Tuesday, December 18, 2018

After hinting prison term might be in works, federal judge delays Michael Flynn sentencing to allow further cooperation

Given that both the Special Prosecutor and Michael Flynn were advocating for him to receive a sentence without any incarceration, I thought his sentencing today could have ended up being a staid affair.  But, as reported in this BuzzFeed News account, US District Judge Emmet Sullivan had different ideas: 

Michael Flynn, Trump's former national security adviser, decided to delay his sentencing on Tuesday after a judge harshly criticized him for lying to the FBI and acting as an unregistered agent for Turkey, and warned him that he might get a better sentence if he finished his cooperation with the government first.

It was a stunning turn of events two hours after what was supposed to be Flynn's sentencing hearing began. Throughout the proceedings, US District Judge Emmet Sullivan had repeatedly asked Flynn if he wanted to go ahead with sentencing, given his lawyers' comments about the conduct of the FBI agents who interviewed him and the fact that he might not be completely finished cooperating.

Flynn each time said he wished to proceed. But following a particularly harsh string of criticism from the judge about the crimes he'd committed, Flynn asked for a break to speak with his lawyers. When they returned, Flynn's lawyer Robert Kelner said they wanted to postpone sentencing to give Flynn time to complete his cooperation. The judge agreed. The parties are now due to file a report with the court on the status of his case by March 13.

Flynn's change of heat came after Sullivan warned him that he couldn't guarantee Flynn wouldn't get prison time, given the seriousness of his crimes. Sullivan noted that Flynn had lied to the FBI while serving as a senior official in the White House, and had acted as an unregistered agent for the Turkish government. (The judge initially implied that Flynn did work for Turkey while he was in the White House, but later said he misspoke; the prosecutor said Flynn's work for Turkey ended in November 2017.)

"Arguably, that undermines everything this flag over here stands for," Sullivan said, gesturing to an American flag displayed behind his chair. "Arguably you sold your country out." Sullivan continued: "I'm not hiding my disgust, my disdain for this criminal offense."

Flynn at that point took up the judge's offer of additional time to consult with his lawyers. Before the judge took a break, however, he asked special counsel prosecutor Brandon Van Grack if Flynn could have been charged with treason for his conversations with now-former Russian ambassador Sergey Kislyak in December 2016, after then-president Barack Obama had entered sanctions against Russia for interfering in the election.

Van Grack replied that given the evidence prosecutors had, treason was not something that the government was considering charging Flynn with at the time. Sullivan pressed him, asking if they could have charged Flynn with that crime. Van Grack demurred, saying he was hesitant to answer that question because the offense was so serious.

After the recess, Sullivan said that he hadn't meant to imply that Flynn might have committed treason, he said he was just probing the extent of Flynn's offenses and "was just curious." Van Grack said the government had no reason to believe Flynn committed treason.

Flynn pleaded guilty on Dec. 1, 2017, to one count of making false statements. He admitted lying to FBI agents about his communications in December 2016 with Kislyak while he was serving on Trump's presidential transition team. (He was later accused of lying to Vice President Mike Pence about those contacts as well and resigned). Flynn agreed to cooperate with the government as part of his plea deal; over the past year, according to court filings, he's met with special counsel prosecutors and other Justice Department offices 19 times, for a total of nearly 63 hours.

Flynn was set to become the fifth person sentenced in connection with Mueller's investigation.

Earlier this week, President Donald Trump (in)famously called his former lawyer a "RAT" on Twitter based on his cooperation with federal prosecutors. I wonder if Michael Flynn might soon be getting the same moniker from the President of the United States.

Prior related posts:

December 18, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, December 12, 2018

Michael Cohen sentenced to three years in federal prison ... and joins ranks rooting hard for passage of the FIRST STEP Act

As predicted by some, Prez Trump's former lawyer Michael Cohen received a below-guideline and below-the-prosecutor-recommended sentence today from US District Judge William Pauley in New York City.  This Fox News report, headlined "Michael Cohen, former Trump attorney, gets 3 years in prison for tax fraud, campaign finance violations, lying," provides these details:

Michael Cohen, the president’s former fixer who once famously claimed he was willing to "take a bullet" for Donald Trump before later turning against his boss, was sentenced to three years in prison Wednesday by a federal judge in New York after pleading guilty to numerous crimes while cooperating with prosecutors.

Before sentencing, Cohen ripped into his former boss in federal court, telling the judge he felt it was his duty to cover up the president's “dirty deeds.”

Cohen appeared before U.S. District Judge William Pauley III for sentencing after pleading guilty to campaign finance violations, tax evasion and lying to Congress about Trump’s past business dealings in Russia. He was seen entering the Manhattan courthouse Wednesday accompanied by members of his family.  Speaking in court before the judge issued the sentence, Cohen said “blind loyalty” to Trump led him “to take a path of darkness instead of light.”

Cohen doesn't have to report to prison until March 6.  He also was ordered to pay $1.4 million in restitution and a $50,000 fine, and forfeit $500,000.

A contrite Cohen, speaking in court, told the judge he takes “full responsibility for each act,” saying the “sooner I am sentenced, the sooner I can return to my family." Cohen also apologized to the people of the United States, saying, "You deserve to know the truth."...

Trump has lashed out at Cohen over his cooperation with prosecutors, recently saying Cohen “lied” and deserves to “serve a full and complete sentence.” A sentencing memo filed by prosecutors said Cohen “acted in coordination and at the direction of” Trump in making those payments.” But in a tweet this week, Trump denied the payments to Daniels and McDougal were campaign contributions, instead calling them a “simple private transaction.” Trump also said if mistakes were made, the “liability” should be with Cohen, his lawyer, and not him. “Cohen just trying to get his sentence reduced,” the president tweeted Monday.

As the title of this post is meant to highlight, among the notable features of Cohen's federal prosecution and sentencing is that it has taken place during the same period that Congress has been debating significant prison reform measures in the FIRST STEP Act.  Assuming the FIRST STEP Act becomes law and is being effectively implemented before Cohen has to report to prison in March, it seems quite likely that some of the provisions in the FIRST STEP Act may enable Cohen to return to his family at least a bit sooner.  Indeed, Cohen may be an especially good high-profile offender to follow to see how much he is able to benefit from any new prison reforms.

Prior related posts:

December 12, 2018 in Celebrity sentencings, White-collar sentencing | Permalink | Comments (5)

Tuesday, December 11, 2018

Michael Flynn in sentencing memo requests probation "not to exceed one year ... along with 200 hours of community service."

As reported in this Politico article, headlined "Flynn pleads with judge for no jail time," a high-profile defendant is asking for a low-impact sentencing outcome. Here are the basics:

Michael Flynn’s attorneys asked a federal judge on Tuesday to spare the former Trump national security adviser any jail time because of his “extensive cooperation” with special counsel Robert Mueller.

In a 178-page sentencing memo, Flynn’s attorneys pleaded for leniency by citing their client’s “exceptional record of military service” and “his genuine contrition for the uncharacteristic error in judgment that brought him before this court.”

Flynn, who pleaded guilty last December to lying to the FBI during the early stages of its counterintelligence investigation into Russian meddling in the 2016 election, should instead be sentenced to one year of probation with minimal supervision conditions and 200 hours of community service, his lawyers said.

The retired Army general, his lawyers added, has shown he has a “deep respect for the law, as reflected in his extensive cooperation with the government’s efforts to get to the truth and to enforce the laws.”

U.S. District Court Judge Emmet Sullivan is scheduled to sentence Flynn on Dec. 18 for his guilty plea for making false statements to the FBI. Mueller’s office last week highlighted Flynn’s cooperation — including 19 interviews with the special counsel and other Justice Department prosecutors — in their own memo suggesting that Flynn get little or no jail time for his behavior.

The full filing is available at this link, and it runs 178 pages due to dozens of exhibits mostly in the form of letters in his support. The memo itself runs only just over a dozen pages and it starts with this "Preliminary Statement":

The defendant, through his attorneys, submits this Memorandum in Aid of Sentencing and respectfully requests that the Court grant the Government’s Motion for Downward Departure pursuant to § 5K1.1 of the United States Sentencing Guidelines, and sentence him to a term of probation not to exceed one year, with minimal conditions of supervision, along with 200 hours of community service.  General Flynn has accepted responsibility for his conduct.  He has cooperated extensively with several Department of Justice investigations, as detailed in the addendum to the Government’s Memorandum in Aid of Sentencing.  As the Government has made clear, his cooperation was not grudging or delayed.  Rather, it preceded his guilty plea or any threatened indictment and began very shortly after he was first contacted for assistance by the Special Counsel’s Office. Following extraordinary public service in the United States Army, during which his innovations as a highly decorated intelligence officer saved countless American lives, and a lifetime of faithful devotion to his family and fellow service members and veterans, as described in the powerful letters of support that accompany this submission, a sentence of non-incarceration is both appropriate and warranted.

Prior related posts:

December 11, 2018 in Booker in district courts, Celebrity sentencings, Criminal Sentences Alternatives, Federal Sentencing Guidelines | Permalink | Comments (1)

Friday, December 07, 2018

Feds request for Michael Cohen a "substantial term of imprisonment" though with a "modest downward variance" from Guideline range of 51-63 months in prison

Michael Cohen is scheduled to be sentenced by US District Judge William Pauley in New York City on December 12 after his guilty plea to charges including campaign finance fraud and lying to Congress.  As noted in this prior post, late last Friday, Cohen's lawyers filed this 30-page sentencing memorandum making a plea for leniency and a sentence of "time-served and restitution to the IRS."  Today it was time for federal prosecutors to weigh in, and the Acting US Attorney for the Southern District of New York has now delivered this 40-page government sentencing memorandum making a case for a "substantial prison term."  Here is this latest filing's preliminary statement:

Defendant Michael Cohen is scheduled to be sentenced on December 12, 2018. The United States Attorney’s Office for the Southern District of New York (the “Office”) respectfully submits this memorandum in connection with that sentencing and in response to the defendant’s sentencing memorandum dated November 30, 2018 (“Def. Mem.”). 

Cohen, an attorney and businessman, committed four distinct federal crimes over a period of several years.  He was motivated to do so by personal greed, and repeatedly used his power and influence for deceptive ends. Now he seeks extraordinary leniency — a sentence of no jail time — based principally on his rose-colored view of the seriousness of the crimes; his claims to a sympathetic personal history; and his provision of certain information to law enforcement. But the crimes committed by Cohen were more serious than his submission allows and were marked by a pattern of deception that permeated his professional life (and was evidently hidden from the friends and family members who wrote on his behalf).

Cohen did provide information to law enforcement, including information that assisted the Special Counsel’s Office (“SCO”) in ongoing matters, as described in the SCO’s memorandum to the Court, and the Office agrees that this is a factor to be considered by the Court pursuant to Title 18, United States Code, Section 3553(a).  But Cohen’s description of those efforts is overstated in some respects and incomplete in others.  To be clear: Cohen does not have a cooperation agreement and is not receiving a Section 5K1.1 letter either from this Office or the SCO, and therefore is not properly described as a “cooperating witness,” as that term is commonly used in this District.

As set forth in the Probation Department’s Presentence Investigation Report (“PSR”), the applicable United States Sentencing Guidelines (“Guidelines”) range is 51 to 63 months’ imprisonment.  This range reflects Cohen’s extensive, deliberate, and serious criminal conduct, and this Office submits that a substantial prison term is required to vindicate the purposes and principles of sentencing as set forth in Section 3553(a).  And while the Office agrees that Cohen should receive credit for his assistance in the SCO investigation, that credit should not approximate the credit a traditional cooperating witness would receive, given, among other reasons, Cohen’s affirmative decision not to become one.  For these reasons, the Office respectfully requests that this Court impose a substantial term of imprisonment, one that reflects a modest downward variance from the applicable Guidelines range.

Prior related posts:

UPDATE:  My posting above initially failed to note that there big sentencing memo linked above came from the Southern District of New York.  I have clarified this above because there was another filing from the Special Counsel's Office to address Cohen's offense of lying to Congress.  This SCO sentencing filing runs only seven pages, and it paints Cohen in a somewhat better light, concluding this way:

The defendant’s crime was serious, both in terms of the underlying conduct and its effect on multiple government investigations.  The sentence imposed should reflect the fact that lying to federal investigators has real consequences, especially where the defendant lied to investigators about critical facts, in an investigation of national importance.

However, the defendant has made substantial and significant efforts to remediate his misconduct, accept responsibility for his actions, and assist the SCO’s investigation. Accordingly, the Government respectfully submits that the Court should give due consideration to the defendant’s efforts set forth above and that it would be appropriate to allow the defendant to serve any sentence imposed in this case concurrently with any sentence imposed in United States v. Cohen, 18-cr-602 (WHP).

December 7, 2018 in Booker in district courts, Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (15)

Tuesday, December 04, 2018

Special Counsel says non-incarceration sentence for Michael Flynn is "is appropriate and warranted"

As reported in this Politico article, headlined "Mueller: Flynn gave ‘substantial assistance’ to probe, recommends little to no prison," the Special Counsel tonight submitted a memorandum in aid of sentencing defendant Michael Flynn. Here are the basics:

Michael Flynn, President Donald Trump’s former national security adviser, provided “substantial assistance” to the ongoing investigation of Russian interference in the 2016 election and should be sentenced to little if any prison time for making two “series of false statements” to the FBI, special counsel Robert Mueller's team recommended in a court filing on Tuesday.

Flynn participated in 19 interviews with the special counsel and other Justice Department prosecutors and aided multiple investigations, Mueller’s prosecutors said in a heavily redacted filing that offered limited insight into the information Flynn provided.

“The defendant deserves credit for accepting responsibility in a timely fashion and substantially assisting the government,” Mueller’s team wrote in a seven-page memo. MO “The defendant provided firsthand information about the content and context of interactions between the transition team and the Russian government,” prosecutors add later. “Additionally, the defendant’s decision to plead guilty and cooperate likely affected the decisions of related firsthand witnesses to be forthcoming with the [special counsel] and cooperate,” they write.

U.S. District Court Judge Emmet Sullivan, a Bill Clinton appointee, is scheduled to sentence Flynn on Dec. 18. Before that, Flynn’s lawyers have their own Dec. 11 deadline to file a memo describing his cooperation and outlining whatever other factors they think the judge should consider in handing down the sentence.

The full filing is available at this link, and it begins this way:

The United States of America, by and through Special Counsel Robert S. Mueller, III, respectfully submits this memorandum in aid of sentencing defendant Michael T. Flynn.  On December 1, 2017, the defendant pleaded guilty to one count of making materially false statements to the Federal Bureau of Investigation (“FBI”), in violation of 18 U.S.C. § 1001(a).  As calculated by the United States Probation Office, the defendant’s applicable Total Offense Level is 4, Criminal History Category I, resulting in an advisory guideline range of 0-6 months.  That offense level and guideline range, however, do not account for a downward departure pursuant to Section 5K1.1 of the United States Sentencing Guidelines reflecting the defendant’s substantial assistance to the government, which the government has moved for contemporaneously.  Given the defendant’s substantial assistance and other considerations set forth below, a sentence at the low end of the guideline range — including a sentence that does not impose a term of incarceration — is appropriate and warranted.

Prior related post (from Dec. 1, 2017):

December 4, 2018 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, White-collar sentencing | Permalink | Comments (0)

Sunday, December 02, 2018

Michael Cohen makes pitch for "time-served and restitution to the IRS" based largely on his continuing cooperation

Michael-Cohen-pleads-guilty-to-8-chargesMichael Cohen is scheduled to be sentenced by US District Judge William Pauley in New York City on December 12 after his guilty plea to charges including campaign finance fraud and lying to Congress.  Late Friday, Cohen's lawyers filed this 30-page sentencing memorandum which makes a substantial plea for leniency.  Here are two good accountings of the filing:

From Lawfare, "There's a Lot Going On in Michael Cohen's Sentencing Memo"

From the New York Times, "Michael Cohen, Ex-Trump Lawyer, Asks U.S. Judge for Leniency"

Here are excerpts from the document's notable preliminary statement (with cites removed):

Beginning before the entry of his plea on August 21, 2018, and continuing thereafter through late November, Michael participated in seven voluntary interview meetings with the Special Counsel’s Office of the Department of Justice (“SCO”). He intends to continue to make himself available to the SCO as and when needed for additional questioning. He also agreed to plead guilty to an additional count, namely, making false statements to Congress, based in part on information that he voluntarily provided to the SCO in meetings governed by a limited-use immunity proffer agreement. The SCO is expected to submit a letter to the Court describing its assessment of Michael’s cooperation, and the Office of the United States Attorney for the Southern District of New York (“Office”) is expected to join with the SCO in presenting Michael’s cooperation to the Court as a mitigating sentencing factor under 18 U.S.C. § 3553(a).  Michael’s decision to cooperate and take full responsibility for his own conduct well reflects his personal resolve, notwithstanding past errors, to re-point his internal compass true north toward a productive, ethical and thoroughly law abiding life.

For what it says about Michael’s fortitude and fundamental character, the significance of his cooperation with the SCO falls outside of the ordinary framework in which courts routinely assess cooperation in criminal cases. It states the obvious to observe that this matter is unique. Michael is cooperating in a setting in which the legitimacy of the SCO’s investigation – and the rationale for its very existence – is regularly questioned publicly and stridently by the President of the United States.... The President routinely denounces the SCO investigation as politically biased and reliant on excessively aggressive prosecutorial tactics....

In the context of this raw, full-bore attack by the most powerful person in the United States, Michael, formerly a confidante and adviser to Mr. Trump, resolved to cooperate, and voluntarily took the first steps toward doing so even before he was charged in this District.  He took these steps, moreover, despite regular public reports referring to the President’s consideration of pardons and pre-pardons in the SCO’s investigation.... And, he acted knowing that the result would be personal attacks on him by the President, a bevy of advisers and public relations specialists, and political supporters of the President, as well as threats to him.  Although it is true that any decision to cooperate in an investigation directly or indirectly touching a sitting President would be weighty and fraught for any former confidante and associate, here, in the circumstances of this case, at this time, in this climate, Michael’s decision to cooperate required and requires singular determination and personal conviction.  He could have fought the government and continued to hold to the party line, positioning himself perhaps for a pardon or clemency, but, instead — for himself, his family, and his country — he took personal responsibility for his own wrongdoing and contributed, and is prepared to continue to contribute, to an investigation that he views as thoroughly legitimate and vital....

For the reasons set forth below, we respectfully request that the Court, based on (1) the cooperation Michael has provided, (2) his commitment to continue to cooperate, and (3) all of the remaining sentencing factors required to be considered under 18 U.S.C. § 3553(a), impose a sentence of time-served and restitution to the IRS.

As reported in this prior post, Cohen's plea agreement does not allow him to seek a "departure" from the stipulated guideline range — which the plea agreement set at 46 to 63 months' imprisonment  — but it does allow that " either party may seek a sentence outside of the Stipulated Guidelines Range based upon the factors to be considered in imposing a sentence pursuant to Title 18, United States Code, Section 3553(a)."  

Prior related posts:

UPDATE: A helpful reader downloaded from Pacer and just sent me the full Cohen sentencing submission with all 30+ attachments for posting, and here it is:

Download Cohen- Defendant%27s Sentencing Memorandum (11-30-18)

December 2, 2018 in Booker in district courts, Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0)

Thursday, November 29, 2018

Michael Cohen, former lawyer to Prez trump, pleads guilty to lying to Congress

As reported in this AP piece, "Michael Cohen, President Donald Trump's former lawyer, made a surprise appearance before a federal judge in New York on Thursday to plead guilty to lying to Congress about work he did on an aborted project to build a Trump Tower in Russia." Here is more:

Flanked by his lawyers, Cohen admitted making false statements in 2017 to the U.S. Senate Select Committee on Intelligence about the project. Cohen told the judge he lied about the timing of the negotiations and other details to be consistent with Trump's "political message."

Cohen and prosecutors referred to Trump as "individual one" throughout Thursday's proceedings and said he lied "to be loyal to Individual One." Among other lies, Cohen said he told Congress that all discussions of the Moscow Trump Tower project ended by January 2016, when they had actually continued until June of that year....

In August, Cohen pleaded guilty to other federal charges involving his taxi businesses, bank fraud and his campaign work for Trump. Reacting to the plea to the new charges, House Speaker Paul Ryan said Cohen "should be prosecuted to the extent of the law. That's why we put people under oath."

