Tuesday, April 20, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Friday, April 16, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

A few prior related post:

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

Download PleaSchaffer

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

Wednesday, April 14, 2021

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

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

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

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

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

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

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

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

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

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

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

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

Some of many prior posts about his initial sentencing:

Some prior posts about his request for compassionate release:

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

Friday, January 29, 2021

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, January 19, 2021

Some news and notes and rulings on federal compassionate release

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

From Law360, "Pandemic Is Changing Compassionate Release Calculus"

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

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

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

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

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

Thursday, January 07, 2021

Celebrity (gossip) edition of criminal justice round-up

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

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

Tuesday, December 22, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

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

Wednesday, September 30, 2020

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

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

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

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

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

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

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

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

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

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

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

Thursday, September 17, 2020

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

September 17, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Saturday, August 22, 2020

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

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

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

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

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

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

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

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

A few prior posts focused on these defendants:

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

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

Wednesday, August 05, 2020

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

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

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

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

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

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

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

Tuesday, July 28, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Friday, July 24, 2020

Never-ending New Jersey drunk driving case highlights fundamental reason why sentencing is so dang hard

9889228-0-image-a-67_1550300070445I am fond of saying "sentencing is dang hard."  (A version of a speech I gave with this title appears in the February 2020 issue of the Federal Sentencing Reporter and also is available here via SSRN.)  An appellate ruling this  week in a high-profile New Jersey case has me recalling this point; this local press piece, headlined "Amy Locane will be sentenced for a fourth time on fatal 2010 DWI charge," provides part of the backstory (with a little emphasis added):

A state appellate court ruled Wednesday that actress Amy Locane, convicted in connection with a fatal drunken driving accident a decade ago in Montgomery, must be sentenced for a fourth time because the first three times were either illegal sentences or sentences imposed outside the state's criminal code.

In a 41-page decision, the appellate court ruled that the latest sentence in the case, handed down by Superior Court Judge Kevin Shanahan in February 2019, was "illogical" based on an "unauthorized sentencing theory" that weighed on what he called "the yin and yang" of the case's facts....

James Wronko, Locane's attorney, said he will ask the state Supreme Court to review the decision. "I don't know what society gains by putting the mother of two back in jail," Wronko said.

Shanahan sentenced Locane to five years in prison, but stayed the sentence because he did not consider her a flight risk. The Somerset County Prosecutor's Office argued the sentence should not be stayed and appealed the judge's decision.

Locane previously had been sentenced to three years in state prison on charges of vehicular homicide and assault by auto in connection with the death of Helene Seeman in the crash.  Her husband, Fred, was severely injured in the crash as the couple were turning into their driveway of their weekend home at 9 p.m. on June 27, 2010.  Locane is an actress who starred with Johnny Depp in “Cry-Baby” and was a featured actress on the TV series “Melrose Place.”...

The Somerset County Prosecutor's Office first appealed the the three-year sentence that was handed down by retired Superior Court Judge Robert Reed who presided over the trial.  Locane served 85 percent of that sentence at the Edna Mahan Correctional Facility for Women in Hunterdon County.  She also successfully completed the conditions of her parole a year ago, Wronko said.  "She's led an exemplary life since her release," Wronko said....

In handing down the five-year sentence, Shanahan said that imposing a higher sentence "would have been an exercise in bad judgment, just like all the others."  Shanahan also said that he was not bound by previous Appellate Court rulings in the case.

"Clearly, changes in (Locane's) personal circumstances warrant divergence," the Appellate Court wrote in the decision, "but it is rudimentary that a trial judge is bound by our prior decision. (Shanahan) ignored the prior findings, while seemingly giving them lip service."

So, in a sad drunk driving case involving a fatal result, New Jersey courts have now been trying and failing to figure out Amy Locane's "right" sentence for now a full decade.  In that time, the defendant has served out a three-year ("wrong") prison sentence (and also paid $1.5 million of a nearly $5 million civil settlement).  I can only speculate about how many (mostly taxpayer) resources have been expended in all these court proceedings trying to get to the "right" sentence, and I wonder whether the surviving victims are really eager to start another decade of wrangling over finding the "right" sentence.

Of course, I keep putting "right" in quotes when discussing this matter because there obviously is no clear right sentence in this case (or most cases).  Sentencing is so dang hard in part because it lacks a clear right/wrong metric no matter what sentencing philosophies one is inclined to adopt.  Moreover, this case especially spotlights the fundamental challenge balancing aggravating offense factors (especially a victim's death) with mitigating offender factors (addiction and lack of criminal history).  The latest appellate opinion (available here) showcases how sentencing judges here have generally focused on the offender, while the appellate judges have focused on the offense (at p. 36):

In this case, the focus has repeatedly shifted away from the crime defendant committed to her individual characteristics at the expense of imposing a just sentence reflective of her offense and the harm she caused.  That she was struggling with addiction did not authorize the court to close its eyes to the harm she inflicted on the victims, the victims' family, and the community.  That harm will never dissipate.  The loss of a loved one, and serious physical injury to another, can never be compensated.

Ironically, another round of resentencing strikes me as a fool's errand in part because I agree with this court's sentiment that the harm caused by Amy Locane "will never dissipate" and "can never be compensated."  Because there is no way the law through any form of punishment can make this kind of harm go away, I struggle to see what is likely to be achieved when the state uses more taxpayer resources to  try, yet again, to add still more years to Locane's sentence.

Notably, there is no mention in this latest appellate opinion of just what the victims of this now-long-ago offense might now want.  I hope for their sake that starting another decade of wrangling over Locane's sentence does not rub salt into their wounds.  I also wonder if some kind of restorative justice efforts have been tried or might now be started to enable the victims and the defendant here to get some measure of peace and resolution that the New Jersey courts have been unable so far to provide.

Prior related post:

July 24, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Thursday, July 23, 2020

Federal judge rules Michael Cohen must be released back into home confinement

As reported in this CNBC piece, a "federal judge on Thursday ordered the release from prison of President Donald Trump’s former lawyer and fixer Michael Cohen by Friday afternoon."  Here is why:

Judge Alvin Hellerstein found that Cohen was sent back to prison on July 10 in retaliation for failing to agree a day earlier to not to publish a book about Trump as one of multiple conditions for serving the remainder of his three-year prison term on home confinement.  Cohen had been furloughed from prison in late May due to concerns about the coronavirus pandemic.  Shortly before being taken into custody he had been posting on social media about his upcoming book, which is going to be critical of Trump.

“I’ve never seen such a clause, in 21 years in being a judge,” Hellerstein said at a Manhattan federal court hearing, where he questioned the condition that Cohen not publish a book while in home confinement.  “How can I take any other inference but that it was retaliatory? “the judge asked at the hearing, which was held in response to Cohen suing to win his re-release from prison.

During the hearing, the judge was highly skeptical to arguments by a federal prosecutor that Cohen was not locked up in retaliation for the book, or that the condition of not writing a book was not sought for a specific reason.  At one point, when another prosecutor tried to come to the aid of the prosecutor who was answering the judge’s questions, Hellerstein angrily cut him off, reminding him of the rule that only one lawyer argued for each side in a case.

Cohen, who has been in quarantine in the prison in Otisville, N.Y., since his arrival there, will be released by 2 p.m. after begin tested for the coronavirus, and will be driven back to his home on Manhattan’s Upper East Side by his son, Hellerstein said. After his release into home confinement, he will be subject to a number of restrictions on his movement and employment and contact with other people.  But the restriction sought by federal Probation officials that he not speak to reporters, post on social media, or publish a book, is likely to be largely gutted.

Cohen’s lawyer and a prosecutor will in coming days negotiate the issue of any restrictions on Cohen dealing with the media.  Hellerstein suggested it would be inappropriate for Cohen to host a press conference in his apartment with a large number of reporters to discus his book while at the same time still serving his criminal sentence....

Hellerstein noted that court filings by both prosecutors and Cohen’s lawyers agree on a key point: that Cohen and his lawyer, after taking issue with at least one of the conditions, about the book, were left in a room along at some time by a Probation officer, and then confronted by Bureau of Prison officials who arrived to take him into custody.  Hellerstein also repeatedly said that Probation officials had not given Cohen a warning that if he did not agree to all the conditions presented to him at a July 9 meeting with his lawyer that he would be sent back to prison.  “Mr. Cohen was never given a chance to say, ‘If this is it, I will sign,’ ” Hellerstein said.

Prior Michael Cohen posts:

July 23, 2020 in Celebrity sentencings, Impact of the coronavirus on criminal justice, Prisons and prisoners, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, July 22, 2020

You be the federal judge: what sentence for Senator Rand Paul's attacker at resentencing after 30 days deemed unreasonable?

Regular readers know that, more than 15 years after Booker created the reasonableness standard of appellate review for federal sentencing, circuit courts still almost never find a sentence to be "substantively unreasonable" upon a defendant's appeal claiming the sentence was too high.  But last year, a Sixth Circuit panel decided, upon an appeal by the government, that a high-profile sentence was "substantively unreasonable" as too low.  The ruling in US v. Boucher, No. 18-5683 (6th Cir. Sept. 9, 2019) (available here), concerned the sentencing resulting from Senator Rand Paul's neighbor attacking him while he was was mowing his lawn in 2017.  Now, as this local article highlights, it is time for resentencing after the Sixth Circuit vacated Boucher’s sentence as substantively unreasonable:

Federal prosecutors have renewed a push for a 21-month sentence for the man who tackled and injured U.S. Sen. Rand Paul in November 2017.

Rene Boucher deserves to spend more time behind bars because of the serious injuries Paul sustained, including six broken ribs that left him in intense pain and led to bouts of pneumonia and damage that ultimately required removing part of Paul’s lung, Assistant U.S. Attorney Bradley P. Shepard said in a memorandum filed Monday.

Shepard also argued that the initial 30-day sentence against Boucher wasn’t enough to deter other potential assaults on members of Congress.  “‘Aggressive’ rhetoric directed at our elected leaders is at a dangerously high level,” Shepard wrote.  “Although this case is lacking in evidence of political motivation, it is still important, in this climate, to send a message to society as a whole that assaults and violence perpetrated against members of Congress will not be tolerated.”

Boucher’s attorney, however, has argued it would be unjust to send him back to prison after he’s already completed his initial sentence, and moved to dismiss the case.

U.S. District Judge Matthew F. Leitman scheduled a sentencing hearing for Boucher on July 27.  Lietman, a judge in Michigan, is sitting as a special judge in Boucher’s case.

Paul, a doctor elected to the Senate in 2010, and Boucher, also a physician, lived next door to each other in a gated community in Bowling Green.  In the summer of 2017, Boucher trimmed five maple trees that were on Paul’s property, but had limbs sticking over the property line onto Boucher’s side, according to a motion from Boucher’s attorney, Matthew J. Baker. In response, Paul piled up a large stack of limbs and brush near the property line in Boucher’s view, Baker said....

[On] Nov. 3, 2017, Boucher saw Paul mowing his yard. Paul blew leaves into Boucher’s lawn and then got off the mower, picked up some limbs and turned toward the place where Boucher had burned the debris the day before, Baker said. Boucher lost his temper, ran 60 yards and tackled Paul from behind....

Police first charged Boucher with misdemeanor assault in state court, but the federal government stepped in and prosecuted him under a law barring assaults on members of Congress.

Paul, a Republican, suggested in a letter to the court that there was a political motive behind the attack, saying that Boucher’s anger toward him “comingles with his hatred of my political policies.”  However, Boucher has said the attack was driven solely by his anger over the yard waste, and prosecutors have acknowledged there was no evidence of a political motivation.

Under advisory guidelines, Boucher faced a potential sentence from 21 to 27 months, though judges can impose sentences outside those guidelines.  U.S. District Judge Marianne O. Battani sentenced Boucher to 30 days in prison, a $10,000 fine and 100 hours of community service, noting Boucher’s military service, career as a doctor and his involvement in his church.

Prosecutors appealed the sentence, arguing it was unreasonably short.  The U.S. 6th Circuit Court of Appeals ordered a new sentencing hearing for Boucher, ruling last September that Battani didn’t give sufficient weight to the seriousness of Paul’s injuries or the need for deterrence, and didn’t sufficiently address the issue of the big difference in Boucher’s sentence and others involving federal assault cases.

In arguing for more time for Boucher, Shepard cited cases in which two people received as much jail time as he did only for throwing eggs at a member of Congress, and others in which people who attacked federal employees received much longer sentences.  The prosecutor also said that had Boucher’s case been handled in a Kentucky court, Paul’s injuries could have meant a charge of second-degree assault, punishable by five to 10 years in prison.

Baker, however, argued that Boucher’s initial sentence was legitimate and that putting him back in prison would amount to punishing him twice for the same crime....  Baker said it appears that the government is getting a do-over on Boucher’s sentencing because the victim is a U.S. senator.

Shepard, however, said it is not unusual for people to be re-sentenced after completing a sentence.  What Boucher wants, the prosecutor said, “is for those who have received exceptionally low sentences to get further special treatment in the form of a bar to resentencing.”

There are so many interesting elements to this resentencing, including the fact that there is a distinct new "outside judge" in charge of this resentencing.  I am inclined to predict Boucher will get a sentence somewhere between the 30 days originally imposed and the 21 months requested by the feds.  But I am eager to hear what readers think the new sentence should be. 

Prior related posts:

July 22, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (5)

Tuesday, July 21, 2020

Some notable federal prison comings and goings for high-profile political figures

A (re)sentencing yesterday of a high-profile New York state politician led me to notice a few more stories concerning the ins and outs of federal prison for some notable political figures. Here are headlines, links and a taste of the stories:

Via the New York Post, "Sheldon Silver sentenced to more than 6 years in prison for bribery scheme":

Crooked Albany power broker Sheldon Silver will finally go to prison for his crimes — but not for another month, a judge ruled Monday as she sentenced the former Assembly speaker to 6 1/2 years in federal prison, nearly five years after he was first convicted of corruption.  Judge Valerie Caproni handed down the sentence Monday afternoon in front of Silver, 76, who was ordered to appear in person in the courtroom despite an effort by his lawyers to hold the hearing remotely amid the coronavirus pandemic. “This was corruption pure and simple,” Judge Caproni told the disgraced ex-speaker of the New York state Assembly, whom she had already sentenced twice. “The time, however, has now come for Mr. Silver to pay the piper,” she said before delivering the 78-month sentence and a $1 million fine, which the ruined kingmaker received with a blank expression.

Via the Philadelphia Inquirer, "Former Philly U.S. Rep. Chaka Fattah came home early from prison. Federal officials won’t say why.":

The U.S. Bureau of Prisons has accomplished what former U.S. Rep. Chaka Fattah could not in two appeals.  It sprang the disgraced pol early from lockup. A bureau spokesperson confirms that Fattah, a Philadelphia Democrat sentenced in 2016 to 10 years on corruption charges, returned to the city June 8 from a federal prison near Scranton and will serve the rest of his sentence either in a halfway house or under house arrest. But the bureau refused to say why the former congressman had been released more than five years before the scheduled 2025 date.

