing were to go forward in two weeks, it seem extremely unlikely that Justice Merchan would impose imprisonment or any onerous condictions of probation on a President Elect.  Having just been elected President of the United States is quite the unique changed personal circumstance to raise at sentencing, and it has to be a mitigating factor.  If real life was one big sit-com, perhaps Justice Merchan could come up with some comical and creative "shaming sentence" for Trump (eg, having him post a video on Truth Social about the importance of proper bookkeeping).  But I am not sure it would be good at all to risk turning the theater of Trump's sentencing into theatre of the absurd. 

Because the Supreme Court's ruling in Trump v. United States only formally addressed "conduct alleged to involve official acts during his tenure in office, that ruling still seems not directly applicable.  But now that Trump is President-Elect, his lawyers might reasonably seek to draw on that ruling as well as broader constitutional principles to try to derail the case entirely.  I doubt any party wants to engaged in robust and novel constitutional litigation at this point, thought it still seems like a possibility.  {Update: I just saw an article reminding me that Justice Merchan has stated he would rule on a pending motion to dismiss based in part on the Trump ruling by next week.  Specifically, in this order, he indicated that the "motion to set aside the jury verdict and to dismiss the indictment will be handed down off-calendar on November 12, 2024."] 

Finally, I cannot help but wonder if New York Governor Kathy Hochul might consider offering Trump a pardon for his New York convictions.  For political reasons, I assume she would not.  But it could be quite an interesting gesture from a prominent Deocratic offical and could be pitched as a stateperson's response to Trump's call "to help our country heal."  Of course, a pardon does not serve to fully erase a criminal conviction, and so Trump might not even except a pardon even if one was offered.

Interesting times.

Continuing coverage and comment on Menendez brothers' possible resentencing

Unsurprisingly, the announcement last week by the Los Angeles DA that he will seek resentencing for the Menendez brothers has generated more media coverage and comment about the case and the brothers.  Here is a partial round up of pieces catching my eye:

From the AP, "The Menendez brothers built a green space in prison. It’s modeled on this Norwegian idea."

From The Daily Beast, "Menendez Bros’ Family in Bitter Feud Over DA’s Freedom Plan"

From the Los Angeles Times, "Will the Menendez brothers be set free? How the parole board, the governor and a new D.A. could change things"

From NBC News, "Did Hollywood help the Menendez brothers’ case?"

From USA Today, "Are the Menendez brothers getting released? What to know about the resentencing decision"

The USA Today piece includes some of these details regarding timelines and procedures:

At a Thursday news conference, Nancy Theberge, deputy in charge of Gascón’s resentencing unit, said she would like to see the petition for resentencing go before a judge within the next 30 to 45 days. She added that the brothers' could attend the hearing either in person or via Zoom.... Theberge said Thursday the resentencing unit will coordinate with the defense to set up a court date so the petition requesting resentencing can be heard.

The judge overseeing the hearing will then rule on the petition and decide whether the brothers will be eligible for parole. If the judge agrees the brothers should be resentenced, they will go before a parole board, which will primarily evaluate "whether they are rehabilitated and safe to be released," Gascón said.

The district attorney said while he and some members of his office believed the brothers deserve to be resentenced, there may be other members of his office who will present arguments on why they should remain in prison for life.

"It's very possible that there will be members of this office that will be present in court opposing their resentencing – and they have a right to do so," he said, adding, "We encourage those that disagree with us to speak in the court."

Prior recent related posts:

• Kim Kardashian advocates reconsidering Menendez brothers' LWOP sentences just as Los Angeles DA begins to do so
• LA District Attorney announces that he will seek resentencing for the Menendez brothers

LA District Attorney announces that he will seek resentencing for the Menendez brothers

In this post from a few weeks ago, I noted the notable activity focused on possible resentencing of the Menendez brothers, who were convicted and sentenced to LWOP in California for the brutal 1989 killing of their parents. As reported in this Courthouse News Service piece, "LA District Attorney George Gascon announced Thursday that his office will be recommending that Erik and Lyle Menendez, who killed their parents in 1989, be resentenced." Here is more:

Erik and Lyle Menendez have been locked up for 35 years and are serving life sentences without the possibility of parole. They have claimed, both during their trials and subsequent to them, that they were sexually abused by their father Jose, and that the killings were done out of fear of continued abuse and a response to trauma. Their first trial, in 1993, ended in a mistrial, with the jury remaining deadlocked after a month of deliberations. After a second trial ...., the brothers were convicted. During both trials, prosecutors argued that Jose never abused his children, and that the brothers were motivated by money.

Recently, two new pieces of evidence have emerged that the brothers and their supporters say add weight to the claims of abuse. In 2023, a former member of the boy band Menudo, Roy Rossello, revealed that Jose Menendez, a record executive, drugged and raped him when Rossello was 14 years old. In addition to that, a letter purportedly written by Erik Menendez to his cousin in 1988, less than a year before the killings, was unearthed. In the letter, Menendez refers to the sexual abuse, writing, "Every night I stay up thinking he might come in."

Last year, the brothers filed a writ of habeas corpus, asking for the convictions to be thrown out based on new evidence, writing in a brief, "The new evidence not only shows that Jose Menendez was very much a violent and brutal man who would sexually abuse children, but it strongly suggests that — in fact — he was still abusing Erik Menendez as late as December 1988."

Last week, more than 20 of Erik and Lyle's family members met with Gascon, asking for the brothers to be resentenced under Marsy's Law, which gives crime victims a right to be heard prior to sentencing, as well as to have a say in resentencing hearings. Most of the extended Menendez family say 35 years in prison is more than enough for the brothers, now in their mid 50s, given the abuse they suffered at the hands of their father.

But not all family members agree. Milton Anderson, the 90-year-old surviving brother of Kitty, the brothers' mom, has spoken out against letting his sister's killers go free. "The 'new evidence' Gascón relies on cannot legally justify overturning the murder convictions of Erik and Lyle Menendez, who meticulously planned and executed the cold-blooded murders of both their parents," Anderson's attorney said in a written statement on Thursday. "They shot their mother, Kitty, reloading to ensure her death. The evidence remains overwhelmingly clear: the jury’s verdict was just, and the punishment fits the heinous crime."

I believe what is now California Penal Code § 1172.1 provides the legal basis and sets forth the legal standards for this kind of resentencing.  I am not at all familiar with California resentencing practices, but I would guess that most judges follow the recommendations of prosecutors in these kinds of cases.  But high-profile cases do not always follow the patterns of other cases, and it will be interesting to observe both the process and substance of this notable re-sentencing decision.

Prior recent releated post:

• Kim Kardashian advocates reconsidering Menendez brothers' LWOP sentences just as Los Angeles DA begins to do so

Ninth Circuit panel reverses 168-month sentence of Michael Avenatti based on various guideline issues

As reported in this Courthouse News Service piece, "Michael Avenatti, who gained notoriety while representing adult film actress Stormy Daniels in her legal dispute with then-President Donald Trump, earned a rare legal victory Wednesday when a Ninth Circuit panel threw out his 14-year sentence for stealing millions of dollars from his former clients." Here is more about the ruling:

It is longest of three prison sentences the 53-year-old Avenatti is currently serving. He was given four years for stealing money Daniels was due for a tell-all book, and 30 months for trying to extort Nike....

The three-judge panel found the trial judge in Orange County made a number of errors in sentencing the disbarred lawyer.  For one thing, in calculating the amount of money Avenatti stole from his clients, the judge "should have accounted for the value of his legal services and costs, as well as the value of certain payments he made to victims," the appellate judges wrote in their 9-page ruling.

"By finding that Avenatti’s victims “lost” the full settlement value without accounting for Avenatti’s fees and costs, the district court enhanced Avenatti’s sentence based on pecuniary harm that did not occur, and did not 'result from [Avenatti’s] offense,'" the judges wrote.

In addition, the panel found U.S. District Court Judge James Selna abused his discretion in refusing to "credit (and thus deduct from the losses) the value of payments Avenatti made to Geoffrey Johnson, Alexis Gardner, and Gregory Barela after he misappropriated their settlements. These too, should be accounted for on remand."

U.S. Circuit Judges Michelle Friedland, a Barack Obama appointee, and Roopali Desai, a Joe Biden appointee, made up the panel along with U.S. District Judge Karen E. Schreier, sitting with the panel by designation from the District of South Dakota. They did reject a few arguments Avenatti had made in his appeal, including the assertion that the Nike conviction wasn't relevant conduct.

The full (unpublished) opinion is available at this link.

A deep dive into sentencing patterns for NY felony crime of falsifying business records

This week the New York Times published this lengthy article, headlined "Will Trump Get Jail Time? We Looked at Similar Cases to Find Out," while provides some statistical context regarding sentences in New York for the crimes that Donald Trump will be sentenced for next month.  Here are excerpts from the piece:

The former president’s unruly behavior at the New York trial makes him a candidate for jail time, as does his felony crime of falsifying business records: Over the past decade in Manhattan, more than a third of these convictions resulted in defendants spending time behind bars, The Times’s examination found. Across New York State, the proportion is even higher — about 42 percent of those convictions led to jail or prison time....

Over the past decade or so, the most likely punishment for someone in New York State convicted on a top charge of felony falsification of business records was jail or prison time, according to data from the New York State Division of Criminal Justice Services. The data shows that 204 people ended up behind bars for that crime, while 174 received probation and no jail time.

The Times review of false records convictions in Manhattan alone — which was based on data from state and local agencies and verified by case files retrieved from the clerk’s office — similarly supports the notion that Mr. Trump could spend a few weeks or months in jail.

The Times found 30 cases in Manhattan since 2014 in which a person was convicted and sentenced on a top charge of felony falsification of business records. Of those cases, only five resulted in probation and no jail time, while 11 involved incarceration.

Defendants in nine of the 11 cases were first-time felony offenders like Mr. Trump and received sentences between one week and 364 days in jail, with the most frequent jail sentence being six months. The other two defendants, both of whom had been previously convicted of felonies, received more than a year in prison.

All but one of the other defendants received a so-called conditional discharge, a sentence that allows them to avoid probation or jail if they follow certain conditions, such as maintaining employment or paying restitution. The remaining man received only community service and a fine.

Kim Kardashian advocates reconsidering Menendez brothers' LWOP sentences just as Los Angeles DA begins to do so

As reported in this new NBC News piece, "Prosecutors in California are reviewing the convictions of the Menendez brothers, who were found guilty in the 1989 killing of their parents, to determine whether they should be resentenced and potentially released, officials said Thursday." Here is more:

Los Angeles County District Attorney George Gascón said his office is also reviewing possible evidence included in petitions the brothers filed last year alleging molestation by their father.  Gascón said that the allegations are under review and that none of the information has been confirmed. A hearing is scheduled for Nov. 26....

That evaluation in the brothers' case is ongoing, he said, adding: "Until we get there, we’re not sure yet which direction this will go."

Joseph “Lyle” Menendez, now 56, and Erik Menendez, now 53, were convicted in 1996 in the shotgun murders of their parents at their Beverly Hills homes seven years before.  After two trials, they were sentenced to life in prison without parole and remain incarcerated in a California prison.

In their initial trials, the brothers said their father sexually abused them for years.  Prosecutors accused them of killing their parents to inherit a fortune.  The proceedings ended in a mistrial.  The abuse allegations were limited at their second trial. The brothers were convicted and sentenced to life without the possibility of parole....

The district attorney's announcement came amid controversy over a new Netflix series about the case, “Monsters: The Lyle and Erik Menendez Story."  In a statement released by his wife, Erik Menendez said that the series included "blatant lies" and that it was "ruinous" for his brother....

The district attorney, Gascón, is up for re-election.  He said at Thursday's news conference that more than 300 people have been resentenced during his term and that only four have gone on to commit crimes again.

Intriguingly, today Kim Kardashian also authored this "personal essay" in which she states that her "hope is that Erik and Lyle Menendez’s life sentences are reconsidered." Here is a portion of her essay:

According to Erik and Lyle, they were physically, sexually and emotionally abused by their parents since childhood, and their father repeatedly raped them when they were just little boys.  Many people believe the crimes the brothers committed are unforgivable — but what about the decades of alleged abuse they suffered as children?

I have spent time with Lyle and Erik; they are not monsters.  They are kind, intelligent, and honest men.  In prison, they both have exemplary disciplinary records.  They have earned multiple college degrees, worked as caregivers for elderly incarcerated individuals in hospice, and been mentors in college programs — committed to giving back to others.  When I visited the prison three weeks ago, one of the wardens told me he would feel comfortable having them as neighbors.  Twenty-four family members, including their parents’ siblings, have released statements fully supporting Lyle and Erik and have respectfully requested that the justice system free them.

The killings are not excusable.  I want to make that clear.  Nor is their behavior before, during or after the crime.  But we should not deny who they are today in their 50s.  The trial and punishment these brothers received were more befitting a serial killer than two individuals who endured years of sexual abuse by the very people they loved and trusted.  I don’t believe that spending their entire natural lives incarcerated was the right punishment for this complex case.  Had this crime been committed and trialed today, I believe the outcome would have been dramatically different.  I also strongly believe that they were denied a fair second trial and that the exclusion of crucial abuse evidence denied Erik and Lyle the opportunity to fully present their case, further undermining the fairness of their conviction.

Did Justin Timberlake get a "sweetheart plea deal in drunk driving case"?

The question in the title of this post is prompted by the headline of this New York Post article discussing pop icon Justin Timberlake sentencing on Long Island yesterday.  Here are excerpts from the piece:

Justin Timberlake issued a groveling, court-ordered apology Friday for getting behind the wheel after downing drinks in the Hamptons. “This is a mistake that I made but I’m hoping that whoever is watching and listening right now can learn from this mistake,” said the former boy band heartthrob — who was ordered to deliver the public statement as part of a plea deal to a lesser violation in the case. “Even one drink — don’t get behind the wheel of the car.”

The “SexyBack” singer talked after pleading guilty in a Sag Harbor courtroom Friday to driving while alcohol impaired, which was a lesser charge than the DWI count he faced. The deal with prosecutors orignially only involved him making his public apology, but Justice Carl Irace said that was not enough and decided on his own to also sentence Timberlake to 25 to 40 hours of community service.

While its not clear when the work sentence will begin, the former NSYNC star delivered comments outside the courthouse after the hearing. During the three-minute address to the media, Timberlake admitted that while “I try to hold myself to a very high standard — this was not that.”...

Timberlake then emphasized a second time, that no one should drive even after having just one drink, urging people to look for any other transportation option after imbibing. “There’s so many alternatives,” he said. “Call a friend, take an Uber. There are so many travel apps. Take a taxi.”