Cohen gave a statement to congressional committees last year saying the president's company pursued a project in Moscow during the Republican primary but that the plan was abandoned "for a variety of business reasons." Cohen also said he sent an email to the spokesman for Russian President Vladimir Putin as part of the potential deal. In his statement, he said that he worked on the real estate proposal with Felix Sater, a Russia-born associate who he said claimed to have deep connections in Moscow.

The discussions about the potential development began after Trump had declared his candidacy. Cohen had said the talks ended when he determined that the project was not feasible. Cohen had also disclosed that Trump was personally aware of the deal, signing a letter of intent and discussing it with Cohen on two other occasions.

As readers may recall and as detailed in this post, Cohen other plea deal from this past summer included an agreement not to challenge any sentence imposed in the range of 46 to 63 months of imprisonment. The folks at Lawfare now have collected here the criminal information, and plea agreement in the latest version of US v. Michael Cohen.  The nine-page plea agreement has lots of sentencing talk but none of that talk is that interesting because the guideline range for this offense seems clearly to be just zero to six months of imprisonment.  Consequently, from a sentencing perspective, it seems that this otherwise notable development is unlikely to significantly change Cohen's sentencing exposure.  And his ultimate sentence is likely to turn on how he cooperates with the Special Counsel team and how that team portrays his cooperation at sentencing.

Prior related posts:

November 29, 2018 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (6)

Tuesday, November 27, 2018

Meek Mill continues to shine a light on the need for criminal justice reform

As noted in this post, after being released from prison earlier this year, rapper Meek Mill pledged to use his spotlight to "shine a light" on how America's criminal justice systems treat people of color.  He has made good on that pledge in various ways, including through this recently published New York Times opinion piece with this extended headline: "Meek Mill: Prisoners Need a New Set of Rights; Like many who are now incarcerated, I was the victim of a miscarriage of justice.  I got lucky, but because of dysfunctional, discriminatory rules, most don’t."  Here is an excerpts from this commentary:

Like many who are currently incarcerated, I was the victim of a miscarriage of justice — carried out by an untruthful officer, as determined by the Philadelphia District Attorney’s office, and an unfair judge.

My crime? Popping a wheelie on a motorcycle in Manhattan. Even though the charge was dismissed in a New York City court, a Philadelphia-based judge still deemed my interaction with the police to be a technical violation of my probation — stemming from a 2007 arrest — and sentenced me to two to four years in prison despite the fact that I didn’t commit a crime. The judge also refused my motion for bail, calling me a “danger to the community” and a “flight risk.”

The ordeal cost me my most precious commodity: my freedom. I served five months. With the help of friends and the intervention of the Pennsylvania Supreme Court, I was released on bail this past April and was able to resume my life.

But I know I’m the exception to the rule — a lucky one. It’s clearer than ever that a disproportionate number of men and women of color are treated unfairly by a broken criminal justice system. The system causes a vicious cycle, feeding upon itself — sons and daughters grow up with their parents in and out of prison, and then become far more likely to become tied up in the arrest-jail-probation cycle. This is bad for families and our society as a whole....

We all need to hold our lawmakers accountable for supporting unfair or inhumane policies and all practices that perpetuate injustice, especially for the blacks and Latinos who fall prey to them most frequently. The reality is African-Americans and Latinos who come from poverty-stricken neighborhoods are assigned public defenders too overburdened to do anything in most cases other than negotiate the most favorable plea deal, regardless of guilt or innocence.

Soon, some friends and I will be announcing a foundation dedicated to achieving real change. In the meantime, if you’re interested in joining us and lending your support to solving what is the moral crisis of our time, please visit www.reformnow.com and sign up.

Together, we will demand stronger prison rehabilitation programs, updated probation policies — including shortened probationary periods — an improved bail system and balanced sentencing structures.

It’s a shame that model probationers can be immediately put back behind bars simply for missing curfew, testing positive for marijuana, failing to pay fines on time or, in some cases, not following protocol when changing addresses. Our lawmakers can and should do away with these “technical violations.”

And more broadly, if they’re serious about reducing mass incarceration and unnecessary government surveillance, they should introduce legislation that allows people on probation to earn a reduction in probation time for good behavior so that entire swaths of people aren’t spending the majority of their adult lives on probation as I did.

Prior related posts:

November 27, 2018 in Celebrity sentencings, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Monday, November 26, 2018

Special counsel saying Paul Manafort is breaching his plea agreement by lying "on a variety of subject matters"

As reported in this ABC News piece, "Prosecutors with special counsel Robert Mueller’s legal team told a judge Monday night that President Donald Trump’s one-time campaign chairman Paul Manafort has breached his cooperation agreement and lied to investigators." Here is more about the latest trouble for Manafort, which became public via this filing:

“After signing the plea agreement, Manafort committed federal crimes by lying to the Federal Bureau of Investigation and the Special Counsel’s Office on a variety of subject matters, which constitute breaches of the agreement,” the filings says.

Manafort’s legal team has disputed that charge, telling a federal judge that the embattled former Trump adviser “believes he has provided truthful information and does not agree with the government’s characterization or that he has breached the agreement.”

The DC court filing brings to a head weeks of speculation that Manafort’ s cooperation with the special counsel could be breaking down. Earlier this month, there were mounting tensions between Mueller and Manafort over Manafort’ s apparent lack of cooperation with the investigation, multiple sources familiar with the matter told ABC News. 

Manafort had been fielding questions about a wide range of topics since September when he initially agreed to cooperate, the sources said. But special counsel prosecutors were “not getting what they want,” one source with knowledge of the discussions said.

As noted in this post from September, Manafort's plea deal seemed to cap his sentencing exposure at 10 years despite a calculated guideline sentencing range much higher. This latest filing does not ensure that the feds will now seek or secure a sentence higher than 10 years for Manafort, but it certainly suggests that the special counsel office will object strongly to Manafort's likely arguments for a much lower sentence.

Some prior related posts:

November 26, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Saturday, October 20, 2018

Paul Manafort seemingly poised to get "senior discount" at upcoming sentencing

This new NBC News piece, headlined "Paul Manafort's health and age could help shorten his sentence," reports on the notable recent court appearance of a former presidential campaign manager and highlights how it could impact his upcoming sentencing. The piece is authored by Danny Cevallos, an MSNBC legal analyst, and here are excerpts:

Former Trump campaign manager Paul Manafort appeared in a Virginia federal court Friday in a wheelchair, missing his right shoe, and appearing visibly grayer.  His legal team advised Judge T.S. Ellis that Manafort was dealing with “significant” health issues related to his confinement, and asked the court to expedite his sentencing so that he could be transferred to a facility better equipped to take care of him.

There’s no question that incarceration has negative health effects.  It’s also likely part of a wise strategy for Manafort’s defense team to make these health issues known to the judge well in advance of the sentencing hearing.  Manafort’s age and infirmity can bolster a defense argument to the judge for a significant reduction in his sentence.

Federal judges are permitted to consider a defendant’s advanced age and health issues in order to impose fair punishment and provide essential medical care.  Following an amendment to the Federal Sentencing Guidelines in 2010, the defendant’s age and physical condition, including his physique, may be relevant in reducing a sentence.  However, this is only if the condition is unusual and distinguishable from other cases.  An extraordinary physical impairment or a seriously infirm defendant can justify granting home detention as a less costly option than imprisonment.  The guidelines permit the court to consider alternative forms of incarceration for such an offender if those alternatives are “equally efficient” as prison.

It’s not clear what health condition confined Manafort to a wheelchair with only one shoe on Friday.  The court may consider a defendant’s need for medical care when fashioning a sentence.  Courts have considered a variety of conditions during sentencing that can affect the feet, including diabetes, and gout.  Still, Manafort’s defense team should be prepared to show that these ailments are extraordinary, and they cannot be treated adequately by the Bureau of Prisons.

The Department of Justice has recognized that the aging process accelerates for prisoners.  Elderly prisoners such as Manafort are more vulnerable to predators. They require special physical accommodations in a place that is not designed for special accommodation.  According to the DOJ, the annual cost of incarcerating elderly prisoners has risen to an average of $60,000 to $70,000 for each elderly inmate compared with about $27,000 for others in the general population....

Elderly defendants are substantially less likely than younger offenders to commit new crimes after they are released.  The U.S. Sentencing Commission reported that over an eight-year period, only 13.4 percent of offenders age 65 or older were rearrested compared to 67.6 percent of offenders younger than age 21 when they were released.  Of course, expect the prosecutors to point out that after he was originally charged and out on release, Manafort committed new obstruction crimes by trying to influence witnesses. The government will surely counter that Manafort is one of those rare older offenders who is likely to commit new crimes — because he already did.

I am pleased this piece highlights the (too-often-ignored) 2010 revisions to the USSG policy statements concerning age and physical impairments as a possible relevant basis for a departure from the applicable guidelines.  But, as federal practitioners know, the guideline policy statements about departures are often ignored because judges have broad general authority to vary based on statutory 3553(a) factors regardless of what the guidelines say.  And, not to be forgotten, as reported in this prior post, Manafort's plea agreement caps his sentencing exposure at 10 years, but includes a calculation of his estimated "Sentencing Guidelines range [at] 210 months to 262 months' imprisonment."

Some prior related posts:

October 20, 2018 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (1)

Sunday, September 30, 2018

Former Illinois Gov Rod Blagojevich makes "plea for prison reform"

The federal prison inmate formerly known as Blago has authored in the Washington Examiner this commentary published under the headline "Rod Blagojevich: My plea for prison reform." Here are excerpts:

I am living the reverse American dream — a bad dream that I share with other inmates at a prison in Colorado where I am currently serving a 14-year sentence.  So what happened?

Carved in stone on the front portico of the U.S. Supreme Court building are the words “Equal Justice Under Law.” But as I sit here in prison, I can’t help but reflect on those four words and feel an overwhelming sense of sadness — not just for me, but for many of my fellow inmates as well.  Here’s why.

It is not equal justice under law when over-sentencing is the rule rather than the exception; when our incarceration rate has increased by more than 500 percent over the last forty years; when an American citizen in good faith trusts the integrity of the courthouse, but to their horror discovers that the game is rigged, and that they are being denied a fair trial before proceedings even begin.

The national debate in Congress on prison and sentencing reform is a conversation that is long overdue.  And as that debate heats up, I’d like to offer a few points of my own and share some things I’ve learned on this painful journey.

As a dishwasher, I start work at 3:30 each morning and earn a total of $8.40 a month.  Did you know that the average wage for an inmate is 23 cents to $1.15 an hour?  In some states, inmates have to work for free.  I never expected to get rich in prison, but am I wrong in viewing this rock-bottom wage as society's way of showing its contempt, telling us that we are all worthless? Is that a good message to send to people we plan to release someday, and whom we'd rather not see offend again?  To people we hope will survive on their own without resorting again to crime?...

Did you know that the average cost to the taxpayer to house each inmate is around $33,000 a year?  In California, taxpayers pay $75,000 a year per inmate. In total, taxpayers are left with a $39 billion invoice each year.  And what’s the government’s solution? Increase our prison population and force hard working Americans to pay even higher taxes.

Did you know that federal prosecutors like to boast about their 97 percent conviction rate?  Yet when you think about it, shouldn't that fact raise an alarm bell to all freedom loving people? Michael Jordan, as great as he was, only made half the shots he attempted.  And knowing what I now know through my experience, this almost perfect success rate is convincing proof that the federal criminal justice system works against the accused.  It is neither a place to expect a fair trial nor is it a place where the promise of justice for all is a promise kept.

Did you know that from 2013 to 2017, the Federal Bureau of Prisons denied 94 percent of the applications from inmates requesting a “compassionate release” due to a terminal illness? And in all of these cases, instead of dying with dignity surrounded by loved ones, terminally ill inmates were left to die alone in prison.  Did you know that if a spouse or child passes away while you are in prison, that you’re not even allowed a furlough to attend the funeral services?  Did you know that when incarcerated women give birth, that they are chained and handcuffed to the hospital bed?

My time in prison has taught me that we need serious reforms.  It’s also taught me that there are a lot of people in here with good hearts.  Instead of creating a system that punishes and dehumanizes inmates, let’s create a system that rehabilitates prisoners and prepares them for life outside of prison.  So here is my message: We can never reach our potential until we as a people rise up and demand that our elected representatives bring about reform; until freedom is safeguarded by a renewed and unwavering commitment to the rule of law; until mercy seasons justice, and fair play governs those who govern us.

September 30, 2018 in Celebrity sentencings, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, September 25, 2018

Bill Cosby gets 3 to 10 years of state imprisonment with no bail pending appeal

As reported in this USA Today article, headlined "Bill Cosby sentenced to three to 10 years in state prison, remanded to custody immediately," a high-profile sentencing ended in a high-profile defendant going directly to prison. Here are some of the details:

A handcuffed Bill Cosby was immediately taken into custody Tuesday after a Montgomery County judge sentenced him to three to 10 years in state prison for the sexual assault of Andrea Constand.

“It is time for justice. Mr. Cosby, this has all circled back to you. The time has come,” Judge Steven O’Neill told the convicted sex offender, denying his request for bail pending appeal and ordering him into immediate custody. He quoted from Constand’s statement to the court, in which she said Cosby took her "beautiful, young spirit and crushed it.”

After the sentencing, Cosby removed his jacket, tie and watch before being taken away in handcuffs, an officer holding his arm. He did not respond to a reporter's request for comment.

Cosby publicist Andrew Wyatt issued a fiery retort outside the courthouse, saying Cosby was denied a fair trial and calling the proceeding "the most racist and sexist trial in the history of the United States." He cast blame on District Attorney Kevin Steele; a "racist and sexist mass media"; and three white female psychologists "who make money off of accusing black men of being sexual predators."...

Before announcing Cosby's prison term, O'Neill ruled that he would be designated a "sexually violent predator," requiring that he register as a sex offender and undergo counseling for the rest of his life after his release from prison. Cosby was fined $25,000 and ordered to pay court costs.

The sentence is in line with the one sought by Steele, who asked O’Neill to impose a prison term of five to 10 years after Cosby's conviction in April on charges he drugged and sexually assaulted Constand in 2004. A defense attorney had asked that Cosby, 81, be spared a prison term, citing his age and frailty....

Cosby’s lawyers asked that he be allowed to remain free on bail, but the judge appeared incredulous over the request and said he would not treat the celebrity any differently from others.

At a post-trial news conference, Steele said justice had finally been served, calling the sentence "fair and significant."

“It’s been a long time coming, but (justice) arrived when a convicted felon named William H. Cosby Jr. left the courtroom in handcuffs, headed off to state prison for his crimes," he said. "It’s been a long wait for our victim, Andrea Constand, as it has for the other women who have endured similar sexual assaults and rapes at the hands of the defendant.”

He said Cosby's fame, fortune and popularity helped him create a deceptive image. “For decades, the defendant has been able to hide his true self and hide his crimes using his fame and fortune. He’s hidden behind a character, Dr. Cliff Huxtable (of "The Cosby Show"). It was a seminal character on TV and so was the family, but it was fiction," Steele said. "Now, finally, Bill Cosby has been unmasked, and we have seen the real man as he is headed off to prison."

Prior related posts:

September 25, 2018 in Celebrity sentencings, Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (7)

Monday, September 24, 2018

Details on not yet complete sentencing of Bill Cosby

The sentencing of Bill Cosby following his conviction on three state charges in Pennsylvania got started today, but did not reach a conclusion. This lengthy New York Times article, headlined "Bill Cosby Sentencing: Psychologist Says Threat to Women Remains," reports on what transpired. Here are excerpts: 

In the first of two days of hearings to determine Bill Cosby’s sentence for sexual assault, a psychologist for a state panel testified that Mr. Cosby deserved to be categorized as a “sexually violent predator” because he had a personality disorder that pushed him to have sex with nonconsenting partners.

The finding by the psychologist for Pennsylvania’s Sexual Offenders Assessment Board can be a factor in sentencing and in the conditions imposed on a person found to be a predator, both in prison and afterward.  But the final decision rests with Judge Steven T. O’Neill who is presiding over the hearing that could end Tuesday with one of the world’s best-known entertainers entering a prison cell.

Mr. Cosby’s lawyer, Joseph P. Green, had argued that Mr. Cosby’s age, 81, and legal blindness meant he was no risk, especially since there have been no new allegations of sexual abuse leveled against him since 2004.  “How’s he going to meet these people?” said Mr. Green. “There is no reasonable prospect that an 81-year-old blind man is likely to reoffend.”

But the psychologist, Kristen F. Dudley, said she did not believe the disorder had dissipated with age. “It is possible that he has already met someone who could be a future victim,” she said.  She said that, while Mr. Cosby had declined to meet with her, she was able to draw that conclusion by going through “boxes of documents,” including transcripts from Mr. Cosby’s two trials, one of which ended in April with his conviction on three counts of aggravated indecent assault. Mr. Cosby was convicted of drugging and assaulting Andrea Constand, a former Temple University employee for whom he emerged as a mentor....

Mr. Cosby’s team said its expert witness could not testify until Tuesday, so Judge O’Neill agreed to wait until then to make a decision on the predator determination and Mr. Cosby’s sentence.  If the judge agrees with the board’s psychological assessment, Mr. Cosby would be required to have routine counseling for the rest of his life, and even if not sentenced to prison, he would be required to report monthly to the police.

Mr. Cosby’s legal team had objected to the whole discussion, asserting that the legality of the state’s predator determination process is questionable because, among other things, it does not use the “beyond reasonable” doubt formula for findings in criminal cases.  “The statute is unconstitutional,” said Mr. Green, but the judge found otherwise.

Mr. Cosby had faced a maximum 30-year prison term, 10 years for each of three counts of aggravated indecent assault he was convicted of.  But Judge O’Neill chose on Monday to merge the counts, as allowed when they stem from the same event.  In this case, they originated with an encounter in January 2004 when, Ms. Constand said, Mr. Cosby sexually assaulted her after giving her pills that made her drift in and out of consciousness.

In their remarks, prosecutors asked Judge O’Neill to sentence Mr. Cosby to a five- to 10-year term. “By deterring this type of conduct with a sentence that is appropriate will say that you can no longer get away with this,” the district attorney, Kevin R. Steele, told the court....

Mr. Green argued in favor of house arrest, saying Mr. Cosby is a danger to no one and that the court must be careful not to allow public opinion to affect its decision-making.  “In this case we rely on you to make sure that that public advocacy doesn’t affect the application of the rule of law,” he said, adding later, “It’s your obligation to make sure that the sentencing decision is not affected by all that noise.”

Judge O’Neill will also have to consider state guidelines that recommend, but do not mandate, appropriate sentence ranges. Those guidelines, which account for any previous criminal record (Mr. Cosby has none), the seriousness of his offense, and mitigating and aggravating factors, suggest a range of about 10 months to four years.  (Sentences in Pennsylvania are given as a range of a minimum and a maximum. Inmates with good behavior may be eligible for parole when they have reached the minimum.)...

Ms. Constand, who now works as a massage therapist in Canada, spoke only briefly as her victim’s impact statement had already been incorporated into the record. “The jury heard me,” she said, “Mr. Cosby heard me and now all I am asking for is justice as the court sees fit.”...  Though dozens of other women have accused Mr. Cosby of drugging and sexually assaulting them, Judge O’Neill rejected a prosecution request to allow any of them to provide their accounts at the hearing.

Mr. Cosby’s defense team chose not to present additional witnesses to discuss, for example, Mr. Cosby’s character or any good works. But in his remarks, Mr. Green emphasized what he called Mr. Cosby’s youth of hardship and racism, his time in the United States Navy and discussed his educational achievements....

Mr. Cosby’s lawyers have filed several motions suggesting that they will file an appeal that challenges the judge’s rulings and even the judge’s personal integrity.  A key question for Tuesday will be whether Mr. Cosby is allowed to remain out on bail while he pursues those appeals, a process that could take years.

His lawyers will argue that he is not a flight risk, and that he is not likely to commit another crime. But if Judge O’Neill were to permit him to stay at home, the judge would surely face bitter criticism from the many female accusers eager for closure this week. “I don’t think the judge will let him out on appeal; he has had his freedom for a long time,” said Barbara Ashcroft, a former prosecutor.