Via NBC News, "ACLU, law firm sue to get Michael Cohen released, saying he was sent back to prison over book":

The American Civil Liberties Union and a law firm on Monday filed a legal challenge to the recent imprisonment of Michael Cohen, President Donald Trump's former personal attorney.  The groups argue that Cohen was sent back to prison this month after being released on home confinement in retaliation for his plans to release a negative book about Trump before the November election.  "He is being held in retaliation for his protected speech, including drafting a book manuscript that is critical of the President — and recently making public his intention to publish that book soon, shortly before the upcoming election," lawyers on behalf of Cohen wrote in Monday's lawsuit.

July 21, 2020 in Celebrity sentencings, White-collar sentencing | Permalink | Comments (0)

Sunday, July 12, 2020

Tongues wagging about Prez Trump using his clemency pen to grant compassionate release to Roger Stone

Unsurprisingly, lots and lots of folks have lots and lots to say about Prez Trump's decision late Friday to commute the prison sentence of Roger Stone (basics covered here).  I will start this post with two quick points and then round up below some of the other copious commentary already making the rounds.

1. Now do more, Mr. Prez: I am pleased Prez Trump has finally delivered, at least for an old friend with dirt on him, on his promise back in March to look at freeing elderly "totally nonviolent" offenders from federal prisons amid the COVID pandemic.  I am being cheeky here, of course, but meaning to make a serious point: the Stone commutation bothers me far less than Prez Trump's failure to use his clemency powers far more — both before and especially since the coronavirus crisis — to release the many federal prisoners who, like Stone, are older, medically vulnerable and present no clear risk to public safety. 

Back in February 2020, Prez Trump coupled some high-profile clemency grants with commutations to three women of color with no political connections (details here).  I sure wish Prez Trump and key advisers — Kushner?  Kushner?  Kushner? — had tried to couple the Stone commutation with clemency relief for just a few other older federal prisoners whose incarceration may prove deadly and serves little public safety purpose.  But it is not too late to make up for lost time: now do more comparable commutations, Mr. Prez!

2. Now do even more, federal judges: As the title of this post is meant to suggest, the Stone clemency strikes me as another form of compassionate release.  The official statement announcing the commutation made much of an "improper investigation," of "overzealous prosecutors" and of "serious questions about the jury" while also stressing that "Mr. Stone would be put at serious medical risk in prison" and that "Roger Stone has already suffered greatly."  These comments suggest Prez Trump concluded, in the words of 18 USC § 3582(c)(1)(A), that there were "extraordinary and compelling reasons warrant[ing] a reduction" in Stone's prison sentence and that such a reduction was consistent with 3553(a)'s purposes of punishment. 

Thanks to the FIRST STEP Act, judges now have authority to grant comparable sentence reductions, and district judges have granted hundreds of compassionate release motions in response to the COVID crisis.  But thousands of compassionate release requests have been denied, many coming from prisoners who are likely even more vulnerable and even more sympathetic than Stone.  In more than a few cases, I have seen judges indicate considerable sympathy for the plight of a vulnerable older inmate, only to refuse release because the movant had not yet served enough time in prison.  But Roger Stone did not serve any prison time, and yet Prez Trump was still moved by his "medical risk" and by the fact he had "already suffered greatly" even before serving a single day in federal prison.  So this commutation should also be a message to federal judges: do more comparable compassionate releases, even if vulnerable offenders have served little or even no prison time.

I could go on, but rather than continue my tongue wagging about the Stone commutation, I will conclude here with a round-up of just a few other notable takes:

From Robert Mueller, "Roger Stone remains a convicted felon, and rightly so."

From Politico, "'Historic corruption': 2 Republican senators denounce Trump's commutation of Stone"

From Brett Tollman and Arthur Rizer, "Romney wrong to attack Trump commutation of Roger Stone prison sentence"

From Jack Goldsmith and Matt Gluck, "Trump’s Aberrant Pardons and Commutations"

From Jonathan Turley, "Why this Roger Stone commutation is not as controversial as some think"

From Jeffrey Tobin, "The Roger Stone Case Shows Why Trump Is Worse Than Nixon"

July 12, 2020 in Celebrity sentencings, Clemency and Pardons, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (3)

Friday, July 10, 2020

As was widely expected, Prez Trump commutes Roger Stone's sentence just before he was due to report to federal prison

As detailed via this official statement from the White House, this evening "President Donald J. Trump signed an Executive Grant of Clemency commuting the unjust sentence of Roger Stone, Jr."  Here is more from the statement:

Roger Stone is a victim of the Russia Hoax that the Left and its allies in the media perpetuated for years in an attempt to undermine the Trump Presidency.... As it became clear that these witch hunts would never bear fruit, the Special Counsel’s Office resorted to process-based charges leveled at high-profile people in an attempt to manufacture the false impression of criminality lurking below the surface.  These charges were the product of recklessness borne of frustration and malice.  This is why the out-of-control Mueller prosecutors, desperate for splashy headlines to compensate for a failed investigation, set their sights on Mr. Stone.  Roger Stone is well known for his nearly 50 years of work as a consultant for high-profile Republican politicians, including President Ronald Reagan, Senator Bob Dole, and many others. He is also well known for his outspoken support for President Donald J. Trump and opposition to Hillary Clinton.

Mr. Stone was charged by the same prosecutors from the Mueller Investigation tasked with finding evidence of collusion with Russia.  Because no such evidence exists, however, they could not charge him for any collusion-related crime. Instead, they charged him for his conduct during their investigation. The simple fact is that if the Special Counsel had not been pursuing an absolutely baseless investigation, Mr. Stone would not be facing time in prison.

In addition to charging Mr. Stone with alleged crimes arising solely from their own improper investigation, the Mueller prosecutors also took pains to make a public and shameful spectacle of his arrest....

Not only was Mr. Stone charged by overzealous prosecutors pursing a case that never should have existed, and arrested in an operation that never should have been approved, but there were also serious questions about the jury in the case.  The forewoman of his jury, for example, concealed the fact that she is a member of the so-called liberal “resistance” to the Trump Presidency.  In now-deleted tweets, this activist-juror vividly and openly attacked President Trump and his supporters.

Mr. Stone would be put at serious medical risk in prison.  He has appealed his conviction and is seeking a new trial. He maintains his innocence and has stated that he expects to be fully exonerated by the justice system.  Mr. Stone, like every American, deserves a fair trial and every opportunity to vindicate himself before the courts.  The President does not wish to interfere with his efforts to do so.  At this time, however, and particularly in light of the egregious facts and circumstances surrounding his unfair prosecution, arrest, and trial, the President has determined to commute his sentence. Roger Stone has already suffered greatly.  He was treated very unfairly, as were many others in this case. Roger Stone is now a free man!

I am disinclined to comment at length on this use of the clemency power or this very Trumpian statement explaining it.  But I must note that, because Prez Trump only commuted the sentence and did not pardon the Stone's felony convictions, it is not really accurate to say "Roger Stone is now a free man!"  There are thousands of laws that restrict the rights and opportunities of persons with a felony conviction and so Stone is, for example, not free to possess a firearm.

Prior related posts:

July 10, 2020 in Celebrity sentencings, Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Thursday, July 09, 2020

Michael Cohen, Prez Trump's former lawyer, sent back to federal prison because he "refused the conditions of his home confinement"

As reported in this new AP piece, "President Donald Trump’s former personal lawyer and fixer, Michael Cohen, was returned to federal prison Thursday, weeks after his early release to serve the remainder of his sentence at home because of the coronavirus pandemic, the federal Bureau of Prisons said."  Here is more:

In a statement to The Associated Press, the Bureau of Prisons said Cohen had “refused the conditions of his home confinement and as a result, has been returned to a BOP facility.” His return to prison comes days after the New York Post published photos of him and his wife enjoying an outdoor meal with friends at a restaurant near his Manhattan home.

Roger Adler, one of Cohen's attorneys, called his jailing an “overly draconian response to what was at worst poor judgment.”  He said it was Cohen's belief that being on medical furlough “did not prohibit venturing beyond his apartment and dining out.”

“It's not a crime to eat out and support local businesses," Adler told the AP, adding Cohen had been “thrown back into a petri dish of coronavirus.”

Cohen, who pleaded guilty to tax evasion, campaign finance fraud and lying to Congress, had been released May 21 on furlough as part of an attempt to slow the spread of the virus in federal prisons. Cohen, 53, began serving his sentence in May 2019 and had been scheduled to remain in prison until November 2021.

Cohen’s convictions were related to crimes including dodging taxes on $4 million in income from his taxi business, lying during congressional testimony about the timing of discussions around an abandoned plan to build a Trump Tower in Russia, and orchestrating payments to two women to keep them from talking publicly about alleged affairs with Trump.  Prosecutors said the payments amounted to illegal campaign contributions.  Trump, who denied the affairs, said any payments were a personal matter....

A federal judge had denied Cohen’s attempt for an early release to home confinement after serving 10 months in prison and said in a May ruling that it “appears to be just another effort to inject himself into the news cycle.” But the Bureau of Prisons can move prisoners to home confinement without a judicial order.

Intriguingly, this New York Daily News article, headlined "Michael Cohen arrested after refusing gov’t demand to not publish Trump book during sentence: friend," suggests that Cohen's decision to eat out at a restaurant is not the real reason he is headed back to federal prison:

Michael Cohen was thrown back into prison on Thursday after refusing to sign a home confinement agreement requiring him to not publish a tell-all book about President Trump for the duration of his sentence, according to Lanny Davis, his friend and former attorney.

Cohen was presented with the hush contract while sitting down with his probation officer in downtown Manhattan for a meeting that he expected to be about fitting an electronic surveillance bracelet to his ankle, Davis told reporters on a conference call.  In addition to not publishing a book, the agreement required Cohen to not talk to any media outlets for the remainder of his three-year sentence, according to Davis, who wasn’t present but said he got the play-by-play recounted to him by Cohen attorney Jeffrey Levine.

“That disturbed him because he pointed out that he could talk to the media when he was in Otisville — why not in home confinement?” Davis said, referring to the upstate New York prison where Cohen was doing hard time.  After making clear he would not sign, the probation officer left the room, Davis said.  “The next thing that they saw coming out of an elevator was three U.S. marshals holding shackles,” Davis continued....

“The next thing that happened is the marshals said they had an order signed by somebody from BOP and the order was to arrest him and put him in jail and they started to put shackles on him,” Davis said, using an acronym for the Bureau of Prisons.  Having a change of heart, Cohen told the marshals: “I’ll sign exactly what you want me to sign so I don’t have to go back to jail,” according to Davis. 

But the marshals didn’t budge, Davis said.  “It’s out of our hands,” one of them told Cohen, according to Davis. Davis said Cohen was taken to either the Metropolitan Correctional Center in Manhattan or the Metropolitan Detention Center in Brooklyn.

A spokesman for BOP confirmed Cohen had been taken into custody for having “refused the conditions of his home confinement,” but declined to elaborate.

Prior Michael Cohen posts:

July 9, 2020 in Celebrity sentencings, Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (3)

Saturday, June 27, 2020

Is Prez Trump trying to convince himself to have the guts to pardon Roger Stone?

The question in the title of this post was my first thought upon seeing this news piece headlined "Trump tweet fuels speculation of Stone pardon: The tweet came after a judge ruled Stone would report to prison in July."  Here are the details:

President Donald Trump further fueled speculation Saturday morning that he plans to pardon longtime friend and adviser Roger Stone.

After a judge on Friday gave Stone a surrender date of July 14 -- he had sought to report to the Georgia prison on Sept. 3 -- Trump tweeted a story about a petition for the president to pardon Stone as he faces a sentence of 40 months for lying to Congress and misleading investigators on several key elements of their probe into Russian meddling in the 2016 election.

On Saturday, Trump retweeted a message saying "IT’S TIME TO #PardonRogerStone"

This is not the first time a Trump tweet has raised the prospect of a Stone pardon.  Earlier this month, on June 4, the president tweeted that "Roger was a victim of a corrupt and illegal Witch Hunt, one which will go down as the greatest political crime in history.  He can sleep well at night!"

With Stone now seemingly having a hard prison report date in three weeks, Prez Trump is going to have to make a clemency decision sooner rather than later. If Prez Trump is really eager to keep Stone out of prison, I hope he might at least looks to include Stone with some additional meritorious clemency grants as he did back in February when commuted the sentences of sentences of three women along with Rod Blagojevich.

Prior related posts:

June 27, 2020 in Celebrity sentencings, Clemency and Pardons, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, June 23, 2020

Roger Stone's past sentencing and coming prison time making headlines

I am not sure which of these stories surprises me less:

From ABC News, "Citing coronavirus fears, Roger Stone files motion to delay reporting to Georgia prison"

A week before President Donald Trump's longtime friend and adviser Roger Stone was scheduled to turn himself in to federal prison in Georgia to begin his more than three-year sentence, his lawyers filed a motion seeking to delay his surrender, citing the deadly risk posed by the coronavirus outbreak.

“This motion is based on the exceptional circumstances arising from the serious and possibly deadly risk [Stone] would face in the close confines of a Bureau of Prisons facility, based on his age and medical conditions,” the motion says. “Those medical conditions make the consequences of his exposure to the COVID-19 virus in a prison facility life-threatening.”

The 67-year-old was sentenced to 40 months in prison on Feb. 20 by Judge Amy Berman Jackson in Washington, D.C. Stone's attorneys also asked to file a letter under seal from a physician concerning their client's medical conditions.

From Politico, "Prosecutor says he was pressured to cut Roger Stone 'a break' because of his ties to Trump"

A prosecutor who withdrew from the Roger Stone case after Justice Department leaders intervened to recommend a lighter sentence intends to testify before Congress that he and his colleagues were repeatedly pressured to cut Stone "a break," and were told that it was because of his relationship with President Donald Trump.

"What I heard – repeatedly – was that Roger Stone was being treated differently from any other defendant because of his relationship to the President," Aaron Zelinsky, one of four prosecutors who quit the case, plans to tell the House Judiciary Committee Wednesday, according to his prepared testimony. "I was also told that the acting U.S. Attorney was giving Stone such unprecedentedly favorable treatment because he was 'afraid of the President.'"

June 23, 2020 in Celebrity sentencings, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (1)

Thursday, June 04, 2020

Donald Trump hinting that he will use his clemency powers on behalf of Roger Stone

Last week, as reported here, "Bureau of Prisons spokeswoman Sue Allison told The Associated Press that [Roger] Stone is supposed to surrender to the Bureau of Prisons by June 30" to begin serving his 40-month federal prison sentence.  But, as this new article highlights, a tweet by President Trump this morning suggest that the Prez plans to make sure Stone never has to sleep at a prison facility:

President Donald Trump on Thursday promised his longtime informal political adviser Roger Stone would not serve time in prison, revealing the convicted Republican provocateur “can sleep well at night” and reprising his fiery criticisms of former special counsel Robert Mueller’s probe.

The pledge from the president came on Twitter, after Charlie Kirk, the founder of the conservative group Turning Point USA, wrote Tuesday that Stone “will serve more time in prison than 99% of these rioters destroying America” — referring to the ongoing nationwide protests over the killing of George Floyd, a 46-year-old black man, by a Minneapolis police officer.  “This isn’t justice,” Kirk added. “RT for a full pardon of Roger Stone!”