In some sense, the local sentencing judge's decision to add a week's worth of community service to the sentence sugests he viewed the plea deal here as too lenient.  But I have no knowledge of what the sentencing norms are in New York courts for a drunk driving offense for a first offender.  This CBS News piece has a local lawyer asserting Timberlake did not het any special treatment:

Long Island defense attorney David Schwartz says with the plea agreement, Timberlake got treated like every other first-time offender. "The 90-day suspension is by statute, the $500 fine is by statute, and the judge threw on 25 hours of community service, which is completely normal," he said.

That CBS piece also has notable comments from the DA and a notable observer:

"Mr. Timberlake received the same treatment as any other defendant. Justice should be applied equally to all individuals, regardless of their wealth or celebrity status. Drunk and drugged driving is an extremely serious nationwide public safety issue," DA Ray Tierney said. "These drivers threaten the lives of random and innocent roadway users of every age, gender, ethnicity, and economic status. In 2024, with the prevalence and convenience of public transit and ride-shares, there is no excuse to get behind the wheel when you are impaired in any way."

The family of Boy Scout Andrew McMorris, who was killed by a drunk driver on Long Island in 2018, was inside the courtroom. "I do feel he was sincere, and I can only hope that his platform with everyone here will make a significant change," mom Alisa McMorris said. "This gives me hope that maybe the next generation will be the generation that ends drunk and impaired driving."

As I have articulated in the past in conjunction with other celebrity DUI sentencings, I think society's strong interest in educating and deterring potential drunk drivers might call for subjecting these offenders to more significant and/or creative alternative sanctions. Adding community service is a start, but why not require Timberlake, who is in the middle of a word tour, to make certain announcements discussing the dangers of DUI at his upcoming concerts?  I strongly share the hope that the "next generation will be the generation that ends drunk and impaired driving," but advancing that cause likely requires a lot more than a " groveling, court-ordered apology" from a societal icon.

Former Prez Trump's state sentencing date push to week of Thanksgiving

As reported in this New York Times piece, the "judge overseeing Donald J. Trump’s criminal case in Manhattan postponed his sentencing until after Election Day, a significant victory for the former president as he seeks to overturn his conviction and win back the White House."  Here is more from the start of the article:

In a ruling on Friday, the judge, Juan M. Merchan, rescheduled the sentencing for Nov. 26. He had previously planned to hand down Mr. Trump’s punishment on Sept. 18, just seven weeks before Election Day, when Mr. Trump will face off against Vice President Kamala Harris for the presidency.

While the decision will avert a courtroom spectacle in the campaign’s final stretch, the delay itself could still affect the election, keeping voters in the dark about whether the Republican presidential nominee will eventually spend time behind bars.

It is unclear whether sentencing Mr. Trump in September would have helped or harmed him politically; his punishment could have been an embarrassing reminder of his criminal record, but could have also propelled his claims of political martyrdom.

Justice Merchan’s decision came at the request of Mr. Trump, who had asked to delay the sentencing until after the election, partly so he had more time to challenge his conviction. Prosecutors working for the Manhattan district attorney, Alvin L. Bragg, who brought the case, had deferred to the judge, paving the way for at least a brief postponement.

UPDATE: I have now seen this letter released by Justice Merchan to explain his adjuornment decision. Here are a few key passages:

'This matter is one that stands alone, in a unique place in this Nation's history, and this Court has presided over it since its inception — from arraignmcnt to jury verdict and a plenitude of motions and other matters in-between.  Were this Court to decide, after careful consideration of the Supreme Court's decision in Trump, that this case should proceed, it would be faced with one of the most critical and difficult decisions a trial court judge faces — the sentencing of a defendant found guilty of crimes by a unanimous jury of his peers....

Unfoftunately, we are now at a placeirn time that is fraught with complexities rendering the requirements of a sentencing hearing, should one be necessary, difficult to execute.  Thus, in accordance with certain of the grounds submitted by Defendant and the reasons for adiournment provided by the People coupled with the unique time frame this matter currently finds itself in, the decision on the CPL § 330.30 motion and the imposition of sentence will be adjourned to avoid any appearance — however unwarranted — that the proceeding has been affected by or seeks to affect the approaching Presidential election in which the Defendant is a candidate.

On morning of scheduled federal trial, Hunter Biden attempts to enter an Alford plea

As reported here in the Washington Post, "President Joe Biden’s son Hunter tried to resolve his federal tax case Thursday as jury selection was about to begin, offering an Alford plea in which he maintains he is innocent but acknowledges that the prosecution’s evidence would likely result in a guilty verdict." Here is more:

Prosecutors objected to the proposal, which they had not been told of in advance.  U.S. District Judge Mark Scarsi is expected to decide this afternoon whether to adjourn the proceedings until Friday or give the two sides more time to come to agreement.

“I want to make crystal clear: the U.S. opposes an Alford plea ... Hunter Biden is not innocent, he is guilty," Leo Wise, an attorney working for special counsel David Weiss, told the judge. "We came to court to try this case.”

Biden’s attorney, Abbe Lowell, noted that Alford pleas are an option available to all criminal defendants — even though such plea agreements are relatively rare. “All over the U.S. people do this,” Lowell said.  "It’s not that [Hunter Biden] seeks special treatment, but that he gets the same rights as everyone who is charged.”

Weiss charged Biden last year on nine tax-related counts, accusing him of failing to pay at least $1.4 million in federal taxes from 2016 through 2019.  Three charges were felonies and six were misdemeanors.  They include failing to file and pay taxes, tax evasion and filing false tax returns. Weiss separately charged Biden last year with three felony gun counts in Delaware.  A jury convicted Biden on all three charges in June, and he is scheduled for sentencing in November.

The indictments came after a lengthy investigation into Biden’s business dealings while his father was vice president, which Republican lawmakers and former president Donald Trump have tried to use as evidence of corruption within the Biden family. No evidence has surfaced publicly to suggest any wrongdoing by Joe Biden.

The younger Biden has said he has undergone treatment for addiction and is no longer using drugs. While his addiction to crack cocaine was a central theme of his gun trial, the Los Angeles case is expected to delve into Biden’s lavish spending and sex life during that period — much of which he chronicled in his 2021 memoir. Among the accusations laid out in the nine-count indictment is that Biden wrote off money he paid sex workers as business expenses on his tax forms.

An Alford plea, named after a case North Carolina v. Alford, is a way for a defendant to register a formal admission of guilt toward charges they are facing while simultaneously maintaining their innocence. United States attorneys are only able to consent to Alford pleas “in the most unusual of circumstances” and consult with top officials at the Department of Justice before doing so, according to federal prosecution guidelines....

The president, who has made clear he thinks the criminal charges against his son are politically motivated, has said emphatically that he does not plan to pardon Hunter Biden’s criminal convictions. Some of Hunter Biden’s allies hope he will change his mind, however, and issue a pardon after the November election.

Just as Hunter Biden was beginning the day in court, the president was leaving the White House to travel to La Crosse, Wis., for an event touting his administration’s economic policies. From Air Force One, White House press secretary Karine Jean-Pierre reiterated that the president would not pardon or commute Hunter Biden’s sentence. “No," she told reporters on Air Force One. "It is still very much a no.”

UPDATE: This Politico article reports that Hunter Biden's guilty plea was entered this afternoon, though it appears it was just a standard open plea to the charges rather than an Alford plea:

Hunter Biden pleaded guilty Thursday to tax evasion and other tax crimes in an 11th-hour about-face that surprised prosecutors as a trial was about to begin....

The only remaining question now is how much prison time, if any, Biden will face. Shortly after Biden entered his guilty plea, U.S. District Judge Mark Scarsi scheduled his sentencing on the tax charges for Dec. 16. Biden is scheduled to be sentenced in the gun case in November.

Biden faces up to 17 years in prison for the tax charges, though experts say lighter sentences in similar cases are more common. Scarsi will consider Biden’s admission of guilt when he sentences him....

The plea was not part of a plea deal, meaning prosecutors did not promise to recommend a reduced prison sentence....  After Scarsi questioned the Alford arrangement and signaled he might seek further legal arguments on whether he should accept it, Biden conferred with his lawyers and entered a straightforward guilty plea.

<P>As Scarsi questioned Biden about the plea in open court, the judge stressed that he still had the authority to hand down a hefty sentence.  “With regard to sentencing, there’s no guarantees. You understand that?” Scarsi, an appointee of Donald Trump, asked....

Biden is scheduled to be sentenced on Nov. 13 in the gun case, where federal sentencing guidelines recommend up to 21 months in prison, though Biden could receive much less or even no prison time at all.  In the tax case, prosecutors alleged that Biden earned more than $7 million during the years in question and later plotted to fraudulently lower the taxes he owed on that income by falsely labeling trips and other luxury purchases as business expenses. They said he used the money to fund a lavish lifestyle filled with drugs, strippers and sports cars.

Reviewing the state and challenges surrounding former Prez Trump's approaching state sentencing date

The New York Times has this lengthy new piece, headlined "In Deciding When to Sentence Trump, Judge Faces ‘Impossible’ Task," providing a reminder that former Prez Donald Trump is scheduled to be sentenced two weeks from today and all of issues surrounding that reality.  Here are some excerpts:

Justice Merchan has made a steadfast effort to approach the landmark case no differently than hundreds of others he has overseen.  But more than three months after a Manhattan jury convicted Mr. Trump on 34 felony counts of falsifying records to cover up a sex scandal, the veteran judge faces his greatest predicament: He must decide whether to sentence Mr. Trump as planned on Sept. 18 or wait until after Election Day, as Mr. Trump has requested.

Justice Merchan has already agreed to delay the sentencing once, and his upcoming decision — which will be made in the heat of a presidential campaign that has pitted Mr. Trump against Vice President Kamala Harris — will reverberate well beyond his Lower Manhattan courtroom.  The decision could influence not only the election, but American politics for years to come.   And it will almost certainly subject Justice Merchan to partisan second-guessing at a time when the nation’s faith in the judiciary has been shaken by the Supreme Court’s decisions on abortion, guns and other issues, as well as revelations about some of its justices’ own political entanglements....

While Mr. Trump has already been deemed a felon, if Justice Merchan postpones his sentencing until after the Nov. 5 election, the American people will vote without knowing whether Mr. Trump will spend time behind bars.  A delay would also reward the stalling tactics Mr. Trump has deployed throughout the case, and feed the very impression the judge has labored to dispel — that the former president is above the law.  Yet if Justice Merchan, a moderate Democrat who was once a registered Republican, imposes a sentence just seven weeks before Election Day, Mr. Trump will no doubt accuse him of trying to tip the campaign in favor of Ms. Harris....

“Whatever decision Judge Merchan makes will not only be the right decision, it will be driven by nothing other than that which occurred in the context of this case,” said Jill Konviser, a retired judge who has known Justice Merchan for more than 15 years.  “Donald Trump will be treated fairly,” she added.  “Of that, I am 100 percent sure.”...

After finalizing Mr. Trump’s sentencing date, Justice Merchan faces still more delicate decisions.  The judge has promised to rule this month on Mr. Trump’s request to throw out his conviction in light of a new Supreme Court ruling granting presidents some immunity from prosecution.  And, at some point, he will have to actually decide whether to put Mr. Trump behind bars.

Mr. Trump, the first president to become a felon, faces up to four years in prison.  But legal experts believe it is more likely that Justice Merchan will sentence Mr. Trump to a few months in jail or probation.  Whatever his punishment, Mr. Trump is unlikely to be incarcerated before the election.  Even if the judge hands down the sentence on Sept. 18, he could postpone any punishment until after Election Day, or, if Mr. Trump wins back the White House, until after his second term expires.

Nor is Justice Merchan likely to have the final say.  The former president will appeal his conviction to higher courts, and if Justice Merchan sticks with the plan to sentence him on Sept. 18, Mr. Trump will likely appeal that decision as well.

Lots of notable front page sentencing issues in next week's sentencing of Backpage

I have not closely followed the legal sagas that have surrounded the website Backpage, which was the huge classified advertising website shut down and seized by federal law enforcement in April 2018.  But next week the Backpage saga has a federal sentencing stage, and this Law360 piece provides a flavor for just some of the issues raised:

Prosecutors asked an Arizona federal judge Monday to sentence two former executives of the defunct classifieds service Backpage.com and the site's co-founder to 20 years in prison after they were found guilty of several counts over an alleged $500 million prostitution scheme.

In a sentencing memorandum, prosecutors said the crimes former executives Scott Spear and John Brunst and Backpage co-founder Michael Lacey were convicted of caused extraordinary harm and amounted to "one of the internet's largest and longest-running criminal empires."

Prosecutors say the website facilitated prostitution through ads. Spear and Brunst were convicted of multiple counts after a 28-day trial in November while two other executives were acquitted. Lacey was found guilty of one count of money laundering; the jury was deadlocked on dozens of other charges against him. The mixed verdict ended a sprawling case that saw its first trial end in a mistrial in 2021....

In April, U.S. District Judge Diane J. Humetewa rejected some of the jury's findings, tossing nearly three dozen transactional money laundering charges, as well as Travel Act charges against Lacey, but kept the rest of the verdict intact. Sentencing is scheduled for Aug. 27 and 28. Prosecutors said Monday they were "unaware of any mitigating circumstances" for the purposes of sentencing. Spear, Brunst and Lacey showed no remorse following their convictions, prosecutors said.... The prosecutors argued that victim impact statements submitted to the court don't fully encapsulate the harm Backpage inflicted, saying some trafficking victims were killed by perpetrators who found them on the site.

Lacey, Spear and Brunst all requested probation in their own sentencing memorandums filed Monday, arguing that they never intentionally broke the law. Lacey claimed that his only felony conviction was for a "financial crime that he purportedly committed upon the idea and advice of two credentialed lawyers, wherein all reporting rules were followed."....

Spear similarly said in his memorandum that his actions were in line with a law-abiding life.... Brunst said he was never employed by Backpage, but rather worked for Village Voice Media Holdings starting in 1992 and later at Medalist Holdings, a successor entity after VVMH sold its newspapers.

Over at Reason, the arguments surrounding one defendant get extra attention in a piece here headlined "Feds Seek 20-Year Sentence for Backpage Co-Founder Michael Lacey; It's an insane ask for someone convicted of just one nonviolent offense." Here is an excerpt:

Lacey was charged — along with other former Backpage executives — of using Backpage to knowingly facilitate prostitution, in violation of the U.S. Travel Act.  Two of the defendants were acquitted of all such offenses and two of the defendants were found guilty of some of them. But the jury could not reach a conclusion when it came to Lacey. U.S. District Judge Diane Humetewa found there was insufficient evidence to sustain most of the remaining 84 counts against him.

Now, prosecutors want the judge to simply act, for sentencing purposes, as if those charges are all true. Federal prosecutors are also putting Lacey on trial for these charges again — which means that if he is eventually convicted, he could wind up being sentenced twice for the same conduct.