Prior related posts:

September 24, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (0)

Thursday, September 20, 2018

"Will Bill Cosby’s Trip From America’s Dad to Sex Offender End in Prison?"

The title of this post is the headline of this lengthy New York Times review of the high-profile sentencing set to take place at the start of next week. The article includes some original analysis of Pennsylvania sentencing outcomes, and here are some excepts that should be of interest to sentencing fans:

When Bill Cosby arrives at the Montgomery County Courthouse next week to be sentenced for sexual assault, he will find out whether prison is the final stop on his descent from beloved entertainer to disgraced felon. But the judge making that decision, Steven T. O’Neill, will confront his own personal pressures, weighty expectations and knotty legal challenges. Chief among them: What to do with an 81-year-old sex offender who could become one of the most famous Americans ever to enter a cell?

At a time when the country is finally reckoning with a culture of predatory sexual abuse by powerful men, Judge O’Neill is likely to survey a courtroom in Norristown, Pa., that is filled with many of the dozens of women who say Mr. Cosby drugged and assaulted not just Andrea Constand, but them, too. A large number of these women expect a long prison sentence, one that will put an exclamation mark on the first major conviction of the #MeToo era.

“My wound was greatly healed by the guilty verdict in the spring,” said Lili Bernard, an actress who says that Mr. Cosby drugged and raped her in the early 1990s. “But to see him in handcuffs, that would be like, ‘Wow.’ We, the victims, deserve that.”

Prosecutors have said they will push for the maximum 30-year prison term: 10 years on each of three counts of aggravated indecent assault. But Mr. Cosby’s lawyers are sure to fight that, depicting him as a frail old man with failing vision, incapable of assaulting another woman or surviving a long sentence.

And Judge O’Neill will have to consider state guidelines that recommend, but do not mandate, appropriate sentence ranges. A New York Times analysis of Pennsylvania court data for the past five years found that offenders convicted of crimes similar to Mr. Cosby’s often did not receive the maximum penalty, but were more typically given sentences of two to five years....

Mr. Cosby’s spokesman, Andrew Wyatt, confirmed that Mr. Cosby would appeal his conviction, but declined to specify on what grounds.... Mr. Wyatt said Mr. Cosby would ask to remain free on bail, post-sentencing, while he pursues his appeal, a process that could take years. If Judge O’Neill were to allow that, he would surely face criticism from the many female accusers looking to find closure in the case.

“We will all feel very let down by that,” said Victoria Valentino, a former model for Playboy who says Mr. Cosby drugged and raped her in Los Angeles in 1969....

Testimony concerning prior alleged crimes is only allowed in Pennsylvania, as in other states, if, among other conditions, it demonstrates a signature pattern of abuse. But its inclusion is extremely rare, and Judge O’Neill never explained why he allowed the five additional women to testify in the trial this year after allowing only one additional accuser to speak at Mr. Cosby’s first trial in 2017. That ended in a mistrial after the jury failed to reach a verdict. “The No. 1 issue is definitely that big change, of letting in those additional complainants in the case,” said Shan Wu, a former sex-crimes prosecutor in Washington. “I am sure that Cosby’s team are licking their chops.”

Experts say judges are often more lenient about bail in cases where the appeal issues are viewed as strong. “When someone has a legitimate issue,” said Brian Jacobs, a former federal prosecutor in New York who has studied the topic, “and there’s an argument that certain evidence should not have been allowed that could reduce the chance of a conviction at retrial, then there is an interest in allowing that person to stay out on bail.”

Mr. Cosby, who has denied sexually abusing any of the women, is currently free on $1 million bail, though he is confined to his suburban Philadelphia home and has to wear a GPS monitoring device. After Mr. Cosby’s conviction, prosecutors had immediately asked for his bail to be revoked, but Judge O’Neill said he did not view Mr. Cosby as a flight risk, one of the criteria weighed in such a decision. Legal experts said it was generally uncommon in Pennsylvania for offenders to be allowed to remain free on bail, pending appeal, after a judge had sentenced them to incarceration.

Mr. Cosby was convicted on these three counts: penetration with lack of consent, penetration of the victim while she was unconscious, and penetration after administering an intoxicant. The New York Times reviewed state sentencing data for 121 cases over the past five years in which the most serious conviction was for at least one of those three counts. Mr. Cosby is far older than all of the others convicted. Their median age was 36, though in a few cases, the offender was in his late 60s.

A vast majority of the offenders also received fewer than 10 years, with a median sentence of two to five. But there were several cases in which judges gave maximum sentences of 20 years or more to offenders who had been convicted on multiple counts of aggravated indecent assault, or a single count in tandem with other, lesser crimes.

In some of those cases, the judge eschewed a common practice of making multiple sentences concurrent and instead ruled that they be served consecutively. In another case, the person qualified for a more severe sentence because he was viewed as a repeat offender under Pennsylvania’s sex offender laws.

Mr. Cosby had never before been convicted of a crime, and his team is expected to argue that his three counts should be merged into a single count, a decision that would mean that he would face a prison term of no more than 10 years.

Prosecutors have asked that an unspecified number of women who have accused Mr. Cosby of sexually assaulting them be allowed to testify at the sentencing hearing, a move that one of Mr. Cosby’s lawyers, Joseph P. Greene Jr., is trying to block. But Ms. Constand will certainly be allowed to speak at the hearing, as will Mr. Cosby, if he so chooses. The person being sentenced usually has the last word.

Mr. Jacobs, the former federal prosecutor, said that even if none of the other women were allowed to speak, he had to believe that the number of accusers who say Mr. Cosby preyed on them for decades would be an important factor in Judge O’Neill’s thinking. One purpose of sentencing in such a high-profile case can be to send a message that might deter others, he said. “The judge would have to be conscious of the fact that this is one of the earliest sentences in the Me Too era,” Mr. Jacobs said.

Judge O’Neill declined to comment for this article. But Dennis McAndrews, a Pennsylvania lawyer who has known the judge since they attended Villanova University School of Law together, said he did not expect Judge O’Neill to have any problem navigating the maze of factors in this sentencing. “He has been a judge for 14 years,” Mr. McAndrews said, “and in terms of experience and temperament, he has got all the tools necessary to assimilate and synthesize every piece of information that will come before him.”

Prior related posts:

September 20, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (3)

Monday, September 17, 2018

Paul Manafort's DC plea agreement has a calculated guideline range of 17.5 to 22 years (though he can only get 10)

In this post last year following the initial indictment of Paul Manafort in DC District Court on 12 federal criminal counts, I speculated based on the amount of money allegedly involved that Manafort's guideline range, the "starting point and the initial benchmark" for his sentencing, would surely be 10+ years in federal prison.  I have just now had a chance to review a copy of Manafort's plea agreement (first discussed here), and I am intrigued to see that it confirms my (too quick) initial guideline assessment. 

The full Manafort plea agreement is available at this link, and here is the final guideline range assessment: "Based upon the total offense level and the estimated criminal history category set forth above, the Office calculates your client's estimated Sentencing Guidelines range is 210 months to 262 months' imprisonment."  But, of course, while the guidelines call for a range of 17.5+ years of imprisonment for Manafort, he is only in this agreement pleading guilty to two conspiracy counts that each carry a maximum sentence of five years in prison.  So his prison sentence for the DC case is functionally capped at 10 years (but he could get more, I believe, at his sentencing in his Virginia case where he was convicted on 8 counts following a full trial).

The reality that his guideline range is 17.5+ years but his sentence is functionally capped t 10 years makes this subsequent (boiler plate?) sentence in the Manafort plea agreement intriguing: "Based upon the information known to the Government at the time of the signing of this Agreement, the parties further agree that a sentence within the Estimated Guidelines Range (or below) would constitute a reasonable sentence in light of all of the factors set forth in 18 U.S.C. 3553(a), should such a sentence be subject to appellate review notwithstanding the appeal waiver provided below."  

Some prior related posts:

September 17, 2018 in Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (0)

Friday, September 14, 2018

Reported sentencing details in Paul Manafort's plea deal to wrap up his various federal prosecutions

Politico has this extended article with some of the details of the plea deal completed today between the federal government and Paul Manafort.  Here are excerpts with an emphasis, of course, on sentencing particulars:

President Donald Trump's former campaign chairman Paul Manafort has agreed to cooperate with special counsel Robert Mueller under a plea agreement revealed Friday. Manafort appeared in a Washington, D.C., courtroom Friday morning, looking relaxed in a suit and purple tie, to formally announce the deal.

The deal dismisses deadlocked charges against Manafort from an earlier trial, but only after "successful cooperation” with Mueller’s probe into Russian election interference and whether the Trump campaign coordinated with Moscow on its efforts. Later, U.S. District Court Judge Amy Berman Jackson said Manafort is agreeing to "cooperate fully and truthfully" with the investigation.

The agreement also calls for a 10-year cap on how long Manafort will be sent to prison, and for Manafort to serve time from his separate Virginia and Washington cases concurrently.  But it will not release Manafort from jail, where he has been held since Mueller's team added witness tampering charges during the run-up to the longtime lobbyist's trial.

Manafort addressed Jackson in a soft voice, saying “I do” and “I understand” as she asked him whether he understood what rights he’s giving up. “Has anybody forced you, coerced you or threatened you in any way?” she asked later. “No,” Manafort replied, in a barely audible voice. A deputy marshal stood directly behind Manafort, a reminder that he remains in custody.

Legal experts quickly spun the deal as a win for all the parties involved. Manafort gets a potentially shorter sentence and lessens his legal bills. Trump avoids several weeks of bad headlines ahead of the midterm elections about his corrupt former campaign aide. And Mueller — faced with Trump's constant claims that his probe is a witch hunt — gets to show yet again that his charges are not fabricated and can now divert resources to other elements of his Russia probe....

Trump’s personal attorney Rudy Giuliani insisted the president and his lawyers were not concerned about Manafort cutting a deal. "Once again an investigation has concluded with a plea having nothing to do with President Trump or the Trump campaign," he said in a statement Friday. "The reason: the President did nothing wrong."

White House press secretary Sarah Huckabee Sanders echoed those remarks in her own statement. "This had absolutely nothing to do with the President or his victorious 2016 Presidential campaign," she said. "It is totally unrelated.”

Prosecutors signaled the pending deal Friday morning, filing a new slimmed-down set of charges against Manafort, reining in the felony counts pending against him in D.C. from seven to just two: conspiracy against the U.S. and conspiracy to obstruct justice....

Last month, a jury in Alexandria, Virginia, convicted Manafort on eight felony charges in a tax-and-bank-fraud case also prosecuted by Mueller’s team. The jury deadlocked on 10 other counts, but a verdict form said the jurors were split, 11-1, in favor of conviction on those charges.

Many Trump aides and advisers have said they believe the president is likely to grant Manafort a pardon on all the charges, which Trump has suggested amounted to prosecutorial overkill aimed at persuading Manafort to implicate Trump in wrongdoing in connection with the ongoing Russian investigation.

The charges filed Friday morning came in a criminal information replacing the current indictment in the Washington-based case against Manafort.  The new charges mean that prosecutors have agreed to drop five counts, including money laundering, failing to register as a foreign agent and making false statements. Manafort admitted to those allegations as part of the umbrella conspiracy-against-the-U.S. charge, but the individual charges and the potential prison time they carry are being dismissed.

Weissmann said Manafort is admitting to all of the bank-fraud charges from the Virginia case. While that means Manafort won’t face another trial over those federal charges, the admission could be critical to the issue of follow-up state charges, since bank fraud can typically be charged at the state and federal level.

Without seeing this plea agreement, it is unclear to me whether Manafort now has his sentencing exposure capped at 10 years for all of his convictions or just for those related to the second round of DC charges to which he today pleaded guilty.   I presume the latter, since I am not sure a DC-based plea deal could bind the sentencing discretion of the Virginia-based judge who will be sentencing Manafort on the charges which resulted in jury convictions last month.  The plea agreement could include, however, a representation by federal prosecutors that they will not seek a sentence longer than 10 years in the other part of the case (though I doubt it does).

Of course, the sentencing particulars could become academic if (when?) Prez Trump were to grant Manafort a pardon (which he could do at any time).  As of this writing, I am inclined to predict that Prez Trump will commute Manafort's sentence to reduce how long he spends in prison (rather than grant a full pardon), and do so sometime after the mid-term elections.  We might call this the "Libby treatment" as this is how Prez George Bush used his clemency powers to help our Scotter Libby after his perjury conviction but before he was sent to the federal penitentiary.  (And if Prez Trump was clever and savvy in this arena, he could and would include a commutation for Manafort within a list of dozens or hundreds of other commutations of "regular" offenders.)

September 14, 2018 in Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (4)

Friday, September 07, 2018

You be the federal judge: what sentence for George Papadopoulos after guilty plea to one count of making false statements?

As reported in this Hill article, headlined "Former Trump adviser Papadopoulos to be sentenced Friday," a high-profile defendant is due to be sentenced in federal court this afternoon by Judge Randolph Moss.  Here are some of the terms of the sentencing debate:

George Papadopoulos, the Trump campaign adviser who pleaded guilty nearly a year ago to lying about his Russia contacts, is scheduled to be sentenced in federal court on Friday.

His sentencing will mark a milestone in Robert Mueller’s Russia investigation as the special counsel makes headway on several other fronts, including interviewing individuals linked to former Trump adviser Roger Stone and readying for the Washington, D.C., trial of former Trump campaign chairman Paul Manafort.

Papadopoulos admitted to lying to FBI agents in October about the extent, nature and timing of his contacts with Russian individuals who he tried to use to broker a meeting between the campaign and the Russian government.

Government prosecutors are asking that Papadopoulos be jailed for up to six months and that he face a $9,500 fine for his crime, arguing in a recent court filing that his false statements “caused damage to the government’s investigation into Russian interference in the 2016 presidential election.” “The defendant’s false statements were intended to harm the investigation, and did so,” prosecutors wrote in an Aug. 17 sentencing memorandum.

Papadopoulos’ defense attorneys, meanwhile, are challenging the notion that their client did deliberate harm to the investigation, writing in a filing on Aug. 31 that Papadopoulos “misled investigators to save his professional aspirations and preserve a perhaps misguided loyalty to his master.” They argue he should face one-year probation.

The Papadopoulos case is noteworthy because he was the first Trump associate to plead guilty and cooperate with prosecutors in Mueller’s investigation. There is no indication that he played more than a minimal role during his months as a foreign policy adviser on the campaign. The White House aggressively sought to downplay his involvement last year, with the president dismissing him as a “low-level volunteer” in a tweet following his guilty plea.

The sentencing of Papadopoulos, 31, will tie up one loose end in the special counsel’s sprawling investigation, and signals his cooperation is no longer needed in the investigation. His guilty plea created a media firestorm last October, revealed the same day Mueller charged Manafort and Rick Gates, another former Trump campaign aide, in an elaborate illegal foreign lobbying scheme unrelated to the work they did during for the campaign.

Court filings told the curious story of a young aide who misled FBI agents during a January 2017 interview about his contacts with a professor, later identified as Joseph Mifsud, who claimed substantial connections to the Russian government and who told Papadopoulos that the Russians possessed “dirt” on Hillary Clinton in the form of “thousands of emails” – months before hacked Democratic emails began to leak on the web. The New York Times later reported that it was Papadopoulos’ discussions with an Australian diplomat, Alexander Downer, about those emails in May 2016 that helped trigger the FBI’s inquiry into Russian interference the following July.

Papadopoulos also misled FBI investigators about his contacts with other Russians, including a woman believed to be a relative of Putin, who he sought to use to broker a meeting between the Trump campaign and Moscow – lies that the government says were damaging to an investigation in its infancy.

Prosecutors have suggested his cooperation did not bear much fruit, writing in August that he did not offer “substantial assistance” to the investigation and that much of the information he provided “came only after the government confronted him with his own emails, text messages, internet search history, and other information it had obtained via search warrants and subpoenas.”

The Papadopoulos defense attorneys tell a different story. They say that, since his guilty plea, he has provided government investigators with “critical information” about his contacts with members of the Trump campaign. In the recent filing, they referenced a key meeting in March 2016 during which he allegedly broached the subject of arranging a meeting between Donald Trump and Russian President Vladimir Putin....

Papadopoulos will be the second individual sentenced in the Russia investigation. Dutch lawyer Alex Van Der Zwaan was handed 30 days in prison and slapped with a $20,000 fine in April after pleading guilty to making false statements relevant to the government’s investigations into foreign lobbing by Manafort and Gates. Papadopoulos’ wife, Simona Mangiante, had signaled in recent weeks that her husband was mulling walking away from the plea deal with Mueller, though she backed down from those suggestions late last week.

Prior related post:

UPDATE: This Vox article provides the real outcome in its headline, "Papadopoulos given 14-day sentence as part of the Mueller investigation."

September 7, 2018 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (3)

Tuesday, September 04, 2018

Former Enron CEO Jeff Skilling completes his time in federal prison

The name Jeff Skilling still stirs up a lot of sentencing thoughts for me because, 15 years ago, he was portrayed as one of the "worst-of-the-worst" white-collar offenders and he was one of the first very high-profile white-collar defendants to be sentenced after Booker made the guidelines advisory.  Consequently, this new article caught my eye under the headline "Former Enron CEO Jeff Skilling released from prison and sent to a halfway house." Here are the particulars and context:

Jeffrey K. Skilling, the former Enron CEO sentenced to a long prison term for his role in one of most notorious corporate fraud cases in history, was recently released from a minimum security federal prison camp in Alabama to a halfway house at an undisclosed location.

Enron's spectacular collapse cost investors billions of dollars and wiped out the retirement savings — not to mention the jobs — of thousands of employees.  Skilling, 64, was convicted of 12 counts of securities fraud, five counts of making false statements to auditors, one count of insider trading and one count of conspiracy in 2006 for his role in hiding debt and orchestrating a web of financial fraud that ended in the Houston company's bankruptcy.

He was sentenced to 24 years in prison and fined $45 million, the harshest sentence of any former Enron executive.  Five years ago, Skilling's sentence was reduced to 14 years by U.S. District Judge Sim Lake.  He is scheduled to be released Feb. 21, 2019, according to the Bureau of Prisons.

Federal prisoners are often released from prison several months early to a halfway house, a highly restricted dormitory-like setting that helps inmates ease back into society. They must maintain curfews, find work and stay out of trouble.  A. Kelley, assistant residential re-entry manager for the Bureau of Prisons in San Antonio, said the bureau would not say where Skilling is living.

The Bureau of Prisons typically sends inmates to a halfway house in their home city where they resided before incarceration.  It helps them re-acclimate to a more normal life and re-establish relationships with their families, said Philip Hilder, a white-collar defense lawyer who represented Sherron Watkins, a former vice president at Enron who went to then-Enron chairman Kenneth Lay to warn him of accounting irregularities she discovered while reviewing Enron's assets.

Inmates are typically required to get a job while they're at a halfway house and to report regularly to the federal probation department for up to three years, Hilder said. Skilling's lawyer could not be reached for comment.

September 4, 2018 in Celebrity sentencings, Prisons and prisoners, Reentry and community supervision, White-collar sentencing | Permalink | Comments (1)

Tuesday, August 21, 2018

Michael Cohen, Prez Trump's fixer, cuts a plea deal to fix his federal sentence between 46 to 63 months in federal prison

As reported here by USA Today, "Donald Trump's former personal lawyer and 'fixer' Michael Cohen, has pleaded guilty to charges including campaign finance fraud stemming from hush money payments to porn actress Stormy Daniels and ex-Playboy model Karen McDougal." Here is more (with a little sentencing emphasis):

The 51-year-old Cohen entered the plea in federal court in New York on Tuesday. The other charges involve bank fraud and income tax evasion.  As part of his plea agreement, Cohen agreed not to challenge any sentence from 46 to 63 months.

Cohen's plea follows months of scrutiny from federal investigations and a falling out with the president, whom he previously said he'd "take a bullet" for. FBI raids in April sought bank records, communications with Trump's campaign and information on payments to Daniels and McDougal. Both women claimed Trump had affairs with them, which he denies.

The deal comes after reports that federal investigators were looking into whether Cohen committed bank and tax fraud worth more than $20 million, according to a media report. The New York Times, citing anonymous sources, said authorities were focusing on loans obtained for taxi businesses owned by Cohen and his family.