Trump went on to share that tweet Thursday morning, writing in his own accompanying message: “No.  Roger was a victim of a corrupt and illegal Witch Hunt, one which will go down as the greatest political crime in history.  He can sleep well at night!”

The president’s social media post represents his latest intervention in Stone’s case and comes after Trump and Attorney General William Barr were widely rebuked by congressional Democrats and career Justice Department officials for involving themselves in the federal law enforcement matter just a few months ago.

Federal prosecutors had urged in February that Stone be sent to prison for roughly seven to nine years for impeding congressional and FBI investigations into connections between the Russian government and Trump’s 2016 campaign.

But after Trump blasted the prosecutors’ sentencing recommendation in a tweet as a “horrible and very unfair situation,” the Justice Department submitted a revised filing that offered no specific term for Stone’s sentence and stated that the prosecutors’ initial proposal “could be considered excessive and unwarranted.” The four attorneys who shepherded Stone’s prosecution proceeded either to resign or notify the court that they were stepping off the case.

I have long been assuming (as some prior posts below reveal) that Prez Trump will use his clemency pen to keep Stone from serving prison time.  But I have also long been wondering what form of clemency Prez Trump might use.  He could provide Stone with a full pardon, of course, which would wipe away the conviction and all its consequences.  But he also could just commute his prison sentence (which, folks may recall, is what George W. Bush did for Scooter Libby).  Or, perhaps least controversially, Prez Trump could simply use his clemency power to order Sone's prison sentence to be served through home confinement (which, folks should realize, is comparable to what's happening for a number of federal prisoners in response to COVID-19 concerns).

Prior related posts:

June 4, 2020 in Celebrity sentencings, Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Thursday, May 21, 2020

After extended resistance (and likely lots of legal fees), Lori Loughlin and her husband agree to plead guilty in college admission scandal with fixed short prison sentence

As reported in this CNN piece, headlined "Lori Loughlin and Mossimo Giannulli agree to plead guilty in college admissions scam," perhaps the highest profile remaining defendants in the college admissions scandal have now finally capitulated the prosecutorial pressure and decided to plead guilty. Here are the details:

Actress Lori Loughlin and her husband, fashion designer Mossimo Giannulli, have agreed to plead guilty to conspiracy charges in connection to their role in the college admissions scam, the US Attorney's Office in the District of Massachusetts said.

Loughlin, 55, and Giannulli, 56, had been accused of paying $500,000 to get their two daughters into the University of Southern California as fake crew team recruits. They had pleaded not guilty for more than a year and moved to dismiss charges as recently as two weeks ago.

As part of the plea agreement, Loughlin will be sentenced to two months in prison and Giannulli will be sentenced to five months in prison, subject to the court's approval, according to authorities. In addition, Loughlin faces a $150,000 fine, two years of supervised release and 100 hours of community service, and Giannulli faces a $250,000 fine, two years of supervised release and 250 hours of community service.

They are scheduled to plead guilty on Friday at 11:30 a.m., prosecutors said. Loughlin's publicist said she had no comment.

Loughlin will plead guilty to conspiracy to commit wire and mail fraud, and Giannulli will plead guilty to conspiracy to commit wire and mail fraud and honest services wire and mail fraud. The actress, best known for her role as Aunt Becky on the sitcom "Full House," and her husband had previously been charged with three counts of conspiracy.

"Under the plea agreements filed today, these defendants will serve prison terms reflecting their respective roles in a conspiracy to corrupt the college admissions process and which are consistent with prior sentences in this case," said US Attorney Andrew E. Lelling. "We will continue to pursue accountability for undermining the integrity of college admissions."

Loughlin and Giannulli were some of the most famous names wrapped up in the brazen scheme to cheat, bribe and lie in the hyper-competitive college admissions process.  They allegedly paid $500,000 as part of a scheme with Rick Singer, the scam's mastermind, and a USC athletics official to get their two daughters into the university as members of the crew team, even though they did not participate in crew....

If Loughlin and Giannulli had gone to trial and been convicted, they could have faced up to 20 years in prison for the conspiracy charge. "The stakes at trial were really high for these two," CNN legal analyst Elie Honig said. "Had they gone to trial and lost, they were looking at several years each.  So they really cut their losses here by cutting these pleas."

They are the 23rd and 24th parents to plead guilty in the case. Actress Felicity Huffman pleaded guilty to conspiracy last year for paying $15,000 to the scam's mastermind as part of a scheme to cheat on the SATs and boost her daughter's test scores, and she ultimately served 11 days in prison. 

The way that this plea is described in this press release form the US Attorney leads me to suspect that this is a Rule 11(c)(1)(C) plea in which the agreement states "a specific sentence ... is the appropriate disposition of the case [which] ... binds the court once the court accepts the plea agreement."  Sure enough, the Loughlin plea agreement makes clear that it is a (c)(1)(C) plea.  I do not recall many of the other defendants in the college admissions scandal who entered plea agreements having a fixed sentence built into the agreement, though that may well have been because, earlier, neither defendants nor prosecutors were inclined to lock in a particular sentence when it was unclear just what "sentencing price" judges were inclined to attached to this conduct.  Now that a few months seems to be the "norm," these latest defendants and the prosecutors now may have been content to lock in the sentence via the plea deal.

As for the "sentencing price" set here by the parties, Lori Loughlin seemingly got a pretty good deal given how much money was spent seeking to get two kids into college.  On the surface, her case seems somewhat similar to Toby MacFarlane's case; as noted here, he spent $450,000 to get his two kids into USC as fake athletic recruits and received a sentence of six month back in November.  But, were anyone concerned about a possible "celebrity discount," it is important to realize that the "Loughlin family" is getting a total of seven month and federal prosecutors may have had many reasons to believe that Loughlin's culpability was reduced compared to her husband and MacFarlane.

A few prior posts focused on these defendants:

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

May 21, 2020 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Wednesday, May 20, 2020

Michael Cohen reportedly really getting released to home confinement now

According to this new AP piece, "President Donald Trump’s longtime personal lawyer and fixer Michael Cohen will be released from federal prison Thursday and is expected to serve the remainder of his sentence at home, a person familiar with the matter told The Associated Press."  Here is more:

Cohen has been serving a federal prison sentence at FCI Otisville in New York after pleading guilty to numerous charges, including campaign finance fraud and lying to Congress.

He will be released on furlough with the expectation that he will transition to home confinement to serve the remainder of his sentence at home, the person said.  Cohen, 53, began serving his sentence last May and was scheduled to be released from prison in November 2021....

Attorney General William Barr ordered the Bureau of Prisons in March and April to increase the use of home confinement and expedite the release of eligible high-risk inmates, beginning at three prisons identified as coronavirus hot spots. Otisville is not one of those facilities.

Cohen was told last month he would be released to serve the rest of his three-year sentence at home in response to concerns about coronavirus. He had told associates he was expecting to be released earlier this month.

The Bureau of Prisons has placed him on furlough as it continues to process a move to home confinement, the person familiar with the matter said.  The agency has the authority to release inmates on furlough for up to 30 days and has been doing so to make sure suitable inmates, who are expected to transition to home confinement, can be moved out of correctional facilities sooner, the person said.

Prior Michael Cohen posts:

May 20, 2020 in Celebrity sentencings, Impact of the coronavirus on criminal justice, Prisons and prisoners, White-collar sentencing | Permalink | Comments (0)

Wednesday, May 13, 2020

After serving almost two years, Paul Manafort moved from prison to home confinement to serve remained for his 7.5 year federal sentence due to COVID concerns

As reported in this new ABC News piece, headlined "Former Trump campaign chairman Paul Manafort released to home confinement amid coronavirus concerns," a high-profile, white-collar offender is getting moved from federal prison to home confinement due to coronoavirus concerns.  Here are the essentials (with a few details highlighted):

President Trump’s former campaign chairman Paul Manafort has been released from prison to serve the remainder of his sentence in home confinement because of concerns over the novel coronavirus, two sources familiar with the matter told ABC News.

Manafort was released from FCI Loretto in central Pennsylvania early Wednesday morning, the two sources said. An attorney for Manafort confirmed he had been released to home confinement but declined to comment further. The Bureau of Prisons also did not immediately respond to a request for comment.

Manafort, 71, has been serving out his more than seven-year sentence for charges related to special counsel Robert Mueller’s investigation in a federal correctional institution in central Pennsylvania. He was found guilty of tax fraud and conspiracy and was sentenced by a federal judge in March 2019. He was slated to be released from prison November 4, 2024. The charges stemmed from his work related to Ukraine between 2006 and 2015....

The decision to move Manafort to home confinement comes after his attorneys wrote a letter to the Bureau of Prisons (BOP) last month requesting that he be immediately transferred to home confinement because he is at high risk of contracting COVID-19 because of his age and pre-existing conditions.

While there are no known cases of coronavirus at FCI Loretto, sources have told ABC News that the prison was an old monastery, and due to the open configuration of the prison, would be devastated by the virus.

In December, Manafort was hospitalized for several days due to what sources described as a “cardiac event.” He recovered at a local Pennsylvania hospital under the supervision of correctional officers. His lawyers say his pre-existing conditions include high blood pressure, liver disease, and respiratory ailments and add that Manafort contracted influenza and bronchitis in February 2020. Manafrot takes 11 medications daily, according to his attorneys.

“We write on behalf of our client to request that the Bureau of Prisons (“BOP”) immediately transfer Mr. Manafort to home confinement to serve the remainder of his sentence or, alternatively, for the duration of the on-going COVID-19 pandemic in accordance with Attorney General William Barr’s directives to the BOP on March 26 and April 3, 2020, and the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), enacted on March 27, 2020,” attorneys Kevin Downing and Todd Blanche wrote in an April 13 letter obtained by ABC News....

Last month the Justice Department issued a clarification regarding its policy on releasing certain inmates into home confinement, after a series of conflicting messages sparked confusion and uncertainty among prisoners, attorneys and federal courts. "[Bureau of Prisons] is at this time prioritizing for consideration those inmates who either (1) have served 50% or more of their sentences, or (2) have 18 months or less remaining in their sentences and have served 25% or more of their sentences," federal prosecutors wrote in a court filing in the Southern District of New York last month. "As BOP processes the inmates eligible for home confinement under these criteria and learns more about the COVID-19 pandemic and its effect on BOP facilities, it is assessing whether and how to otherwise priority consideration.”

Manafort has served just under 30% of his prison sentence, however prison officials have wide latitude when considering these releases on a case-by-case basis.

I am quite pleased to see that the federal Bureau of Prisons has had the good sense to place this elderly, ill, nonviolent offender into home confinement; Manafort is exactly the type of person in federal prison who is a high-health risk due to the coronavirus while being a low-public-safety risk when serving his sentence at home.  But I have highlighted some notable feature of this case in the hope that BOP will take the same approach to the many thousands of other elderly and ill nonviolent persons in federal prison, even when a particular prison facility currently has no confirmed COVID cases and even when an individual has served considerably less than 50% of a lengthy prison term.

I know that federal prosecutors have regularly opposed compassionate release motions around the country by making much of the fact that certain prison facilities currently have no confirmed COVID cases and the fact that a particular inmate has not served the majority of an original long sentencing term.  But if those factors did not keep the BOP from moving Paul Manafort from federal prison into home confinement, they ought not to keep federal judges from granting needed sentence reductions to enhance public health and community safety for less prominent persons at real risk of having a federal prison sentence become a death sentence.

Some of many prior related posts:

May 13, 2020 in Celebrity sentencings, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Thursday, May 07, 2020

"Justice Dept dropping Flynn’s criminal case"

The title of this post is the title of the notable news in this new AP report.  Here is the first part of the article:

The Justice Department on Thursday said it is dropping the criminal case against President Donald Trump’s first national security adviser, Michael Flynn, abandoning a prosecution that became a rallying cry for Trump and his supporters in attacking the FBI’s Russia investigation.

The move is a stunning reversal for one of the signature cases brought by special counsel Robert Mueller.  It comes even though prosecutors for the last three years had maintained that Flynn had lied to the FBI about his conversations with the Russian ambassador in a January 2017 interview.  Flynn himself admitted as much, and became a key cooperator for Mueller as he investigated ties between Russia and the 2016 Trump campaign.

In court documents being filed Thursday, the Justice Department said it is dropping the case “after a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information.”  The documents were obtained by The Associated Press.  The Justice Department said it had concluded that Flynn’s interview by the FBI was “untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn” and that the interview on January 24, 2017 was “conducted without any legitimate investigative basis.”

The U.S. attorney reviewing the Flynn case, Jeff Jensen, recommended the move to Attorney General William Barr last week and formalized the recommendation in a document this week.  “Through the course of my review of General Flynn’s case, I concluded the proper and just course was to dismiss the case,” Jensen said in a statement. “I briefed Attorney General Barr on my findings, advised him on these conclusions, and he agreed.”

The decision is certain to be embraced by Trump, who has relentlessly tweeted about the case and last week pronounced Flynn “exonerated,” and energize supporters who have taken up the retired Army lieutenant general as something of a cause celebre.  But it may also add to Democratic concerns that Attorney General William Barr is excessively loyal to the president, and could be a distraction for a Justice Department that for months has sought to focus on crimes arising from the coronavirus.

The Justice Department’s action comes amid an internal review into the handling of the case and an aggressive effort by Flynn’s lawyers to challenge the basis for the prosecution.  The lawyers cited newly disclosed FBI emails and notes last week to allege that Flynn was entrapped into lying when agents interviewed him at the White House days after Trump’s inauguration.  Though none of the documents appeared to undercut the central allegation that Flynn had lied to the FBI, Trump last week pronounced him “exonerated

The decision is the latest dramatic turn in a years-old case full of twists and turns.  In recent months, his attorneys have leveled a series of allegations about the FBI’s actions and asked to withdraw his guilty plea.  A judge has rejected most of the claims and not ruled on others, including the bid to revoke the plea.

Prior related posts:

May 7, 2020 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Saturday, April 18, 2020

Will Prez Trump use his clemency pen to "rescue" his pal Roger Stone from federal prison?

As this Hill piece details, Prez Trump has used his Twitter fingers to call out the last bad legal development for his long-time pal Roger Stone:

President Trump late Friday denounced a judge's decision to deny Roger Stone a new trial after lawyers for the longtime GOP operative and former Trump campaign adviser raised concerns about one juror's political leanings.

“This is a disgraceful situation!” Trump wrote on Twitter, sharing a tweet blasting the decision and calling for a pardon for Stone.

Stone was found guilty in 2019 of obstructing a congressional probe into Russia's election interference and of witness tampering. He was sentenced in February to more than three years in prison but has vociferously maintained his innocence.

His lawyers had asked for a new trial after raising concerns about one juror's political leanings, prompting Trump to allege that the trial had been rigged against his former campaign adviser.  U.S. District Judge Amy Berman Jackson, an Obama appointee, ruled this week that Stone’s lawyers did not convincingly argue that any bias by the juror in question influenced the verdict....

In his first television interview since the lifting of a 16-month gag order, Stone told Fox News’s Tucker Carlson on Friday night that his prison sentence amounts to a “death sentence.”