This case and these defendants have many more notable elements, and I found reviewing some of the sentencing memoranda fascinating — eg, the government's memo reports that the PSR recommended 1080 months (90 years) for Spear, who is 73 years old.  Here, thanks to Law360, are the sentencing submissions:

•  US Memo
•  Spear Memo
•  Lacey Memo
•  Brunst Memo

You be the federal judge: what sentence for former US Rep George Santos after his plea to fraud and identity theft?

The remearkable saga of former US Congressman George Santos closed one chapter in the same manner as many federal criminal prosecutions, namely with a guilty plea to a few of many charged counts.  But what sentence should shape the next chapter of the Santos saga?  This press release from the U.S. Attorney's Office in the Eastern District of New York, headed "Former Congressman George Santos Pleads Guilty to Wire Fraud and Aggravated Identity Theft," provides all sorts of details about Santos's misdeeds and starts with these basics:

Santos Admits He Filed Fraudulent FEC Reports, Embezzled Funds from Campaign Donors, Charged Credit Cards Without Authorization, Stole Identities, Obtained Unemployment Benefits Through Fraud, and Lied in Report to the House of Representatives

Earlier today, in federal court in Central Islip, former Congressman George Anthony Devolder Santos pleaded guilty to committing wire fraud and aggravated identity theft.  The proceeding was held before United States District Judge Joanna Seybert.   When sentenced, Santos faces a minimum sentence of two years’ imprisonment and a maximum sentence of 22 years’ imprisonment. As part of the plea Santos will pay restitution of $373,749.97 and forfeiture of $205,002.97.  Santos was initially charged in May 2023, and a superseding indictment charging Santos with additional crimes was returned in October 2023.

This USA Today article provides some context and more sentencing details:

Former Rep. George Santos, R-N.Y., who was expelled from the House of Representatives after being indicted on 23 federal counts including fraud and misusing campaign funds, pleaded guilty Monday in federal court to two of the charges.

The Long Island Republican faces a mandatory two-year minimum sentence after pleading guilty to wire fraud and aggravated identity theft.  But Judge Joanna Seybert estimated the term could range from six to eight years behind bars when he is sentenced on Feb. 7, 2025.  Santos also agreed to pay nearly $374,000 in restitution and to forfeit $205,000.

Santos had faced trial in September on charges including laundering campaign funds to pay for his personal expenses, charging donors' credit cards without their consent, and receiving unemployment benefits while he was employed. "I deeply regret my conduct and the harm it has caused and accept full responsibility for my actions," Santos said in a shaky voice in court.

Prosecutors said Santos told the truth about his criminal schemes for what seemed like the first time since campaigning for Congress. “He admitted to lying, stealing and conning people,” U.S. Attorney Breon Peace said in a statement. “His flagrant and disgraceful conduct has been exposed and will be punished."...

"Moving forward, I am dedicated to making amends for the wrongs I have committed," Santos told reporters outside the courthouse. "This plea is not just an admission of guilt, it is an acknowledgment that I need to be held accountable, like any other American that breaks the law."

So, dear readers, Santos himself says he needs "to be held accountable." How would you punish him to hold him accountable?

Former Prez Trump's lawyers move to "adjourn any sentencing" following his NY convictions "until after the 2024 Presidential election"

As reported here in The Hill, "Former President Trump asked the New York judge who oversaw his recent criminal trial to delay his sentencing until after November’s presidential election." Here is more:

Judge Juan Merchan previously agreed to push the date back until September so he can first decide whether the Supreme Court’s presidential immunity decision requires tossing Trump’s guilty verdict.

“[S]etting aside naked election-interference objectives, there is no valid countervailing reason for the Court to keep the current sentencing date on the calendar,” Trump attorneys Todd Blanche and Emil Bove wrote in a letter to the judge, which was made public Thursday. “There is no basis for continuing to rush,” the letter continued. “Accordingly, we respectfully request that any sentencing, if one is needed, be adjourned until after the Presidential election.”

In May, a New York jury convicted Trump on all 34 counts of falsifying business records to conceal criminal conduct that hid damaging information from voters.... Trump’s sentencing in New York was originally slated for July, but the judge pushed it back to Sept. 18 after the Supreme Court carved out at least presumptive criminal immunity for former presidents’ official acts.

Trump does not claim immunity from the hush money charges themselves, but he asserts that prosecutors at trial improperly introduced immunized evidence, so his verdict must be wiped as a result. Prosecutors have pushed back on the argument, and Merchan is set to rule on the matter two days before sentencing. Trump’s attorneys said the small gap is an “unreasonably short period of time,” signaling the former president will immediately attempt to appeal if the judge rejects his immunity arguments. “The requested adjournment is also necessary to allow President Trump adequate time to assess and pursue state and federal appellate options in response to adverse ruling,” the letter reads.

The letter also noted Merchan’s third refusal to recuse from the case Wednesday. Trump’s lawyers have latched onto the judge’s daughter’s employment at a digital agency that does work for prominent Democrats, but the judge has insisted he has no conflict, citing guidance from a state ethics advisory group. “Notwithstanding the Court’s ruling on the disputed recusal issue, the requested adjournment would prospectively mitigate the asserted conflicts and appearances of impropriety, which are also the subject of an ongoing congressional inquiry,” Blanche and Bove wrote in the letter.

The full letter from Trump's lawyers to Judge Merchan is available at this link.

Longest sentence given to actual Jan 6 rioter, 20 years in federal prison, handed down late last week

This Politico piece, headlined "‘Political violence personified’: Jan. 6 defendant gets 20 years for string of vicious attacks on police," reports on the handing down of the longest sentence given to any person actually involved in the Jan 6 riot.  Here are some details with some sentencing context involving some other Jan 6 defendants:

A California man who cracked the face shield of one police officer, unloaded pepper spray on others and bludgeoned countless officers with poles, boards and even his feet was sentenced to 20 years in prison Friday, the longest sentence handed down to any participant in the violence at the Capitol on Jan. 6, 2021.

Prosecutors called David Dempsey “political violence personified,” and U.S. District Judge Royce Lamberth agreed, saying that even on a day that “will be seared into our nation’s memory as a bloodbath,” Dempsey’s conduct was “exceptionally egregious.”

Of the more than 1,400 people charged with crimes related to the Jan. 6 attack — a violent assault by supporters of former President Donald Trump seeking to prevent the transfer of power to President Joe Biden — only former Proud Boys leader Enrique Tarrio has been sentenced to a lengthier prison term: 22 years. But Tarrio was not present at the Capitol that day. Rather, a jury convicted him of orchestrating a plan for his Proud Boys allies to breach the Capitol and help the larger mob overwhelm police.

Dempsey’s sentence outstrips even the one handed down to Oath Keepers leader Stewart Rhodes, who was sentenced to 18 years in prison last year for similarly orchestrating a plan to violently impede the transfer of power.

Not only did Dempsey, who pleaded guilty to assault, persist in his violence for hours on Jan. 6, but he also came to the Capitol with a massive rap sheet that included other instances of political violence. Throughout the riot, Dempsey placed himself at the center of the most violent episodes, particularly in the Capitol’s Lower West Terrace tunnel, the site of the most extreme violence that day. There he climbed atop other rioters to research the police line and wielded wooden poles and other objects to attempt to injure them.

Several of the officers who defended the Capitol that day sat in the front of the courtroom observing the proceedings, watching silently as prosecutors recounted Dempsey’s intense assaults. One officer who bore the brunt of Dempsey’s attack, Sgt. Jason Mastony, described the moment that Dempsey bashed his head with a crutch, cracking his face shield and causing a gash....

Prosecutors pressed Lamberth to impose a steep sentence in part because Jan. 6 was not an aberration for Dempsey. He has repeatedly gotten violent during protests and has used chemical sprays to disable counterprotesters. Prosecutors played a video of Dempsey using a skateboard to assault a protester at previous rallies, with some moments of violence prompting gasps in Lamberth’s courtroom....

Dempsey’s sentence landed with a particular impact on his family, who were present in the courtroom, including his 7-year-old daughter. After the sentencing, the young girl pranced in the hallway as her mother cried. A family member said the girl had just celebrated her birthday Thursday and isn’t “able to understand what’s going on.”

Only a handful of other Jan. 6 rioters without ties to extremist groups have faced sentences of 10 or more years. They include Peter Schwartz, who had a similarly long rap sheet and received a 14-year sentence; Daniel “D.J.” Rodriguez, who drove a taser into the neck of D.C. police officer Michael Fanone; and Thomas Webster, a retired NYPD officer who attempted to gouge the eyes of a D.C. police officer during a particularly vicious brawl.

A few posts reviewing Jan 6 sentencings from many prior related posts:

• Fascinating new AP accounting of all sentences given to January 6 rioters so far
• Politico provides new review of "Where Jan. 6 prosecutions stand, 18 months after the attack" 
• Reviewing latest data on Jan 6 riot prosecutions and sentencings
• A more detailed accounting of Jan 6 riot sentencings
• "The Relative Severity of Criminal Sentences in the January 6, 2021, Capitol Breach Cases"
• Latest accounting of Jan 6 prosecutions and sentences

Is Senator Bob Menendez now facing a de facto life sentence after being convicted by a jury on all 16 federal corruption counts?

The question in the title of this post is prompted by this news via Bloomberg Law: " US Senator Bob Menendez, the powerful New Jersey Democrat, was found guilty of corruption charges related to the FBI seizure of 13 gold bars, nearly $500,000 in cash and a Mercedes-Benz at his home.  Menendez was convicted on all 16 counts Tuesday after a two-month trial in New York, where prosecutors argued the lawmaker had sold his influence to protect businessmen and to promote Egypt’s interests."  Here is more: 

The government alleged Menendez’s wife, Nadine, was a go-between who collected bribes and set up meetings with the businessmen and Egyptian officials. She was also charged, but will face a later trial.

After the verdict was read out, one of Menendez’s lawyers patted the senator on the shoulder. The judge set a sentencing date for Oct. 29 for Menendez and his two co-defendants. Menendez is certain to appeal.

The three-term senator was the first member of Congress charged with being a public official acting as a foreign agent. In all, Menendez was convicted of charges including bribery, extortion, conspiracy, honest services wire fraud and obstruction of justice.

Menendez, the senior Hispanic lawmaker in Congress, saw his political support evaporate in Washington and New Jersey amid the publicity of the cash, gold and convertible seized by agents from his home in 2022. After his indictment, he resigned as chairman of the Senate Foreign Relations Committee. He could face expulsion from the Senate, where Democrats hold a 52-48 advantage.

The bribes began when Menendez, 70, started dating Nadine Arslanian in 2018, just after an earlier corruption trial against him ended in a hung jury, prosecutors said. They wed in 2020.  During the latest criminal trial, jurors held gold bars stashed in the Menendez house, heard about their tumultuous relationship, and watched a secret FBI video of the couple dining at a Morton’s steakhouse with an Egyptian intelligence official.

Menendez was tried with Fred Daibes, a real estate developer in Edgewater, New Jersey, and Wael Hana, who secured an Egyptian monopoly to certify US meat bound for Egypt as compliant with halal standards. Daibes and Hana also were convicted of bribery and wire fraud charges.  A third businessman, former insurance broker Jose Uribe, pleaded guilty and testified he bribed Arslanian with a Mercedes.

Prosecutors said Menendez corruptly helped Egypt secure US military aid and sensitive information; urged a US agriculture undersecretary to stop questioning Hana’s halal monopoly; weighed appointing a US attorney in New Jersey who would influence a 2018 fraud indictment of Daibes; contacted the New Jersey attorney general to disrupt New Jersey criminal probes of two people close to Uribe; and helped Daibes arrange financing from Qatari investment fund for a real estate project.

Menendez didn’t testify but denied wrongdoing. His lawyers said he took no bribes or official actions to advance any quid-pro-quo schemes. His attorney Adam Fee derided the US case as “painfully thin,” woven from “fantasy” speculation and misguided inferences.  “The prosecutors are going to continue to tell you, in excited tones, that Senator Menendez is a crook, is corrupt, took a bunch of bribes,” Fee said in his summation. “His actions were lawful, normal, and good for his constituents, and this country.”

Defense lawyers sought to defuse the explosive heart of the case — gold bars and cash stuffed in closets, boots, jackets, a safe and a shopping bag. Using fingerprints and DNA evidence, prosecutors traced $82,500 of cash-stuffed envelopes to Daibes.  Serial numbers on two one-kilogram gold bars, valued at about $60,000 each, matched those on a list Daibes kept. Daibes, who grew up in a Palestinian refugee camp, gave other kilogram bars to Nadine Menendez, who sold all but two before the FBI raid, the US said. Defense lawyers said she inherited gold bars from her Lebanese family, and there’s no proof the gold she sold came from Daibes.

Fee said Menendez’s Cuban immigrant parents hoarded cash, and that the senator routinely withdrew $400 for decades from a bank account. He also argued Daibes had been friends with Menendez for 30 years, and he gave gifts out of friendship, not corrupt intent.

Because I am not familiar with all the offense details, I am disinclined to guess the precise guideline range that Senator Menendez will be facing. But the basics suggest to me he might easily be looking at an offense level over 35, meaning a guideline range of perhaps at least 15-18 years. It will be quite interesting to see how this sentencing unfolds and whether the Senator gets bail pending the inevitable appeal.

New York state sentencing of former Prez Trump delayed until September 18, 2024

As reported in this Fox News piece, "Judge Juan Merchan has delayed former President Trump's sentencing in New York v. Trump to September, after requests from the presumptive Republican nominee to do so, and no opposition from Manhattan District Attorney Alvin Bragg." Here is more:

Trump on Monday moved to overturn his criminal conviction in the Manhattan case after the U.S. Supreme Court ruled that a former president has substantial immunity for official acts committed while in office. He also requested to delay his sentencing, which was set for July 11 — just days before the Republican National Convention where he is set to be formally nominated the 2024 GOP presidential nominee.

Bragg, on Tuesday morning, said Trump's request to toss the verdict was without merit, but did not oppose the request to delay sentencing. Merchan on Tuesday afternoon delayed Trump's sentencing date to Sept. 18 at 10:00 a.m.

"The July 11, 2024, sentencing date is therefore vacated. The Court’s decision will be rendered off-calendar on September 6, 2024, and the matter is adjourned to September 18, 2024, at 10:00 AM for the imposition of sentence, if such is still necessary, or other proceedings," Merchan wrote in a letter to Trump attorneys and New York prosecutors.