Investigators were also considering whether Cohen had violated campaign finance and other laws when he made financial arrangements to pay women to stay silent about alleged affairs with then-candidate Trump back in 2016.... Prosecutors had reportedly considered filing charges against Cohen by the end of August.

I have not yet seen the plea agreement (which I hope will soon be publicly available), but I assume from the line stressed above that the guideline calculation puts Cohen's offense level at least 23 under the federal sentencing guidelines. The guideline range for a first offender is 46-57 months at level 23 and is 51-63 months at level 24. The bottom and top of these ranges seem to be the basis for the range reportedly in Cohen's plea deal (and this shows, yet again, how the guidelines are always an integral part of plea negotiations and why I consider every federal sentence to be "based on" the guidelines in some way or another).

UPDATE: The folks at Lawfare now have collected here the criminal information, waiver of indictment and plea agreement in US v. Michael Cohen.  The eight-page plea agreement has lots of interesting sentencing elements, and here is language (from pp. 4-5) confirming my speculations above and highlighting why there will be no departure discussions but lots of 3553(a) discussion as sentencing approaches:

Based upon the calculations set forth above, the defendant's Guidelines range is either 51 to 63 months' imprisonment under the Government's calculations, or 46 to 57 months' imprisonment under the defendant's calculations. Accordingly, the stipulated Guidelines range is 46 to 63 months' imprisonment (the "Stipulated Guidelines Range")....

The parties agree that neither a downward nor an upward departure from the Stipulated Guidelines Range set forth above is warranted.  Accordingly, neither party will seek any departure or adjustment pursuant to the Guidelines that is not set forth herein. Nor will either party in any way suggest that the Probation Office or the Court consider such a departure or adjustment under the Guidelines.

The parties agree that either party may seek a sentence outside of the Stipulated Guidelines Range based upon the factors to be considered in imposing a sentence pursuant to Title 18, United States Code, Section 3553(a).

August 21, 2018 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (11)

Paul Manafort found guilty of 8 of 18 counts ... and now faces real possibility of spending many years in federal prison

As the Washington Post reports here, a "jury has found former Trump campaign chairman Paul Manafort guilty after a three-week trial on tax and bank fraud charges — a major if not complete victory for special counsel Robert S. Mueller III as he continues to investigate the president’s associates." Here is more:

The jury convicted Manafort on eight of the 18 counts against him. The jury said it was deadlocked on the other 10. U.S. District Court Judge T.S. Ellis declared a mistrial on those other charges. Manafort was convicted on five counts of filing false tax returns, one count of not filing a required IRS form, and two bank fraud counts....

The 18 charges in the Manafort trial centered around Manafort’s personal finances, and had little to do with the special counsel’s mandate of probing Russian interference in the 2016 election and whether any Trump associates conspired with those efforts. But the trial was the first to emerge from Mueller’s probe, and as such it marked a significant public test of his work. The jury deliberated for four days before announcing its verdict.

Over two weeks of testimony, more than two dozen witnesses, including his former right hand man Rick Gates, as well as his former bookkeeper and accountants, testified against Manafort. They said he hid millions of dollars in foreign bank accounts that went unreported to the IRS, and then later lied to banks in order to get millions of dollars in loans.

His lawyers had argued that Gates, not Manafort, was the real criminal, pointing to Gates’ admitted lies, theft, and infidelity. Gates pleaded guilty in February to lying to the FBI and conspiring against the United States, and has said he hopes to get a lesser prison sentence by cooperating against Manafort.

Prosecutors, in turn, told the jury that the most compelling evidence in the case were the dozens of documents, many of them emails, showing Manafort oversaw the false statements to the IRS and banks. Manafort, 69, called no witnesses at all, as his lawyer argued prosecutors had failed to prove beyond a reasonable doubt that he intended to defraud the government or banks. Manafort’s lawyers repeatedly suggested their client might not have known the law.

The trial featured heated arguments at times — not between the government and defense lawyers, but between U.S. District Judge T.S. Ellis and prosecutors. The judge repeatedly chided prosecutors in front of the jury, though at the end of the trial he urged the panel not to consider during deliberations any opinions he may have expressed.

Manafort faces a second trial in September in Washington DC, on charges that he failed to register as a lobbyist for the Ukraine government, and conspired to tamper with witnesses in that case. Manafort has been in jail since June as a result of the witness tampering charges....

Prosecutors charge that from 2010 to 2014, Manafort hid more than $15 million from the IRS — money he made as a political consultant in Ukraine. When that income ended in 2014, authorities charge Manafort lied to banks to get millions of dollars more in loans to support his extravagant lifestyle.

I speculated in this post from last year around the time of his indictment that Manifort could be looking at a decade in prison or longer following a conviction based on the large loss amounts connected to various charges.  This split verdict does not change my prediction that the significant amounts of money involved here means Manafort will be facing a significant guideline range at sentencing.  But his advanced age (and some of the behavior by the trial judge) leads me to think he might have a real shot at securing a below-guideline (but still substantial) sentence.

I expect some white-collar sentencing gurus might already have a sense of the guideline range that Manafort will be facing, and I will be interested to see sentencing arguments unfold in many arenas (including perhaps Twitter) in the coming weeks and months.  Of course, I welcome commentors sharing their take on what they think Manafort will get and should get for his crimes.

Prior related posts:

August 21, 2018 in Celebrity sentencings, Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (14)

Tuesday, July 24, 2018

Three+ years after death sentencing, lawyers for Boston Marathon bomber Dzhokhar Tsarnaev have "flagged roughly 30 issues" for his appeal

It seems like it has been a long time since I blogged by the Boston Marathon bomber, Dzhokhar Tsarnaev. And indeed it has been: a jury handed down Tsarnaev death sentence back in May 2015, a full month before Donald Trump had even announced he was running for President.  But now more than three years after his death sentencing, Tsarnaev is in the news via this Boston Globe story headlined "Lawyer for Boston Marathon bomber maps out appeal of death penalty sentence." Here are excerpts:

Lawyers for Boston Marathon bomber Dzhokhar Tsarnaev have flagged roughly 30 issues they plan to raise when he appeals his death sentence, according to a recent legal filing. A motion filed last week with the US Court of Appeals for the First Circuit in Boston said the attorneys have “identified approximately 30 appellate claims to consider raising in Mr. Tsarnaev’s [appellate] brief.”

Tsarnaev’s lawyers requested that the Aug. 20 deadline for filing their highly anticipated brief be pushed back to Nov. 18, citing their ongoing analysis of some 10,000 pages of transcripts in the case.  “Even relative to other federal capital appeals and terrorism appeals across the country, the record here is voluminous,” David Patton, a member of Tsarnaev’s appellate team, wrote in the motion.

Tsarnaev, 25, was convicted in 2015 for his role in the April 2013 Marathon bombings, which killed three people including an 8-year-old boy and wounded more than 260 others. He was sentenced to death and is currently incarcerated at a federal supermax prison in Colorado. Tsarnaev and his older brother and accomplice, Tamerlan, also killed an MIT police officer while they were on the run. Tamerlan Tsarnaev was killed in a confrontation with police in Watertown days after the bombings....

Patton listed additional issues that Tsarnaev’s team expects to raise on appeal. “Counsel have completed drafts of a substantial portion of the remaining claims, including issues concerning venue, multiple errors in the selection of the death-qualified jury, the admission of evidence obtained through the use of Mr. Tsarnaev’s involuntary confession, the lawfulness of certain counts of conviction . . . the exclusion of relevant mitigation material, improper prosecutorial arguments, and the admission of victim impact evidence from survivors,” Patton wrote. “But, despite continuous effort, a number of issues identified and determined to be sufficiently weighty for inclusion remain to be drafted.”

I would expect the First Circuit to give Tsarnaev's lawyers into the fall to complete their brief, and I would also guess the feds will need at least a few extra months to complete a response. Consequently, the First Circuit argument in the case will surely be heard no sooner than 2019, and I would not expect an opinion from the First Circuit until probably early 2020. Then surely comes en banc petition, a cert petition and likely at least one 2255 motion.

July 24, 2018 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (12)

Friday, June 15, 2018

Any predictions on sentencing day for Senator Rand Paul's attacker? UPDATE: Boucher got 30 days in jail and 100 hours community service

Friday finally brings judgment day for Dr. Rene Boucher, the neighbor of Senator Rand Paul, who strangely decided to violently tackle Senator Paul while he was mowing his lawn last fall.  As reported in this local article, headlined "Defense attorney in Paul tackling case makes pitch for probation," the defendant is hoping to avoid any period of incarceration:

Dr. Rene Boucher, who admitted guilt to a federal crime in a case involving the tackling of U.S. Sen. Rand Paul outside the lawmaker’s home, has formally requested to be placed on probation. Attorney Matt Baker, representing Boucher, filed a 10-page memorandum [last] Friday in U.S. District Court arguing that incarceration for the retired physician would serve no useful purpose.

Boucher, 60, pleaded guilty in March to a count of assaulting a member of Congress resulting in personal injury. His sentencing, before Special Judge Marianne Battani, is set for June 15.

Special Prosecutor Bradley Shepard has recommended a 21-month prison sentence for Boucher, but Baker argues probation is more appropriate “based upon the rather unique nature of the offense” and several extenuating circumstances. “Other than the isolated incident that is in issue, Dr. Boucher has been a pillar of his community, a solid citizen, a family man and a devout Christian,” Baker stated in his memorandum, which also stressed Boucher’s lack of a criminal history and his service in the U.S. Army and in the community as a physician.

A neck injury sustained in a bicycle accident forced Boucher, a specialist in pain management and anesthesiology, to retire from practicing medicine, according to court records. Accompanying the sentencing memorandum are 14 letters supporting Boucher and extolling his character.

Baker’s filing offers context into what led to the Nov. 3 incident in the Rivergreen subdivision, where Paul and Boucher are neighbors. On that date, Paul was tackled outside his residence while doing yardwork. Boucher told law enforcement that he ran onto the senator’s property and tackled Paul after he witnessed Paul stack brush on top of a pile near Boucher’s property.

Baker’s filing makes the case that the roots of the tackling incident could be traced to summer 2017, when Boucher trimmed the limbs on a few maple trees on the property line dividing the Boucher and Paul properties....

The memorandum filed Friday quotes what Baker said is a victim impact statement from Paul filed May 21 in which the senator says he “can only assume that (Boucher’s) deep-seated anger towards me co-mingles with his hatred of my political policies” and states that Boucher must be suffering from a “personality disorder, substance abuse, intense political hatred or all of the above.”

Baker called those allegations “completely unfounded.” “Dr. Boucher has adamantly denied any such political motivations throughout, as even the suggestion of them is completely unfounded and simply not true,” Baker said.

In an emailed statement to the Daily News on Tuesday, Paul's communications director, Kelsey Cooper, took issue with some of Baker's characterizations of the neighbors' relationship. "Before Senator Paul was violently attacked from behind, he had no conversations or discussions with the attacker," Cooper wrote. "There was no 'longstanding dispute.' This description is untrue. It is impossible to have a dispute when no words of disagreement were ever spoken – neither immediately nor at any other time before the attack occurred. In the decade prior to the attack, Senator Paul had no contact with the attacker.

"The attack was a pre-meditated assault that broke six of the Senator’s ribs and was complicated by fluid and blood around the lung and recurrent pneumonia. Any description of this attack that implies a 'yard dispute' justifies such violence and misses the point."

I am inclined to predict that Boucher will get some period of incarceration, but less than the 21 months sought by federal prosecutors.  I will guess the term will be somewhere between six months and a year-and-a-day.  But this really a guess, especially given that I have not been able to find a copy of the sentencing filings available on-line, nor have I seen any guideline calculations.

In this prior post about this case, I encouraged readers to suggest what sentence they thought fitting for Senator Rand Paul's attacker. I welcome additional comments on what folks think Boucher will and should get.

Prior related post:

UPDATE: This press piece reports on the sentencing outcome, and starts this way:

The neighbor who admitted to attacking U.S. Senator Rand Paul outside his home last fall was sentenced Friday in U.S. District Court in Bowling Green to 30 days in jail. Rene Boucher was also ordered to serve one year of supervised release, perform 100 hours of community service, and have no intentional contact with the Paul family.

Boucher addressed the court and offered an apology to the Republican lawmaker who sustained broken ribs and other injuries after being tackled from behind while mowing his lawn on November 3. "What I did was wrong and I hope he and his family can one day accept my apology," Boucher said.

Boucher, who pleaded guilty to assaulting a member of Congress, expressed embarrassment and described the last seven months as a "nightmare." The 60-year-old retired anesthesiologist said he lost his temper over repeated piles of debris on the property line between his home and Paul's in the upscale Rivergreen subdivision in Bowling Green.

Assistant U.S. Attorney Brad Shepherd asked the judge for a 21-month prison term, arguing that Boucher didn't simply lose his temper. "This was a vicious, unprovoked assault," Shepherd said.

June 15, 2018 in Booker in district courts, Celebrity sentencings | Permalink | Comments (7)

Thursday, May 31, 2018

Prez Trump suggests to reporters there will be more episodes of "Celebrity Clemency"

1527789503108I often come to think of Prez Trump as Huckster-in-Chief or Showman-in-Chief, and his TV salesman tendencies shine through when he teases his own presidential plans like a radio host hoping to keep you tuned in to the next segment.  This morning, as blogged here, the tease was on Twitter in the form of a promise to "be giving a Full Pardon to Dinesh D’Souza."  This afternoon, as detailed in this Fox News piece, the tease was delivered to reporters on Air Force One about more grants of clemency to more high-profile federal felons:

President Trump said Thursday he was considering pardoning or commuting the sentences of Martha Stewart and former Illinois Gov. Rod Blagojevich, following his announcement earlier in the day of a full pardon for conservative filmmaker Dinesh D’Souza. The president’s comments came during a gaggle with reporters on Air Force One enroute to Houston, Texas.

Trump called the former governor’s sentence on corruption charges “really unfair” and added that “plenty of other politicians could have said a lot worse.” The president said that Blagojevich said something dumb, but that "lots of politicians" do.

“I’ll tell you another one … there’s another one that I’m thinking about. Rod Blagojevich -- 18 years in jail for being stupid and saying things that every other politician, you know that many other politicians say,” Trump told reporters. “And if you look at what he said, he said something to the effect like 'what do I get' … stupid thing to say.”

The former Democratic governor, who was a contestant on Trump's "Celebrity Apprentice" in 2010, began his 14-year prison sentence in 2012 after being convicted of corruption. Blagojevich's scheduled release date is in 2024. Blagojevich was governor of Illinois from 2003 to 2009, when he was impeached and convicted on corruption charges over allegations he took bribes for political appointments—including to the open U.S. Senate seat of former President Barack Obama.

Trump suggested he was more interested in “curtailing his sentence” than a full pardon. “I am seriously thinking about – not pardoning – but I am seriously thinking of a curtailment of Blagojevich," Trump said....

“And there are others. I think to a certain extent Martha stewart was harshly and unfairly treated. And she used to be my biggest fan in the world … before I became a politician," Trump said. "But that’s ok I don’t view it that way.”

Stewart was convicted in 2004 of obstructing justice and lying to the government as part of an insider trading case. At the time, former FBI Director James Comey was the federal prosecutor who charged Stewart.

I noted in this post yesterday that Kim Kardashian on Wednesday afternoon was at the White House to speak in person with Jared Kushner and Prez Trump about her interest in seeing a clemency grant for Alice Marie Johnson, a grandmother serving LWOP for non-violent drug offense.  I closed that post by saying "it would be something for Kimme to get clemency relief for a single federal defendant; it would be something special if she could secure clemency relief for a number of individuals." For the record, I was not thinking about Martha Stewart or Rod Blagojevich or Dinesh D’Souza when I made that statement. But, jokes aside, this trio might want to send a thank you note to Kimme because it seems she did something to get Prez Trump's clemency juices flowing.  Now let's all hope these juices flow to the benefit of some non-elites ASAP.

A few prior related posts:

May 31, 2018 in Celebrity sentencings, Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (10)

Thursday, May 10, 2018

High-profile recipient of federal clemency headed to prison once more, and then...

The life and legal sagas of Mel Reynolds could surely serve as a remarkable movie script, but today it was the subject of (another) federal sentencing proceeding. This USA Today article, headlined "Former U.S. congressman Mel Reynolds is headed back to prison -- and then Africa," provides highlights from a remarkable life story:

Disgraced former U.S. Rep. Mel Reynolds is headed back to prison.  The controversial ex-congressman from Chicago was sentenced Thursday to six months in federal prison for failure to file income tax returns for four years, from 2009 to 2013, despite making about $400,000 as a consultant for two Chicago-area businessmen in Africa during that time.

Reynolds, a Democrat who served in the House from 1993 to 1995, saw his storybook political career upended when he was convicted in 1995 of sexual assault of a 16-year-old campaign worker.  While serving his sentence for the statutory rape conviction, Reynolds was convicted on a series of charges that included bank fraud, misusing campaign funds and making false statements to the Federal Election Commission.  Those charges resulted in an additional 78-month federal prison sentence.  He served 42 months on those charges before then-President Bill Clinton commuted the sentences.

The former congressman, who represented himself at his four-day bench trial last year on the tax fraud charges, insisted that the money he received was for business expenses and was not taxable income.  At his sentencing hearing, he made an argument that had he filed taxes he may have actually been owed a refund. U.S. District Judge Robert Gettleman noted that Reynolds' argument seemed to conflate tax credits with tax deductions, and dismissed it....

Born to a poor family in Mississippi and later living as a youth on public assistance in Chicago, Reynolds climbed his way out of poverty and earned advanced degrees at Harvard University and was awarded the prestigious Rhodes Scholarship at Oxford University before running for office. "It is really tragic that you squandered the type of opportunity you've had and failed to become what you could have become," Gettleman said before handing down the sentence.

Following the hearing, Reynolds struck a defiant tone in brief comments to reporters.  The former lawmaker, who is slated to begin his sentence Aug. 1, said that he planned to move Africa after he completes his prison term. He will receive credit for two months he spent in federal custody before posting bail ahead of his trial.  “I’m done with America,” Reynolds said. “I am going to go home to Africa. I’ve given up on America.”

Reynolds had entered a consulting agreement to hunt for business opportunities in Zimbabwe on behalf of two prominent Chicago-area businessmen, Elzie Higginbottom and Willie Wilson.  Higginbottom testified that he ended the partnership with Reynolds in 2012 after Reynolds managed to only land a single contract to sell latex gloves to Zimbabwe hospitals.  “Frankly, at the end of the day, (Reynolds) knew better,” federal prosecutors argued in their sentencing memorandum in which they recommended Reynolds face at least a two year prison sentence.  His “personal behavior has repeatedly reflected his willingness to engage in fraudulent, criminal conduct and his readiness to mislead and defy courts in an attempt to obstruct justice.”...

Reynolds argued that it was unfair that he “continue to be punished over and over” for his previous convictions.  "I started from nothing but I became something," Reynolds said. "To put me in jail serves what purpose?"

May 10, 2018 in Celebrity sentencings, White-collar sentencing | Permalink | Comments (9)

Tuesday, May 08, 2018

"Are Elderly Criminals Punished Differently Than Younger Offenders?"

The question in the title of this post is the headline of this new piece at HowStuffWorks.  The question is prompted by the upcoming sentencing of 80-year-old Bill Cosby, and I had the pleasure of speaking to the reporter on the topic.  Here are excerpts from the piece (with a few links from the original):

After Bill Cosby's recent conviction in a Montgomery County, Pennsylvania court on three counts of aggravated indecent assault, the judge in the case rejected the prosecution's request that the 80-year-old comedian and actor, who his attorneys say is legally blind, be sent immediately to jail pending sentencing.   "With his age, his medical condition, I'm not going to simply lock him up right now because of this," Judge Stephen T. O'Neill explained when he allowed Cosby to remain at home on bail as he awaits sentencing, according to the Philadelphia Inquirer.

Some think that decision gives a hint of how Cosby's sentencing will go.  Under the law, he could receive as much as 30 years in prison, and the state's sentencing guidelines recommend between five-and-a-half and nine years.  But as CNN reports, many legal experts suspect that Cosby may get a lesser sentence, at least in part because of his age and health.