“So at this point, the judge has ordered me to surrender in two weeks and at 67 years old with some underlying health problems, including a history of asthma, I believe with the coronavirus it is essentially a death sentence,” he said, adding that he is hoping for a pardon from Trump.

After Roger Stone's sentencing two months ago, I predicted that Prez Trump would be inclined to hold back on any possible clemency action at least until Stone's new trial motion was resolved and Stone faced the prospect of heading to prison.  That time would seem to be now, and so I wonder if Prez Trump may now be inclined to follow-up on his tweet by taking out his clemency pen. 

It bears recalling that Prez Trump last month, as noted in this post, said his administration was "looking at" using executive authority to free elderly, nonviolent offenders from federal prisons in response to the coronavirus pandemic.  From a press report on the comment:  "We have been asked about that and we're going to take a look at it.  It's a bit of a problem," Trump said,  "We're talking about totally nonviolent prisoners, we are actually looking at that, yes."

Notably, Roger Stone would certainly qualify as a elderly, nonviolent offender, even a "totally nonviolent prisoner."  I am now wondering if Prez Trump might be thinking now that he could deliver on his prior talk by granting clemency to a number of federal prisoners with Roger Stone's name just happening to get tucked into the list. 

Prior related posts:

April 18, 2020 in Celebrity sentencings, Clemency and Pardons, Impact of the coronavirus on criminal justice, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, April 16, 2020

Michael Cohen reportedly among those being moved by feds from prison to home confinement

This new CNN piece reports that the "federal Bureau of Prisons has notified Michael Cohen, President Donald Trump's former personal attorney, that he will be released early from prison due to the coronavirus pandemic, according to people familiar with the matter and his lawyer."  Here is more:

Cohen is serving a three-year sentence at the federal prison camp in Otisville, NY, where 14 inmates and seven staff members at the complex have tested positive for the virus. Cohen was scheduled for release in November 2021, but he will be allowed to serve the remainder of his sentence from home confinement, the people said.  He will have to undergo a 14-day quarantine at the prison camp before he is released.

Cohen was notified on Thursday of his pending release, and his lawyer, Roger Adler, confirmed it to CNN.  His pending release comes as the Bureau of Prisons, which has been under pressure for its early handling of the virus at its facilities, has been thinning out its prison populations by releasing some nonviolent and medically vulnerable inmates to home confinement or furloughing their sentences in response to the pandemic....

Cohen's pending release comes after a federal judge rejected his request last month. At the time Cohen accused the Justice Department of not treating him fairly and later added his concerns about the virus.

Cohen pleaded guilty in 2018 to tax fraud, campaign finance violations and lying to Congress. He admitted to helping facilitate hush money payments to two women who alleged past affairs with Trump. Trump has denied having affairs with the women. When pleading guilty, Cohen implicated Trump, telling a federal judge that he had made the payments "in coordination with and at the direction of" Trump, who prosecutors identified in court filings as "Individual 1."

I had heard some talk today that a whole lot of folks were to be moved out of the federal prison camp in Otisville, and this Cohen story suggests as much.  BOP's COVID-19 Update page reports that, as of April 16, "the BOP has placed an additional 1,198 inmates on home confinement."  

Prior Michael Cohen posts:

April 16, 2020 in Celebrity sentencings, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (0)

Tuesday, April 14, 2020

Split Eleventh Circuit panel rules Jeffrey Epstein's victims had no rights under federal CVRA before any complaint or indictment

A divided Eleventh Circuit panel today handed down a very long opinion on an very interesting issue concerning the rights of victims of a very high profile (and now very dead) federal defendant. The opinion for the court authored by Judge Newsom in In re Courtney Wild, No. 9:08-cv-80736-KAM (11th Cir. April 14, 2020) (available here), gets started this way:

This case, which is before us on a petition for writ of mandamus, arises out of a civil suit filed under the Crime Victims’ Rights Act of 2004.  Petitioner Courtney Wild is one of more than 30 women — girls, really — who were victimized by notorious sex trafficker and child abuser Jeffrey Epstein.  In her petition, Ms. Wild alleges that when federal prosecutors secretly negotiated and entered into a non-prosecution agreement with Epstein in 2007, they violated her rights under the CVRA — in particular, her rights to confer with the government’s lawyers and to be treated fairly by them.

Despite our sympathy for Ms. Wild and others like her, who suffered unspeakable horror at Epstein’s hands, only to be left in the dark — and, so it seems, affirmatively misled — by government lawyers, we find ourselves constrained to deny her petition.  We hold that at least as matters currently stand — which is to say at least as the CVRA is currently written — rights under the Act do not attach until criminal proceedings have been initiated against a defendant, either by complaint, information, or indictment.  Because the government never filed charges or otherwise commenced criminal proceedings against Epstein, the CVRA was never triggered.  It’s not a result we like, but it’s the result we think the law requires.

Judge Hull issued a near 60-page dissenting opinion (roughly matching the length of the majority opinion). Here is are key passages from its opening:

This appeal presents legal questions of first impression in this Circuit regarding the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771, which grants a statutory “bill of rights” to crime victims.  In my view, the Majority patently errs in holding, as a matter of law, that the crime victims of Jeffrey Epstein and his co-conspirators had no statutory rights whatsoever under the CVRA.  Instead, our Court should enforce the plain and unambiguous text of the CVRA and hold that the victims had two CVRA rights — the right to confer with the government’s attorney and the right to be treated fairly — that were repeatedly violated by the U.S. Attorney’s Office in the Southern District of Florida....

I dissent because the plain and unambiguous text of the CVRA does not include this post-indictment temporal restriction that the Majority adds to the statute.  Although, as I discuss later, the two rights provisions at issue include other limiting principles, there is no textual basis for the bright-line, post-indictment only restriction the Majority adds to the statute.  Rather, the Majority’s contorted statutory interpretation materially revises the statute’s plain text and guts victims’ rights under the CVRA.  Nothing, and I mean nothing, in the CVRA’s plain text requires the Majority’s result.

It will now be very interesting to see if this this matter gets further attention from either the full Eleventh Circuit and/or the US Supreme Court.

April 14, 2020 in Celebrity sentencings, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (2)

Thursday, April 02, 2020

Prominent federal defendants getting out of prison or delaying entry as a consequence of COVID-19

Here are some notable headlines and basics about some notable federal defendants who have convinced judges, quite sensibly, to allow them to avoid the COVID petri dishes that are federal prisons:

"Tekashi 6ix9ine to be ‘immediately’ released from prison amid coronavirus":

A Manhattan federal court judge has ordered rapper Tekashi 6ix9ine released from federal custody and into home confinement amid the coronavirus outbreak in New York, according to court papers unsealed Thursday.

The order by Judge Paul Engelmayer said the rapper-turned-snitch should be released “immediately” from the private prison in Queens where he is being held in the custody of US Marshals.

The former rapper will serve his first four months in “home incarceration” at an address approved by his probation officer, Engelmayer wrote. He’ll be tracked by GPS. “The defendant must remain at his residence except to seek any necessary medical treatment or to visit his attorney, in each instance with prior notice and approval by the Probation Department,” Engelmayer wrote.

"Former Rep. Chris Collins' prison term delayed due to coronavirus"

A federal judge on Thursday granted former New York Rep. Chris Collins's request to delay the start of his prison sentence for securities fraud by two months after Collins cited concerns about the coronavirus pandemic and its threat to inmates. Collins, a Western New York Republican who had been scheduled to report to prison for a 26-month sentence on April 21, is now set to begin his sentence June 23.

Collins's request came as many inmates and those facing prison sentences have asked to be released from confinement or to delay their sentences out of fear that incarceration creates particularly ripe conditions for the rapid spread of the virus. Those requests have yielded mixed results.

Attorneys for the 69-year-old former congressman, who pleaded guilty in October 2019 to one count of conspiracy to commit securities fraud and one count of making a false statement, had told the court they believe he is in a high-risk category to contract the virus, due to his age and "additional" factors.

Kudos to these judges for making the smart public health decision to keep these folks out of federal prisons for now. I hope a whole lot of less prominent federal defendants get similar treatment in the days and weeks ahead.

April 2, 2020 in Celebrity sentencings, Impact of the coronavirus on criminal justice, Prisons and prisoners | Permalink | Comments (2)

Wednesday, March 11, 2020

Harvey Weinstein sentence to (near max of) 23 years in state prison

As reported in this Hill article, "Harvey Weinstein — for decades considered one of Hollywood's most prominent and powerful producers — has been sentenced to 23 years in prison in his New York sexual assault trial." Here is more:

The prison term handed down by New York Supreme Court Judge James Burke was slightly less than the maximum sentence of 29 years that Weinstein faced.

In an unexpected move, Weinstein spoke ahead of his sentencing, reportedly telling the court he had "deep remorse." But, in an apparent reference to the "Me Too" movement, he said, "I think men are confused about all of this ... this feeling of thousands of men and women who are losing due process."...

Weinstein, 67, appeared in the New York courtroom after being convicted last month on two of five counts of sexual misconduct. While he was found guilty of a criminal sexual act and third-degree rape, he was acquitted on the most serious charges against him. Weinstein had faced up to four years in prison on the rape charge, and between five and 25 years for the criminal sexual act charge.

“We thank the court for imposing a sentence that puts sexual predators and abusive partners in all segments of society on notice," Manhattan District Attorney Cy Vance said in a statement. Weinstein's accusers, Vance said, "refused to be silent, and they were heard." "Their words took down a predator and put him behind bars, and gave hope to survivors of sexual violence all across the world," he said.

Donna Rotunno, Weinstein's attorney, said after the sentencing that she was "overcome with anger" at the term handed down. "Mr. Weinstein never really had a fair shake from day one," Rotunno told reporters, saying his defense team planned to file an appeal....

More than 80 women — including actresses Eva Green, Lupita Nyong'o and Uma Thurman — have accused Weinstein of sexual misconduct, ranging from harassment to rape. Weinstein had maintained his innocence, saying all the encounters were consensual.

Sexual assault allegations against Weinstein in 2017 — and a flood of public allegations of sexual misconduct against many in the entertainment industry that followed — helped spur the "Me Too" and Time’s Up movements and shined a spotlight on systemic sexual harassment. Following his conviction last month, Weinstein was hospitalized in New York after complaining of chest pains. He was later transferred to Rikers Island.  He also faces separate sexual assault charges in Los Angeles.

Prior related posts:

March 11, 2020 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (2)

Tuesday, March 10, 2020

Harvey Weinstein requesting (mandatory minimum) five-year prison sentence

As reported in this CNN piece, headlined "Harvey Weinstein's attorneys ask for him to receive the shortest possible prison sentence," defense attorneys have now filed their sentencing arguments a notable 7-page letter before the judge's scheduled sentencing on March 11.  Here are the basics:

Harvey Weinstein's defense attorneys are requesting a five-year prison sentence, the minimum for his first-degree criminal sexual act conviction, according to a sentencing letter provided by his spokesman.

His attorneys wrote in the letter to Judge James Burke that Weinstein's personal charitable giving, advanced age, medical issues and lack of a criminal history should lead to a lower sentence. They wrote that his life "has been destroyed" since the publication of an article in The New Yorker in October 2017 that alleged systemic abuse of women in the entertainment industry. "His wife divorced him, he was fired from The Weinstein Company, and in short, he lost everything," the attorneys wrote.

Weinstein, 67, was convicted of first-degree criminal sexual act and third-degree rape in a New York courtroom in late February based on accusations by Miriam Haley and Jessica Mann. He was acquitted of two more serious charges of predatory sexual assault, which could have come with a life sentence.

The movie producer faces a minimum of five years and a maximum of 25 years in prison for the criminal sexual act charge, and he faces up to 4 years in prison for the rape charge. His sentencing is scheduled for Wednesday.

The Manhattan District Attorney's office argued in an 11-page court filing last week that Weinstein should receive a sentence that "reflects the seriousness of defendant's offenses." He led a "lifetime of abuse towards others, sexual and otherwise," prosecutors argued, and they highlighted three dozen uncharged incidents and accusations. "Starting in the 1970s, he has trapped women into his exclusive control and assaulted or attempted to assault them," prosecutor Joan Illuzzi-Orbon wrote in a letter. Noting that sentencing isn't limited "to the evidence at trial," Illuzzi-Orbon wrote that Burke has "wide discretion" to consider everything known about the defendant when the judge imposes his sentence on the disgraced movie mogul.

However, Weinstein's attorneys argued that the prosecution's request to consider 36 alleged bad acts in sentencing is "inappropriate," adding they intend to expound upon these issues at sentencing....

In the letter, Weinstein's attorneys said his medical issues mean any sentence above five years would effectively be a life sentence. "Given his age and specific medical risk factors, any additional term of imprisonment above the mandatory minimum — although the grave reality is that Mr. Weinstein may not even outlive that term — is likely to constitute a de facto life sentence."...

The attorneys said the trial "did not fairly portray who he is as a person," saying "his life story, his accomplishments, and struggles are simply remarkable and should not be disregarded in total because of the jury's verdict." Besides noting his commercial success and contributions to the entertainment industry, the attorneys highlighted Weinstein's philanthropic endeavors, including that he was an organizer for a 9/11 benefit concert that raised $100 million. The attorneys wrote that Weinstein "always remained involved in the forefront of various social justice causes" during his career.

The defense cited that he has no criminal history and wrote that in providing this information "do not in any way intend to denigrate the seriousness of the conduct for which he was found guilty," adding his background "should be given substantial consideration in reaching a just and appropriate sentence."

The full defense letter is available here, and sentencing fans may be especially interested in the last couple of pages in which the defense makes the case against consideration of uncharged conduct at sentencing. Here are excepts from this portion of the letter:

The People now ask this court to rely on more uncharged conduct in fashioning what they surely hope will be a draconian sentence.  To that end, by and large, the People ask that your honor consider 36 alleged bad acts in arriving at an appropriate sentence.  We submit that this request is inappropriate and intend on expounding upon these issues at sentencing.

First, these allegations have not been admitted, proven, or subject to adversarial testing in any meaningful manner and for the most part mirror allegations made by the People in other filings.  Reliance upon the People’s proffer would be improper.

Second, even under the federal standard, which does not apply, the People neglect to mention that under 18 U.S.C. § 3553(a) (the “3553(a) factors”), or at least the ones it tendentially cites, federal courts are not permitted by Due Process to consider whatever unsupported conjecture the People ask it to.  Rather, in order for “relevant, uncharged conduct” must be proven by a “preponderance of the evidence” standard” before a sentencing court can give it any weight or effect.  See United States v. Cordoba-Murgas, 233 F.3d 704, 708 (2d Cir. 2000)...

Third, the alleged bad acts cited by the People do not constitute “relevant conduct,” and thus, even in federal court, and even if proven, would not be proper for consideration at sentencing....

Fourth, in the course of the People’s efforts to bootstrap these allegations to its sentencing request, it is unclear if it has met requirements under both C.P.L. § 245.20(1)(k) and Brady v. Maryland, 373 U.S. 83 (1963)Brady applies equally to material relevant to both guilt itself as well as punishment....