Federal prosecutors finalize plea deal to resolve charges (and to enable release) of Julian Assange

This Washington Post article reports on a notable and unusual federal plea deal in the works for a notable and unusual federal defendant, and the full headline details the basics: "WikiLeaks founder Julian Assange expected to plead guilty to felony charge: After serving five years in a British prison, a new court filing indicates Assange is preparing to plead guilty to a single U.S. charge and will be allowed to return to his home country of Australia."  Here is how the article starts with links to some key documents:

Julian Assange, the founder of the anti-secrecy site WikiLeaks, has reached a tentative deal to plead guilty to one count of violating the Espionage Act for his role in obtaining and publishing classified military and diplomatic documents from 2009 to 2011, according to court filings.

The plea deal would end a long-running legal saga and a transatlantic tug-of-war that pitted national security against press freedom.

He is expected to be sentenced on Wednesday in the Northern Mariana Islands, according to a letter filed by the Justice Department in the remote U.S. jurisdiction Monday evening. He will then return to his home country of Australia, the letter says, indicating he will be sentenced to the 62 months he has already spent behind bars in a London prison.

A criminal information filed alongside the letter says Assange “knowingly and unlawfully conspired” with Chelsea Manning to “receive and obtain documents … connected with the national defense” and “communicate” that information to “persons not entitled to receive” it. Manning, then a young Army intelligence analyst in Iraq, was convicted of violating the Espionage Act and other laws at a court-martial in 2013.

“This period of our lives, I’m confident now, has come to an end,” his wife and attorney Stella Assange said in a video statement filmed last Wednesday and released after the court documents were filed. “Julian will be free.”

Assange, whose snow-white hair became recognizable worldwide, was a polarizing figure. Supporters saw him as a courageous journalist whistleblower of government misdeeds, but his detractors saw a pompous self-promoter interested primarily in fame and oblivious to the harm his leaks might cause.

A commentor here wonders about what could happen if the federal judge were to reject this plea deal. I doubt that is likely, but one never knows.

Also notable are news report that Assange's wife has already started discussing seeking a federal pardon for her husband. I believe Donald Trump talked about considering a pardon for Assage both while he was president and more recently on the campaign trail.

Celebrating Father's Day rounding up sentencing stories regarding two high-profile fathers awaiting sentencing

An exiting finish to the US Open, some nice gifts, and calls with my dad and from my children all contributed to a very enjoyable Father's Day for me.  But at least two high-profile fathers  must have spent at least a moment or two today having to worry about their upcoming sentencings.  In light of that reality, I figured I would flag a few recent sentencing pieces catching my eye regarding these two fathers:

On sentencing Donald Trump:

From ABC News, "Will Trump go to prison for felony hush money conviction? Experts are split"

From CNBC, "Will Donald Trump go to jail? Here’s what to expect from the former president’s sentencing"

From Rolling Stone, "The Legal Case for Sentencing Trump to Prison"

From the Washington Examiner, "Bannon warns Trump will be sentenced to ‘multiple years in prison’ despite experts saying otherwise"

 

On sentencing Hunter Biden:

From CNN, "Hunter Biden next faces sentencing in gun case"

From the Daily Mail, "What are the sentences other people have received for Hunter's crimes?"

From the New York Post, "Hunter Biden judge once gave stiff sentence in similar gun case"

From Set for Sentencing, "Hunter Biden Conviction - What To Expect at Sentencing"

Rounding up some early accounts of how Hunter Biden will be sentenced

I have already seen a handful of commentaries mapping out the dynamics of the federal sentencing of Hunter Biden following his conviction on three felonies.  This New York Times piece, headlined "Will Hunter Biden Go to Jail? Here’s What His Sentence Could Look Like," provides these useful particulars:

According to the most recent manual published by the United States Sentencing Commission, which sets recommended sentencing guidelines, someone in Mr. Biden’s position would typically face 15 to 21 months’ imprisonment for offenses related to the unlawful receipt, possession, or transportation of firearms.

From 2019 to 2023, just 52 defendants were sentenced in a similar category as Mr. Biden, and 92 percent were sentenced to serve prison time with a median prison term of 15 months, according to the commission’s data. Around 8 percent of people in that category received probation or a fine.

But judges frequently depart from the suggested guidelines when handing down a sentence and may reduce the time spent in prison in light of the particular circumstances unique to each case.

And here are a few other press pieces discussing some sentencing issues at some length:

From CBS News, "Is Hunter Biden going to prison? What to know about the possible sentence after his conviction"

From PBS News Hour, "What federal guidelines suggest for Hunter Biden’s sentencing"

From the New York Post, "Hunter Biden judge once gave stiff sentence in similar gun case"

From USA Today, "What's next for Hunter Biden? Sentencing, likely appeal and looming trial on tax charges"

What facts should matter (and not matter) most at federal sentencing after Hunter Biden is convicted by jury on three felony counts?

These are heady times for historic sentencing proceedings.  As New York state actors are working through the process of preparing for former President Donad Trump's state sentencing after his conviction last month on 34 state felony counts following a lengthy trial, we know now that federal actors need to start working through the process of preparing for current President Joe Biden's son, Hunter, to be federally sentenced after his conviction today on three federal felony counts following a short trial.  Here are the basics via the New York Times' latest live update:

A jury in Wilmington, Del., on Tuesday found Hunter Biden, President Biden’s long-troubled son, guilty of three felony counts of lying on a federal firearms application in 2018, a grievous personal blow to the Biden family as his father enters the final months of a brutal re-election campaign.  He could face up to 25 years in prison, but first-time offenders who did not use their weapons to commit a violent crime typically receive no jail time....

Here’s what else to know:

A sentencing date was not set: The judge in the case, Maryellen Noreika, did not set a date for sentencing, but said it would typically be about 120 days after the verdict — that’s early October, or about a month before the election. Although the maximum possible sentence Mr. Biden faces is more than two decades behind bars and $750,000 in fines, federal sentencing guidelines call for a fraction of that penalty.

No pardons are coming: President Biden has said he will not pardon his son.  The president kept his distance from the trial and was out of office on Oct. 12, 2018, when Hunter Biden asserted he was drug-free on a background check at a time when he was addicted to crack cocaine.

His legal troubles are not over: The Delaware case, brought by the special counsel David C. Weiss, is widely regarded as the least serious of the two federal indictments against Hunter Biden brought last year.  He still faces serious tax charges in Los Angeles stemming from his failure to pay the government during a yearslong crack, alcohol and spending binge; the trial is scheduled to start in September.

I have not yet sought to work through the likely (advisory) guideline calculations for Hunter Biden, but I have already seen reports that the estimated guideline range would be for over a year of federal prison time.  Even after the Supreme Court made the guidelines advisory, federal judges are duty bound to still consider them at sentencing along with the other sentencing factors detailed by Congress in 18 USC § 3553(a).

But, of course, many of the instructions in 3553(a) are quite vague -- eg, judges must consider the "nature and circumstances of the offense and the history and characteristics of the defendant."  That vague phrase and others in federal sentencing law prompt the question in the title of this post.  Should Judge Noreika give particular weight to, or make a focused effort to limit her consideration of, Hunter Biden's struggles with addiction at the time of his offenses?  His indictments on various other alleged crimes and other alleged misbehaviors?  The wide range of unique consequences associated with being the son of a president?

Rounding up some early commentary on the coming sentencing of Donald Trump

I have already seen an number of notable commentaries on the upcoming sentencing of Donald Trump, and I figured it worthwhile to round some of them up here:

From MSNBC authored by Frank Bowman, "The case for imprisoning Donald Trump: Trump’s status renders his offense far more serious and his behavior during the case indefensible, thus making a prison sentence more plausible."

From National Review authored by Jeffrey Blehar, "Is Judge Merchan Crazy Enough to Give Trump Jail Time?"

From the New York Times authored by Norman Eisen and Nancy Gertner, "Should Trump Be Sentenced to Prison? Two Opposing Views."

From the Washington Post authored by Ruth Marcus, "Will Trump do time in jail? Here’s how Justice Merchan should rule."

From the Washington Post authored by Jennifer Rubin, "The best argument to lock up Trump: Merchan must protect the judiciary"

Prior recent related posts:

• Some sentencing basics after former President Donald Trump's convictions on 34 felony New York counts 
• Will Donald Trump make a statement on his behalf at his upcoming sentencing?
• Could Donald Trump, as felon dispossessed of guns, (further) impact Second Amendment jurisprudence? 

Could Donald Trump, as felon dispossessed of guns, (further) impact Second Amendment jurisprudence?

I believe Donald Trump does not formally become a convicted felon until judgment is entered following his sentencing next month.  But it is not too early to think about some of the collateral consequences of his conviction.   Today I got to thinking about the fact that Trump, as a convicted felon, needs to soon become dispossessed of any firearms due to federal law (and also state laws) making it a serious crime for a felon to possess a gun.  This HuffPost piece, headlined "Donald Trump, Convicted Felon, Just Lost His Gun Rights," discusses these issues, and it notes that Trump has said that he owns and carries guns:

Trump rarely discusses his personal use of firearms.  But in a 2012 interview, he told The Washington Times that he held a concealed carry license in New York and owned two handguns — a .45-caliber H&K and a .38-caliber Smith & Wesson. Trump told French Magazine Valeurs Actuelles four years later, “I always carry a weapon on me.”

Not discussed by HuffPost piece is the fact that two federal circuit courts and some federal district courts have decided that the federal felon-in-possession criminal law, 18 USC § 922(g)(1), is unconstitutional as applied to non-violent offenders after the Supreme Court's landmark Second Amendment Bruen ruling.  And, of course, the Supreme Court is actively considering the reach and application of its Bruen ruling in the Rahimi cases concerning another § 922(g) prohibition on certain justice-involved persons possessing guns.  But it is unlikley the Rahimi case will clearly resolve the constitutionality of § 922(g)(1).

Donald Trump has already had a profound impact on Second Amendment jurosprudence because he appointed three Justices to the Supreme Court who had a key role in the Court's 2022 Bruen ruling.  But I cannot help but wonder if Trump's status as a non-violent felon subject to § 922(g)(1) might possibly add momentum to the developing Second Amendment jurisprudence that limits who can be forever dispossessed of firearms.  (A notable 2009 article on these issues, titled "Why Can't Martha Stewart Have a Gun?," detailed the lack of longstanding constitutional history supporting a ban on non-violent felons possessing firearms.  Perhaps it is time for an updated new title for this work:"Why Can't Donald Trump Have a Gun?".)

Prior recent related posts:

• Some sentencing basics after former President Donald Trump's convictions on 34 felony New York counts 
• Will Donald Trump make a statement on his behalf at his upcoming sentencing?

Will Donald Trump make a statement on his behalf at his upcoming sentencing?

Though Donald Trump just prior to trial stated that he would testify at his his New York state criminal trial, he ultimately decided  not to take the stand.  That choice was greatly influenced, I suspect, by the fact that taking the stand at trial would have subjected him to cross-examiniation by the prosecution and the risk of additional legal troubles if he were not entirely truthful when giving sworn testimony under oath.

But with the New York criminal jury trial concluded and Trump's sentencing on 34 felony counts now scheduled for July 11, what Trump can say on his own behalf takes on a different posture.  Specifically, New York criminal procedure law provides that before sentencing, the court must hear not only from the prosecution and defense attorneys, but the "defendant also has the right to make a statement personally in his or her own behalf."  I presume this personal statement in the courtroom prior to sentencing does not have to be provided under oath, nor is it subject to cross-examination.  In other words, Trump will have an opportunity to make a statement in the courtroom at his sentencing that is not subject to some legal and strategic consequences that likely led him to decide not to testify during his trial.

That said, any statement by Trump at his sentencing still could be full of legal risks.  In some cases, defense attorneys counsel their clients not to make any significant statements at sentencing if fearful that statement might rub the sentencing judge the wrong way.  And, in light of Trump's many out-of-court comments about his legal predicament, I could not help but thinking of this legendary passage from the late Judge Marvin Frankel's legendary book, Criminal Sentences: Law Without Order: 

[During] a casual anecdote over cocktails in a rare conversation among judges touching the subject of sentencing,  Judge X ... told of a defendant for whom the judge, after reading the presentence report, had decided tentatively upon a sentence of four years' imprisonment.  At the sentencing hearing in the courtroom, after hearing counsel, Judge X invited the defendant to exercise his right to address the court in his own behalf.  The defendant took a sheaf of papers from his pocket and proceeded to read from them, excoriating the judge, the "kangaroo court" in which he'd been tried, and the legal establishment in general.  Completing the story, Judge X said, "I listened without interrupting.  Finally, when he said he was through, I simply gave the son of a bitch five years instead of the four." 

I think it will be quite interesting to see if Trump decides to exercise his right under New York law "to make a statement personally" prior to his sentencing.  The predicted strategic costs/benefits for testifying at trial led to nearly all legal pundits predicting Trump would not take the stand, and they proved right.  But with the calculations and context different in a sentencing proceeding, I am not quite sure what to expect.   

Some sentencing basics after former President Donald Trump's convictions on 34 felony New York counts

I am not an expert on New York sentencing law and practice, though I expect a whole lot of folks will soon be opining on these topics now that former President Donald Trump has been convicted by a jury on 34 New York felony counts.  This CBS News piece seems to review some sentencing basics pretty well:

Trump was convicted by the jury Thursday on 34 felony counts for falsifying business records to conceal a $130,000 payment to adult film star Stormy Daniels to buy her silence before the 2016 presidential election.  The jury in Manhattan returned a guilty verdict after a trial that stretched six weeks and featured more than 20 witnesses.

Each of the 34 felony charges carries up to a $5,000 fine and four-year prison sentence.  But whether Trump will go to prison is another question — one that's up to the judge at sentencing.  The judge set a July 11 date for sentencing following the jury's verdict on Thursday.

The timing is in line with similar white-collar felony cases, where sentencing often takes place anywhere from three to eight weeks after conviction, according to Dan Horwitz, a defense lawyer who formerly prosecuted white-collar cases for the Manhattan District Attorney's office.  The sentencing will happen four days before the start of the Republican National Convention.

The minimum sentence for falsifying business records in the first degree is zero, so Trump could receive probation or conditional discharge, a sentence of no jail or up to four years for each offense.  Trump would likely be ordered to serve the prison time concurrently for each count, so up to four years, total.

"The judge could sentence him to anything between zero and the max," Horwitz said. "So he could sentence him to a period of months in jail, he could sentence him to a period of weeks in jail, he could sentence him to a sentence where he is required, for example, to go to jail every weekend for a period of time and then serve the rest of the sentence on probation."

In an analysis of comparable cases brought by the Manhattan district attorney's office, Norm Eisen, who has written a book about Trump's 2020 election-related federal indictment and served as special counsel in the first impeachment of the former president, found that about 10% resulted in imprisonment.  But the circumstances surrounding the case make any across-the-board comparison difficult.

Trump could also be sentenced to home detention, where he would wear an ankle bracelet and be monitored rather than going to jail.  Horwitz suggested that a home detention sentence, which walks a middle ground between no punishment and a stint in state prison, might be the most likely outcome.  It would also satisfy Trump's unusual security and political situation.