The Cosby case raises a discomforting question.  Should elderly offenders be treated more leniently by the courts than younger criminals, because they have less time left to live, and because their physical frailty might make it more difficult for them to survive a prison term?....

The relatively few studies on the subject suggest that judges do often give older offenders a break.  One study published in the Journals of Gerontology: Series B in 2000 found that in Pennsylvania courts, offenders in their 60s were 25 percent less likely to be sentenced to prison than those who were in their 20s, and their sentences were eight months shorter on average.  Those who were in their 70s got an even sweeter deal — they were 30 percent less likely to end up behind bars than 20-somethings, and those who were incarcerated served 13 months less on average.

More recently, a study by Arizona State University researchers, published in 2014 in the journal Criminal Justice Studies, similarly found that in the federal court system, judges gave older offenders a "senior citizen discount" when it came to jail time.

Prior related posts:

May 8, 2018 in Celebrity sentencings, Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (9)

Saturday, May 05, 2018

"A Rational Approach to the Role of Publicity and Condemnation in the Sentencing of Offenders"

The title of this post is the title of this interesting article recently posted to SSRN authored by Mirko Bagaric and Peter Isham. Here is the abstract:

The punishment imposed on criminal offenders by courts often does not exhaust the hardship they experience.  There are a number of collateral forms of punishment that many offenders are subjected to as a result of their offending.  Some of these deprivations are institutional, such as being dismissed from employment or being disqualified to vote. Other hardships are less predictable and harder to quantify.  Public scorn, often directed towards high profile offenders, such as O.J. Simpson and Anthony Weiner, can be the cause of considerable additional suffering to offenders.  It can engender feelings of shame, embarrassment and humiliation.  At the same time, the high profile nature of the cases provides courts with an opportunity to demonstrate to the wider community the consequences of violating the law.

There is no established jurisprudence regarding the role that public criticism of offenders should have in sentencing decisions.  Some courts take the view that it should increase the penalty imposed on high profile offenders in order to deter others from committing similar offences.  By contrast, it has also been held that public condemnation should reduce penalties because the offender has already suffered as a result of the public condemnation.  On other occasions, courts have held public condemnation is irrelevant to sentencing.  The issue is increasingly important because the internet and social media have massively increased the amount of publicity that many criminal offenders receive. Simultaneously, this is an under-researched area of the law.

In this Article, we develop a coherent jurisprudential and evidence-based solution to the manner in which public opprobrium should be dealt with in sentencing decisions.  We argue that sentencing courts should neither increase nor decrease penalties in circumstances where cases have attracted wide-ranging media attention.  The hardship stemming from public condemnation is impossible to quantify and in fact causes no tangible suffering to some offenders.  Thus, the extent of publicity that an offender receives for committing a crime should be an irrelevant consideration with respect to the choice of punishment. In proposing this reform, we carefully analyze the jurisprudence in the United States.  We also consider the position in Australia, where the issue has been considered at some length.

May 5, 2018 in Celebrity sentencings, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (9)

Wednesday, May 02, 2018

Might Kim Kardashian West actually convince Prez Trump to grant clemency to federal drug offender?

Download (11)The question in the title of this post is not satire, but a serious inquiry based on this extended Mic report headlined "Kim Kardashian West has talked to White House about pardoning nonviolent drug offender."  Here are excerpts from the report:

Kim Kardashian West and President Donald Trump’s son-in-law and senior adviser Jared Kushner have spoken over the phone about a possible presidential pardon for Alice Marie Johnson, a 62-year-old great-grandmother serving a life sentence for a nonviolent drug offense.

The telephone calls, according to a source with knowledge of the conversations, have taken place over the course of the past several months and have picked up in intensity over the last several days.

A representative for Kardashian West confirmed to Mic that she has been in communication with the White House and is working to bring Johnson’s case to the president’s desk. The source with knowledge of the conversations also told Mic that Johnson’s case has been reviewed by White House attorneys.

Johnson, who has been in federal prison since October 1996, has captured international attention from criminal reform activists — and Kardashian West.  Kardashian West first learned about Johnson’s case from a Mic video [available here] published in October.  Kardashian West shared it on Twitter, and the video has since been viewed more than 8 million times.

Shortly after, Kardashian West became involved in trying to free Johnson, who was convicted for her role facilitating communications in a drug trafficking case. In November, Kardashian West enlisted a team of lawyers, including her Los Angeles-based attorney Shawn Holley, to advocate for Johnson’s release.

The two women also have communicated, with Johnson expressing her gratitude toward Kardashian West for her support in a November letter. Still, it appears the only clear path for Johnson’s release would be a presidential pardon or clemency — which could come at odds with Trump’s recent proposal to impose the death penalty for certain drug dealers.

In her October op-ed, Johnson told Mic she became involved in drug trafficking as a way to make ends meet following a particularly rough period in her life: She lost her job at FedEx, where she had worked for 10 years, due to a gambling addiction; she got divorced; and then her youngest son died in a motorcycle accident. “I felt like a failure,” Johnson said. “I went into a complete panic and out of desperation, I made one of the worst decisions of my life to make some quick money. I became involved in a drug conspiracy.”

Johnson was arrested and sentenced to life in prison, with no opportunity for parole. As of May 2018, she has spent over two decades behind bars. For criminal justice reform advocates, Johnson’s case serves as a glaring example of why America’s sentencing laws need reform.

Johnson was one of six prisoners featured in the ACLU’s campaign to end mass incarceration. She has also participated in Skype conversations at top universities including Yale and New York University, as well as at companies such as Google, where Mic first became aware of her story. One of Johnson’s daughters, Tretessa Johnson, told Mic in a video in November that her mother is remorseful and has been a model prisoner during her time behind bars....

President Barack Obama granted clemency to 231 individuals in December 2016, many of whom had similar drug-related charges. Johnson was not one of them. “When the criteria came out for clemency, I thought for sure — in fact, I was certain that I’d met and exceeded all of the criteria,” Johnson told Mic. “Oh my goodness, I had so much support.”

Now, her hope rests with Trump. News of Kushner and Kardashian West’s conversations comes on the heels of multiple reports in recent months that Kushner has been working to pass a bipartisan criminal justice reform bill in Congress, co-sponsored by Doug Collins (R-Ga.) and Hakeem Jeffries (D-N.Y.), among others.

For a lot more information about Alice Marie Johnson, check out all the materials assembled here at the CANDO website where she is listed #1 on this list of Top 25 Women who deserve clemency from federal prison.

May 2, 2018 in Celebrity sentencings, Clemency and Pardons, Drug Offense Sentencing, Who Sentences | Permalink | Comments (11)

Sunday, April 29, 2018

"Why Bill Cosby may not spend any time in prison"

The title of this post is the title of this lengthy new CNN article that provides a review of some of what we can now expect in the case of Pennsylvania v. William Henry Cosby, Jr. in the wake of his convictions this past week.  Here are excerpts:

Based on his conviction this week on three assault charges, comedian and TV star Bill Cosby could be sentenced to 30 years in prison.  But legal experts said the 80-year-old certainly will spend less time than that behind bars, and there's a very real possibility that he may not ever be incarcerated.

Why?  Well, it's mostly to do with his defense team's plan to appeal the guilty verdict -- likely on the grounds that the decision to allow five other accusers to testify in the trial unfairly prejudiced the jury.

Cosby's attorney, Tom Mesereau, will probably ask the court that his client be given home confinement during the appeal, which could take months or even years, CNN legal analyst Joey Jackson said.  "I think he'll ask the court and do whatever he needs to, to have his client remain out at liberty until these issues are decided, whether it was appropriate to allow all those accusers to testify, and how prejudicial and unfair would that be," Jackson said.

The decision on Cosby's bail is up to Montgomery County Judge Steven T. O'Neill, who oversaw the case.  His prior rulings suggest he may allow Cosby to remain on home confinement.  On Thursday, O'Neill dismissed the prosecution's plea to revoke Cosby's $1 million bail and remand him to jail. "I'm not simply going to lock him up right now," the judge said, citing his age and his track record of appearing at every hearing for two and a half years....

For now, Cosby is not permitted to leave his Pennsylvania home. If he does leave the state for another home, it would have to be arranged ahead of time and he would have to wear a GPS monitoring device, the judge ruled.  If O'Neill does allow Cosby to remain free during appeals, and the legal action lasts for years, then there's a question of whether the comedian's age and health will make that sentence moot....

Though Cosby faces a maximum of 30 years in prison, Montgomery County District Attorney Kevin Steele indicated he would not press for that sentence.  "He was convicted of three counts of (indecent assault), so technically that would be up to 30 years.  However, we have to look at a merger of those counts to determine what the final maximum will be," Steele said.

Legal analyst Areva Martin said the judge's rulings so far suggest he will give Cosby a much reduced sentence. "I think the fact that the judge yesterday allowed him to walk out of that courtroom, did not remand him immediately to jail, gives us a sense about what this judge is likely to do when he gets to the sentencing hearing," she said.

Judges can take any number of mitigating factors into consideration when issuing a sentence, she explained. "He will be able to take into consideration Cosby's age, the status of his health, the philanthropic work that he's done over the last several decades, the fact that this is his first criminal conviction -- all of those will be factors that the judge can take into consideration when sentencing him."

A sentencing hearing has not yet been scheduled.

Some women who say they were also assaulted by Cosby believe he should spend time in prison. "I believe that it's essential he spend time in jail and it wouldn't break my heart to see him spend the rest of his life in jail," Janice Baker-Kinney said Friday.

But ultimately, the length of his sentence would not change his guilty conviction. "Whether he ends up serving time in jail or if he dies during the appeals process, that doesn't remove the fact that he has been convicted," [Professor Michelle] Dempsey said. "That's definitely an important moment in history."

Prior related post:

April 29, 2018 in Celebrity sentencings, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (12)

Thursday, April 26, 2018

You be the state judge: what sentence for Bill Cosby for conviction on three counts of aggravated indecent assault?

This brief CNN report details why there is a new celebrity sentencing watch now:

The jury in Bill Cosby's indecent assault trial found the comedian guilty Thursday of all three counts.

Cosby was convicted on three counts of aggravated indecent assault for drugging and sexually assaulting Andrea Constand in a Philadelphia suburb in 2004. The 80-year-old former comedian faces up to 10 years in prison on each count, but would likely serve them concurrently....

The case against Cosby centered on testimony from Constand, a former employee with Temple University women's basketball team. She testified that Cosby, a powerful trustee at Temple, drugged her and sexually assaulted her when she visited his home to ask for career advice.

Cosby's defense team argued that their interaction was consensual. Constand is a con artist, they argued, who wanted a piece of Cosby's fortune....

Although dozens of women have accused Cosby of sexual misconduct, only Constand's allegations resulted in criminal charges.

The last line of this report highlights one of many reasons that the coming sentencing proceeding for Cosby may prove so interesting. It will be interesting to see whether and how the state will try to bring in evidence of other alleged assaults as "relevant conduct."  Because I do not know well Pennsylvania sentencing law and practice, I would be especially eager to hear from PA practitioners about how they expect a forthcoming sentencing to proceed.

April 26, 2018 in Celebrity sentencings, Offense Characteristics | Permalink | Comments (10)

Tuesday, April 24, 2018

Meek Mill pledges to "shine a light" on criminal justice issues after Pennsylvania Supreme Court orders his release on bail

As reported in prior posts here and here from last November, rapper Meek Mill became the focus point for complaints about an unfair criminal justice system in Philadelphia after he received a seemingly extreme 2-4 year prison sentence for violating his probation from a 2008 gun and drug case.  Today, as reported in this USA Today article, he got some relief thanks to this short order from the Supreme Court of Pennsylvania:

Meek Mill is finally free. The rapper's lawyer, Joseph Tacopina, confirmed to USA TODAY that the rapper was freed on bail Tuesday after Pennsylvania's Supreme Court ordered a judge to release him while he appeals decade-old gun and drug convictions. "We are thrilled that the Pennsylvania Supreme Court has directed Judge Brinkley to immediately issue an order releasing Meek on bail," said Tacopina in a statement. "As we have said all along, Meek was unjustly convicted and should not have spent a single day in jail."

Mill immediately vowed via social media to use his spotlight to "shine a light" on how America's criminal justice systems treat people of color.

The Philadelphia-born rapper (real name is Robert Rihmeek Williams) has been fighting for release from jail for the past five months. Mill was sentenced in November to two to four years in prison for violating probation on a roughly decade-old gun and drug case (a ruling opposed at the time by the Philadelphia district attorney and Meek's probation officer).

But in March, the most damning piece of evidence came to light when Philly District Attorney Larry Krasner admitted that Mill may have been unjustly convicted thanks to a cop who lied at his 2008 trial. Krasner said he would not oppose Mill's immediate release on bail pending appeal of his case. Because hundreds of other convictions have already been reversed based on information provided by a whistleblowing cop, "there is a strong showing of likelihood of (Mill's) conviction being reversed (in whole or in part)," Krasner said in a statement at the time. "Therefore the Commonwealth is unopposed to (Mill's) petition for bail."

Lawyers for Mill have accused Judge Genece Brinkley, who sentenced Mill 10 years ago and has subsequently tacked on 14 years of probation, of having "a personal vendetta" against him. An investigation by Rolling Stone said Brinkley "repeatedly torched his rap career each time he was poised for mega-stardom."

Since last fall, Mill and his lawyers have been trying and failing to persuade Brinkley to release him on bail while his case is appealed. On Tuesday, Mill's lawyer said the legal team was "also pleased that the Pennsylvania Supreme Court has noted that Judge Brinkley may opt to remove herself from presiding over any further proceedings in Meek’s case in the interests of justice."

The district attorney's office also weighed in on Tuesday. "As our office has made clear in recent court filings, the Pa. Supreme Court’s decision on Meek Mill being released on bail is consistent with the position of the Philadelphia District Attorney’s Office," Ben Waxman, spokesperson for the DA, said in a statement to USA TODAY on Tuesday. Waxman noted that "just last week, our office agreed to withdraw prosecution from three lesser-known individuals whose cases were also tainted by potential police credibility issues by following the same procedures and analysis."...

A national movement has surged in Mill's defense, along with a hashtag: #FreeMeekMill. While in prison, Mill has received high-profile visits from New England Patriots owner Robert Kraft, Philadelphia 76ers co-owner Michael Rubin, Colin Kaepernick and Philadelphia's mayor. Kraft has subsequently called for reform of the criminal justice system.

On Tuesday, Mill tweeted his thanks, calling the past five months "a nightmare."... Mill continued: "To the Philly District Attorney’s office, I’m grateful for your commitment to justice. I understand that many people of color across the country don’t have that luxury and I plan to use my platform to shine a light on those issues. In the meantime, I plan to work closely with my legal team to overturn this unwarranted conviction and look forward to reuniting with my family and resuming my music career."

It is not uncommon for high-profile persons caught up in the criminal justice system to pledge a commitment to reform efforts upon their release, but it is a bit more uncommon to see these persons effectively follow-up on such a pledge (I am thinking of Martha Stewart here). In this case, I have an inkling Meek Mill will in fact be an important high-profile advocate for criminal justice reform.

Prior related posts:

April 24, 2018 in Celebrity sentencings, Examples of "over-punishment", Who Sentences | Permalink | Comments (2)

Tuesday, April 03, 2018

After plea to lying to special counsel, attorney gets 30 days (within-guideline) federal sentence

As reported here via Politico, "Special counsel Robert Mueller obtained the first sentence in his high-profile investigation Tuesday, as a Dutch attorney who admitted to lying to investigators was ordered into federal custody for 30 days." Here is more with an emphasis on sentencing details:

Former Skadden Arps lawyer Alex van der Zwaan, 33, pleaded guilty in February to lying to FBI agents about his contacts with former Trump campaign official Rick Gates and Konstantin Kilimnik, a suspected Russian intelligence operative who worked closely with Gates and former Trump campaign chairman Paul Manafort.

Attorneys for van der Zwaan pleaded with U.S. District Court Judge Amy Berman Jackson to forgo any prison time, give him a fine and let him return to his London home by August, when his wife is due to give birth. However, the judge said some time in jail was appropriate given van der Zwaan's offense and the fact that he is a lawyer.

“We're not talking about a traffic ticket,” she said. “This was lying to a federal officer in the course of a criminal investigation...This was more than a mistake. This was more than a lapse or a misguided moment."

In addition to the 30-day sentence, Jackson also imposed a $20,000 fine and two months of probation, but she said she would permit van der Zwaan to reclaim his passport and leave the country as soon as his month in custody is completed. It's not immediately clear where or in what type of facility he will serve the 30 days....

Van der Zwaan's defense asked that he be permitted to serve at a Bureau of Prisons center in Allenwood, Pennsylvania. The judge said Tuesday that she would recommend that, but federal policies usually dictate that a sentence of less than six months be served at a halfway house or at the D.C. jail.

One of van der Zwaan's defense attorneys, William Schwartz, argued that leniency was appropriate given the impact of the episode on the Dutch lawyer's family and on his legal career.  He is likely to lose his license as a solicitor in the United Kingdom, Schwartz said.

But Jackson was largely unmoved by those arguments, noting that van der Zwaan came from an upbringing of privilege and lacked any hardship that could have mitigated his actions. Van der Zwaan is married to the daughter of a Ukrainian-Russian energy mogul, German Khan, whom Forbes ranks 138th on its list of billionaires, with a net worth of $9.3 billion.

"This glass was dropped on a very thick carpet, which has cushioned him," the judge said of the defendant. She credited him for supporting himself and his wife in recent years, although she noted that van der Zwaan's father-in-law has provided funds to the couple since the attorney was fired from his job....

The fact that prosecutors are not requiring future cooperation from van der Zwaan suggests that they don't see him as a crucial player in the Trump-Russia saga. Prosecutor Andrew Weissmann said the defendant's reason for lying remains murky. "To be candid, we don't know what was motivating the defendant," Weissmann said. "We count on people to tell us the truth. We count on people to turn over documents that are responsive."

Defense attorneys said he lied to Mueller's team because he feared being fired if Skadden found out he had recorded work-related conversations without permission, including at least one with former Obama White House Counsel Greg Craig, a Skadden partner who oversaw the Tymoshenko report. Van der Zwaan was ultimately fired by the firm late last year, after his inaccurate statements to the Mueller team.

Weissmann said that concern about the consequences at Skadden could have been part of the explanation, but there was "reason to doubt that is simply the sole motive." Mueller's team offered no specific recommendation to Jackson on an appropriate sentence in the case. Weissmann said that was the special counsel office's policy, which he also followed as a federal prosecutor in Brooklyn.

Van der Zwaan spoke to the court only briefly during the sentencing hearing at the federal courthouse near Capitol Hill. "Your honor, what I did was wrong and I apologize to the court for my conduct," he said. He also apologized to his family for his actions.

Later in the hearing, Jackson said she did not detect great remorse. "The expressions of remorse, even those made on his behalf, were somewhat muted to say the least," the judge declared shortly before she imposed the sentence.

Jackson also rebuffed Schwartz's argument that van der Zwaan's freedom was curtailed in recent months as he spent his days at a "residential hotel" awaiting legal proceedings. "I'm not really moved by the complaint that he is in his hotel room with nothing to do," the judge said, saying he was not in custody and could have been doing community service to keep busy.

"This glass was dropped on a very thick carpet" is a quote I am going to have to remember.  And though not mentioned in this article, I am pretty sure the calculated guideline range in this matter was 0 to 6 months, so perhaps we ought also remember that the first sentence imposed in this matter emerging from the special counsel was a within-guideline (and not-bottom-of-the-range) sentence.

April 3, 2018 in Booker in district courts, Celebrity sentencings, White-collar sentencing, Who Sentences | Permalink | Comments (9)

Thursday, March 29, 2018

Judge Jed Rakoff sentences rapper DMX to one year in federal prison for tax fraud

US District Court Judge Jed Rakoff has long been a vocal advocate against mass incarceration and other problems he seeing is the operation of the federal criminal justice system. But that view did not preclude him from thinking he needed to send a notable white-collar criminal to federal prison yesterday as reported in this local article (which provides a nice short review of the parties' sentencing arguments):

Embattled rapper DMX was sentenced Wednesday to one year in prison for tax fraud — but insisted he wasn’t “like a criminal in a comic book” trying to scheme against the government.  DMX, real name Earl Simmons, admitted in November to evading $1.7 million in taxes. He was also given three years of supervised release.