Finally, as the court observed, all of the People’s evidence was vigorously contested at trial.  To add weight to a sentence based upon mere allegations, some of which predate even Ms. Sciorra’s rejected claims, would violate Due Process.

Based on the foregoing, Mr. Weinstein, through counsel, requests the Court expressly disregard the People’s request to use these alleged other bad acts as a basis for it sentencing determination as set forth in its March 6, 2020 letter.

Prior related post:

March 10, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (1)

Saturday, March 07, 2020

Citing Williams v. New York repeatedly, NY prosecutors urge judge to consider Harvey Weinstein's "lifetime of abuse" at sentencing

As reported in this USA Today piece, headlined "Harvey Weinstein prosecutors seek tough sentence for his 'lifetime of abuse'," state prosecutors delivered to the sentencing judge in the Weinstein case a notable 11-page letter urging the judge to focus on a whole lot of uncharged conduct at this week's upcoming scheduled sentencing. Here are the basics:

Harvey Weinstein's sentence for his conviction on two sex crimes should reflect his "lifetime of abuse" as shown at his trial and in 36 other cases of sexual harassment and assault, workplace abuse and even physically assaulting a reporter, Manhattan prosecutors said in a letter to the trial judge released Friday.

The 11-page letter from Assistant District Attorney Joan Illuzzi was sent to Judge James Burke in advance of Weinstein's sentencing on March 11, when prosecutors are expected to make an oral statement in court about the sentence.

The trial evidence, the testimony of the six accusers who took the stand, and additional allegations outlined in the letter, Illuzzi said, "show a lifetime of abuse towards others, sexual and otherwise." She asked the judge to "impose a sentence that reflects the seriousness of defendant's offenses, his total lack of remorse for the harm he has caused, and the need to deter him and others from engaging in further criminal conduct."

Weinstein was convicted Feb. 24 of third-degree rape and first-degree sexual assault involving two women, and was acquitted of three more serious charges. He could be sentenced to prison for a term ranging from five years to 25 years....

Prosecutors, who want Weinstein's sentence to fall at the longer end of the spectrum, compiled a list of accusations they collected over two years to demonstrate that Weinstein is a predator, even if he's been convicted of only two crimes. "As this court is well aware, in imposing what it deems to be a fair and just punishment, a sentencing court is not limited to the evidence at trial," Illuzzi wrote, citing precedent to argue that the judge has "wide discretion to consider all circumstances that shed light on a convicted person's background, history and behavior" in considering a sentence.

"Chief among the information considered at sentencing is the defendant's history of 'misconduct, whether or not it resulted in convictions,' " Illuzzi said, citing precedents in several federal cases.

Arthur Aidala, one of Weinstein's defense lawyers, told USA TODAY his team has no comment on the prosecution's letter. He said they expect to issue their own pre-sentencing letter to the judge on Monday....

The prosecution list of 36 allegations is divided into three categories: alleged acts of sexual assault and harassment; alleged abusive behavior in the work environment; and other alleged "bad acts." The earliest alleged sexual assault occurred in 1978 when an employee of his music promotion company in Buffalo said she was forced to share a New York City hotel room with Weinstein and woke up to find him raping her. The most recent alleged assault occurred in 2014 at the Cannes Film Festival where he allegedly trapped a woman in a hotel room bathroom and groped her while masturbating.

The full 11-page letter is available at this link, and it makes quite the interesting read. Hard-core sentencing fans know that, over seventy years ago, the Supreme Court upheld the use of uncharged conduct at sentencing in a case from New York, Williams v. New York, 337 U.S. 241 (1949).  Fittingly, Williams is the cited and quoted repeatedly in this sentencing letter from prosecutors to the sentencing judge.

March 7, 2020 in Celebrity sentencings, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3)

Thursday, February 20, 2020

Roger Stone gets 40-month federal prison sentence ... but will he ever actually serve it?

As reported in this Politico piece, headlined "Roger Stone was sentenced Thursday to just more than three years in prison, a decision that raises immediate questions about whether President Donald Trump will pardon his longtime political confidant for what the president has decried as a miscarriage of justice." Here is more about notable sentencing:

U.S. District Court Judge Amy Berman Jackson handed down Stone’s 40-month sentence in a packed Washington, D.C., courtroom after spending more than two hours ticking through the twisted history of his case... "The problem is nothing about this case was a joke,” Jackson said moments before sentencing Stone. “It wasn't funny. It wasn't a stunt and it wasn't a prank.”

Stone, who passed on a chance to address the courtroom, stood silently with his attorneys for nearly 45 minutes while the judge explained the reasoning behind her sentence. The punishment, she said, grew in large part from the severity of his attempts to stymie the Russia probe, violations of a gag order limiting his speech during the pre-trial proceedings and for making a threat to the judge through social media. “He was not prosecuted for standing up for the president,” Jackson added in her closing remarks. “He was prosecuted for covering up for the president.”

Jackson’s sentence for Stone — among the most severe to-date in a case originating from special counsel Robert Mueller — came a week after his potential punishment triggered a furor at the Justice Department. Stone’s case has become a flashpoint for broader concerns about political meddling in high-profile legal cases....

Jackson, an appointee of President Barack Obama, jumped at the chance to press one of the newly-assigned prosecutors, John Crabb, about the issue as he delivered the government’s final comments. “I want to apologize to the court for the confusion the government caused with respect to sentencing,” Crabb said.... Under questioning by Jackson, Crabb confirmed that the original recommendation was approved by a former aide to Barr who was recently installed as U.S. Attorney in Washington, Tim Shea.

Crabb said the confusion stemmed from miscommunication between Barr and Shea, but Crabb declined to elaborate. When the judge asked whether Crabb wrote the revised recommendation, he demurred again, saying that — despite his earlier comments — he was not permitted to discuss “internal deliberations.” While Trump has denounced the decision to prosecute Stone, Crabb took a contrary position, echoing comments Barr made in an interview last week, where he called the prosecution of Stone “righteous.”...

Without mentioning any names, the judge suggested that some critics of the original recommendation seemed unusually moved by Stone’s plight, even though the guidelines that DOJ followed — first adopted in the 1980s to rein in judges’ discretion — sometimes produce extraordinarily long sentences.

“For those of you new to this and who woke up last week to the fact that the...guidelines are harsh, I can assure you that defense attorneys and many judges have been making that point for a long time, but we don’t usually succeed in getting the government to agree,” Jackson scoffed.

Later, Jackson noted that the government’s decision to argue that Stone should get less prison time than federal sentencing guidelines recommend was a definite deviation from standard practices adopted by the Trump administration. “It’s not just a question of good faith, but whether it was fully consistent with current DOJ policy,” she said. “The current policy of this Department of Justice is to charge and prosecute the most serious offense available in order to get the highest guideline level.”

Crabb acknowledged that is “generally” DOJ’s current policy and that line prosecutors are not permitted to deviate from it without approval from higher-ups. And while Trump has suggested the judge has been cruel towards his allies like former Trump campaign chairman Paul Manafort, Crabb came to the judge’s defense Thursday, saying “the government has the utmost confidence” in her, and praising her “thoughtful analysis and fair sentences” in related cases....

The judge also said that when making her decision, she took into account Stone's social media attacks on the court during his prosecution that raised security concerns at the courthouse. "This is intolerable to the administration of justice and the courts should not sit idly by, shrug its shoulders and just say it's 'Roger being Roger,’” Jackson said.

Stone, 67, has sought to avoid any prison time. During Thursday’s hearings, his defense argued he had no criminal record and should get a reprieve because he’s a family man about to become a great-grandfather. “Consider the full scope of the person who stands before you in sentencing," said Seth Ginsberg, a new defense lawyer brought on for sentencing. “Mr. Stone has many admirable qualities,” Ginsberg added, urging Jackson to look beyond the "larger than life persona" Stone plays on TV. He noted Stone's charity work to help veterans, animal welfare and NFL players suffering from traumatic brain injuries.

Earlier this week, Judge Jackson indicated that Stone would not have to start serving his sentence until she rules on his motion for a new trial. I expect that Prex Trump will be inclined to hold back on any possible clemency action at least until that motion is resolved and Stone faces the prospect of heading to prison. (As some may recall, Prez GW Bush did not commute Lewis Libby's prison sentence until the DC Circuit denied his request for bail pending appeal.)

Prior related posts:

February 20, 2020 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (3)

Wednesday, February 19, 2020

Roger Stone case generating some useful reflections on federal sentencing challenges and problems and lessons

Roger Stone is scheduled to be sentencing on Thursday and this Bloomberg piece provides a bit of the lay of the land starting this way:

Roger Stone’s sentencing on Thursday is shaping up as a test of judicial independence after President Donald Trump inserted himself in the court’s deliberations over the fate of his longtime confidant. If U.S. District Judge Amy Berman Jackson sentences Stone in line with the Justice Department’s new and lower recommendation, partisans will see that as caving to Trump, former federal prosecutor Harry Sandick said. If she gives a jail term closer to the maximum, she’ll be seen as defying the pressure.

“Given how polarized the country is, some people will look to Jackson to be a hero and give him a long sentence, and others will look to her to be a hero and give him a short sentence, but she’ll likely come in somewhere in between,” Sandick said. “She doesn’t need to be a hero. She’s a federal judge.”

Jackson said Wednesday that she’ll allow Stone to remain free regardless while she considers his bid for a new trial and any other motions filed after the sentencing. Speculation that sending him straight to prison could prompt Trump to swiftly pardon him rose after the president issued a slate of high-profile clemencies Tuesday in cases often supported by conservatives.

I am a bit sad that I am not teaching my sentencing course this semester because so many of the elements around, and the challenges that surround, federal sentencing decision-making could be effectively taught through the lens of the Stone case.  Helpfully, a number of thoughtful folks have taking already penned thoughtful pieces that use the Stone case to spotlight various federal sentencing challenges and problems and lessons.  Here are some that have caught my eye that are worth reading in full (and that I quote from too briefly just to whet appetites):

By Michael Zeldin at CNN, "In Stone case, a blast from the Obama past":

Barr's approach, in this instance involving a Trump ally, was more consistent with the DOJ guidance for charging and sentencing issued by Attorney General Eric Holder under President Barack Obama -- a policy that the Sessions memorandum essentially reversed. What, you may be asking? Yes, in my opinion, in this case, Barr appears to have followed more closely DOJ's policy as it stood under Obama's attorney general, rather than under Sessions, who said at the time that he was ushering in the "Trump Era."

By Rory Fleming at Filter, "Can Roger Stone Case Spark Debate on the Dreadful US Sentencing Guidelines?"

Arguably the worst part is that federal sentencing under the Guidelines takes into account all the defendant’s “relevant conduct”—including conduct as a kid, including whether or not the conduct was charged and including charges that have resulted in acquittal. And the standard of proof in court for aggravators is ”proof” by the preponderance of the evidence—which means considered more likely than not—rather than “beyond a reasonable doubt.”

By Timothy Zerillo at Medium, "The Roger Stone Sentencing Highlights the Impact of Federal Sentencing Enhancements":

Every day, in all 94 of the District Courts throughout the United States, defendants will be sentenced and enhancements will be metered out. These enhancements, along with mandatory minimums and a desire to punish rather than rehabilitate, all serve to contribute to our culture of mass incarceration. Regardless of your opinion about Roger Stone, his situation highlights how sentences can skyrocket based on sometimes fair, sometimes ridiculously unfair, sentencing enhancements.

By Sarah Lustbader at The Appeal, "One Thing Barr Gets Right: The Sentencing Guidelines Are Indeed Too Harsh":

Given that disparities between rich and poor still run rampant in the criminal system, it is tempting for those of us in the social justice community to take the DOJ at its word in its amended sentencing memo when it urges a tailored, nuanced, and lenient outcome. The government even included in the memo a reminder that “the Supreme Court has stated that a sentencing court ‘may not presume that the Guidelines range is reasonable but must make an individualized assessment based on the facts presented.’” One civil rights attorney suggested on Twitter that federal defense lawyers file memos in all of their cases, stating that the DOJ believes that guidelines sentences are not presumptively reasonable.

By Mike Scarcella at The National Law Journal, "The Hardest Thing About Being a Judge? What Courts Say About Sentencing":

“It is just not a natural or everyday thing to do—to pass judgment on people, to send them to prison or not," one federal appeals judge once remarked.  Here's a look at how judges across courts have described the challenge of sentencing, as Roger Stone prepares to learn his fate.

Prior related posts:

February 19, 2020 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, February 13, 2020

Just some (of lots and lots of) commentary about Roger Stone(d) federal sentencing process

Unsurprisingly, lots of folks have lots of things to say about the upcoming federal sentencing of Roger Stone and the sentencing process and controversy that has already unfolded.  Here are links and short passages from three notable pieces that recently caught my eye:

From Jacob Sullum at Reason, "Roger Stone Deserves a Lighter Sentence, but Not Because He Is Trump's Buddy":

This week President Donald Trump and his appointees at the Justice Department intervened in the sentencing of Roger Stone, a longtime Trump crony who was convicted last November of obstructing a congressional investigation, lying to a congressional committee, and witness tampering. Yesterday, the day after four prosecutors assigned to the case recommended a sentence of seven to nine years, Timothy Shea, the interim U.S. attorney for the District of Columbia, overrode them, suggesting "a sentence of incarceration far less" than the one originally proposed.

That reversal, which came after Trump called the original recommendation "horrible and very unfair," is unseemly and smacks of legal favoritism. At the same time, a prison sentence of seven to nine years is disproportionate given the nature and consequences of Stone's crimes....

Regardless of its motivation, the revised memorandum is admirably measured and fair-minded, noting that prosecutors have a duty to pursue justice, not simply to clobber defendants with the heaviest penalties the law allows. It would substantially improve the quality of justice in this country if prosecutors more often took that approach with defendants who are not the president's buddies.

From Andrew McCarthy at The National Review, "The Roger Stone Sentencing Fiasco":

But for his connection to Trump, Stone would never have been pursued in a collusion fever dream that Mueller’s prosecutors knew was bogus when they charged him. Yet his crimes, while exaggerated, were real. He was convicted by a jury and, under federal law, that presumptively warrants incarceration, though he could be spared by the judge (whom the president has picked a strange time to antagonize). If the president thinks that Stone and Flynn (among others) have been given a raw deal, the Constitution empowers him to pardon them, or at least commute their sentences.

If President Trump is afraid, in an election year, to take the political hit that a pardon for Stone would entail, that is understandable. But then he should bite his tongue and click out of Twitter. The Justice Department’s job is to process cases, including Mueller cases, pursuant to law. If the president wants to make those cases disappear, he has to do it himself and be accountable. His provocative running commentary only ensures that the DOJ will be accused of kowtowing to him. It also guarantees that, if the ongoing criminal probe of the Russiagate investigation eventually yields any indictments, they will be assailed as political persecutions rather than good-faith law enforcement.

From David Oscar Marcus at The Hill, "Let's use Roger Stone's case to fix our broken justice system":

People are rightly upset that DOJ is saying that the sentencing guidelines apply to everyone — except the president’s friends.  That’s a huge problem, and it’s no wonder that the prosecutors handling the case resigned.  How can they go into court every day and ask for monster sentences across the board except for FOT (Friends of Trump)?