A home detention sentence would also make it possible for Trump to continue campaigning — albeit virtually — with the ability to hold news conferences and remain active on social media....

There are a number of factors that the court can take into consideration for sentencing, including the nature and extent of the conduct, who was hurt, whether there are victims, and acceptance of responsibility, Horwitz said.  Trump has repeatedly denied any guilt in the case....

A defendant's conduct during the trial may also play a role, so Trump's repeated violation of Merchan's gag order may be a significant factor in his sentencing. During the trial, Trump was accused over a dozen times of violating a gag order preventing him from making public comments about likely witnesses, jurors, attorneys and court staff involved in the case.

Whatever Trump's formal sentence, he is certain to endure any number of formal and informal collateral consequences as a result of his convictions.  This Politico article flags an interesting one in its headline: "There’s a real possibility Trump can’t vote in November."

Though I suspect lots of folks may be eager to discuss lots of issues beyond the specifics of Trump's upcoming NY sentencing, I would be eager to hear as much discussion of sentencing law and practice as possible in the comments.  I say that in part because there are so many interesting and intricate sentencing issues that arise in this historic and controversial case.  For example, should state prosecutors assert that, and should Merchan consider, Trump's other alleged criminal behaviors as detailed in three other pending criminal indictments are aggravating factors calling for a more severe sentence?    

Local prosecutor drops all criminal charges against No. 1 golfer Scottie Scheffler

I noted in my post here two weeks ago after World No. 1 golfer Scottie Scheffler was arrested during a traffic misunderstanding that I was puzzled he was charged with four criminal offenses, including the serious felony charge of second-degree assault.  Today, a local prosecutor dropped all these charges, stating in court the evidence from the enounter did "not satisfy the elements of any criminal offenses."  Here are more details from this ESPN piece:

Criminal charges have been dropped against world No. 1 golfer Scottie Scheffler after the Jefferson County Attorney's Office in Louisville, Kentucky, said it would not pursue the case that stemmed from a traffic incident outside the PGA Championship earlier this month.

Jefferson County Attorney Mike O'Connell asked for the charges to be dismissed with prejudice -- meaning they can't be filed again in the future -- during a court hearing Wednesday.

"Based upon the totality of the evidence, my office cannot move forward in the prosecution of the charges filed against Mr. Scheffler," O'Connell said. "Mr. Scheffler's characterization that this was a 'big misunderstanding' is corroborated by the evidence. The evidence we reviewed supports the conclusion that Detective [Bryan] Gillis was concerned for public safety at the scene when he initiated contact with Mr. Scheffler. However, Mr. Scheffler's actions and the evidence surrounding their exchange during this misunderstanding do not satisfy the elements of any criminal offenses."...

Scheffler's attorney, Steve Romines, had previously said his client would plead not guilty and wasn't interested in a plea deal. "I am prepared to litigate as needed and the case will be dismissed, or we will go to trial because Scottie did absolutely nothing wrong," Romines said.

Interestingly, today also brought this new story based on a new video in which "Scottie Scheffler admitted to cops 'I should have stopped' before accusing 'over-aggressive' Detective Bryan Gillis of 'hitting me with his flashlight.'" 

Former Baltimore prosecutor Marilyn Mosby gets a year of home detention in federal sentencing for perjury and fraud

As reported in this AP piece, a "former Baltimore city prosecutor who achieved a national profile for charging police officers in a Black man’s death was spared any prison time in her sentence Thursday for perjury and mortgage fraud. Marilyn Mosby’s sentence includes 12 months of home confinement, 100 hours of community service and three years of supervised release." Here is more: 

Mosby was convicted of lying about her finances to make early withdrawals from retirement funds during the COVID-19 pandemic, and fraudulently claiming that her own $5,000 was a gift from her then-husband as she closed on a Florida condominium.

Mosby, 44, has maintained her innocence. She declined to address U.S. District Judge Lydia Kay Griggsby before learning her sentence. Her lawyers said they would appeal while they seek a presidential pardon,

It’s a sad day for Mosby and her family, the judge told Mosby. “It’s also a sad day for the city of Baltimore,” said Griggsby, adding that Mosby displayed a “pattern of dishonesty” while serving in a public office. She also noted that her crimes didn’t involve any taxpayer money and said the prospect of separating Mosby from her two young daughters “weighed very heavily” on her decision.

Griggsby questioned Assistant U.S. Attorney Sean Delaney when he argued for a 20-month sentence. “Are there victims and who are they?” she asked. “It’s a good question, your honor,” Delaney responded. “I get it. This isn’t an embezzlement case.”

Delaney said it harms the public when a public official lies under oath: “All citizens are victims when their public officials lie,” he said. Delaney also denied claims by Mosby’s supporters that she is a victim of selective prosecution and said she has repeatedly lied about the case and prosecutors’ handling of it. “These lies demonstrate that Marilyn Mosby is unremorseful, that she has no regard for the truth,” Delaney said.

Mosby, 44, gained a national profile when she charged officers in the 2015 death of Freddie Gray, which led to riots and protests in the city. After three officers were acquitted, Mosby’s office dropped charges against the other three officers. She ultimately served two terms before she was indicted and lost reelection. The judge told one of Mosby’s attorneys, James Wyda, that Mosby’s lack of contrition “weighs heavily” on her sentencing. “That’s of deep concern to the court,” she said, calling it “a barrier” to their request for no prison time.

Wyda argued that Mosby is “in a category of one,” a unique case. “This is not a public corruption case,” he said. “There was no financial loss to any victim.” Wyda, a federal public defender, said Mosby’s legal team will be appealing her conviction and sentence while also seeking a presidential pardon. “Jail is not a just sentence for Ms. Mosby. Not for her family. Not for the community,” he said.

Prior related post:

• Any predictions for this week's scheduled sentencing of former Baltimore prosecutor Marilyn Mosby?

World's greatest (golf) driver gets (over?) charged for reckless driving on way to PGA Championship

I have been looking forward to spending my weekend mostly ignoring work while watching the PGA Championship to see if World No. 1 golfer Scottie Scheffler could secure the second leg of the Grand Slam after his impressive Masters victory last month.  But an unfortunate incident, as detailed in this Fox News story, now has me thinking about work in conjunction with Scheffler as I trying to figure out Kentucky criminal procedure and sentencing law.  Here are some particulars in a story that I still find stunning:

Scottie Scheffler ended Thursday within striking distance of the lead in hopes of winning the first PGA Championship of his career, but Friday got off to a rough start. Scheffler was arrested and charged after he allegedly failed to follow police orders as he was about to enter Valhalla Golf Course in Louisville, Kentucky, for the second round of the tournament. He released a statement before he teed off in the second round.

"This morning, I was proceeding as directed by police officers. It was a very chaotic situation, understandably so considering the tragic accident that had occurred earlier, and there was a big misunderstanding of what I thought I was being asked to do," he said. "I never intended to disregard any of the instructions. I’m hopeful to put this to the side and focus on golf today...."

ESPN reported that Scheffler drove past a police officer in his SUV with markings on the door indicating it was a PGA Championship vehicle. The officer screamed at him to stop and then attached himself to the car until Scheffler stopped his vehicle about 10 yards later. ESPN reporter Jeff Darlington characterized it as a "misunderstanding with traffic flow" as authorities were investigating a traffic fatality earlier in the morning.

"Scheffler was then walked over to the police car, placed in the back, in handcuffs, very stunned about what was happening, looked toward me as he was in those handcuffs and said, ‘Please help me,’" Darlington said on ESPN’s "SportsCenter." "He very clearly did not know what was happening in the situation. It moved very quickly, very rapidly, very aggressively."

Scheffler was booked into the Louisville Department of Corrections later Friday.  He was charged with second-degree assault of a police officer (a felony), criminal mischief, reckless driving and disregarding signals from an officer directing traffic. 

A police report said a detective was knocked down after Scheffler refused "to comply and accelerated forward." The detective was allegedly dragged to the ground and he suffered injuries to his wrist and knee." 

Scheffler’s attorney, Steve Romines, released a statement on the incident. "In the early hours of the morning in advance of his tee time Scottie was going to the course to begin his pre round preparation," he said, via Sports Illustrated. "Due to the combination of event traffic and a traffic fatality in the area it was a very chaotic situation He was proceeding as directed by another traffic officer and driving a marked player’s vehicle with credentials visible. In the confusion, Scottie is alleged to have disregarded a different officer’s traffic signals resulting in these charges. Multiple eyewitnesses have confirmed that he did not do anything wrong but was simply proceeding as directed. He stopped immediately upon being directed to and never at any point assaulted any officer with his vehicle. We will litigate this matter as needed and he will be completely exonerated."

Scheffler was coming off of four victories in the last five tournaments, including a second Masters title.  He was home in Dallas the last three weeks waiting for the birth of his first child, which occurred on May 8.  

I have already seen various conflicting reports about how Scheffler was driving, but even the worst version of the story leaves me puzzled by a felony second-degree assault charge which in Kentucky carries a prison term of five to ten years and requires intentionally or wantonly causing injury.  The other lesser charges seem potentially a bit more fitting, though this still sounds a lot more like an unfortunate misunderstanding than a criminal episode calling for multiple charges including a very serious felony count.  Given that a police officer was injured in this unfortunate incident, I can understand why it is being treated seriously.  But I would like to think a lot of matters can be treated seriously without the filing of multiple and serious criminal charges.

Even without knowing anything about criminal Kentucky criminal procedure and sentencing law, I am fairly confident that Scheffler and his lawyer(s) will get this matter straightened out relatively quickly.  (And, notably, as I write this post, Schefller is under par through his first five holes, so he seems to be coping well.)  But one always wonders about an array of collateral consequences from criminal justice involvement.  For example, this new article in its headline highlighted that Scheffler may have to worry about a unique kind of collateral consequence: "Paris Olympics: Will Scottie Scheffler be Denied Entry After Arrest Scandal?"

Latest accounting of Jan 6 prosecutions and sentences

The Supreme Court heard oral argument today in Fischer v. US to consider the reach of a federal criminal statute used to prosecute some of the January 6 Capitol rioters.  Press reports suggest a number of the Justices were skeptical of how the Justice Department was seeking to apply federal criminal law.  I hope to comment on this front after I have a chance to listen to the oral argument.  In the meantine, the Washington Post has this new article with an up-to-date accounting of just how many persons have been subject to prosecution thanks to the events of Januarry 6.  Here are excerpts:

The investigation of the Jan. 6, 2021, Capitol attack is already the largest criminal inquiry in Justice Department history, federal prosecutors have said. And even after more than three years, it has shown little sign of slowing down.

Every week, a few more rioters are arrested and charges against them are unsealed in Federal District Court in Washington. Prosecutors have suggested that a total of 2,000 or 2,500 people could ultimately face indictment for their roles in the attack.

More than 1,380 people had been charged in connection with the attack as of early this month, according to the Justice Department. Among the most common charges brought against them are two misdemeanors: illegal parading inside the Capitol and entering and remaining in a restricted federal area, a type of trespassing.

About 350 rioters have been accused of violating the obstruction statute that the Supreme Court is considering at its hearing, and nearly 500 people have been charged with assaulting police officers. Many rioters have been charged with multiple crimes, the most serious of which so far has been seditious conspiracy.

Almost 800 defendants have already pleaded guilty; about 250 of them have done so to felony charges. Prosecutors have won the vast majority of the cases that have gone to trial: More than 150 defendants have been convicted at trial and only two have been fully acquitted.

More than 850 people have been sentenced so far, and about 520 have received at least some time in prison. The stiffest penalties have been handed down to the former leaders of the Proud Boys and Oath Keepers, far-right extremist groups that played central roles in the Capitol attack.

"Rust" movie armorer convicted of manslaughter in New Mexico gets maximum prison term of 18 months in state prison

I asked in this post last month what folks thought would be the proper state sentence for the "Rust" movie armorer who was convicted of manslaughter in New Mexico.  This CBS News piece reports at length on the outcome of the actual sentencing (and the broader context of this high-profile case).  Here are excerpts:

The "Rust" armorer who last month was found guilty of involuntary manslaughter in the deadly shooting of Halyna Hutchins, the film's cinematographer, was sentenced in a New Mexico state court today to 18 months' imprisonment. Hannah Gutierrez-Reed received the maximum penalty for her part in the 2021 tragedy that several experts have since characterized as a preventable incident, where actor Alec Baldwin discharged live rounds from a prop gun on the movie set during a rehearsal.

Judge Mary Marlowe Sommer handed down the sentence to conclude an emotionally charged hearing Monday. "I find what you did constitutes a serious violent offense," Sommer told Gutierrez-Reed. Although the prosecution pushed for this outcome — the maximum sentence — Gutierrez-Reed and her defense team had asked the judge to consider probation as an alternative. The defendant, who is now 27, raised that request herself in a statement read in court before the sentence came down. In the statement, she called Hutchins an inspiration and said she was saddened by the media coverage of her case and the negative light in which it painted her to the public....

The prosecution had cited Gutierrez-Reed's lack of contrition during the trial as one reason to impose the maximum sentence. But her attorney, Jason Bowles, said in his final remarks at the sentencing that his client had in fact cried, broken down, experienced "mental breakdowns" and "said 'if only' many, many, many times," with that side of her remaining largely unfamiliar to people following the case....

Last month, a jury convicted Gutierrez-Reed on the involuntary manslaughter charge, brought against her by the state of New Mexico in the wake of the "Rust" shooting. The former weapons supervisor on the Western film could also receive a fine for as much as $5,000, along with prison time, at the sentencing. She had originally been charged with a second felony count by the state for evidence tampering but was acquitted at the trial.

I am not at all familiar with New Mexico's back-end release rules, so I am not sure Gutierrez-Reed will serve a full 18 months (and I believe she has already been in custody for a month). But I am sure this case serves as an intereting reminder that maximum sentencing terms can sometimes prove as consequential as minimum sentencing terms.

Various takes on how much time Sam Bankman-Fried will likely serve on his 25-year federal prison sentence

The federal sentencing of FTX founder Sam Bankman-Fried to 25 years in prison for his frauds last Thursday has already generated a lot of discussion in blog comments, in various podcasts and in numerous press pieces.  I have a number of commentaries worth checking out (and worth skipping), but I have found especially interesting some pieces exploring the question in the headline of this Fast Company article, "How much jail time will Sam Bankman-Fried actually serve?"  Here are a few other pieces in the genre:

From Bitrades, "SBF Will Likely Serve Less Than His Full 25-Year Sentence"

From Business Insider, "Sam Bankman-Fried could go to a low-security prison and get out early if he plays his cards right, prison consultants say"

From Decrypt, "SBF Sentenced to 25 Years in Prison — How Many Will He Actually Serve?"