The 47-year-old performer, whose top songs include “Party Up (Up in Here),” stood accused of hiding money from the IRS from 2010 to 2016 — largely by maintaining a “cash lifestyle.” “I knew that taxes needed to be paid,” Simmons said shortly before Manhattan Federal Judge Jed Rakoff handed down his sentence. “I hired people but I didn’t follow up. I guess I really didn’t put too much concern into it.

“I never went to the level of tax evasion where I’d sit down and plot . . . like a criminal in a comic book,” said Simmons, who grew teary at points during the proceeding.

Prosecutors had pushed for Rakoff to hit Simmons with a sentence ranging from four years and nine months up to five years in prison. In their sentencing papers, prosecutors urged Rakoff to "use this sentencing to send the message to this defendant and others that star power does not entitle someone to a free pass, and individuals cannot shirk the duty to pay their fair share of taxes."

Simmons' lawyers, Murray and Stacey Richman, asked Rakoff for a sentence of in-patient rehab. With treatment — and strict supervision — Simmons could keep performing, allowing him to repay his whopping tax debt, they insisted. They also floated the idea Rakoff could appoint a trustee who would oversee Simmons' business dealings — making sure the tax man got paid. They maintained that Simmons' traumatic and impoverished upbringing led him astray as an adult, including toward addiction and bad financial decisions — but that he has a talent to "make beauty out of ugliness."

The Richmans played the music video for Simmons' 1998 song "Slippin'", claiming lyrics such as "If I'm strong enough I'll live long enough to see my kids/Doing something more constructive with their time than bids" indicate his search for redemption through art. "He is the American dream, and sometimes the American dream takes you to court," Stacey Richman said. "He has been able to raise himself from the ghetto."

Rakoff sympathized with Simmons, saying he was another example of how "the sins of the parents are visited upon their children" — but felt prison was necessary to deter would-be tax fraudsters....

Other performers have done time for tax raps.

Former Fugees singer Lauryn Hill got a three-month sentence in federal lockup for not paying taxes on $1.5 million in income from 2005 to 2007.

Fat Joe, whose legal name is Joseph Antonio Cartagena, got four months in federal prison after he didn't file tax returns on more than $3 million in income.

Ja Rule, who is legally named Jeffrey Atkins, received a 28-month sentence for not filing tax returns that ran concurrently with a two-year weapons sentence, according to reports.

March 29, 2018 in Booker in district courts, Celebrity sentencings, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (4)

Sunday, February 18, 2018

Report that Mueller probe will soon produce another notable conviction and federal sentencing

A couple of month ago, as reported in this post, the investigation by special counsel Robert Mueller produced its first federal conviction when Michael Flynn pleaded guilty to lying to the FBI.   Now the Los Angeles Times is reporting here that another plea and another notable plea deal is in the works for another figure indicted by Mueller's team. Here are some of the basics (along with some sentencing details and a reminder of how economic issues can impact a defendant's decision-making):

A former top aide to Donald Trump's presidential campaign will plead guilty to fraud-related charges within days — and has made clear to prosecutors that he would testify against Paul Manafort, the lawyer-lobbyist who once managed the campaign.

The change of heart by Trump's former deputy campaign manager Richard Gates, who had pleaded not guilty after being indicted in October on charges similar to Manafort's, was described in interviews by people familiar with the case. "Rick Gates is going to change his plea to guilty," said a person with direct knowledge of the new developments, adding that the revised plea will be presented in federal court in Washington "within the next few days."

That individual and others who discussed the matter spoke on condition of anonymity, citing a judge's gag order restricting comments about the case to the news media or public. Gates' defense lawyer, Thomas C. Green, did not respond to messages left by phone and email. Peter Carr, a spokesman for special counsel Robert S. Mueller III, declined on Saturday to comment....

The imminent change of Gates' plea follows negotiations over the last several weeks between Green and two of Mueller's prosecutors – senior assistant special counsels Andrew Weissmann and Greg D. Andres.

According to a person familiar with those talks, Gates, a longtime political consultant, can expect "a substantial reduction in his sentence'' if he fully cooperates with the investigation. He said Gates is likely to serve about 18 months in prison.

The delicate terms reached by the opposing lawyers, he said, will not be specified in writing: Gates "understands that the government may move to reduce his sentence if he substantially cooperates, but it won't be spelled out."

One of the final discussion points has centered on exactly how much cash or other valuables — derived from Gates' allegedly illegal activity — that the government will require him to forfeit as part of the guilty plea.

Gates, 45, who is married with four children, does not appear to be well positioned financially to sustain a high-powered legal defense. "He can't afford to pay it," said one lawyer who is involved with the investigation. "If you go to trial on this, that's $1 million to $1.5 million. Maybe more, if you need experts" to appear as witnesses.

The Oct. 27 indictment showed that prosecutors had amassed substantial documentation to buttress their charges that Manafort and Gates — who were colleagues in political consulting for about a decade — had engaged in a complex series of allegedly illegal transactions rooted in Ukraine. The indictment alleged that both men, who for years were unregistered agents of the Ukrainian government, hid millions of dollars of Ukraine-based payments from U.S. authorities.

In this post after the Rick Gates was indicted along with Paul Manifort, I briefly sketched how guideline calculations could push their possible benchmark sentencing ranges into many years and even decades. Given these realities, I will be very interested to see if and how a plea deal for Gates might set out guideline calculations. As the press report suggests, Gates could and seemingly will be getting his sentence significantly reduced via 5K1.1 of the federal sentencing guidelines by providing "substantial assistance in the investigation or prosecution of another person who has committed an offense."   One cannot help but wonder is any person other than Manifort could be the subject of Gates' assistance to federal authorities.

February 18, 2018 in Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (6)

Wednesday, January 24, 2018

Child molester/gymnastics coach Larry Nassar gets (only?!?) 40 to 175 years as state prison sentence for mass molestation

As reported here by the AP, Larry Nassar after a lengthy state sentencing hearing "was sentenced Wednesday to 40 to 175 years in prison as the judge declared: 'I just signed your death warrant'."  Here is more from the AP:

The sentence capped a remarkable seven-day hearing in which scores of Larry Nassar's victims were able to confront him face to face in a Michigan courtroom. Judge Rosemarie Aquilina said Nassar's "decision to assault was precise, calculated, manipulative, devious, despicable."

"It is my honor and privilege to sentence you. You do not deserve to walk outside a prison ever again. You have done nothing to control those urges and anywhere you walk, destruction will occur to those most vulnerable."

Nassar found competitive gymnastics to be a "perfect place" for his crimes because victims saw him as a "god" in the sport, a prosecutor said Wednesday, shortly before the former doctor was to be sentenced for years of molesting Olympic gymnasts and other young women. "It takes some kind of sick perversion to not only assault a child but to do so with her parent in the room," prosecutor Angela Povilaitis said. "To do so while a lineup of eager young gymnasts waited."

She described the "breadth and ripple" of Nassar's sexual abuse as "nearly infinite." "What does it say about our society that victims of sexual abuse have to hide their pain for years when they did nothing wrong? What does it say about our society when victims do come forward ... and are treated as liars until proven true?" Povilaitis said.

Nassar turned to the courtroom gallery to make a brief statement, saying that the accounts of more than 150 victims had "shaken me to my core." He said "no words" can describe how sorry he is for his crimes. "I will carry your words with me for the rest of my days" he said as many of his accusers wept....

Nassar, 54, pleaded guilty to assaulting seven people in the Lansing area, but the sentencing hearing has been open to anyone who said they were a victim. His accusers said he would use his ungloved hands to penetrate them, often without explanation, while they were on a table seeking help for various injuries.

The accusers, many of whom were children, said they trusted Nassar to care for them properly, were in denial about what was happening or were afraid to speak up. He sometimes used a sheet or his body to block the view of any parent in the room. "I'd been told during my entire gymnastics career to not question authority," a former elite gymnast, Isabell Hutchins, said Tuesday....

Nassar has already been sentenced to 60 years in federal prison for child pornography crimes. He is scheduled to be sentenced next week on more assault convictions in Eaton County, Michigan.

Though not made clear in this AP piece, I am inclined to presume this 40 to 175 year sentence is the maximum permitted under state law. I would be grateful to hear from any Michigan state sentencing experts as to whether this was a max sentence and also why a mass molestation such as this one produces a state sentence with a lower range that is shorter than the federal prison sentence Nassar already received for child porn offenses.

Prior related posts:

UPDATE A helpful commentor noted below that the 40-year minimum sentence imposed here was the maximum bottom-range term provided for in Nassar's state plea agreement.  And, of course, because Nassar would have to live well past 100 to even have a chance of completing the current federal sentence he is serving, the particulars of his state sentence are not really of any significant practical consequence.

January 24, 2018 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (10)

Monday, January 22, 2018

You be the federal judge: what sentence for Senator Rand Paul's attacker?

As regular readers know, I enjoy following up news of a high-profile conviction by asking what sentence readers think fitting for the high-profile convicted offender.  As detailed in this local article, report, headlined "Rand Paul’s attacker should get 21 months in prison, prosecutors recommend," the case today is high-profile because of the victim (and some motive uncertainty). Here are the latest crime and punishment details:

Federal prosecutors will recommend a sentence of 21 months in prison for the neighbor charged with tackling and injuring U.S. Sen. Rand Paul, according to a court document. The document, posted Monday, also makes clear that the attack was not politically motivated.

Paul’s neighbor, Rene Boucher, told police he attacked Paul because he’d “had enough” after seeing the Republican senator stack more brush on a pile near Boucher’s yard, according to the plea agreement Boucher signed.

Boucher’s attorney, Matthew Baker of Bowling Green, has said he will argue that Boucher should not be put behind bars for the attack on Paul.

The plea deal also envisions that Boucher will make restitution to Paul, who was seriously injured.

Boucher, a 58-year-old retired anesthesiologist, and Paul have lived next to each other for years in an upscale subdivision in Bowling Green, but have reportedly had differences of opinion over property maintenance. Boucher is “very meticulous” about yard maintenance, while Paul “takes a different approach,” Baker told the Herald-Leader last week. “It just became … a point of frustration that boiled over,” Baker said....

Boucher’s plea agreement says Paul was mowing his yard — while wearing headphones for hearing protection — when Boucher saw Paul stacking more brush on an existing pile and lost his temper. Boucher “executed a running tackle” of Paul on Paul’s property, the plea agreement said.

Paul did not see Boucher coming until the last second and was “unable to brace for the impact,” the plea document said. Paul suffered several broken ribs and had to be treated for pneumonia which developed as a result of his injuries....

No date has been set for Boucher to formally plead guilty or be sentenced. The charge against him carries a top sentence of 10 years.

Long-time readers know that Senator Paul has long been an advocate for federal sentencing reforms especially for nonviolent drug offenders; in this case, Senator Paul the victim of a violent crime and perhaps the kind he thinks ought to carry some prison time.  Notably, in this 2013 op-ed, Senator Paul explained his opposition to mandatory minimum drug sentences due in part to the risk they create for federal offenders having "their lives ruined for a simple mistake or minor lapse of judgment."   Arguably Boucher's "running tackle" was just a minor lapse, albeit one that seemingly cause some significant harm to Senator Paul. 

Thanks the the federal Crime Victims' Rights Act, Senator Paul has a "right to be reasonably heard" at Boucher's sentencing and it will be interesting to see if Senator Paul exercises this right and whether he might be inclined to urge any particular sentence.  I surmise that the plea agreement filed today provides that federal prosecutors will seek a sentence of 21 months (likely pursuant to the aggravated assault guideline) while the defense will seek a sentence of probation.  It will be interesting to see what the probation office may end up recommending, and in the meantime I am eager to hear in the comments from various readers:

What sentence would you give to Rene Boucher for his assault on Senator Rand Paul?

January 22, 2018 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (16)

Saturday, January 13, 2018

Campaign to recall Brock Turner's sentencing judge turns in many signatures

As reported in this local article, headlined "Effort to recall Stanford rape case judge submits almost 100,000 signatures," a high-profile lenient sentence may soon be putting a California judge's job in jeopardy. Here are the details:

The campaign to recall a judge who issued what many considered a light sentence to a former Stanford swimmer convicted of sexual assault cleared its first hurdle Thursday.

Recall organizers, led by Stanford law Professor Michele Dauber, filed a petition and nearly 100,000 signatures with the Santa Clara County Registrar of Voters in San Jose to place a measure on the June ballot to recall Superior Court Judge Aaron Persky.

If successful, it would be the first recall of a California judge in 87 years.

In June 2016, Persky sentenced former Stanford swimmer Brock Turner to six months in jail after he was found guilty of sexually assaulting an unconscious woman by a dumpster outside of a fraternity party on the college campus, resulting in a national outcry that Turner received special treatment. Prosecutors had argued that Turner should spend six years in state prison, but Persky gave him six months in county jail. He ended up being released in three.

While Persky became a prominent public figure after the Turner decision, the recall campaign has attempted to demonstrate a pattern of judicial bias that extends beyond Turner’s case.... At a news conference Thursday morning, Dauber listed a series of cases in which she believed Persky’s handling of sexual assault cases had been too lenient, including a 2011 civil trial on the alleged gang rape of a 17-year-old high school girl by members of the De Anza Community College baseball team. Persky allowed defendants to show photos of the victim wearing a revealing outfit to the jury....

After serving half of his sentence, Turner was required to register as a sex offender after moving back home with his family in Ohio. He recently appealed his conviction, arguing that he didn’t receive a fair trial.

To qualify for June’s election, the Persky recall campaign was required to turn in 58,634 valid signatures by Feb. 2. Organizers submitted a petition with 94,518 signatures that filled 11 boxes outside of the Registrar of Voters office, which now has 30 days to verify them. “We are very confident that we are going to have thousands more than we need to qualify,” Dauber said.

Persky has tried several times to block the recall effort....

Persky based Turner’s jail sentence on a recommendation from the county probation department. The judge noted that prison would have “a severe impact” on the former Stanford swimmer. The petition to place the recall on the ballot is only the first step in the campaign to push out Persky, Dauber said. If the recall is placed on the ballot, voters also will be asked to select a candidate to fill Persky’s seat on the bench. Cindy Hendrickson, an assistant district attorney for Santa Clara County, is the only candidate to date who has filed papers.

On Thursday, Dauber framed the recall effort in historical context by describing the first successful recall effort in California history. “In 1913, the women’s clubs of San Francisco, much like we have done here, banded together to recall a judge named Charles Weller for lenient decisions on sexual assault,” she said.

Dauber also noted the national momentum of the current #MeToo movement. “Women are standing up and refusing to accept the normalization of harassment and abuse by privileged men, and the movement runs all the way from Hollywood to Silicon Valley to media to politics to the legal profession,” Dauber said, expressing support for Hendrickson.

Persky’s ruling — along with the publication of a gut-wrenching letter the victim read in court during Turner’s sentencing hearing — prompted former Vice President Joe Biden to write an open letter to the victim noting that she is a “warrior” who has been failed by many people and institutions.

In a number of prior posts about the Brock Turner case, I have noted concerns both about the lenient sentence he received and about the campaign to recall his judge. Here is just a sampling of the prior posts this case has generated:

January 13, 2018 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (9)

Friday, January 05, 2018

In prelude to federal prosecution, killer of Kate Steinle gets three-year sentence on sole state count of conviction

As reported in this local article, "the Mexican national accused of shooting Pleasanton native Kate Steinle was sentenced today to three years in prison but will not serve any more time in state custody because of credit for time served." Here is more:

Jose Ines Garcia Zarate, 54, will now be handed over to federal authorities to be prosecuted again.

After a four-week trial that drew national attention, a jury in November acquitted the undocumented immigrant of murder, involuntary manslaughter and assault with a semiautomatic firearm in the July 2015 shooting of Steinle on San Francisco’s Pier 14. But jurors convicted him of being a felon in possession of a firearm.

Judge Samuel Feng this morning sentenced Garcia Zarate, who has already spent two and a half years in jail waiting for his trial, to time served on his possession conviction.

Garcia Zarate’s defense team urged Feng to throw it out, arguing that the jury received improper instructions about the charge. But Feng denied the motion this morning at San Francisco’s Hall of Justice....

In the coming days, Garcia Zarate will be arraigned in federal court, where he faces similar charges of being a convicted felon and an illegal immigrant in possession of a firearm.

His defense attorneys have argued that the shooting was an accident, suggesting that Garcia Zarate found the gun on the pier and that it accidentally discharged when he touched it, with the bullet ricocheting 78 feet before hitting 32-year-old Steinle. Garcia Zarate threw the gun into the water after it fired.

Prior related post:

January 5, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (6)

Thursday, January 04, 2018

"I was Raped. And I Believe The Brock Turner Sentence Is a Success Story."

The title of this post is the headline of this notable new commentary authored by Meaghan Ybos, who is the founder and executive director of People for the Enforcement of Rape Laws. I recommend the piece is full, and here is a snippet:

[T]hose critical of the scrutiny of Judge Persky have not defended Turner’s sentence. I will do so here. I am a rape victim engaged in a lawsuit against the Memphis Police Department for systematically failing to investigate rape cases and I believe that Judge Persky’s sentence was just.

The outrage over the supposedly lenient sentence misunderstands the consequences of Turner’s conviction, which includes lifetime registration as a sex offender, and vilifies individualized sentencing. I also believe that the energy and vitriol directed at Judge Persky should have been used instead to hold police departments accountable for properly investigating rape, which too many fail to do....

We should not demonize judges for handing out individualized sentences, even to Brock Turner. Instead, we should demand that judges use discretion more broadly and in favor of people from all backgrounds.  And we must recall that the very worst criminal justice policy springs from outrage over individual high profile cases from Willie Horton to, more recently, Jose Ines Garcia Zarate, a homeless Mexican immigrant in San Francisco who was just acquitted in a high profile murder that Donald Trump seized upon in his 2016 campaign to support his anti-immigration platform.

Furthermore, advocates ... have falsely characterized Turner’s sentence as a slap on the wrist, but his punishment also involves much more than the number of hours he was caged.  Turner owes court fees and is required to pay the victim restitution.  He must attend a year-long rehabilitation program for sex offenders, which includes mandatory polygraph exams for which he must waive his privilege against self-incrimination.  If he violates the terms of his three-year felony probation, he faces a 14-year prison sentence.  He now has a strike that can be used against him under California’s three-strikes law if he is accused of any future criminal activity.  As a convicted felon, he will not be allowed to own a gun....

The most severe part of Turner’s sentence, which anti-rape advocates largely have glossed over, is the requirement that he register as a sexual offender for the rest of his life. This means that an online sex offender registry will show his picture, his address, his convictions, and details of his probation. These lists, which contain people convicted of an ever-growing number of offenses, are so broad and oppressive that a Colorado federal court deemed them cruel and unusual punishment. They are “modern-day witch pyres” that often lead to homelessness, instability, and more time in prison.

As with Jose Ines Garcia Zarate and Willie Horton before him, political leaders seized on outrage over Turner’s sentence to justify punitiveness. The Turner case spurred a new mandatory minimum law in California removing the option of probation for people convicted of sexually assaulting a person who is intoxicated or unconscious.  By imposing a three-year mandatory sentence, the law removes judicial discretion.  “The bill is about more than sentencing,” said Democratic Assembly member Bill Dodd in a written statement following the bill’s passage. “It’s about supporting victims and changing the culture on our college campuses to help prevent future crimes.”

But it’s at the “front end” of the criminal justice system where most rape complaints falter.  Police have often acted as hostile gatekeepers preventing complaints from ever reaching a courtroom.  History shows police gatekeeping in cities like Philadelphia, St. Louis, Baltimore, Cleveland, Detroit, New Orleans, and New York City.  In recent years, police have regularly closed cases before doing any investigation, discarded rape kits (the San Jose Police Department currently has over 1,800 untested rape kits and refuses to count the rape kits collected before 2012), and have even arrested victims for false reporting. It’s not surprising that police departments solve abysmally few rapes, with some cities’ clearance rates in the single digits.

The Turner case was investigated and prosecuted to the full extent of the law.  For a sexual assault case, it is a rare success.  More punishment isn’t always the best or most just response.  Nor does it necessarily provide justice for victims.  And as long as police gatekeeping prevents rape victims from having consistent access to the criminal justice system, recalling judges and increasing sentences will yield no progress in reducing sexual assault.