But the larger problem, and the one that no one is talking about, is that the system itself is fatally flawed because it is set up for prosecutors and judges to issue unjustifiably harsh sentences.  Stone shouldn’t be thrown in a cage for 7-9 years — and neither should any other first-time non-violent offender.  There are two important fixes available:

First, we should abandon the sentencing guidelines.  Often prosecutors fall back on the sentencing guidelines for cover when asking for these crazy high sentences. Those “guidelines” are a complicated point system that calculate potential sentences by adding and subtracting points based on factors like the amount of loss, whether the person is a leader, and so on.  The problem with this point system is that it is not based on any empirical data or study. The numbers are plucked out of thin air.  Further, they don’t take into account the characteristics of the individual being sentenced.  Has the defendant led a good life?  Did she serve in the military?  Donate to charity?  Raise a good family?  The guidelines don’t care.  The Supreme Court recognized these problems and said that judges should simply consult the guidelines but should not be bound by them.  That was a good start, but the truth is that they aren’t even worth consulting.  They don’t work, and — since their implementation back in 1984 — our jail population has exploded.

Second, we should eliminate the trial tax.  This case is a good example of the trial tax in action. Had Stone pleaded guilty, he would have been looking at a sentence of closer to 24 months under the guidelines.  And had he met with prosecutors and cooperated, he likely would have been sentenced to probation.  Because he had the audacity to go to trial, his sentence goes from probation to 7-9 years.  It’s no wonder that innocent people plead guilty. It’s no wonder that trials are vanishing.  Before the sentencing guidelines and the trial tax, 20 percent of cases went to trial.  Now it’s less than 3 percent.  That is pretty stark evidence that the trial tax has become too severe.

Lots of people are rightly saying that Trump was wrong to jump in for his friend and overrule the line prosecutors’ sentencing recommendation.  But what was wrong about it was not overruling an overly harsh sentence.  What was wrong about it was that he did it for a friend instead of across the board. We are in bad need of criminal justice reform. Let’s overrule all of these insane sentencing recommendations for first time non-violent offenders — not just the FOT.

Prior related posts:

February 13, 2020 in Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Friday, February 07, 2020

Nine-month federal prison term (the longest yet) given to former CEO who paid nearly $1 million to benefit four kids in college admission scandal

As reported in this Los Angeles Times piece, "Douglas Hodge, once the leader of an international bond manager and now an admitted felon, was ordered Friday to spend nine months in federal prison for paying bribes totaling $850,000 to get four of his children into USC and Georgetown as fake athletic recruits."  Here is more about the latest sentencing in Operation Varsity Blues:

Hodge, 62, received the longest prison term of any of the 14 parents who have so far been sentenced for fraud and money laundering crimes they admittedly committed with William “Rick” Singer, a Newport Beach college admissions consultant who has acknowledged defrauding some of the country’s most selective universities for years with rigged exams, fake athletic credentials and bribes.  In addition to his prison term, U.S. District Judge Nathaniel M. Gorton ordered Hodge to pay a $750,000 fine, serve 500 hours of community service and remain on supervised release for two years.

“I know that I unfairly, and ultimately illegally, tipped the scales in favor of my children over others, over the hopes and dreams of other parents, who had the same aspirations for their children as I did for mine,” Hodge said in a statement. “To those children, and their parents, I can only express my deepest and sincerest regret.”

From the day he surrendered to authorities last March, Hodge, a resident of Laguna Beach, was among the highest-profile names in a scandal headlined with them. He rose to the head of Pimco, the bond management company based in Newport Beach, before retiring from the post of chief executive in 2016.

Prosecutors from the U.S. attorney’s office in Boston had asked Gorton to send Hodge to prison for two years. In a memo filed before his sentencing, they criticized Hodge as a hypocrite, appearing to the world the image of success and integrity while leading “a secret double life, using bribery and fraud to fuel a mirage of success and accomplishment.”

Hodge’s lawyers said the request for a two-year prison term reflected the Boston prosecutors’ “single-minded obsession” with obtaining undeservedly lengthy sentences in the high-profile case. Gorton handed down in November what was previously the longest sentence in the case, a six-month term, to Toby Macfarlane. The Del Mar title insurance executive is incarcerated in Tucson scheduled to be released in June, according to Bureau of Prison records.

Hodge pleaded guilty in October to conspiring to commit fraud and money laundering. Along with three other parents, he reversed his not-guilty plea after prosecutors warned of a new indictment carrying a bribery charge.

Eleven parents — a group that includes the actress Lori Loughlin and her husband, J. Mossimo Giannulli — balked at the threat, maintained their not-guilty pleas and were indicted on a bribery charge. Fifteen parents have pleaded not guilty; 21 have admitted their guilt or said they plan to do so...

Justin D. O’Connell, an assistant U.S. attorney in Boston, said Hodge did more than look away from Singer’s scheme. Hodge, he wrote in a memo, “engaged in the scheme more often, and over a longer period of time, than any of the defendants charged to date.” After his daughter was admitted to Georgetown, Hodge repeated the scam at the school for his oldest son and at USC for two more children, spending $850,000 in all. In arguing for a two-year sentence, O’Connell pointed to what he said was Hodge’s willingness to bring his children into his crimes.

He told his daughter to “stay under the radar,” and not tell a Georgetown interviewer that she had already been admitted through tennis, O’Connell wrote. Hodge vehemently disputed this. “The government simply has the facts wrong on this,” he said. His lawyers said he took “great steps” to hide from his children the scheme to transform them into elite athletes on paper, and that prosecutors have no evidence they were aware of, let alone complicit in, the fraud.

Prior related Varsity Blues posts:

February 7, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

Saturday, January 18, 2020

Former US Rep Chris Collins sentenced to 26 months for insider trading

As reported in this Politico piece, on Friday "former Rep. Chris Collins was sentenced to 26 months in prison for an insider trading scheme that led to his arrest and resignation from Congress." Here is more about a notable federal sentencing:

The Western New York Republican pleaded guilty in October, accused of passing illicit stock tips to his son from the White House lawn during a Congressional picnic.

Judge Vernon Broderick handed down the sentence Friday in Manhattan federal court along with a $200,000 fine, after the disgraced Congressman broke down in sobs as he pleaded for mercy for himself and his son. “I violated my core values and there is no excuse,” Collins said, breathing heavily. “What I have done has marked me for life.”

Collins, the first member of Congress to back Donald Trump for president, was charged in August 2018 with securities fraud, wire fraud and making false statements to FBI agents — part of an alleged scheme to share confidential information about an Australian biotech company whose board he sat on.

When he learned of the results of a failed trial for a multiple sclerosis drug, he called his son Cameron Collins to alert him — allowing the son and his fiancee’s father to unload Innate Immunotherapeutics stock before it tanked and avoid hundreds of thousands of dollars in losses.

He initially denied any wrongdoing and was reelected despite being under federal indictment, but ultimately pleaded guilty to one count of conspiracy to commit securities fraud and one count of lying to the FBI. He resigned his seat ahead of the plea....

Broderick said prison time was necessary to instill respect for the law. He said he did not buy Collins’ argument that his crime was one of emotion and faulted him for leaving his constituents with no representation in Congress. “I don’t view this as a spur of the moment loss of judgment,” Broderick said.

Collins faced a maximum of ten years in prison, but agreed in a plea deal to accept a sentence of up to 57 months. Prosecutors asked the judge to hit him with a sentence of 46 to 57 months, arguing that a hefty sentence was necessary to send the message that abuse of power would not be tolerated....

The former congressman asked to be spared jail time and be sentenced to probation, saying he had shown remorse and already paid a price for his crimes through the loss of his political career. “Chris is a fundamentally good and decent human being,” said his attorney, Jonathan Barr.

His son Cameron and Stephen Zarsky, the father in law of Cameron’s fiancee, have also pleaded guilty for their role in the insider trading scheme. Collins asked the judge to show mercy for his son, even if he himself was not spared.

January 18, 2020 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (3)

Tuesday, January 07, 2020

Federal prosecutors, now soured on Michael Flynn, note that "similarly situated defendants have received terms of imprisonment"

As reported in this Washington Post piece, "Federal prosecutors Tuesday recommended that former national security adviser Michael Flynn serve up to six months in prison, reversing their earlier recommendation of probation after his attacks against the FBI and Justice Department." Here is more on the latest filing by prosecutors:

The government revoked its request for leniency weeks after Flynn’s sentencing judge categorically rejected Flynn’s claims of prosecutorial misconduct and that he had been duped into pleading guilty to lying to FBI agents about his Russian contacts after the 2016 U.S. election. “In light of the complete record . . . the government no longer deems the defendant’s assistance ‘substantial,’ ” prosecutor Brandon Van Grack wrote in a 33-page court filing.  He added, “It is clear that the defendant has not learned his lesson. He has behaved as though the law does not apply to him, and as if there are no consequences for his actions.”

Flynn faces sentencing Jan. 28 before U.S. District Judge Emmet G. Sullivan in Washington. Flynn defense attorney Sidney Powell is scheduled to file his sentencing request Jan. 22.

The request marked the latest twist in the legal saga of the former Army lieutenant general and adviser to President Trump, whose rocky path after his candidate won the White House included serving the shortest tenure of a national security adviser on record — just 24 days — before resigning in February 2017. He then became a key witness in a probe into the administration, before breaking with the prosecutors who had credited him with helping them.

Flynn’s change of heart came after the end of special counsel Robert S. Mueller III’s probe of Russian election interference. Some Trump allies at that time pushed the president to pardon figures in the probe, particularly Flynn. A potential prison term could renew such calls.

Flynn, 61, pleaded guilty Dec. 1, 2017, to lying about his communications with then-Russian Ambassador Sergey Kislyak during the presidential transition, becoming the highest-ranking Trump official charged and one of the first to cooperate with Mueller’s office.

Flynn faces up to a five-year prison term under the charge, which included his misrepresentation of work advancing the interests of the Turkish government. However, ahead of Flynn’s initially scheduled sentencing in December 2018, prosecutors said he deserved probation for his “substantial assistance” in several ongoing investigations. In a November 2018 filing, Mueller wrote that Flynn’s guilty plea “likely affected the decisions of related firsthand witnesses to be forthcoming . . . and cooperate.” The special counsel noted Flynn’s “early cooperation was particularly valuable because he was one of the few people with long-term and firsthand insight regarding events and issues under investigation.”...

This year Flynn switched defense lawyers, and his new team asked Sullivan to find prosecutors in contempt, alleging Flynn had been entrapped into pleading guilty and prosecutors wrongfully withheld evidence. Flynn also broke with prosecutors in the July federal trial of his former business partner Bijan Rafiekian, on charges of illegally lobbying for Turkey. Flynn was set to be the star witness against Rafiekian. He told a grand jury he and Rafiekian campaigned “on behalf of elements within the Turkish government,” a project that included an op-ed under Flynn’s name on Election Day in 2016. But just before the trial, Flynn claimed prosecutors wanted him to lie. A jury convicted Rafiekian without Flynn’s testimony, but a judge threw out those convictions in part because he found “insufficient” evidence of a conspiracy between the two men or of the Turkish government’s role....

In withdrawing their request for leniency, Flynn’s prosecutors highlighted his hindrance of Rafiekian’s prosecution, the only cooperation they had initially deemed “substantial.” The government recommended zero to six months of incarceration for Flynn, citing “the serious nature of the defendant’s offense, his apparent failure to accept responsibility, his failure to complete his cooperation in — and his affirmative efforts to undermine — the prosecution of Bijan Rafiekian.”

Prosecutors backed their claim Tuesday by filing dozens of pages detailing Flynn and his lobbying firm’s misconduct, including grand-jury transcripts and FBI interview reports. Overall, prosecutors said Flynn participated in 19 interviews with federal prosecutors and turned over documents and communications. The substance of his cooperation was initially hidden, but most has come out in Mueller’s final report, subsequent trials or public records released as a result of lawsuits filed by news organizations.

The Government's 33-page "supplemental memorandum in aid of sentencing" in US v. Flynn is available at this link and makes for quite an interesting read. Lots of headlines concerning the filing suggest that the feds are seeking a prison term for Flynn and one as long as six months.  But the final phrase of the submission's introduction simply states that "the government recommends that the court sentence the defendant within the applicable Guidelines range of 0 to 6 months of incarceration."  A sentence of zero months for Flynn would technically be within the applicable guideline range and comply with the government's recommendation.  Highlighting the nuance of the Government's work here, consider the final section of the submission, which start and ends this way:

The factors enunciated in Section 3553(a) all favor the imposition of a sentence within the Guidelines range.  The defendant’s offense is serious, his characteristics and history present aggravating circumstances, and a sentence reflecting those factors is necessary to deter future criminal conduct.  Similarly situated defendants have received terms of imprisonment....

In the above cases, a term of imprisonment was imposed.  The government acknowledges that the defendant’s history of military service, and his prior assistance to the government, though not substantial, may distinguish him from these other defendants.  The government asks the Court to consider all of these factors, and to impose an appropriate sentence within the Guidelines range.

Prior related posts (all from over one year ago):

January 7, 2020 in Celebrity sentencings, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, December 17, 2019

Rick Gates gets sentence of 45 days in jail and a fine and community service (while co-defendant Paul Manafort has five more years in prison)

As reported in this CBS News piece, "Rick Gates, the former Trump campaign official and onetime business partner of Paul Manafort, was sentenced to 45 days in jail on counts of conspiracy and lying to federal investigators." Here is more:

Gates, 47, appeared in federal court in Washington to learn his sentence Tuesday. U.S. District Judge Amy Berman Jackson sentenced him to 36 months probation and 45 days behind bars, which he will be allowed to serve on weekends or under a schedule set by probation officers. He must also pay a fine of $20,000 over the course of 20 months, and complete 300 hours of community service.

Gates was one of six Trump associates charged in connection to special counsel Robert Mueller's investigation into Russian interference in the 2016 election. He pleaded guilty to two counts in February 2018, admitting he lied to federal investigators and helped Manafort conceal millions of dollars in overseas payments. Gates agreed to cooperate with the government, becoming the star witness in high-profile trials of three others charged in the Mueller probe: Manafort, Roger Stone and Greg Craig.

Because of his extensive cooperation with the government, federal prosecutors recommended that Jackson sentence Gates to probation, a much lighter punishment than the maximum 10 years in prison the charges allowed under federal guidelines.

Gates was Manafort's right-hand man and became his deputy when Manafort was named chairman of the Trump campaign in 2016. After Manafort was forced to step down over revelations about his work in Ukraine, Gates stayed on, becoming a liaison between the campaign and the Republican National Committee. He helped plan President Trump's inauguration before leaving for a job with a pro-Trump outside group.

At Manafort's trial on charges of bank fraud and other financial crimes, Gates provided crucial testimony against his former boss, telling jurors Manafort had instructed him to forge financial documents and IRS forms.

As folks may recall, Manafort was convicted at trial of some counts, pleaded guilty to another set of charges and he ultimately received 7.5 years in total imprisonment after two sentencings.  And, according to the Bureau of Prisons inmate locator, Manafort now has a release date of Christmas Day 2024.