From the New York Post, "Sam Bankman-Fried was sentenced to 25 years in prison — but how much will he actually serve?"

These pieces generally do a reasonable job explaining that SBF will get credit for the nearly eight months he has already been in jail, and also will likely get 15% off for "good time" credit, and also can get "earned time" credits thanks to the FIRST STEP Act.  But the cummulative impact of all these potential credits has clearly been added up differently by different folks as reported in the Bitrades article: "Some experts believe Sam Bankman-Fried could spend between 12.5 and 18.5 years in prison for his crimes at FTX."

Determining precisely how much time SBF "will serve" is challenging in part because the bulk of "earned time" credits from the FIRST STEP Act that he might accrue will not formally reduce his sentence, but will allow his earlier transfer from prison into home confinement.  (The USSC recently created this helpful page about "earned time" credits.)  If SBF were to leave prison, say, after 14 years, but then must be in home confinement for the next four, one perhaps could claim he "will serve" either 14 years or 18 years.  In the end, I suspect most people focus primarily on SBF's actual time spent in federal prison (and there surely will be more press about SBF leaving prison (likley in the late 2030s) than about the official end of his term (likely some time in the early 2040s).

I sense that the entire federal sentencing and correction system is still adjusting to the new realities in time "served" created by the FIRST STEP Act.  And for another SBF-inspired take on how the FSA now alters certain notions of equality in sentencing, Eric Fish has this new Hill commentary headlined "Why is Sam Bankman-Fried treated more leniently than someone facing illegal immigration charges?"

Prior related posts:

• You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts? 
• Some early chatter and speculation about Sam Bankman-Fried's coming federal sentencing 
• Should a bounce in crypto markets mean a much lower federal sentence for Sam Bankman-Fried? 
• Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"
• Some notable developments and commentary on Sam Bankman-Fried's coming sentencing
• Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried
• Rounding up a few sentencing speculations a few days before Sam Bankman-Fried's sentencing
• Sam Bankman-Fried sentenced to 25 years in federal prison for his FTX frauds 

Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried

The federal court in the Southern District of New York is scheduled, in less than two week, to sentence Sam Bankman-Fried following his trial conviction on multiple fraud charnges.  A few weeks ago, as noted here, SBF's lawyers submitted a lengthy sentencing memo arguing that his advisory guideline range is 63-78 months that that "a sentence that returns Sam promptly to a productive role in society would be sufficient, but not greater than necessary, to comply with the purposes of sentencing."  

Unsurprisingly, federal prosecutors have a different sentencing perspective.  And, in the run-up to the March 28 sentencing, it has not filled this even longer sentencing memorandum.  The argue that SBF's guideline range is literally off the charts:

Based on the foregoing, the adjusted offense subtotal is 60.  Because any offense level in excess of 43 is treated as an offense level of 43, 43 is the total applicable offense level. (PSR ¶ 89).  The defendant’s criminal history score is zero, which puts him in Criminal History Category I. (PSR ¶ 92).  Based upon these calculations, Bankman-Fried’s advisory Guidelines imprisonment range is life. (PSR ¶ 129).  However, because the statutorily authorized maximum sentence is 110 years’ imprisonment, which is less than life imprisonment, the applicable Guidelines sentence is 110 years’ (1,320 months) imprisonment. U.S.S.G. §§ 5G1.1(a), 5G1.2(d)

Notably, though, federal prosecutors do not ultimately advocate for a sentence of imprisonment for 110 years for SBF.  As explained at the end of its preliminary statement, the feds think that less than half of this term will do the trick:

The scope, duration, nature, and sheer number of Bankman-Fried’s crimes, the resulting harm they have caused, the willful disregard of the rule of law, and the absence of countervailing mitigating circumstances render him exceptionally deserving of a sentence that is sufficiently severe to provide justice for the defendant’s crimes and to dissuade others from committing similar crimes, and that will permit the defendant to return to liberty only after society can be assured that he will not have the opportunity to turn back to fraud and deceit.  Although it is unlikely (but not impossible) that the defendant will work in finance again, and will likely forfeit all of his ill-gotten gains, justice requires that he receive a prison sentence commensurate with the extraordinary dimensions of his crimes.  For these reasons, the legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment.

Because a "split the difference" approach often serves as a reasonable first guess for a contested sentencing outcome, I am tempted to put the over/under for an imprisonment term here at 25 years.  I am not familiar enough with Judge Lewis Kaplan's sentencing history to make a bolder prediction; folks in the comments are certainly welcome to do so.

Prior related posts:

• You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts? 
• Some early chatter and speculation about Sam Bankman-Fried's coming federal sentencing 
• Should a bounce in crypto markets mean a much lower federal sentence for Sam Bankman-Fried? 
• Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"
• Some notable developments and commentary on Sam Bankman-Fried's coming sentencing

You be the judge: what state sentence for "Rust" movie armorer convicted of manslaughter in fatal shooting

As detailed in this AP article, state sentencing in a high-profile "Hollywood" case is now scheduled for next month.  I am interested to hear what folks might consider the appropriate sentece based on these facts:

A judge has scheduled sentencing next month for a movie set armorer convicted of involuntary manslaughter in the fatal shooting of a cinematographer by Alec Baldwin on the set of the Western film “Rust,” court records indicated Wednesday.

Armorer Hannah Gutierrez-Reed was convicted by a jury last week in the shooting on the outskirts of Santa Fe, New Mexico, during a rehearsal in October 2021.  Baldwin was indicted by a grand jury in January and has pleaded not guilty to an involuntary manslaughter charge, with trial set for July.

Santa Fe-based Judge Mary Marlowe Sommer set aside two hours for Gutierrez-Reed’s sentencing hearing on the morning of April 15....  Involuntary manslaughter carries a felony sentence of up to 18 months in prison and a $5,000 fine. Gutierrez-Reed is being held pending sentencing at the Santa Fe County Adult Detention Facility.

Baldwin was pointing a gun at cinematographer Halyna Hutchins when the revolver went off, killing Hutchins and wounding director Joel Souza.  Baldwin has maintained that he pulled back the gun’s hammer, but not the trigger.

Prosecutors blamed Gutierrez-Reed at a two-week trial for unwittingly bringing live ammunition onto the set of “Rust” where it was expressly prohibited.  They also said she failed to follow basic gun-safety protocols.

“Rust” assistant director and safety coordinator Dave Halls last year pleaded no contest to negligent handling of a firearm and completed a sentence of six months unsupervised probation.

Should a bounce in crypto markets mean a much lower federal sentence for Sam Bankman-Fried?

The question in the title of this post is prompted by this new CoinDesk article headlined "Sam Bankman-Fried's Sentence Might Be Lighter Than You'd Expect."  Here are excerpts:

Former FTX boss Sam Bankman-Fried (SBF) may be handed a lighter sentence than otherwise when he faces District Judge Lewis A. Kaplan next month because customers of the bankrupt exchange will probably be made whole thanks to a bounce in crypto markets and the buoyancy of certain investments held by the estate.

Bankman-Fried was found guilty of fraud in November 2023, about a year after his crypto trading empire collapsed. During the bankruptcy process, the crypto market has risen sharply -- CoinDesk Indices' CD20 gauge has gained more than 130% -- meaning many thousands of hapless creditors are going to receive all the funds they had locked in, albeit at November 2022 prices.  In July last year, the bankruptcy team said customers were owed $8.7 billion.

The jump in crypto markets matters because restitution can be taken into account for sentencing.  For example, for low losses, the guidelines suggest a range of 24-30 months.  A high-loss amount, in contrast, could lead to a draconian range of upwards of 20 years’ imprisonment, or even life, according to Jordan Estes, a partner at the New York City office of law firm Kramer Levin. “I would expect the loss amount to be hotly contested at sentencing,” said Estes, a former assistant U.S. attorney who co-led the general crimes unit in the Southern District of New York, where the trial took place.  “In particular, the defense may argue for a substantially lower loss amount, or even a loss amount of $0, if all customers and creditors will be made whole,” she told CoinDesk via email.

That said, the U.S. sentencing guidelines that give defendants credit for amounts returned to victims apply only when the return took place before the offense was detected.  In this case, it’s clearly not SBF who is giving the money back, and the payments come well after discovery of the offense.  A possible parallel is the case of fraudulent financier Bernie Madoff, who died in prison at the age of 82 while serving a series of consecutive sentences that ran to 150 years. In Madoff's case, the bankruptcy trustee also recovered large sums of stolen money, but he didn't receive any credit for that.

Prior related post:

• You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts? 
• Some early chatter and speculation about Sam Bankman-Fried's coming federal sentencing 

UPDATE: In the comments, Professor Todd Haugh flagged his recent LinedIn posting discussing these issues.  Here is how his discussion concludes:

In the federal system, the sentencing range applicable to an economic offender like SBF is heavily determined by the loss amount. The higher the loss, the higher the sentencing range, and the higher the eventual sentence (even though judges don't have to follow the range they are anchored by it).

You might ask (as DealBook does), if customers are made whole and there is no loss, doesn't that help SBF at sentencing?  You would think, except sentencing loss isn't loss like we think of it -- it's actual or intended loss according to the Sentencing Guidelines and most caselaw.  So even though Ray found all the money and there may be very little actual loss, SBF's fraud caused an intended loss of about $8B.  That's the number that will set the loss amount regardless of how much is recovered for customers (subject to a lot-and I mean a lot-of argument between prosecutors and SBF).

But what about the "sort of" part?  Even though the intended loss is what it is, because the guideline range is only advisory, Judge Kaplan can ignore it and impose a lower sentence. That almost always happens in high loss white collar cases because the loss amounts push the sentencing ranges to outlandish heights.  And when the judge is considering how low to go, he's going to be considering that "actual loss" amount, which may be $0 here.

It's not a get out of jail free card, but it matters.

Long declination memo from DOJ Special Counsel looking into Prez Biden's retention of classified materials

Because I am on the road, I have not yet had time to process more than the headlines surrounding the release of the big report by the Justice Department Special Counsel investigating Prez Biden’s mishandling of classified documents.  This Politico piece has a full headline that seems to provide a functional summary of the essential story: "Special counsel passes on charging Biden but paints damning portrait of him: The report criticized Biden’s conduct, saying he improperly took classified material related to the 2009 Afghanistan troop surge and shared classified information with the ghostwriter of his 2017 memoir."

The political echoes of this report seem certain to last longer than the specific concerns about how Special Counsel Robert K. Hur reached this outcome (which is the first sentence of the report): "We conclude that no criminal charges are warranted in this matter."  But for those with the time to review how this conclusion was reached, the full massive report is available here.  Here is part of the start of the executive summary of the report:

Our investigation uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen. These materials included (1) marked classified documents about military and foreign policy in Afghanistan, and (2) notebooks containing Mr. Biden's handwritten entries about issues of national security and foreign policy implicating sensitive intelligence sources and methods. FBI agents recovered these materials from the garage, offices, and basement den in Mr. Biden's Wilmington, Delaware home.

However, for the reasons summarized below, we conclude that the evidence does not establish Mr. Biden's guilt beyond a reasonable doubt. Prosecution of Mr. Biden is also unwarranted based on our consideration of the aggravating and mitigating factors set forth in the Department of Justice's Principles of Federal Prosecution. For these reasons, we decline prosecution of Mr. Biden.

Federal judge sentences Peter Navarro to 4 months of imprisonment for contempt of Congress

As reported in this Fox News piece, "Peter Navarro, who served in the White House under former President Donald Trump, was sentenced Thursday for flouting a House Jan. 6 committee subpoena. U.S. District Judge Amit Mehta sentenced Navarro to four months in prison and ordered him to pay a fine of $9,500." Here is more:

That's two months shorter than the six prosecutors had sought, but Mehta drastically reduced the whopping $200,000 fine sought by the Justice Department.   

A former adviser to the president on trade and manufacturing policies, Navarro was convicted in September of two counts of contempt of Congress for defying a subpoena for documents and a deposition from the House select committee investigating the Jan. 6, 2021, riot at the U.S. Capitol. The subpoena required Navarro to appear and produce documents in February 2022, and sit for a deposition in March 2022, but Navarro refused to provide the materials and testify. As a private citizen, he was indicted on June 2, 2022....

Mehta on Thursday had gone through a tedious recounting of the sentencing guidelines and came to the conclusion that there is a "zero to six months range," of imprisonment in this case, as well as a fine range of $500 to $9,500. Sentencing guidelines are only a suggestion, and the judge could have sentenced Navarro to a longer sentence if he saw fit.

At the sentencing hearing, Navarro spoke in his own defense, saying he defied the subpoena because he believed in "good faith" that Trump had invoked executive privilege. "When I received that congressional subpoena, the second, I had an honest belief that the privilege had been invoked, and I was torn. Nobody in my position should be put in conflict between the legislative branch and the executive branch. Is that the lesson of this entire proceeding? Get a letter and a lawyer? I think in a way it is," Navarro said. "I am disappointed with a process where a jury convicted me, and I was unable to provide a defense, one of the most important elements of our justice system."

Navarro's defense attorney said the court of appeal will determine if executive privilege applies. The judge noted how in citing executive privilege, another White House adviser, Kellyanne Conway "had an (DOJ Office of Legal Counsel) OLC opinion she could rely on," but Navarro had no such opinion and didn't hire representation.

"I have a great deal of respect for your client and what he accomplished and that makes it more disappointing," Mehta said, also noting that Mark Meadows, who also faced a Jan. 6 committee subpoena, "produced documents, produced texts, he didn’t testify, but at least he did something." ...

Prosecutors had asked the judge to sentence Navarro to six months behind bars and impose a $200,000 fine. The Justice Department has previously noted that each count of contempt of Congress carries a minimum of 30 days and a maximum of one year in jail, as well as a fine of up to $100,000....

Navarro was the second Trump aide to face contempt of Congress charges. Former White House adviser Steve Bannon was convicted of two counts and was sentenced to four months behind bars, though he has been free while appealing his conviction.

Kodak Black struggling on supervised release after Prez Trump commuted his federal prison term

As detailed in this official statement, former Prez Trump on his last day in office commuted a lot of sentences, including shaving more than two years off the 46-month federal prison sentence given to Bill Kapri, more commonly known as Kodak Black.  But that act of clemency did not eliminate three years of supervised release for Black.  And this new press article, headlined "EXCLUSIVE: Kodak Black Could Serve Original Jail Sentence Donald Trump Commuted In 2020 [sic]," caught my eye today because it suggests he could be sent back to prison for some time.  And then I found this press article from a few weeks ago, headlined "Kodak Black won’t be home for Christmas. Judge says he is a ‘danger to the community’," reporting that Black is already back behind bars.  