January 4, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (4)

Friday, December 01, 2017

With guilty plea entered, former national security director Michael Flynn now faces (easy?) sentencing

As reported here via the New York Times, "President Trump’s former national security adviser, Michael T. Flynn, pleaded guilty on Friday to lying to the F.B.I. about conversations with the Russian ambassador last December during the presidential transition."  Here are the most basic legal particulars:

Mr. Flynn, who appeared in federal court in Washington, acknowledged that he was cooperating with the investigation by the special counsel, Robert S. Mueller III, into Russian interference in the 2016 election. His plea agreement suggests that Mr. Flynn provided information to prosecutors, which may help advance the inquiry....

Mr. Flynn pleaded guilty to making false statements to F.B.I. agents about two discussions with the Russian ambassador to the United States, Sergey I. Kislyak. Lying to the F.B.I. carries a penalty of up to five years in prison.

Sentencing fans know, of course, that the statutory maximum for any federal offense of conviction typically matters much less than the applicable federal guideline sentencing range. For that reason and others, sentencing fans will want to check out Michael Flynn's "Plea Agreement" and "Statement of Offense" available here via the National Law Journal.  (The folks at Lawfare also have lots of Flynn docs at this link.)  Pages 2-3 of the plea agreement highlight the sentencing story (which serves as the basis for the "easy" adjective in this post title), and here is a snippet: 

A. Estimated Offense Level Under the Guidelines

The parties agree that the following Sentencing Guidelines sections apply:

U.S.S.G. Base Offense Level: 6

Total: 6

B. Acceptance of Responsibility

The Government agrees that a 2-level reduction will be appropriate, pursuant to U.S.S.G. 3E1.1, provided that your client clearly demonstrates acceptance of responsibility, to the satisfaction of the Government, through your client's allocution, adherence to every provision of this Agreement, and conduct between entry of the plea and imposition of sentence....

In accordance with the above, the applicable Guidelines Offense Level will be at least 4....

D. Estimated Applicable Guidelines Range

Based upon the agreed total offense level and the estimated criminal history category set forth above, your client's estimated Sentencing Guidelines range is zero months to six months' imprisonment (the "Estimated Guidelines Range")....

The parties agree that, solely for the purposes of calculating the applicable range under the Sentencing Guidelines, neither a downward nor upward departure from the Estimated Guidelines Range set forth above is warranted, subject to the paragraphs regarding cooperation below. Accordingly, neither party will seek any departure or adjustment to the Estimated Guidelines Range, nor will either party suggest that the Court consider such a departure or adjustment, except as provided in the preceding sentence.

December 1, 2017 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (22)

Monday, November 20, 2017

Anyone eager to draw sentencing lessons in the wake of mass murderer Charlie Manson's demise?

There are any number of old and new California sentencing stories that surround the murderous Manson family, especially as some members of the "family" continue to pursue parole.  With the death of the leader, this extended Daily Beast article, headlined "Charles Manson’s Prosecutor Says He Deserved to Be Killed Years Ago," provides a useful reminder of the awful carnage and legacy of Manson.  Here are snippets with some of the enduring sentencing details:

Charles Manson should have died a long time before today. That’s according to one of the prosecutors who sent Manson and his murderous followers to Death Row, only to see their sentences later commuted to life in prison.

Manson, 83, died Sunday at Kern County hospital in California, corrections officials said. Manson’s death spells “the end of a very evil man,” Stephen R. Kay told The Daily Beast in an exclusive interview earlier this year prior to Manson’s death.

Kay was a Los Angeles County deputy district attorney who worked with fellow deputy Vincent Bugliosi to secure guilty verdicts for Manson and his flock of killers, who came to be known as “The Family.” Manson, Susan Atkins, Leslie Van Houten, Patricia Krenwinkel, Charles “Tex” Watson, Steve “Clem” Grogan, and Bruce Davis were convicted in all or some of the 1969 murders of nine people, including actress Sharon Tate, who was pregnant with director Roman Polanski’s child.

“No, that was a pretty easy decision based on the gruesomeness of the crimes and the motives: wanting to start a race war,” Kay said. “I think there are some crimes that are so heinous that in order for us to exist as a society that we have to say we will absolutely not accept this type of behavior and the person will have to suffer the ultimate penalty. “It’s not that we’re giving Charles Manson the death penalty; it’s that he earned it.”...

At 73, and now retired, Kay said he can still hear the sinister threats on his life made by Manson and his disciples. “Squeaky [Fromme] and Sandy Good snuck up behind me and said they’re going to do to my house what was done at the Tate house,” Kay said....  During one of Manson’s many parole hearings, the death-cult leader detailed how he was going to take out Kay. “The most direct one was after the parole hearing—he told me he was going to have me killed out in the parking lot on the way to my car,” he said. “I mean, that to me was the most memorable one. It was so direct.” Kay acknowledged even with protection, he was merely testing fate if he felt like he was immune to becoming another Manson victim. “When Manson says something like that after what he’s done, you have to take it seriously,” he said.

It’s the kind of power wielded by Manson that the former prosecutor feels was lorded over Fromme, who was caught with a pistol trying to shoot President Gerald Ford in 1975. “I happen to believe that there’s no way Squeaky Fromme on her own would have thought up the idea of trying to assassinate President Ford in the park in Sacramento,” he said. “I believe Manson put her up to that.”

In 1970, Manson, Atkins, Krenwinkel, and Watson (in a separate trial later) were convicted of murder and conspiracy for the Tate-LaBianca killings and were all sentenced to death.  Sealing their fates was fellow Family member Linda Kasabian, who testified against them in exchange for immunity.  In a 1971 trial, Manson was convicted and sentenced to life for the 1969 murders of Donald “Shorty” Shea and Gary Hinman. When Shea, who was a ranch hand and stuntman on Wild Western films returned to Spahn Ranch with a black wife, it allegedly set Manson off. Manson was also convinced that Shea had “snitched” on the group, having tipped off cops on a boosted car, which led to an Aug. 16, 1969, raid at dawn on their compound by police....

All of the Family members who were sentenced to death, including Manson, were spared when the California Supreme Court overturned the death penalty back in 1972 and commuted their sentences to life in prison. The state would later bring back the death penalty, but the life sentences for Manson and his killer kin stuck.  “It would be ex post facto violation of the Constitution to go back and reinstate it because you can only be prosecuted with what the law was when you committed the crime, and these laws were committed in 1969,” Kay said. “And the death penalty that was in effect in ’69 was held to be unconstitutional.”...

Ironically, most of Manson’s former followers have outlived him, save for Susan Atkins, who died in prison from brain cancer back in 2009.  Leslie Van Houten, now 68, held Rosemary Labianca down and covered her face with a pillowcase while another Family member carved “War” into her husband’s stomach after stabbing him in the couple’s home. (Then they helped themselves to chocolate milk in the fridge.)  Van Houten was also the one who scribbled missives on the house walls using their victims’ blood.  “I don’t let myself off the hook,” Van Houten told a parole panel. “I don’t find parts in any of this that makes me feel the slightest bit good about myself.”  Van Houten was granted parole in September, but Gov. Jerry Brown is expected to reverse the decision as he did last spring.

Charles “Tex” Watson, now 72, did a stint in Atascadero State Mental Hospital and said he has since found God while serving his life sentence as a chaplain at Mule Creek Prison in Ione. Watson failed more than a dozen times to convince a parole board to free him for his part in being Manson’s hitman; his was the last face so many victims saw before they were tortured and slain with a wrench, knife, or pistol.

Patricia “Krenny” Krenwinkel, 70, remains California’s oldest female inmate and has been serving life at California Institution for Women in Corona. She has since renounced Manson and The Family. “What a coward that I found myself to be when I look at the situation,” Krenwinkel said during a 2014 interview with The New York Times.  Lynette “Squeaky” Fromme, 61, was granted parole back in 2009 after serving 34 years hard time for the attempt on President Ford’s life. She has reportedly relocated to upstate New York, where she lives in isolation....

That Manson managed to hold on for this long was like an open wound for so many families. “It made the case go on forever,” Kay said. “If the penalty was put into effect then the case would have been done in the 1970s. There’s never really any closure.”...  Tate’s mother, who died in 1992, became an outspoken crusader for justice.  “I think at one time she was the most powerful woman for victims rights in California,” Kay said, adding that if you were a politician worth your salt in California you sought out Tate’s endorsement. “She really started the victims’ rights movement that is still so powerful even today.”

Kay isn’t blind to the irony that had the sentence gone forward Manson wouldn’t have become quite the diabolical deity that has haunted popular culture for decades.  “We wouldn’t be having this conversation,” Kay said.

November 20, 2017 in Celebrity sentencings, Death Penalty Reforms | Permalink | Comments (6)

Friday, November 17, 2017

"The Criminal Justice System Stalks Black People Like Meek Mill"

The title of this post is the headline of this New York Times op-ed authored by Jay-Z. Here are excerpts:

This month Meek Mill was sentenced to two to four years in prison for violating his probation. #FreeMeek hashtags have sprung up, and hundreds of his fans rallied near City Hall in Philadelphia to protest the ruling.

On the surface, this may look like the story of yet another criminal rapper who didn’t smarten up and is back where he started. But consider this: Meek was around 19 when he was convicted on charges relating to drug and gun possession, and he served an eight-month sentence.  Now he’s 30, so he has been on probation for basically his entire adult life. For about a decade, he’s been stalked by a system that considers the slightest infraction a justification for locking him back inside.

What’s happening to Meek Mill is just one example of how our criminal justice system entraps and harasses hundreds of thousands of black people every day.  I saw this up close when I was growing up in Brooklyn during the 1970s and 1980s. Instead of a second chance, probation ends up being a land mine, with a random misstep bringing consequences greater than the crime. A person on probation can end up in jail over a technical violation like missing a curfew.

Taxpayers in Philadelphia, Meek Mill’s hometown, will have to spend tens of thousands of dollars each year to keep him locked up, and I bet none of them would tell you his imprisonment is helping to keep them safer. He’s there because of arrests for a parole violation, and because a judge overruled recommendations by a prosecutor and his probation officer that he doesn’t deserve more jail time....

Look at what he’s being punished for now: In March, he was arrested after an altercation in a St. Louis airport. After video of what had actually happened was released, all charges were dropped against Meek. In August, he was arrested for popping a wheelie on a motorcycle on his video set in New York.  Those charges were dismissed after he agreed to attend traffic school. Think about that.  The charges were either dropped or dismissed, but the judge sent him to prison anyway....

[I]t’s time we highlight the random ways people trapped in the criminal justice system are punished every day. The system treats them as a danger to society, consistently monitors and follows them for any minor infraction — with the goal of putting them back in prison.

As of 2015, one-third of the 4.65 million Americans who were on some form of parole or probation were black. Black people are sent to prison for probation and parole violations at much higher rates than white people.  In Pennsylvania, hundreds of thousands of people are on probation or parole.  About half of the people in city jails in Philadelphia are there for probation or parole violations.  We could literally shut down jails if we treated people on parole or probation more fairly....  Probation is a trap and we must fight for Meek and everyone else unjustly sent to prison.

Prior related post:

November 17, 2017 in Celebrity sentencings, Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (7)

Tuesday, November 14, 2017

Notable protests and legal appeals as rapper Meek Mill's harsh sentence for probation violation shines light on back-end of justice system

ImagesKMOOADW6Because I do not know Pennsylvania's procedures, I have been a bit unsure how best to cover controversy over the 2-4 year prison sentence given to rapper Meek Mill for violating his probation from a 2008 gun and drug case.  This new CNN article, headlined "Outrage mounts over Meek Mill's prison sentence," provides some useful background on the case while reporting on the protest that took place at Philadelphia's Criminal Justice Center on Monday and highlighting that the "case has sparked outrage not just from the hip-hop community but from activists for criminal justice reform around the nation." 

Now this lengthy new Philadelphia Inquirer article, headlined "Meek Mill appeals sentence, asks city judge Brinkley to step down," provides a useful accounting of legal issues and related stories swirling around this case. Here are excerpts:

Lawyers for imprisoned Philadelphia-born rapper Meek Mill have launched what one lawyer called a “flurry of legal filings” to try to get the 30-year-old hip-hop star released from his 2- to 4-year prison term for violating the terms of his 10-year-old probation.

The first filing Tuesday — a day after hundreds of supporters met outside the city Criminal Justice Center demanding Mill’s release — asked Philadelphia Common Pleas Court Judge Genece E. Brinkley to disqualify herself from further involvement his case and allow a new judge to reconsider Mill’s prison sentence. The 14-page motion, buttressed by 143 pages of court transcripts, maintains that Brinkley, 61, a judge since 1993, had “assumed a non-judicial, essentially prosecutorial role in the revocation process,” and ignored the recommendations of the probation officer and prosecutor, neither of whom sought imprisonment.

The motion contends that Brinkley has gone beyond “the proper bounds of the judicial role, even as supervisor of a probationary sentence. Judge Brinkley has repeatedly offered inappropriate personal and professional advice to the defendant, who had become a successful professional entertainer during the pendency of this case. On some occasions, Judge Brinkley has done so off the record, or on the record while attempting inappropriately to keep that record secret from the defendant and his counsel.”

“Last week’s hearing was a farce,” said defense attorney Brian J. McMonagle. “It was a miscarriage of justice that lacked even the semblance of fairness. Today, we have asked this Judge to step aside so that a fair minded jurist can right this terrible wrong.”

McMonagle said he would file a motion seeking bail for Mill, who was taken into custody following the Nov. 6 hearing before Brinkley for violating his probation from a 2008 drug and gun case. McMonagle said Brinkley has 30 days to respond to the motions filed Tuesday. If she does not respond, Mill’s lawyers can take the case to Superior Court. For Mill, the problem with a Superior Court appeal is that, unless he is allowed bail pending appeal, he could serve his minimum sentence before a decision.

Nor does the Superior Court have a reputation for disturbing lower court sentences in such cases. An article in Sunday’s Inquirer reviewed seven Superior Court appeals of probation violation sentences imposed by Brinkley over the last four years. All were affirmed.

Mill, born Robert Williams, is now in the state prison at Camp Hill near Harrisburg undergoing evaluation before his permanent prison assignment. “He’s holding up OK,” said McMonagle, adding that Mill is in “protective custody” – in a single cell for 23 hours a day with one hour out for exercise.

A motion to reconsider the sentence is the first step in any criminal appeal to the state Superior Court, the intermediate appeals court between the trial courts and the state Supreme Court. Unless she modifies or vacates Mill’s sentence, Brinkley will be required to write an opinion for the appeals court explaining her reasons for sending him to prison.

At the Nov. 6 hearing during which Brinkley sentenced Mill, the veteran judge recounted almost 10 years of court proceedings in which he had violated his probation, and she had sentenced him to short periods in jail and then had extended his probation.

Mill’s most recent “technical violations” were testing positive for the prescription narcotic Percocet earlier this year and two misdemeanor arrests, for an altercation at the St. Louis airport and a traffic violation in Manhattan involving a motorbike.

Brinkley also reminded Mill of the night she actually tried to verify that he was feeding the homeless, part of the community service she ordered. She went to a Center City soup kitchen run by the Broad Street Ministry – and found him instead sorting clothes. “It was only when you realized that I came there to check on you that you decided to serve meals,” Brinkley told the rapper.

Mill’s lawyers contend the judge’s surreptitious visit was also questionable: “Judge Brinkley thereby made herself a fact witness on the question of whether Mr. Williams was in compliance on that occasion, as well as to any statements he may have made. Judge Brinkley then relied on her own version of this incident … among the reasons for imposing a state prison sentence.”

Mill’s lawyers contend that Brinkley also demonstrated a personal bias involving Mill in a private in-chambers meeting during a Feb. 5, 2016, probation-violation hearing. At that hearing, Mill’s then-attorney Frank DeSimone told Brinkley that Mill wanted to discuss his experiences performing community service but “would feel more comfortable relaying some of his thoughts and experiences” to the judge in private....

Joe Tacopina, a lawyer for Mill based in New York City – who was not in the private meeting – has said Brinkley asked Mill last year to record a version of a Boyz II Men ballad, “On Bended Knee,” and to mention the judge in it. Tacopina said Mill laughed off the request and told Brinkley: “I can’t do that. It’s not my music. I don’t sing that stuff. And I don’t do, like, you know, shout-outs to people in my songs.” Brinkley replied, “’OK, suit yourself,’” according to Tacopina.

Tacopina also alleged that Brinkley asked Mill to drop his current management, Jay-Z’s Roc Nation, and to return to Philadelphia-based Charles “Charlie Mack” Alston, who worked with Mill early in his career....

In a related development Tuesday, authorities dismissed a New York Post internet report that the FBI was investigating Brinkley’s role in recommending Mill return to Mack’s management. An FBI spokeswoman in Philadelphia said that, per Justice Department policies, her office could not confirm nor deny the existence of any investigation. However, a federal law enforcement official in the city said that he was not aware of any active probe into the matter.

November 14, 2017 in Celebrity sentencings, Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Monday, October 30, 2017

Appreciating ugly sentencing realities facing Paul Manafort and Rick Gates after federal indictment

The big news in the political world this morning is the indictment of Paul Manafort, President Donald Trump’s former campaign chairman, which flows from special counsel Robert Mueller's investigation into Russian meddling in the 2016 election.  Along for the ride is another Trump campaign official, Rick Gates, who is also facing 12 federal criminal counts thanks to the work of a federal grand jury.  As is my tendency, I will be content to respond to this news with a few sentencing-related observations while leaving it to others to engage in political spin and other forms of legal speculation.

The full 31-page indictment of Manafort and Gates is available via this link, and the 12 federal criminal counts facing them are conspiracy against the United States (count 1), conspiracy to launder money (count 2), failure to file required reports (counts 3 to 9), being an unregistered agent of a foreign principal (count 10), false/misleading FARA statements (count 11) and false statements (count 12). Though a number of these counts, coupled with the narrative of the defendants' actions in the indictment, can sound quite ominous, it is ultimately the money laundering count that should send a Halloween chill down the spine of Manafort and Gates (and, presumably, their defense lawyers).

The money laundering count appears to carry the highest statutory sentencing range (20 years) of all the charges. In addition, because of the large amounts of money involved in these offenses — the indictment alleges Manafort laundered $18 million — the calculated guideline range for this offense is least a decade (and likely more).  In other words, if Manafort were convicted of just the money laundering allegations against him, the "starting point and the initial benchmark" for his sentencing is 10+ years in federal prison. (It is not clear from a quick review of the indictment whether the amounts involved for Gates would drive his guideline range up quite so high.)

Manafort, who is 68 years old, surely would like to avoid any prison time and he certainly does not want to risk spending the rest of his life in the federal pen.  He can, of course, choose to fight all the charges at trial, but I suspect Mueller and his team only moved forward with these indictment allegations after becoming confident they could prove them all beyond a reasonable doubt.  Moreover, thanks to the reality that federal judges can and often do consider "acquitted conduct" at sentencing, even an acquittal on most but not all of the counts may not significantly change these ugly sentencing realities for Manafort and Gates.

Of course, what can change these sentencing dynamics is a plea deal that locks in some favorable sentencing terms and/or a decision by the defendants to, in the language of 5K1.1 of the federal sentencing guidelines, "provide substantial assistance in the investigation or prosecution of another person who has committed an offense."  Those hoping that these indictments turn up the heat on current members of Team Trump can and should relish the reality that Manafort and Gates now have strong sentencing reasons to consider providing substantial assistance in the investigation of others.  What others they might have information about, and what others Mueller and his team are seeking information on, will sure keep folks inside the Beltway chattering in the coming weeks and months.

October 30, 2017 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (24)

Tuesday, October 17, 2017

You be the Army judge: what sentence for Army deserter Bowe Bergdahl?

The question in the title of this post is prompted by this new AP article headlined "Bergdahl guilty pleas leave room for drama at sentencing." Here is the context for the question:

Army Sgt. Bowe Bergdahl's guilty plea to charges of endangering comrades in Afghanistan has set up a dramatic sentencing hearing that could land him in prison for life.  Bergdahl, who was captured and held by the Taliban for five years after leaving his remote post in Afghanistan in 2009, pleaded guilty Monday in North Carolina to desertion and misbehavior before the enemy, a rare charge that carries a potential life sentence.