Prior related post:

December 17, 2019 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Monday, November 18, 2019

Interesting look at a federal sentencing judge (and claims of judge shopping) in college admissions scandal cases

This new Los Angeles Times article, headlined "In sentencing Del Mar father, key judge in admissions scandal offers insight into future decisions," provides an interesting behind-the-scenes looks at one of the judges now at the center of upcoming sentencing in the Varsity Blues case. And toward the end of the piece there is an interesting discussion of purposed efforts to "judge shop." Here are excerpts:

It was a sentencing hearing for Toby Macfarlane, a Del Mar insurance executive who will spend six months in prison for conspiring to have his children admitted to USC as bogus athletic recruits. But on Wednesday, all eyes were on U.S. District Judge Nathaniel M. Gorton, who is also overseeing the cases of 15 other parents who’ve maintained their innocence in an investigation of fraud, graft and deceit in the college admissions process.

Lori Loughlin’s legal fate will be decided in Gorton’s courtroom. So, too, will those of many other high-profile names embroiled in the scandal, among them Loughlin’s husband, fashion designer Mossimo Giannulli, and Bill McGlashan, a San Francisco Bay Area financier.

Six attorneys for other parents charged in the scandal filled a bench in Gorton’s third-floor courtroom, taking notes and trying to gain insight into how the 81-year-old jurist views the allegations of fraud and bribery the government has brought against clients of William “Rick” Singer, the Newport Beach consultant who oversaw a scheme to defraud some of the country’s most elite universities with rigged entrance exams, fake athletic credentials and bribes.

They got their answer. In Gorton’s first sentencing in the case, he delivered a withering dressing-down and a penalty to match. Macfarlane’s conduct — paying Singer $450,000 to slip his son and daughter into USC as phony athletes — was “devastating,” Gorton said. Macfarlane’s crimes may have been possible because of his wealth, Gorton said, but his actions were no different than those of “a common thief.”

Gorton doubled the sentencing range recommended by the court’s probation department, and committed Macfarlane to prison for six months — the longest sentence handed down in a scandal that erupted in March....

While he didn’t agree with the prosecution’s argument that the high-dollar amount of Macfarlane’s payment should lengthen his sentence, Gorton said Macfarlane’s crimes were nonetheless “serious and caused real harm,” deserving of a harsher sentence than the range recommended by the probation department....

In a sign that defense attorneys see Gorton as handing down harsher sentences than his peers at the courthouse, lawyers for 17 parents charged in the scandal wrote an unusual letter in April to Patti B. Saris, the chief judge for the district of Massachusetts, protesting the government’s intent to add their clients to an indictment that had already been assigned to Gorton.

Calling it “a clear form of judge shopping,” the attorneys said prosecutors so wanted to try their cases before Gorton that they had circumvented the process that assigns cases to judges at random. They qualified their complaint by saying, “To be sure, we deeply respect Judge Gorton.”

But Andrew Lelling, the U.S. attorney for Massachusetts, said in a letter of his own that what those attorneys “fail to say — but of course mean — is that they want a different judge because they perceive Judge Gorton as imposing longer sentences in criminal cases than other judges in this district.” Such a gripe, Lelling said, was a “hail Mary by people who know better.” The parents whose attorneys signed the letter were not, in the end, reassigned to a different judge.

Gorton will sentence four parents early next year who reversed their not-guilty pleas last month: Douglas Hodge, the former chief executive of bond giant Pimco; Michelle Janavs, a philanthropist whose family created the Hot Pocket; Manuel Henriquez, a Bay Area financier, and Henriquez’s wife, Elizabeth. The four changed their pleas after coming under pressure from prosecutors, who warned they could be charged with an added felony count of bribery if they didn’t plead.

U.S. District Judge Indira Talwani, who determined punishments for 11 of the 12 parents sentenced before Macfarlane, handed down sentences ranging from no time at all for Peter Sartorio, a Menlo Park, Calif., frozen foods entrepreneur, to five months in prison for Agustin Huneeus, a Napa, Calif., vintner.

A third judge, Douglas P. Woodlock, sentenced Jeffrey Bizzack, a Solana Beach entrepreneur and the longtime business partner of surfer Kelly Slater, to two months in prison.

November 18, 2019 in Celebrity sentencings, Offense Characteristics, Who Sentences | Permalink | Comments (2)

Wednesday, November 13, 2019

Longest prison sentence (six months) imposed in college admission scandal on big-spending dad

As reported in this USA Today piece, today in Boston "Toby MacFarlane, a former real estate and title insurance executive from California, was sentenced to six months in prison Wednesday for paying $450,000 to get his daughter and son admitted into the University of Southern California as fake athletic recruits."  Here is more:

It marks the longest prison sentence so far handed down among 13 parents and one college coach in the nation's college admissions scandal.

U.S. District Judge Nathaniel Gorton stressed that MacFarlane participated in the nationwide admissions scheme led by college consultant Rick Singer "not once, but twice," taking seats at USC away from two deserving students. He told MacFarlane his actions should be tolerated no more than a common thief's actions, "because that's what you are — a thief."...

Gorton also sentenced MacFarlane to two years of supervised release, 200 hours of community service and a $150,000 fine....

Addressing the court, MacFarlane, himself a USC graduate, apologized to his family, friends, former business partners and his alma mater, as well as "all of the students who applied and didn't get in."...

Gorton opted to impose a harsher sentence than called for in sentencing guidelines, citing the “fraudulent, deceitful" nature of MacFarlane's conduct. The judge's decision could be a preview of how he will approach other parents who go before him — including actress Lori Loughlin — who have pleaded not guilty.

MacFarlane, a former senior executive at WFG National Title Insurance Company, made two separate payments of $200,000, one in 2014 and on in 2017, to the sham nonprofit operated by Singer. Singer, in turn, facilitated his children's admissions into USC through bribes to one current and two former USC employees. MacFarlane also made a $50,000 payment to USC athletics.

The first transaction involved the admission of MacFarlane's daughter into USC as a fake soccer recruit. He then paid Singer again to admit his son into USC posing as a basketball recruit. "The defendant knew what he was doing was wrong. He knew it wasn't accepted at the school," Assistant U.S. Attorney Eric Rosen told the judge. "So what does he do? He does it again with his son.”

Rosen said MacFarlane deserved prison because he was the first parent who paid into Singer's "side-door" recruitment scheme twice. He asked the judge to "send a message" as a result.

MacFarlane's defense attorney, Ted Cassman, sought a lighter sentence, arguing his client was less culpable than other parents sentenced in the admissions scheme. Unlike other parents, he said MacFarlane did not seek out Singer for cheating but for his consulting services. He said MacFarlane already suffered "swift and severe" collateral consequences from his conduct. He also pointed to MacFarlane's divorce, which separated his family and pressured him to buckle to Singer's offer....

The toughest prison sentence previously ordered was five months for Agustin Huneeus, a Napa Valley, California winemaker. Huneeus, who agreed to pay Singer $300,000 is the only defendant to take part in both the recruitment scheme and Singer's plot to cheat on college entrance exams. U.S. District Judge Indira Talwani handed down the sentence of Huneeus and 11 other parents while Judge Douglas Woodlock sentenced one other parent.

Twenty-nine defendants, including 19 parents, have either pleaded guilty in court or agreed to plead guilty to charges in the historic admissions case. Igor Dvorsiky, a former administrator for the ACT and SAT, pleaded guilty in court Wednesday to racketeering charges for accepting nearly $200,000 in bribes to opening a private school he operated in Los Angles for cheating in Singer's scheme. He admitted to opening it on 11 occasions, involving 20 students, for cheating.

Prior related Varsity Blues posts:

November 13, 2019 in Booker in district courts, Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

Wednesday, October 23, 2019

Reviewing the sentencing dynamics as more parents get (minimal) prison time in "Operation Varsity Blues" college admissions scandal

This lengthy USA Today article provides a kind of mid-season review now that 19 parents out of 35 charged have pleaded guilty in "Operation Varsity Blues" college admissions scandal. The piece, which I recommend in full, is headlined "Parents cry desperate times in college admissions scandal.  A judge opts for prison anyway."  Here are excerpts:

One couple, Gregory and Marcia Abbott, told the judge they paid $125,000 to have someone fix their daughter's college entrance exams because she was suffering from chronic Lyme disease and needed a boost.

Attorneys for a father, Robert Flaxman, said he was desperate to help a troubled daughter remain in recovery — so he paid to cheat in hopes of getting her into a college where she would be safe.

Lawyers for another parent, Marjorie Klapper, said she was trying to help her epileptic son who'd suffered a brutal physical assault feel like a "regular" student.

The wealthy parents are among 10 sentenced in the last two months in the nation's college admissions scandal. Each insisted they didn't cheat for the status symbol of their child getting into an elite college or university. Instead they were driven by a feeling people endure regardless of economic class — desperation. They were families in crisis, the parents said, and the scheme's mastermind, the manipulative college consultant Rick Singer, found them at their most vulnerable and seized upon their weakness.

But their stories, each deeply personal with some details sealed from public court documents, have done little to sway the sentences handed down by U.S. District Judge Indira Talwani. Attorneys for the Abbotts, Flaxman and Klapper each asked for no incarceration but got prison anyway. Only one of the 10 sentenced parents has avoided prison altogether.

“Just because you’re a good person in tough circumstances doesn’t mean you can disregard what you know is right," Talwani said last week to Flaxman, a real estate developer from Laguna Beach, California, who specializes in luxury resorts. “Even good people who are doing things for people they love can’t be breaking the law."

Flaxman, who sobbed in court as he apologized to students who "work hard and don’t cheat no matter what,” received one month in prison for paying $75,000 to Singer to have someone change answers on his daughter's ACT exam to improve her score.

The ongoing round of parent sentencing continues today with Jane Buckingham, of Los Angeles, the founder of a marketing firm and author of a self-help book series called, "The Modern Girl's Guide to Life." She's admitted to paying Singer $50,000 to have someone take the ACT exam for her son.

Two more parents will be sentenced in the coming weeks by other Boston federal judges. Four additional parents pleaded guilty in court Monday, bringing the total to 19 parents out of 35 charged who have pleaded guilty in the case. The latest four won't be sentenced until 2020.

Parents sentenced to date pleaded guilty to conspiracy to commit fraud charges. Those citing personal crises tend to have paid into the test-cheating plot and are not part of the group who paid Singer significantly more to have their children tagged as college recruits to facilitate their admissions. Talwani, during a hearing last week, said a level of "elitism" was at play with the latter.

Daniel Medwed, professor of law and criminal justice at Northeastern University School of Law, said a fallback defense strategy in any case is to develop "mitigation evidence" — often hardships — to demonstrate extenuating circumstances.  "With clients from impoverished or challenging backgrounds, the argument is to often cite those backgrounds — that this person never had a chance, they grew up without a roof," Medwed said.  "But when your defendants are white privileged folks you can't make a classic hardship argument.  So you have to come up with a different hardship."  Some of their arguments might not resonate with judge, he said, because it's difficult to "connect the dots between the hardships and the behavior."

The theme of this article seems to be that the defendants' various tales of woe are having little impact, that these deeply personal stories "have done little to sway the sentences handed down by U.S. District Judge Indira Talwani."  But, critically, federal prosecutors have generally advocated for longer prison terms for nearly all defendants than have been imposed by Judge Talwani, and it is generally unusual for any federal prison terms to be measured in weeks rather than in months and years.  So I am inclined to believe these arguments are resonating with the sentencing judge, but that she is still eager to impose (minimal) terms of imprisonment to send a message about misbehavior and equal justice.

Prior related Varsity Blues posts:

October 23, 2019 in Booker in district courts, Celebrity sentencings, Offense Characteristics, Who Sentences | Permalink | Comments (1)

Tuesday, October 22, 2019

The trial penalty on fine display as parents in college admissions scandal get hit with new federal bribery charges

As reported in this new Los Angeles Times article, headlined "New bribery charge leveled against Lori Loughlin and other parents in college admissions scandal," federal prosecutors are ramping up the potential consequences of refusing to plead guilty for some parents in the college admission scandal. Here are the details:

Already charged with fraud and money laundering, 11 of the 15 parents who have maintained their innocence in a federal investigation of college admissions fraud were indicted Tuesday on new bribery charges, the U.S. attorney’s office in Boston said.

The newly indicted parents — a group that includes actress Lori Loughlin and her husband, Mossimo Giannulli, a fashion designer — were charged in an indictment returned by a grand jury in Boston, alleging they conspired to commit federal program bribery to secure their children’s fraudulent admissions to USC.

Prosecutors had warned parents last week they could face a bribery charge if they didn’t plead guilty by Monday to the fraud and money laundering conspiracy charges they already faced. Four parents — Douglas Hodge, the former chief executive of bond giant Pimco; Michelle Janavs, a Newport Coast philanthropist whose family invented the Hot Pocket; and Manuel Henriquez, a San Francisco Bay Area venture capitalist, and his wife, Elizabeth Henriquez — pleaded guilty Monday to conspiracy to commit fraud and money laundering, avoiding indictment on the bribery count.

The federal program bribery charge can be lodged against anyone accused of bribing an employee or agent of an organization that receives $10,000 or more in funding from the federal government, and who obtains something valued at $5,000 or more in exchange.

For parents charged with using an athletic recruitment scam offered by Newport Beach college consultant William “Rick” Singer, prosecutors have argued they conspired with Singer to bribe coaches into giving up admissions slots, which are property of the universities that employed them. Singer has admitted misrepresenting the children of his clients to elite universities as promising athletic recruits for sports they didn’t play competitively or at all.

Virtually every university, public or private, receives more than the $10,000 in federal funding needed to trigger the bribery statute in research grants or financial aid. Prosecutors will likely say that admission to the elite schools to which Singer peddled access — Stanford, Georgetown, USC and UCLA, among others — exceeded $5,000 in value.

The coaches or athletic officials charged in the scheme were also indicted Tuesday on new fraud conspiracy charges, the U.S. attorney’s office in Boston said. Three of them — Jorge Salcedo, the former UCLA men’s soccer coach, Donna Heinel, a former athletics administrator at USC and Gordon Ernst, the former tennis coach at Georgetown — were also charged with committing federal program bribery.

Also worth mentioning is the possibility of a higher (advisory) sentencing range under the federal sentencing guidelines if and when these parents are found guilty and subject to the bribery guideline.

October 22, 2019 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Sunday, October 13, 2019

Catching up with another round of sentencings in "Operation Varsity Blues"

Three more parents were sentencing this past week by US District Court Judge Indira Talwani in the "Operation Varsity Blues" college admissions scandal.  Here are the headlines and essential from press accounts of these latest high-profile federal sentencings:

From NBC News, "NYC man, wife both sentenced to month in prison in college admissions scam: Gregory and Marcia Abbott paid $125,000 to have their daughter's SAT and ACT altered":

A New York man and his wife were each sentenced Tuesday to a month behind bars for paying a college-admission fixer to boost their daughter's SAT and ACT scores.  Gregory and Marcia Abbott will also have to complete a year of supervised release, pay a $45,000 fine and perform 250 hours of community service each, under sentences handed down in Boston by U.S. District Court Judge Indira Talwani.