First the backstory from the December 2023 Miami Herald piece (which uses the term "probation" to reference what I think is actually federal supervised release):

Rapper Kodak Black, busted yet again on state drug possession charges, won’t be home for Christmas.  Black, whose legal name is Bill Kapri, has been held since last week in a federal detention center in Miami after violating his probation on a gun-buying conviction dating back more than four years.

Federal Magistrate Judge Jacqueline Becerra said she would not release the 26-year-old Pompano Beach rapper to attend a drug treatment facility in Arizona after his lawyer Bradford Cohen openly acknowledged he had an addiction problem.  “If you’re buying drugs or using drugs, you’re a danger to the community,” Becerra said, leaving the final decision on whether Black should continue to be detained on the probation violation up to U.S. District Judge Jose Martinez. A federal prosecutor said Black should not be released for drug rehab out of state. “If we let him out today to go out to Arizona, we don’t know what’s going to happen,” Assistant U.S. Attorney Bruce Brown said in court.

In February, Broward Circuit Court Judge Barbara Duffy ordered Kodak to stay at a rehabilitation facility for 30 days after an hours-long hearing....

The probation violation stems from a 2019 case in which Kodak pleaded guilty to lying on a background check form when he purchased handguns at a Hialeah weapons store, federal court records show.  He was sentenced to 46 months in prison, though it was commuted by former President Donald Trump in January 2021, shortly before he left office.

The rapper, however, was placed on probation for three years, with the period ending in January 2024. Two weeks ago, Plantation police say they found the rapper asleep in a Bentley with drugs on him. He was charged with cocaine possession, evidence tampering, and improperly stopping, standing or parking.

And now the new "exclusive" update from AllHipHop:

Kodak Black will remain in jail for at least the next two weeks, AllHipHop can confirm.  The Pompano Beach, Florida native (legal name Bill K. Kapri) will have the final hearing regarding revocation of his supervised release in Miami Division before Judge Jose E. Martinez on January 22 at 11:30 a.m. ET.  If the hearing doesn’t go in his favor, Kodak Black could wind up serving the original sentence Donald Trump commuted in 2020.

The latest legal troubles for Kodak Black stem from an incident in Plantation, Florida last month when police discovered his Bentley SUV parked in a roadway with the engine still running.  When they approached the vehicle, they said Kodak Black was asleep behind the wheel and there was a strong odor of burnt marijuana coming from the vehicle.  They also claimed they found rolling papers, weed residue near the center console and the smell of alcohol.

Cops then alleged Kodak Black’s mouth was “full of white powder.” Nearby was a white rock-like substance, which he initially claimed was Percocet. After a test of the substance, along with a white plastic bag in his pocket, it was confirmed the residue was actually cocaine.  Consequently, he was charged with cocaine possession, tampering with or fabricating physical evidence and improper stop, stand or park.

Kodak Black has a string of legal troubles since his rise to rap notoriety.  In July 2022, he was taken into custody on charges of possessing a controlled substance without a prescription and trafficking oxycodone. Officers pulled him over in Fort Lauderdale for tinted windows, which appeared darker than the legal limit.  A routine check revealed the vehicle’s registration and Kodak Black’s driving license were expired.  They also found nearly $75,000 in cash and a small clear bag containing 31 white tablets that were later identified as oxycodone.  He was ordered to drug rehab.

I flagged this story not only because Kodak Black is a celebrity with many high-profile supporters, but also because it serves as a good example of how even a presidential clemency grant can serve to provide very little protection against further criminal justice entanglements.

A more detailed accounting of Jan 6 riot sentencings

In this post yesterday, I noted a new New York Times review and accounting of the prosecutions of January 6 rioters three years after their misdeeds.   A helpful reader alerted me to this new Washington Post piece which provides an even more detailed accounting of sentencing outcomes for this large group of federal defendants.  The WaPo piece is headlined "Most Jan. 6 defendants get time behind bars, but less than U.S. seeks," and here are excerpts from a lengthy article worth reading in full:

Judges have ordered prison time for nearly every defendant convicted of a felony and some jail time to about half of those convicted of misdemeanors.

But in the vast majority of the more than 700 sentencings to date, judges have issued punishments below government guidelines and prosecutors’ requests. Though more than 60 percent of the defendants sentenced so far have received jail or prison terms, the judges have gone below federal sentencing guidelines in 67 percent of the cases, Post data shows. Nationally, federal judges go below the advisory guidelines about 51 percent of the time, according to federal statistics....

Sentencings greatly increased in 2023, with nearly 370 defendants sentenced in one year, after less than 360 were sentenced in the previous two years. And the percentage of people receiving terms of incarceration increased from 56 percent to 64 percent as more serious felony cases were completed.

For those charged with lesser misdemeanors, about half received a jail sentence averaging 58 days, while about a third received probation and 18 percent were ordered to spend time in home confinement. The incarceration rate for Jan. 6 misdemeanants is higher than for other federal misdemeanants because it came in the context of a mob assault that helped make the breach possible. For those convicted of felonies, 94 percent were ordered behind bars, a consistent rate every year.

Of 244 felony sentencings for all charges, the average sentence has been 41 months, or about 3½ years, The Post’s data shows. For those who pleaded guilty, the average felony sentence is now about 2½ years, but those who were convicted at trial received an average of 5 years in prison....

The average sentence for those convicted of assaulting a police officer is more than 45 months, The Post’s data shows. The average sentence for those convicted of obstructing an official proceeding has been 39 months. Nearly 400 defendants have been placed on probation, either as their full sentence or after their incarceration, for periods that extend beyond this November’s presidential election....

The sentencings by the 15 judges appointed by Democratic presidents are not much different from the nine appointed by Republicans. Those appointed by Democrats have imposed jail or prison sentences in 65 percent of the cases, compared with 63 percent of cases sentenced by Republican appointees, according to Post data....

Four Trump appointees have imposed incarceration in 57 percent of cases, compared with 67 percent for nine Obama appointees and three George W. Bush appointees. Three Biden appointees have imposed jail or prison only 20 percent of the time, but they have heard only 30 cases and four felonies. Only one active judge has sent every single defendant to jail or prison: Tanya S. Chutkan, the judge handling the D.C. prosecution of Trump, has ordered all 39 of her defendants behind bars.

Hunter Biden indicted on nine new federal tax charges

As reported in this AP piece, "Hunter Biden was indicted on nine tax charges in California on Thursday as a special counsel investigation into the business dealings of the president’s son intensifies against the backdrop of the looming 2024 election." Here's more:

The new charges — three felonies and six misdemeanors — come in addition to federal firearms charges in Delaware alleging Hunter Biden broke a law against drug users having guns in 2018.

Hunter Biden “spent millions of dollars on an extravagant lifestyle rather than paying his tax bills,” special counsel David Weiss said in a statement. The charges are focused on at least $1.4 million in taxes he owed during between 2016 and 2019, a period where he has acknowledged struggling with addiction.

If convicted, Hunter Biden could face up to 17 years in prison. The special counsel probe remains open, Weiss said. Hunter Biden had been previously expected to plead guilty to misdemeanor tax charges as part of a plea deal with prosecutors. Defense attorneys have signaled they plan to fight any new charges, though they did not immediately return messages seeking comment Thursday....

The criminal investigation led by Delaware U.S. Attorney David Weiss has been open since 2018, and was expected to wind down with the plea deal that Hunter Biden had planned to strike with prosecutors over the summer. He would have pleaded guilty to two misdemeanor tax evasion charges and would have entered a separate agreement on the gun charge. He would have served two years of probation rather than get jail time.

The agreement also contained immunity provisions, and defense attorneys have argued that they remain in force since that part of the agreement was signed by a prosecutor before the deal was scrapped. Prosecutors disagree, pointing out the documents weren’t signed by a judge and are invalid.

After the deal fell apart, prosecutors filed three federal gun charges alleging that Hunter Biden had lied about his drug use to buy a gun that he kept for 11 days in 2018. Federal law bans gun possession by “habitual drug users,” though the measure is seldom seen as a stand-alone charge and has been called into question by a federal appeals court.

Prior related posts:

• Hunter Biden agrees to plea deal seeking to avoid prison time on tax and gun charges
• A "sweetheart deal"?: Minor (mostly uninformed) musings about Hunter Biden's prosecution and plea deal
• Some reflections in headlines on Hunter Biden's "sweetheart" plea deal 
• On eve of plea hearing for Hunter Biden, House Committee Chair urges district court to consider "improper conduct" surrounding prosecution
• Not a done deal: Hunter Biden ends up pleading not guilty to federal charges after district judge raises concerns about plea deal particulars 

Former Baltimore prosecutor Marilyn Mosby now facing federal sentencing after jury conviction on two counts of perjury

Less than three years ago, then-Baltimore State’s Attorney Marilyn Mosby launched of a Sentencing Review Unit in order to, in her words, "review and when appropriate revise sentences." But now, as detailed in this AP piece, Mosby needs to worry about what a federal judge will decide is the appropriate sentence after her conviction of two counts of perjury:

A former top prosecutor for the city of Baltimore was convicted on Thursday of charges that she lied about the finances of a side business to improperly access retirement funds during the COVID-19 pandemic, using the money to buy two Florida homes.

A federal jury convicted former Baltimore state’s attorney Marilyn Mosby of two counts of perjury after a trial that started Monday. Mosby served two terms as state’s attorney for Baltimore. A federal grand jury indicted her on perjury charges before a Democratic primary challenger defeated her last year....

Mosby gained a national profile for prosecuting Baltimore police officers after Freddie Gray, a Black man, died in police custody in 2015, which was Mosby’s first year in office. His death led to riots and protests in the city. None of the officers were convicted.

Mosby declined to testify before her attorneys rested their case on Wednesday. After the verdict, she said, “I’m blessed. I don’t know what else to say,” as she left the courthouse and entered a waiting car. Mosby also faces separate charges of mortgage fraud. A trial date for those charges hasn’t been set.

In 2020, at the height of the pandemic, Mosby withdrew $90,000 from Baltimore city’s deferred compensation plan. She received her full salary, about $250,000 that year. Mosby’s 2022 indictment accused her of improperly accessing retirement funds by falsely claiming that the pandemic harmed a travel-oriented business that she had formed. She used the withdrawals as down payments to buy a home in Kissimmee, Florida, and a condominium in Long Boat Key, Florida.

Prosecutors argued that Mosby wasn’t entitled to access the funds under provisions of the Coronavirus Aid, Relief and Economic Security Act. They said her business, Mahogany Elite Enterprises, had no clients or revenue and didn’t sustain any “adverse financial consequences” from the pandemic. “This case is about a lawyer and a public servant who placed her own selfish interests above the truth,” Assistant U.S. Attorney Sean Delaney told jurors on Monday during the trial’s opening statements.

Mosby made separate withdrawals of $40,000 and $50,000 from the city retirement plan. Prosecutors say the money in the account is held in trust and belongs to the city until a plan participant is eligible to make a withdrawal. One of Mosby’s lawyers said she was legally entitled to withdraw the money and spend it however she wanted. Mosby told the truth when she certified on paperwork that the pandemic devastated her business, said federal public defender James Wyda.

During the trial’s closing arguments, Wyda said Mosby spent time and money to start a business designed to help “women of color” in business to travel to retreats. “You know the world stopped when the pandemic hit” in 2020, Wyda told jurors. “What company or business associated with the pandemic didn’t stop when the global pandemic hit?” A. Scott Bolden, a lawyer who initially represented Mosby but later withdrew from the case, has described the charges as “bogus” and claimed the case is “rooted in personal, political and racial animus.”...

U.S. District Judge Lydia Kay Griggsby agreed to move Mosby’s trial from Baltimore to Greenbelt, Maryland, a suburb of Washington, D.C. Mosby’s attorneys argued that she couldn’t get a fair trial in Baltimore after years of negative media coverage. Prosecutors opposed the venue change, saying Mosby had sought and encouraged coverage of the case.

Jenna Ellis latest attorney to plead guilty (and avoid jail time) in Georgia election case

Serious students of the modern criminal justice system know that many, many more criminal charges get resolved through plea deals than through full trials, and the high-profile Georgia election fraud case is now showcasing this reality in recent weeks.  Specifically, after three other recent guilty pleas to reduced charges, this new AP article reports on another plea from another lawyer.  Here are some details:

Attorney and prominent conservative media figure Jenna Ellis pleaded guilty on Tuesday to a reduced charge over efforts to overturn Donald Trump’s 2020 election loss in Georgia, tearfully telling the judge she looks back on that time with “deep remorse.”

Ellis, the fourth defendant in the case to enter into a plea deal with prosecutors, was a vocal part of Trump’s reelection campaign in the last presidential cycle and was charged alongside the Republican former president and 17 others with violating the state’s anti-racketeering law.

Ellis pleaded guilty to a felony count of aiding and abetting false statements and writings.  She had been facing charges of violating Georgia’s Racketeer Influenced and Corrupt Organizations Act and soliciting the violation of oath by a public officer.

She rose to speak after pleading guilty, fighting back tears as she said she would have not have represented Trump after the 2020 election if she knew then what she knows now, claiming that she she relied on lawyers with much more experience than her and failed to verify the things they told her.  “What I did not do but should have done, Your Honor, was to make sure that the facts the other lawyers alleged to be true were in fact true,” the 38-year-old Ellis said.

The guilty plea from Ellis comes just days after two other defendants, fellow attorneys Sidney Powell and Kenneth Chesebro, entered guilty pleas.  That means three high-profile people responsible for pushing baseless legal challenges to Democrat Joe Biden’s 2020 election victory have agreed to accept responsibility for their roles rather than take their chances before a jury.

She was sentenced to five years of probation along with $5,000 in restitution, 100 hours of community service, writing an apology letter to the people of Georgia and testifying truthfully in trials related to this case.

The early pleas and the favorable punishment — probation rather than jail — could foreshadow similar outcomes for additional defendants who may see an admission of guilt and cooperation as their best hope for leniency....

Before her plea, Ellis, who lives in Florida, was defiant, posting in August on X, the social media platform formerly known as Twitter, “The Democrats and the Fulton County DA are criminalizing the practice of law. I am resolved to trust the Lord.” But she has been more critical of Trump since then, saying on conservative radio in September that she wouldn’t vote for him again, citing his “malignant, narcissistic tendency to simply say that he’s never done anything wrong.”...

Powell pleaded guilty to six misdemeanors accusing her of conspiring to intentionally interfere with the performance of election duties.  Powell will serve six years of probation, will be fined $6,000 and has to write an apology letter to Georgia and its residents.

Chesebro pleaded guilty to one felony charge of conspiracy to commit filing false documents just as jury selection was getting underway in his trial.  He was sentenced to five years’ probation and 100 hours of community service and was ordered to pay $5,000 in restitution, write an apology letter to Georgia’s residents and testify truthfully at any related future trial.