Because Bergdahl had no plea deal with prosecutors, his punishment will be decided by the judge, Army Col. Jeffery R. Nance, at a hearing starting Oct. 23.  Bergdahl was thoroughly questioned by Nance at his plea hearing at Fort Bragg, and the soldier acknowledged that his actions — and subsequent military search missions — put fellow service members in harm's way. "I left my fellow platoon mates," he told the judge. "That's very inexcusable."

At sentencing, the judge is expected to weigh factors including Bergdahl's willingness to accept responsibility by pleading guilty, his time in captivity of the Taliban and its allies, and serious wounds to service members who searched for him.  "Pleading guilty before a judge without any protection from a deal is a risky move," said Eric Carpenter, a former Army lawyer who teaches law at Florida International University. "The military judge can sentence Bergdahl to zero punishment, but he can also sentence Bergdahl to life in prison."

The guilty plea brings the highly politicized saga closer to an end eight years after Bergdahl vanished. President Barack Obama brought him home in 2014 in a swap for five Taliban prisoners at Guantanamo Bay, saying the U.S. does not leave its service members on the battlefield. Republicans roundly criticized Obama, and Donald Trump went further while campaigning for president, repeatedly calling Bergdahl a "dirty, rotten traitor" who deserved to be executed by firing squad or thrown out of a plane without a parachute.

Bergdahl, 31, has said he walked away from his remote post in 2009 with the intention of reaching other commanders and drawing attention to what he saw as problems with his unit. "At the time, I had no intention of causing search-and-recovery operations," he said in court. "I believed they would notice me missing, but I didn't believe they would have reason to search for one private."...

Bergdahl's responses to the judge Monday were some of his most extensive public comments yet. He said he tried to escape from his captors 12 to 15 times, with varying degrees of success.  Once, he was on his own for about a week — hoping U.S. drones would spot him — before he was recaptured.  He said he also tried to escape on his first day in captivity. "As I started running there came shouts, and I was tackled by people. That didn't go so well," said Bergdahl, who spoke in even tones and wore a blue dress uniform.

Meanwhile, Bergdahl's fellow service members engaged in firefights that they could have avoided had Bergdahl not gone absent without leave, the judge said.  Those firefights left a Navy SEAL with a career-ending leg wound and an Army National Guard sergeant with a head wound that put him in a wheelchair.

As for the defense contention that Trump unfairly biased the court-martial against Bergdahl, a ruling in February found that the new president's comments were "disturbing and disappointing" but did not constitute unlawful influence by the soon-to-be commander in chief.

October 17, 2017 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (14)

Monday, September 25, 2017

Anthony Weiner given 21 months in federal prison after his plea to "transferring obscene material to a minor"

Anthony Weiner was scheduled to be sentenced at 10am this morning in the Southern District of New York federal courtroom, and apparently US District Judge Denise Cote did not need very long to figure out what sentence she thought fitting.  This AP piece provides a blow-by-blow, and here are excerpts:

A prosecutor has urged a judge in New York City to sentence Anthony Weiner to a significant prison sentence to end his “tragic cycle” of sexting.

Assistant U.S. Attorney Amanda Kramer told a Manhattan federal court judge Tuesday that Weiner on three occasions in 2016 asked a 15-year-old girl to display her naked body online and to perform for him. The prosecutor noted that sexting had already ruined Weiner’s congressional career and spoiled his run for mayor of New York City before he began interacting with the teenager. Kramer said Weiner should go to prison for between 21 months and 27 months....

Anthony Weiner called his crime his “rock bottom” as he spoke just before a judge in New York City sentences him for his sexting crime. Weiner fought back tears and occasionally cried Monday as he read from a written statement on a page he held in front of him in Manhattan federal court. He said he was “a very sick man for a very long time.” He asked to be spared from prison.

The Democrat’s lawyer, Arlo Devlin-Brown, had asked that Weiner serve no prison time....

Anthony Weiner has been sentenced to 21 months in prison for sexting with a 15-year-old girl in a case that may have cost Hillary Clinton’s the presidency.... Anthony Weiner must report to prison by Nov. 6 to begin serving his 21-month sentence for sexting with a 15-year-old girl.

As his sentence was announced Monday, the former Democratic congressman from New York dropped his head into his hand and wept, then stared straight ahead.  After the hearing ended and Judge Denise Cote left the bench, he sat in his seat for several minutes, continuing to cry.  Weiner was also fined $10,000.  After his sentence is served, he must undergo internet monitoring and must have no contact with his victim. He must also enroll in a sex-offender treatment program.  

Before announcing the sentence, Cote said there was “no evidence of deviant interest in teenagers or minors” on Weiner’s part.  She also said he is finally receiving effective treatment for what she said has been described as “sexual hyperactivity.”

 Prior related posts:

September 25, 2017 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences | Permalink | Comments (17)

Sunday, September 24, 2017

On eve of federal sentencing, any final predictions (or desires) for Anthony Weiner's punishment for underage sexting?

As previewed in prior posts linked below and as set up in this new AP piece, the next chapter (and I fear not the last) in the sordid sorry story of Anthony Weiner will play out tomorrow in a federal court in New York.  Here are the basics:

It seemed as if Anthony Weiner had hit rock bottom when he resigned from Congress in 2011. "Bye-bye, pervert!" one heckler shouted as the Democrat quit amid revelations that he had sent graphic pictures of himself to women on social media. Time has shown his self-destructive drama had only just begun.

Weiner, 53, is set to be sentenced Monday for sending obscene material to a 15-year-old girl in a case that may have also have played a role in costing Hillary Clinton — former boss of Weiner's wife, Huma Abedin — the presidential election.

Federal prosecutors have asked for a sentence of slightly more than two years behind bars because of the seriousness of the crime, in which Weiner sent adult porn to the girl and got her to take her clothes off for him on Skype. "The defendant did far more than exchange typed words on a lifeless cellphone screen with a faceless stranger," prosecutors wrote to the judge. "Transmitting obscenity to a minor to induce her to engage in sexually explicit conduct by video chat and photo — is far from mere 'sexting.'"

But Weiner's attorneys contend he is a changed man who has finally learned his lesson, calling his compulsive sexting a "deep sickness" best treated without time behind bars. The memo also suggested Weiner himself was a victim of the scandal, saying the North Carolina high school student initiated contact with him because she "hoped somehow to influence the U.S. presidential election" and write a tell-all book.

I have just had a chance to review this short sentencing memo that the government filed a few days ago. I found remarkable both the stupidity of Weiner's decision to "sext" with in an obviously underage girl, as well as the government's conclusion that applicable guideline calculations produce "offense level of 33 [meaning] the resulting Guidelines range would be 135 to 168 months’ imprisonment, but for the statutory maximum of 120 months’ imprisonment."  Luckily for Weiner, the "the Government agreed that a sentence within the range of 21 to 27 months’ imprisonment (which would be the applicable Guidelines range without application of the cross-references) would be fair and appropriate under the specific circumstances of this case."  And the Government makes this assertion in support of a prison sentence in that range: "Weiner’s demonstrated history of professed, yet failed, reform make it difficult to rely on his present claim of self-awareness and transformation. On this record, a custodial sentence is necessary to truly effect specific deterrence and prevent the defendant from committing this crime in the future."

Meanwhile, in his lengthy sentencing memo includes, in its words, "Anthony’s own deeply personal meditation to the Court on sickness and recovery (Exhibit 1 to this submission) that speaks most powerfully to his progress."  It also asserts, I think accurately, that Weiner's "wrongful conduct is on orders of magnitude less egregious than any case involving sexually explicit communications with a teenager that has ever been prosecuted in this district" and that "factors the Court must consider under 18 U.S.C. § 3553(a) — in isolation and taken together — demonstrate that a sentence of imprisonment is not required here and would result in punishment greater than necessary to achieve the goals of sentencing."

So, dear reader, what do you expect Anthony Weiner will get at sentencing?  I tend predict a "split the difference" outcome in cases like this, so I would be inclined to expect a sentence of a year and a day for him.  Something even a bit shorter would not surprise me, and I would actually be surprised if Weiner got anything more than 21 months.  In the end, at least for me, I have a hard time viewing Weiner's extraordinary stupidity as the involving the kind of evil or danger that really justifies a long federal prison term. 

Prior related posts:

September 24, 2017 in Booker in district courts, Celebrity sentencings, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (6)

Wednesday, September 13, 2017

In sentencing filing, Anthony Weiner asks for probation and community service after guilty plea to transferring obscene material to a minor

As reported in this new Bloomberg piece, "Anthony Weiner, the former congressman and New York mayoral candidate whose career and personal life were wrecked in a series of sexting scandals, asked a judge for leniency when he’s sentenced later this month." Here is more about his sentencing filing and what prompts it:

Weiner pleaded guilty in May to sending sexually explicit messages to a 15-year-old girl, admitting to a single criminal count of transmitting obscene material to a minor. The guilty plea capped a stunning downfall that played a major role in the final days of the 2016 presidential election.

In a court filing late Wednesday, Weiner asked for probation and community service.  “In sum, a term of imprisonment would bring Anthony’s indisputably successful treatment for the sickness underlying his crime to an immediate and complete halt, and separate Anthony from the son who has motivated his recovery,” his attorneys wrote in the sentencing memo.

“Given the unusual circumstances of this offense and the ability of a sentence without incarceration to impose just and meaningful punishment while permitting continued treatment, a non-incarceratory sentence of the kind proposed above would be ‘sufficient but not greater than necessary’ to satisfy the goals of sentencing.”

Weiner faces as much as 10 years in prison when he’s sentenced Sept. 25. As part of a plea deal, prosecutors will seek a term of 21 months to 27 months, which isn’t binding on the sentencing judge. Weiner must register as a sex offender and will forfeit his iPhone. An FBI investigation into Weiner’s sexually explicit messages turned up emails that had been sent to his wife, Huma Abedin, then a top aide to Democratic presidential candidate Hillary Clinton....

Weiner “has already been punished in a meaningful way by the government, just not in a judicially sanctioned manner,” his lawyers wrote in the memo.  “What was supposed to be a confidential grand jury investigation into a personal offense was leaked by ‘law enforcement sources’ and then improperly injected into the presidential election by the then-FBI director.”

Prior related post:

September 13, 2017 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (5)

Tuesday, September 12, 2017

Wishing for comparable efforts to contest severity in light of legal attacks on leniency of Arpaio pardon

The title of this post is my reaction to this Politico article headlined "Legal groups move to challenge Trump's Arpaio pardon."  The article reports on just some of the copious efforts to contest Prez Donald Trump's first use of his clemency authority.  Here are the basics:

Two advocacy groups moved on Monday to challenge Donald Trump’s pardon of controversial former Arizona Sheriff Joe Arpaio, alleging that the president's move was unconstitutional because it undermined the power of the federal judiciary.

A public interest law firm, the Roderick and Solange MacArthur Justice Center, sought to file an amicus brief in an Arizona district court, where Arpaio is seeking to vacate a conviction after Trump granted him a pardon last month. The brief was initially turned down by a judge on procedural grounds.  A second group, the Protect Democracy Project, also filed an amicus brief on Monday arguing that the pardon is unconstitutional....

The [MacArthur Justice Center] brief contends that Trump’s pardon of Arpaio violated the Constitution because “it has the purpose and effect of eviscerating the judicial power to enforce constitutional rights.”  The MacArthur Justice Center lawyers argue that, while broad, presidential pardon power can not be used to undermine the judiciary’s ability to enforce the Bill of Rights or the Fourteenth Amendment.  The Arpaio pardon, the lawyers argue, “eviscerates this Court’s enforcement power...by endorsing Arpaio’s refusal to comply with federal court orders.” The brief also takes issue with the breadth of Trump’s pardon, noting that the “text of the pardon is so broad that it purports to allow Arpaio to run for Sheriff again...and escape criminal liability for future contempt.”

Protect Democracy’s lawyers similarly contend that the pardon violates the separation of powers “because it unconstitutionally interferes with the inherent powers of the Judicial Branch.” They also argue that the pardon goes beyond the president’s power — “We are aware of no case in this Court, the Ninth Circuit or the Supreme Court that has upheld a pardon matching the extraordinary circumstances here, where the contempt is used to enforce court orders protecting the rights of private litigants,” the lawyers write — and violates due process.

This extended post by William Jacobson over at Legal insurrection, headlined "DOJ sides with Joe Arpaio, as groups ask Ct to declare Pardon unconstitutional," rightly notes the uphill battle these arguments face and concludes that "it seems highly unlikely that the court would declare that a pardon which on its face is constitutional is not because it involves contempt of court." It also details and links the four briefs sought to be filed against the Apraio pardon:

I full comprehend all the political and legal reasons why the Arpaio pardon bothers folks, and I will never tell thoughtful advocates that they are wasting their time by filing amicus brief even when the law seems against them.  But, as the title of this post indicated, I still rue the reality that partisan politics so readily energizes a bunch of folks spend lots of time and resources attacking one act of remarkable leniency while so many acts of remarkable severity in our criminal justice systems so rarely engenders even a peep from outside advocates.

September 12, 2017 in Celebrity sentencings, Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Tuesday, August 22, 2017

Considering clemency echoes of a possible Arpaio pardon as Prez Trump's first

This new Daily Beast piece, headlined "Donald Trump May Circumvent the Usual Process to Pardon Sheriff Joe Arpaio," provides some notable quotes from notable federal clemency excerpts in reaction to Prez Trump's indication that he is considering a pardon for a high-profile law enforcement official. Here are excerpts:

President Donald Trump has learned about his power to issue pardons.  And in the last week, White House aides have suggested that he use his first one on a controversial choice: Sheriff Joe Arpaio, the schismatic Arizona lawman convicted of contempt of court.

In recent days, speculation has mounted that Trump will follow through on this suggestion at a campaign rally in Phoenix on Tuesday.  Should he do so, it will be a unique moment in modern presidential politics.  Trump will have given the first pardon of his presidency to someone for what appears to be purely political reasons and he will have done so without going through the normal review process.

The possibility has left some clemency advocates feeling a little queasy. “There are literally hundreds of no-name people we’ve never heard of, who will never been in the newspaper, who are not cause célèbres, who have had applications waiting and waiting and waiting,” said P.S. Ruckman, political science professor at Northern Illinois University. “They’re sick to their stomach right now reading about Arpaio getting a potential pardon, that’s breaking their heart.”

Like George W. Bush and Barack Obama before him, Trump has proven stingy with the pardon power granted to the president.  And that’s probably a generous way to put it.  Two hundred days into his presidency, he has yet to pardon anyone.  This isn’t unprecedented. It took Obama more than 600 days to issue a pardon.  He nearly broke the record for fewest pardons, though he granted more clemencies than any other president by shortening the sentences of more than a thousand people....

Ruckman said that most American presidents started pardoning people in their first month in office, and kept pardoning at a regular clip through their administrations.  The drop-off in pardons is a relatively new change.  And while high-profile grants of clemency to political allies get the most press — think Bush’s commutation of Scooter Libby’s sentence or Bill Clinton’s pardon of Democratic mega-donor Marc Rich — the vast majority of people who get pardoned never become household names....

Were Trump to give his first pardon to Arpaio, who endorsed him during the Republican presidential primary, Ruckman argues that it would undercut the populist message from the campaign.  “It would give people the sense that only famous people, cause célèbres, and connected people are going to get pardons from Trump,” Ruckman said.

Sam Morison, an attorney who worked in the Justice Department’s pardon office for more than a decade, predicted Trump will pardon Arpaio when he goes to Arizona, though he added that it would send a terrible message. “He hasn’t even been sentenced yet, he’s just been convicted,” Morison said.  “And he’s not contrite, he doesn’t accept responsibility — quite the opposite. So in that sense, it’s very unusual.  And the only reason he’s getting any traction at all is that he’s a well-known political figure. So it is special pleading of the worst kind.”

Prior related post:

UPDATE: This local report on a speech Tuesday night by Prez Trump provides the latest news on this front via its headline: "Trump didn't pardon Joe Arpaio in Phoenix — but hints that he will."

August 22, 2017 in Celebrity sentencings, Clemency and Pardons, Who Sentences | Permalink | Comments (3)

Monday, August 14, 2017

More notable talk by Prez Trump about possible use of his pardon authority

As noted in this post from a few weeks ago, Prez Trump earlier this summer got more than a few media members and academic talking about the historic presidential clemency authority when he reportedly starting asking about his whether he could pardon folks potential caught up in the on-going Russia investigation.  Today brings more summer pardon talk from Prez Trump, but with a notably different (though also controversial) target.  This Fox News piece, headlined "Trump 'seriously considering' a pardon for ex-Sheriff Joe Arpaio," provides the details:

President Trump may soon issue a pardon for Joe Arpaio, the colorful former Arizona sheriff who was found guilty two weeks ago of criminal contempt for defying a state judge’s order to stop traffic patrols targeting suspected undocumented immigrants.  In his final years as Maricopa County sheriff, Arpaio had emerged as a leading opponent of illegal immigration.

“I am seriously considering a pardon for Sheriff Arpaio,” the president said Sunday, during a conversation with Fox News at his club in Bedminster, N.J. “He has done a lot in the fight against illegal immigration.  He’s a great American patriot and I hate to see what has happened to him.”  Trump said the pardon could happen in the next few days, should he decide to do so.

Arpaio, 85, was convicted by U.S. District Judge Susan Bolton of misdemeanor contempt of court for willfully disregarding an Arizona judge’s order in 2011 to stop the anti-immigrant traffic patrols. Arpaio had maintained the law enforcement patrols for 17 months thereafter.  The man who built a controversial national reputation as “America’s toughest sheriff” admitted he prolonged his patrols, but insisted he did not intend to break the law because one of his former attorneys did not explain to him the full measure of restrictions contained in the court order.

He is expected to be sentenced on Oct. 5 and could face up to six months in jail.  However, since he is 85 years old and has no prior convictions, some attorneys doubt he will receive any jail time.

Citing his long service as “an outstanding sheriff,” the president said Arpaio is admired by many Arizona citizens who respected his tough-on-crime approach.  Arpaio’s widely publicized tactics included forcing inmates to wear pink underwear and housing them in desert tent camps where temperatures often climbed well past 100 degrees Fahrenheit.  He also controversially brought back chain gains, including a voluntary chain gang for women prisoners.

Civil liberties and prisoner advocates as well as supporters of immigrants’ rights have criticized Arpaio for years, culminating in his prosecution.  He lost his bid for reelection last year. “Is there anyone in local law enforcement who has done more to crack down on illegal immigration than Sheriff Joe?” asked Trump. “He has protected people from crimes and saved lives.  He doesn’t deserve to be treated this way.”

Stopping the flow of undocumented immigrants across the southern U.S. border was a central theme of the president’s campaign. Arpaio endorsed Trump in January 2016. Trump indicated he may move quickly should he decide to issue a presidential pardon. “I might do it right away, maybe early this week. I am seriously thinking about it.”

Trump could decide to await the outcome of an appeal by Arpaio’s lawyers who contend their client’s case should have been decided by a jury, not a judge.  In a statement after the verdict, his attorneys stated, “The judge’s verdict is contrary to what every single witness testified in the case.  Arpaio believes that a jury would have found in his favor, and that it will.”

Reached Monday for reaction to the possible pardon, Arpaio expressed surprise that Trump was aware of his legal predicament. “I am happy he understands the case,” he told Fox News. “I would accept the pardon because I am 100 percent not guilty.”  The former sheriff said he will continue to be a strong supporter of the president regardless of whether he receives a pardon.  But he also voiced concern that a pardon might cause problems for Trump, saying, “I would never ask him for a pardon, especially if it causes heat. I don’t want to do anything that would hurt the president.”

Trump has not granted any pardons so far in his presidency.

While I was putting this post together, I received an email with a link to this ACLU comment on a possible Arpaio pardon.  The comment closes with these notably sharp statements:

ACLU Deputy Legal Director Cecillia Wang had this reaction to media reports that Trump may pardon Arpaio: “President Trump would be literally pardoning Joe Arpaio’s flagrant violation of federal court orders that prohibited the illegal detention of Latinos.  He would undo a conviction secured by his own career attorneys at the Justice Department.  Make no mistake: This would be an official presidential endorsement of racism.”

August 14, 2017 in Celebrity sentencings, Clemency and Pardons, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (8)