The couple had already pleaded guilty in May to a single count each of fraud and conspiracy, paying $125,000 to ring leader Rick Singer for someone to correct answers on their daughter’s college board exams....

Prosecutors had asked Talwani to sentence the Abbotts to eight months in prison each.  Defense lawyers had sought probation for the pair.  The couple paid $50,000 to have a test proctor correct their daughter's ACT exam answers in 2018, and then another $75,000 to fix her SAT.

From the Los Angeles Times, "Bay Area entrepreneur is spared prison in college admissions scandal":

If any of the parents waiting to be sentenced in the college admissions scandal stood a chance at avoiding prison, it was Peter Jan Sartorio. He was, by any measurement, a small fish in a case filled with high-profile names and deep pockets: The $15,000 the 54-year-old food entrepreneur from the Bay Area paid to rig his daughter’s college entrance exam matched the lowest amount parents shelled out in the scam.  And with neither fame nor fortune, Sartorio didn’t fit the mold of the rich, entitled parent who prosecutors said needed to be punished with time behind bars.  He also was the first to admit his guilt.

On Friday a judge in Boston decided Sartorio was, in fact, less culpable than the others.  She spared him prison time, sentencing him instead to probation and community service. 

Sartorio is the eighth parent sentenced in the case and, for all up to now, U.S. District Judge Indira Talwani decided some amount of incarceration was needed.  The judge opted to go more lightly on Sartorio than she did on the actress Felicity Huffman, who received two weeks in prison for the same offense.  Sartorio was ordered to spend a year on probation, serve 250 hours of community service and pay a $9.500 fine....

Prosecutors had sought a one-month sentence for Sartorio, saying it was clear the father of two knew at the time that what he was doing was wrong. They underscored in court papers that when it came time to pay Singer, Sartorio avoided leaving a paper trail by paying cash and made multiple withdrawals from different accounts to avoid triggering automatic reviews by banking officials.

Prior related Varsity Blues posts:

October 13, 2019 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (0)

Tuesday, October 08, 2019

US Attorney in college admission scandal makes plain how trial penalty works even for celebrity actresses

In various settings, we often hear expression of concern that celebrity criminal defendants may receive a different form of justice than us regular folk.  But this recent article reporting comments by the US Attorney in charge of the college admission prosecutions, headlined "Lori Loughlin faces 'substantially higher' prison sentence than Felicity Huffman if convicted, U.S. attorney confirms," provides a useful and usefully candid reminder that celebrity defendants are subject to being penalized for exercising their trial rights just like all other defendants. Here are excerpts from the piece (with two sentences emphasized):

Andrew Lelling, whose office is prosecuting the Operation Varsity Blues case, gave a rare interview over the weekend praising "classy" Felicity Huffman ahead of prison. He also confirmed that Lori Loughlin faces a "substantially higher" amount of time behind bars if convicted.

The Boston prosecutor, who was appointed U.S. attorney by President Trump in 2017, was asked why he proposed a prison sentence of only one-month for Huffman, who pleaded guilty to one charge of fraud conspiracy. During an interview with On the Record on WCVB Channel 5, Lelling called Huffman "probably the least culpable of the defendants who we've charged in that case."

"One of the things we looked at was money involved. She spent about $15,000 to have her daughter get a fake SAT score," he explained. "She took responsibility almost immediately.  She was contrite, did not try to minimize her conduct. I think she handled it in a very classy way and so, at the end of the day, we thought the one-month was proportional."

Ultimately, Huffman was sentenced to 14 days in prison, 250 hours of community service and a fine of $30,000. "I think the two weeks she actually got was also reasonable, we were happy with that," Lelling said. "I think it was a thoughtful sentence."

Lelling said a person receiving a lesser sentence after pleading guilty is "almost always" the outcome. "If people take responsibility for their conduct and they take responsibility for their conduct early on, then it will probably go better for them," he shared.  "What I value in the Felicity Huffman sentence is that I think it sent a clear message to the other parents involved that there really is a good chance that if you're convicted of the offense, you are going to go to prison for some period of time because the least culpable defendant who took responsibility right away, even she got prison."

Lelling was asked specifically about Lori Loughlin and her husband, Mossimo Giannulli, who are accused of paying around $500,000 to get their daughters into USC as crew recruits, even though neither rowed. He confirmed what legal experts speculated to Yahoo Entertainment last month — that Loughlin will spend more time in prison than Huffman if convicted.

"If she's convicted... we would probably ask for a higher sentence for her than we did for Felicity Huffman," Lelling said. "I can't tell you exactly what that would be. The longer the case goes, let's say she goes through to trial, if it is after trial, certainly, we would ask for something substantially higher. If she resolved it before trial, something lower than that."

Loughlin and Giannulli are some of the parents implicated in the college admissions scandal that are fighting the charges against them. They pleaded not guilty to two charges: conspiracy to commit money laundering; and conspiracy to commit mail and wire fraud and honest services mail and wire fraud.  They were hit with an additional charge when they didn't agree to a plea deal....

Loughlin, Giannulli and the other parents fighting federal charges are due back in court in January.

I do not want to unduly bash US Attorney Lelling for his candor here, especially because I think he merits praise for a lot of his work in these cases (and especially for only seeking a month in prison for Felicity Huffman).  Moreover, he does a reasonable job giving a reasonable spin to the best arguments for a "plea discount" at sentencing when he talks of the importance of being contrite and of the sentencing value of having defendants "take responsibility for their conduct early on." 

But I find it grating when US Attorney Lelling says his office will see a "substantially higher" sentence the "longer the case goes" for Lori Loughlin; it suggests that more is at work here than just rewarding remorse for those who are contrite.  Of course, to those familiar with the day-to-day realities of the criminal justice system, there is no surprise to seeing that potential exercise trial rights coming with a potentially significant sentencing price.  In the end, US Attorney Lelling is just being candid and honest about how the system really works for both celebrity and non-celebrity defendants.  But the fact that the trial penalty is so common and impacts more than just commoners still does not make it any less distasteful.

October 8, 2019 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (9)

Friday, October 04, 2019

Napa Valley winemaker gets five months of imprisonment, the longest sentence so far in college admissions scandal

As reported in this Los Angeles Times piece, "Agustin Huneeus Jr., a prominent Napa Valley winemaker until his arrest in the college admissions scandal, was sentenced Friday to five months in prison for paying to rig his daughter’s school entrance exam and trying to sneak her into USC as a bogus athlete."  Here is more:

The sentence is the latest handed down against a slew of wealthy, influential parents who opted to plead guilty to charges that they conspired with William “Rick” Singer, a college admissions consultant at the center of the scam, to fabricate test scores and bypass the admissions process at elite schools.  Singer, too, has pleaded guilty to several felonies and is cooperating with prosecutors in their cases against his alleged accomplices.  He awaits sentencing.

With her decision, U.S. District Judge Indira Talwani dealt more harshly with Huneeus than she did with other parents sentenced so far, but stopped well short of the 15-month sentence that federal prosecutors had said was an appropriate penalty.  Lawyers for Huneeus, meanwhile, had conceded before his sentencing that the 53-year-old father of three should not avoid prison altogether, but asked Talwani for just two months behind bars.  Huneeus, they said, already had been punished badly by the loss of his company and public humiliation. Along with incarceration, Talwani ordered Huneeus to pay a $100,000 fine and serve 500 hours of community service.

Huneeus hurriedly stepped down in March as chief executive of Huneeus Vinters, a company his parents built, after being named as one of the dozens of parents charged in the scam. He pleaded guilty soon after, admitting he paid $100,000 to buy into the admissions scheme and was primed to pony up another $200,000 before authorities went public with their case.

Prosecutors had argued in court filings that even in a case marked by the greed and entitlement of exceptionally rich and privileged families, Huneeus stood out for his brazen, unabashed foray into the scam and his efforts to avail himself of all of Singer’s illegal offerings.  “Huneeus’s crime was calculated and carefully planned,” wrote Assistant U.S. Atty. Justin O’Connell in a memo to Talwani.  “From the outset … Huneeus wanted to know exactly how the fraud worked, proposed ways to make it more effective, and demanded Singer’s attention. He did all this while acknowledging to Singer that what they were doing was wrong, that the scheme could ‘blow up in [his] face.’”

Of the 11 parents who have pleaded guilty in the case, O’Connell underscored that only Huneeus paid Singer both to inflate his daughter’s SAT score and secure her a spot at USC by allegedly bribing members of the school’s athletic department....

In arguing for a light sentence, lawyers for Huneeus emphasized in a court filing that Huneeus’ daughter did not enroll at USC and, so, did not end up taking a spot at the selective school from a more deserving applicant.  But after watching Talwani in recent weeks rebuff defense attorneys for other parents who argued their clients should be spared time in prison altogether, Huneeus’ defense team accepted he was destined for incarceration and tried instead to mitigate the punishment by underscoring Huneeus’ clean track record and reputation for fairness and kindness among people who worked for him.

Until his downfall, Huneeus ran his family’s company, which owns several brands of wine and made news in 2016 when it sold one of its popular labels for a reported $285 million to another company. He relinquished control of the company in the days after his arrest over concerns his legal troubles could put the company’s license to produce wine in jeopardy.

Huneeus himself struck a tone of contrition in a letter to the judge, saying he accepted responsibility for his crime.  “I am looking forward to my sentencing so I can start to put this behind me.  I want to pay my dues and feel clean again. This has been the most consequential experience I have ever had to overcome and it is self-inflicted,” he wrote.

On the same day Huneeus learned his fate, California Gov. Gavin Newsom signed three bills in response to the college admissions scandal, including a mandate that any “admission by exception” to the state’s many public campuses be approved by multiple university administrators....  Newsom also gave his signature to a measure that prevents those found guilty in the admissions scandal from getting tax deductions for payments they made to Singer, which he often funneled through a sham charity.  The third measure approved by Newsom requires the California State University and University of California systems, as well as independent universities, to report to the Legislature whether they provide any form of preferential treatment in admissions to applicants on the basis of their relationships to donors or alumni.

Prior related posts:

October 4, 2019 in Celebrity sentencings, Who Sentences | Permalink | Comments (0)

Thursday, October 03, 2019

BigLaw partner gets one month federal time as latest parent sentenced in college admissions scandal

As reported in this CNN piece, a "former high-powered attorney at an international law firm was sentenced Thursday to one month in prison for paying $75,000 to falsely boost his daughter's ACT score as part of the college admissions scam." Here is more:

Gordon Caplan, 53, is the fourth parent to be sentenced to prison time in the scam that has led to charges against 35 parents.  Prosecutors had asked that Caplan be sentenced to eight months in prison.

The broad admissions scam consisted of a test-cheating scheme and an athlete recruitment scheme, and those who participated in the test-cheating scheme have gotten lower sentences. The actress Felicity Huffman, who paid $15,000 to participate in the test-cheating scheme, was sentenced to two weeks in prison.  Meanwhile, Stephen Semprevivo and Devin Sloane, who paid to get their children into prominent universities under the guise that they were recruited athletes, were each sentenced to four months in prison. Sixteen parents, including Caplan, have pleaded guilty to fraud conspiracy charges. 

Caplan pleaded guilty in May to fraud conspiracy and admitted to paying a fake charity run by scam mastermind Rick Singer to facilitate cheating on his daughter's ACT exam.  As part of the scheme, a paid proctor corrected answers after Caplan's daughter had completed the test.

Before his arrest, Caplan was a partner and co-chairman of the Willkie Farr & Gallagher law firm.  In 2018, The American Lawyer magazine named him one of its "Dealmakers of the Year" for guiding a series of transactions between Hudson's Bay Co., Rhône Capital and the workspace startup, WeWork. But Caplan left the law firm as a result of his involvement in the scam, the firm said in April. His license to practice law going forward is also at risk.

The Attorney Grievance Committee in New York began disciplinary proceedings against him in July, and Caplan has consented to the suspension of his law license pending those proceedings, according to a sentencing memorandum.  "To put the matter bluntly, Gordon's professional life has been destroyed," his attorney, Joshua Levy, wrote in the memorandum.

Prior related posts:

October 3, 2019 in Celebrity sentencings, Offender Characteristics | Permalink | Comments (0)

Thursday, September 26, 2019

Next parent up in college admission scandal sentencing also gets four months in federal prison

As reported in this Boston Globe piece, a "Los Angeles man who paid $400,000 to get his son into Georgetown as a fake tennis recruit in the college admissions cheating scandal was sentenced Thursday to four months in prison."  Here are some of the details:

Stephen Semprevivo, 53, learned his fate in US District Court in Boston.  He’ll also have to serve two years of supervised release, perform 500 hours of community service, and pay a $100,000 fine, though prosecutors said the court “may offset [Semprevivo’s] fine with restitution to be determined at a later hearing.”

Semprevivo pleaded guilty in May to a sole count of conspiracy to commit mail fraud and honest services mail fraud. “I deserve to be punished,” Semprevivo said Thursday during brief remarks before Judge Indira Talwani sentenced him. “I am fully responsible.”...

The government had sought a 13-month prison term for Semprevivo, a former Cydcor Inc. executive. On Thursday, Assistant US Attorney Kristen A. Kearney reiterated several points contained in the government’s previously filed sentencing memorandum, in which prosecutors said Semprevivo showed “chutzpah” by suing Georgetown after his guilty plea in an effort to block the school from expelling his son.

“He tried to retain the fruits of his fraud,” Kearney said.  “The defendant’s audacity is breathtaking.” The lawsuit was ultimately withdrawn, and Semprevivo’s son was booted from campus.

Kearney also bristled at the contention from Semprevivo’s lawyers that he was a victim of Singer, who they said manipulated their client into participating in the scheme.  “The defendant was no passive wallflower or Singer’s puppet,” Kearney said, noting Semprevivo had his son write an e-mail to then-Georgetown tennis coach Gordon Ernst, telling Ernst he was eager to play for him, when in fact he didn’t play competitive tennis.

Semprevivo, Kearney said, “was not doing what was best for his son” but instead sought the “Holy Grail” of a Georgetown degree: “In other words, bragging rights.”...

David E. Kenner, a lawyer for Semprevivo, said during Thursday’s hearing that his client feels “great shame and terrible remorse” for bringing his son into the fraud.  At one point, Kenner said the case didn’t involve “an African-American tennis player” getting replaced by a “white tennis player,” which seemed to puzzle Talwani, who said she wasn’t sure why Kenner brought up race.  Ultimately, Talwani said, “one student [Semprevivo’s son] got an offer letter” to attend Georgetown “instead of a different student.”

Kenner conceded the point, telling Talwani that Semprevivo’s crime wasn’t “victimless,” citing “the people who didn’t get the spot that Mr. Semprevivo’s son got.”  Talwani told Semprevivo from the bench, “I don’t criticize you for being taken in” by Singer, who offered parents a so-called side door to get their children into elite schools via bribery. However, Talwani asked, “What makes your children entitled to a side door?”

She said she believes that Semprevivo is remorseful and ordered him to surrender to authorities on Nov. 7.

Prior related posts:

September 26, 2019 in Celebrity sentencings, White-collar sentencing | Permalink | Comments (0)