A lower-profile defendant in the case, bail bondsman Scott Graham Hall, pleaded guilty last month to five misdemeanor charges.  He was sentenced to five years of probation and agreed to testify in further proceedings.

Because I do not know Georgia law well, I am unsure if it means much that Ellis and Cheseboro pleaded guilty to felonies, while Powell and Hall pleaded guilty to multiple misdemeanors.  For the attorney criminals, one concern has to be whether they might lose their law licenses (though I am unsure where any of these lawyers are barred).

In addition to law licenses, I cannot help but wonder about the full range of collateral consequences — both formal and informal — that these particular convicted individual now face.  As a matter of federal law, I do know that the felony/misdemeanor distinction is quite important with respect to gun rights: under federal criminal statute 18 USC 922(g)(1), felons are forever prohibited from possessing a firearm (or ammunition).  So Ellis and Cheseboro have now lost forever any and all gun rights (except maybe in the Third Circuit given its Second Amendment Range ruling), whereas Powell and Hall can keep their gun under federal law.

Sydney Powell, legal adviser to former Prez Trump, cuts plea deal to avoid incarceration in Georgia election prosecution

As reported in this new AP piece, "Sidney Powell pleaded guilty to reduced charges Thursday over efforts to overturn Donald Trump’s loss in the 2020 election in Georgia, becoming the second defendant in the sprawling case to reach a deal with prosecutors." Here is more:

Powell, who was charged alongside Trump and 17 others with violating the state’s anti-racketeering law, entered the plea just a day before jury selection was set to start in her trial. She pleaded guilty to six misdemeanors accusing her of conspiring to intentionally interfere with the performance of election duties.

As part of the deal, she will serve six years of probation, will be fined $6,000 and will have to write an apology letter to Georgia and its residents. She also agreed to testify truthfully against her co-defendants at future trials....

Powell, 68, was initially charged with racketeering and six other counts as part of a wide-ranging scheme to keep the Republican president in power after he lost the 2020 election to Democrat Joe Biden. Prosecutors say she also participated in an unauthorized breach of elections equipment in a rural Georgia county elections office. The acceptance of a plea deal is a remarkable about-face for a lawyer who, perhaps more than anyone else, strenuously pushed baseless conspiracy theories about a stolen election in the face of extensive evidence to the contrary....

Powell was scheduled to go on trial on Monday with lawyer Kenneth Chesebro after each filed a demand for a speedy trial. The development means that Chesebro will go on trial by himself, though prosecutors said earlier that they also planned to look into the possibility of offering him a plea deal. Jury selection was set to start Friday. Chesebro’s attorneys didn’t immediately respond to messages seeking comment Thursday on whether he would also accept a plea deal.

A lower-profile defendant in the case, bail bondsman Scott Graham Hall, last month pleaded guilty to five misdemeanor charges. He was sentenced to five years of probation and agreed to testify in further proceedings.

Hunter Biden formally indicted on three federal charges related to his 2018 gun purchase

As reported in this Fox News piece, "Hunter Biden was indicted Thursday on federal gun charges out of Special Counsel David Weiss' investigation." Here is more:

Biden was charged with making a false statement in the purchase of a firearm; making a false statement related to information required to be kept by a federal firearms licensed dealer; and one count of possession of a firearm by a person who is an unlawful user of or addicted to a controlled substance....

These are the first charges Weiss has brought against the first son since being granted special counsel status.

Fox News first reported in 2021 that police had responded to an incident in 2018, when a gun owned by Hunter Biden was thrown into a trash can outside a market in Delaware....

The charges come after an original plea agreement collapsed in July. Hunter Biden was expected to plead guilty in July to two misdemeanor tax counts of willful failure to pay federal income tax as part of a plea deal to avoid jail time on a felony gun charge. Hunter Biden was forced to plead not guilty to two misdemeanor tax charges and one felony gun charge.

The full four-page indictment is available in the Fox News piece.

Prior related posts:

• Hunter Biden agrees to plea deal seeking to avoid prison time on tax and gun charges
• A "sweetheart deal"?: Minor (mostly uninformed) musings about Hunter Biden's prosecution and plea deal
• Some reflections in headlines on Hunter Biden's "sweetheart" plea deal 
• On eve of plea hearing for Hunter Biden, House Committee Chair urges district court to consider "improper conduct" surrounding prosecution
• Not a done deal: Hunter Biden ends up pleading not guilty to federal charges after district judge raises concerns about plea deal particulars 

Severe federal sentences for Proud Boys and other Jan 6 defendants generating notable commentary

The lengthy federal prison sentences recently given to Proud Boy leaders and others — eg, 22 years for Enrique Tarrio, 18 years for Ethan Nordean, 17 years for Joe Biggs — has generated a lot of intriguing commentary from a lot of intriguing sources.  Here are some pieces reporting on notable comments and some pieces that are the notable comments:

From Florida Politics, "Ron DeSantis floats ‘pardons and commutations’ after Proud Boy sentenced to 22 years"

From The Messenger, "Proud Boys to Argue ‘Trial Tax’ Was Imposed on Them After Rejecting Plea Deals"

From the National Post, "J.D. Tuccille: The injustice of jailing Jan. 6 rioters for 20 years"

From the New York Times, "DeSantis and Ramaswamy Call Proud Boys’ Sentences ‘Excessive’ and ‘Wrong’"

From Northeastern Global News, "Leaders in the Jan. 6 attack on the Capitol were sentenced to about 20 years in prison. Was that fair?"

From USA Today, "'Trial tax': Proud Boys members complain their long prison sentences punish them for demanding a trial"

From the Washington Post, "They confronted Proud Boys but don’t celebrate their prison sentences"

From WLRN, "Enrique Tarrio's mother says her son was a 'political pawn'"

Proud Boys leader, Enrique Tarrio, sentenced to 22 years for his role in Jan 6 activities

As reported in this Politico piece, "Enrique Tarrio, the national leader of the Proud Boys on Jan. 6, 2021, was sentenced Tuesday to 22 years in prison for masterminding a seditious conspiracy aimed at derailing the transfer of power from Donald Trump to Joe Biden."  Here is more:

The sentence, the lengthiest among hundreds arising from the Jan. 6 attack on the Capitol, is a reflection of prosecutors’ evidence that the Proud Boys, helmed by Tarrio, played the most pivotal role in stoking the violent breach of police lines and the Capitol itself. “Mr. Tarrio was the ultimate leader of that conspiracy. Mr. Tarrio was the ultimate leader, the ultimate person who organized, who was motivated by revolutionary zeal,” U.S. District Court Judge Timothy Kelly said as he handed down Tarrio’s sentence. “That conspiracy ended up with about 200 men amped up for battle encircling the Capitol.”

Hundreds of Proud Boys from across the country, vetted and assembled by Tarrio and a group of top lieutenants, became a vanguard of sorts as a mob of Trump supporters descended on the Capitol, and members of the group were involved in nearly every breach of police lines that day.  Dominic Pezzola, a New York Proud Boy who triggered the breach of the Capitol itself by smashing a Senate window with a stolen police shield, was sentenced Friday to 10 years in prison.

Tarrio, unlike most of his co-conspirators, was not at the Capitol on Jan. 6. Upon his arrival in Washington on Jan. 4, 2021, he was arrested for his role in the theft and burning of a Black Lives Matter flag from a church after an earlier pro-Trump march. Tarrio was released the next day and ordered to leave Washington D.C., so he headed with a group of allies to a hotel in Baltimore.

Prosecutors say despite his absence, he remained in touch with his men and monitored their actions on Jan. 6. And after the attack, he repeatedly celebrated the attack, defended his allies and regretted that it didn’t fully derail the transfer of power. He was convicted in May of seditious conspiracy, conspiring to obstruct Congress’ proceedings and destroying government property, among other charges.

Tarrio’s sentence closes a significant chapter in the investigation of the Jan. 6 attack. His 22-year sentence is likely to remain the lengthiest for anyone charged in connection with the attack itself — a mark that exceeds the 18-year sentences handed down to Oath Keepers founder Stewart Rhodes and Tarrio’s ally Ethan Nordean....

Kelly, a Trump appointee, appeared largely unmoved by Tarrio’s words of contrition. He emphasized that as the attack unfolded, he used his platform to tell his allies “Don’t fucking leave.” And that night, Tarrio privately told a confidant, “Make no mistake. We did this.” Despite Tarrio’s contrition, Kelly again slammed him for comparing Pezzola to George Washington. “It slanders the father of our country to speak that way,” Kelly said. The judge added that he doesn’t see evidence, despite Tarrio’s apologies, that he feels remorse for the seditious conspiracy for which he was convicted.

Two more lengthy sentences for Proud Boy members involved in Jan 6

As reported in this Reuters article, a "leader of the far-right Proud Boys was sentenced to 18 years in prison on Friday while another member got 10 years for their roles in the Jan. 6, 2021, assault on the U.S. Capitol by supporters of Donald Trump." Here is more:

Ethan Nordean, one of the group's leaders, was sentenced to 18 years in prison, short of what prosecutors had sought. Nordean had been convicted of seditious conspiracy and other crimes. "If we don't have a peaceful transfer of power in this country, we don't have anything," said U.S. District Judge Timothy Kelly.

In a statement to the judge, Nordean called Jan. 6 a "complete and utter tragedy" and said he had gone to the Capitol to be a leader and to keep people out of trouble. "While it is true that I wholeheartedly regret what I did that day, what I regret more is not being a better leader," he said. Nordean's attorney, Nick Smith, had argued for a sentence within the range of 15 to 21 months.

Earlier on Friday, Dominic Pezzola, a member of the group who did not play a leadership role and the only defendant of five to be acquitted of seditious conspiracy, yelled, "Trump won!" as he left the courtroom following his own sentencing. Pezzola was sentenced to 10 years in prison after a jury convicted him of other felonies, including obstructing an official proceeding and assaulting police....

Pezzola's attorneys had asked for their client to be sentenced to around five years in prison, and said in their sentencing memo that he had already served about three years awaiting trial. Steven Metcalf, one of Pezzola's attorneys, told the judge that Pezzola was caught in the "heat of the moment."...

The government had sought a 20-year prison term for Pezzola and a 27-year term for Nordean. Kelly on Thursday ordered two other former Proud Boys leaders, Joseph Biggs and Zachary Rehl, to serve 17 years and 15 years in prison, respectively....

Former Proud Boys Chairman Enrique Tarrio will be sentenced on Sept 5. The government is asking for a 33-year sentence.

Proud Boy Joe Biggs sentenced to 17 years for Jan 6 activity after seditious conspiracy conviction (mid-way between parties' recommendations)

As reported in this Hill piece, "Proud Boy Joe Biggs on Thursday was sentenced to 17 years in prison, the second-highest sentence handed down to anyone convicted in connection with the Capitol attack." Here is more on the first of a series of notable sentencing of Proud Boys:

Biggs was convicted of sedition and other serious felonies earlier this year after being accused of leading members of the right-wing extremist group to the Capitol and talking with the first rioter to breach police barricades just minutes before he acted....

Addressing the court, Biggs said he is “sick and tired of left versus right,” and that the only group he wants to be a part of in the future is his daughter’s parent-teacher association. “I know I messed up that day, but I’m not a terrorist,” he said through tears.

U.S. District Judge Timothy Kelly ultimately applied a terrorism enhancement to Biggs’s sentencing guidelines, wherein a defendant must have committed an offense that “was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” Kelly cited Biggs’s efforts to tear down a fence separating rioters from the Capitol and bringing them “one step closer” to their objective of halting the 2020 election certification as reason for applying the enhancement. “I really don’t think this is a close call,” he said of the decision.

Still, the 204-month sentence was significantly short of what prosecutors requested — 33 years in prison, the highest sentencing request for any defendant tried in connection with the Capitol attack.

Assistant U.S. Attorney Jason McCullough argued Thursday that Biggs’s rhetoric leading up to and after the Capitol attack demonstrated the need for a significant sentence. While the 2020 election votes were still being tallied, Biggs began advocating for violence and espousing false claims of election fraud — claims that prosecutors said ultimately motivated him and other Proud Boys to try to stop the certification of the vote on Jan. 6, 2021. “Joe Biggs will continue to carry out acts of political violence to meet his agendas,” McCullough said. “Until this country bends to his will — to his view of the world — these are not words; they’re convictions.”

A 33-year sentence is also recommended for Proud Boys leader Enrique Tarrio, whose highly anticipated sentencing was postponed at the last minute Wednesday. Oath Keepers leader Stewart Rhodes was sentenced in May to 18 years in prison, the highest sentence tied to Jan. 6 to date.

Biggs requested a sentence between 27 months and 33 months in prison, or less than three years. His attorney, Norman Pattis, said Thursday that the nation’s political strife cannot be attributed to Biggs when the front-runner in the 2024 presidential race — former President Trump — has been criminally indicted four times. “To suggest this is Biggs’s fault is silly,” Pattis said.

Biggs and defendant Zachary Rehl placed blame on Trump for the Capitol attack in their joint sentencing memo. They said that Trump’s role is not “justification for their actions” but suggested that having heeded the former president’s calls that day “should yield some measure of mitigation.”...

During their trial, the five Proud Boys defendants often suggested Trump was responsible for the riot at the Capitol that day — not them. “It was Donald Trump’s words, it was his motivation, it was his anger that caused what occurred on Jan. 6,” Tarrio attorney Nayib Hassan said in closing remarks of the trial....

The other Proud Boys will be sentenced later this week. Rehl’s sentencing is scheduled for Thursday afternoon, while defendants Dominic Pezzola and Ethan Nordean are set to be sentenced Friday.

I find it quite interesting, but perhaps not all that surprising, that the sentencing judge here imposed a sentence that is almost exactly mid-way between the sentencing recommendation of the prosecution and the defense.

Noting Georgia's limits on pardon powers in wake of latest state indictment for former Prez Trump and associates

Thanks to indictment fatigue, I have not yet had much interest in trying to figure out the full sentencing exposure of former Prez Donald Trump or his many co-defendants (AP details here) in the wake of last night's nearly 100-page indictment from Fulton County.  But a quick scan of press coverage has led me to already see lots of talk about Georgia's distinctive pardon laws: 

From Insider, "Trump would have to serve 5 years in prison before he can be pardoned in Georgia criminal case, expert says"

From MSNBC, "Why Trump can’t kill Georgia charges like federal ones"

From Newser, "A Georgia Worry for Trump: Pardon-Proof Charges"

These pieces and others are understandably focused on the apparent inability under Georgia law for former Prez Trump to secure a pardon.  But I think it also notable and important that Georgia law also limits the pardon possibilities for Prez Trump's Georgia co-defendants.  As in most traditional cases, all the defendants in this new Georgia case will have to deal with the reality that only prosecutors have clear and direct authority to dole out criminal justices breaks.