Friday, February 16, 2024

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

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

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

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

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

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

Prior related post:

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

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

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

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

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

February 16, 2024 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2)

Friday, February 09, 2024

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

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

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

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

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

February 9, 2024 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (8)

Thursday, January 25, 2024

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

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

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

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

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

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

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

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

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

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

January 25, 2024 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (30)

Monday, January 08, 2024

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

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

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

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

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

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

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

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

And now the new "exclusive" update from AllHipHop:

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

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

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

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

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

January 8, 2024 in Celebrity sentencings, Clemency and Pardons, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Friday, January 05, 2024

A more detailed accounting of Jan 6 riot sentencings

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

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

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

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

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

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

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

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

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

January 5, 2024 in Celebrity sentencings, Data on sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (8)

Thursday, December 07, 2023

Hunter Biden indicted on nine new federal tax charges

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

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

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

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

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

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

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

Prior related posts:

December 7, 2023 in Celebrity sentencings, White-collar sentencing, Who Sentences | Permalink | Comments (15)

Thursday, November 09, 2023

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

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

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

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

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

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

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

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

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

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

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

November 9, 2023 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (6)

Tuesday, October 24, 2023

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

October 24, 2023 in Campaign 2020 and sentencing issues, Celebrity sentencings, Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (73)

Thursday, October 19, 2023

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

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

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

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

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

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

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

October 19, 2023 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (12)

Thursday, September 14, 2023

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

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

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

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

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

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

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

Prior related posts:

September 14, 2023 in Celebrity sentencings, Gun policy and sentencing, Who Sentences | Permalink | Comments (14)

Sunday, September 10, 2023

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

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

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

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

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

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

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

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

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

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

September 10, 2023 in Celebrity sentencings, Federal Sentencing Guidelines, Scope of Imprisonment | Permalink | Comments (9)

Tuesday, September 05, 2023

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

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

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

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

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

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

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

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

September 5, 2023 in Celebrity sentencings, Offense Characteristics, Who Sentences | Permalink | Comments (17)

Friday, September 01, 2023

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

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

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

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

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

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

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

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

September 1, 2023 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (42)

Thursday, August 31, 2023

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

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

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

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

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

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

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

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

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

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

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

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

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

August 31, 2023 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (11)

Tuesday, August 15, 2023

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

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

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

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

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

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

August 15, 2023 in Celebrity sentencings, Clemency and Pardons, Who Sentences | Permalink | Comments (26)

Tuesday, August 08, 2023

Reviewing latest data on Jan 6 riot prosecutions and sentencings

This Fox News piece, headlined "More than 1K people charged over Jan 6 riot, 366 received prison time: DOJ," summarizes some of the latest data from the US Justice Department about its prosecutions of persons involved in the storming of the US Capitol on January 6, 2021.  Here are details:

The Justice Department has charged more than 1,100 people in relation to the Jan. 6, 2021 Capitol riot, and about a third of that number were sentenced to prison time, the Biden administration announced over the weekend. The DOJ released its latest statistics about Jan. 6 on Sunday, exactly 31 months after rioters stormed the U.S. Capitol to protest former President Trump’s election loss.

Of all the charges listed, the majority of defendants – 967 – were accused of trespassing on restricted federal grounds. Just over 100 of the people in that group face additional charges for illegally entering federal grounds with a weapon.

The DOJ said 372 people were charged with "assaulting, resisting, or impeding officers or employees." Roughly a third of those were accused of using a deadly weapon against an officer or "causing serious bodily injury" to an officer. It said about 64 people have been charged with destruction of government property, and 51 were charged with theft of government property.

The DOJ said 632 people have pleaded guilty to various charges – mostly misdemeanors, although 198 have pleaded guilty to felonies. The department said 597 people have received sentences for their activities on Jan. 6, and 366 of those were sentenced to incarceration....

"Under the continued leadership of the U.S. Attorney’s Office for the District of Columbia and the FBI’s Washington Field Office, the investigation and prosecution of those responsible for the attack continues to move forward at an unprecedented speed and scale. The Department of Justice’s resolve to hold accountable those who committed crimes on January 6, 2021, has not, and will not, wane," the department said.

August 8, 2023 in Celebrity sentencings, Data on sentencing | Permalink | Comments (9)

Monday, August 07, 2023

How many of the "171 Easy Mitigating Factors" might former Prez Trump argue at a federal sentencing?

Some recent posts related to former Prez Trump's legal woes are generating lots of comments; in one thread, one comment stated that it is "probably malpractice for a defense lawyer not to have" the legendary sentencing resource "171 Easy Mitigating Factors (and Counting): Cases Granting, Affirming, Or Suggesting Mitigating Factors."   That resource, authored by Michael R. Levine, provides cites to hundreds of federal precedents suggesting a wide array of grounds for mitigating a sentence.  I share the view that any competent federal defense attorney should be using this resource at sentencing (and I have uploaded below the Table of Contents, which includes contact information for the author for those seeking to purchase the full text).

In part because all federal defendants should receive competent representation, I hope former Prez Trump's lawyers in both of his federal criminal cases make sure they have a copy of "171 Easy Mitigating Factors."  And, in putting this post together, I got to thinking about the question in the title of this post.  From a quick scan of the TOC of "171 Easy Mitigating Factors," I came to the view that quite a significant number of these factors might be potentially applicable in former Prez Trump's case if he ever actually faces a federal sentencing.  Also, I got a a bit of chuckle over how certain "Mitigating Factors" read in light of the Trump prosecutions: might his lawyers someday argue for mitigation because, eg, "defendant is a law abiding citizen who 'just did a dumb thing'" or "prosecutor’s manipulation of the charges, even if no bad faith" or "defendant is older or elderly and presents less risk of recidivism"?

Though a bit tongue-in-check, I do mean for this post to flag the important reality that former Prez Trump is sure to have lots of significant mitigating arguments to seek to avoid a lengthy prison term (or any prison term) if he is ultimately convicted on any federal charges.  Of course, there is a long (and winding?) legal road ahead before any sentencing particulars are to be front and center in his cases.  But, even though former Prez Trump is likely one of the rare federal defendants unlikely now to consider any plea deal, it still seems important to note now that his defense attorneys have a reasonable basis to advise the former President that they would have lots of viable mitigating sentencing arguments to make even if he is convicted after a trial.

Download TOC for 171 EASY MITIGATING FACTORS (AUGUST 1 2023)

Some prior related posts:

August 7, 2023 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (31)

Thursday, August 03, 2023

After another federal indictment, another set of federal sentencing issues for former Prez Trump

It is barely 48 hours since former Prez Donald Trump was formally indicted on four new federal charges and only a few hours since his "not guilty" plea.  But, as revealed by the pieces below, there has still been plenty of time for various outlets to start talking up some sentencing issues:

From the AP, "The judge assigned to Trump’s Jan. 6 case is a tough punisher of Capitol rioters"

From Newsweek, "Donald Trump Conviction Could Be 'Death Sentence'"

From Politico, "641 years behind bars? No, but Trump’s risk of prison is real."

From Set for Sentencing, "The 3rd Trump Indictment (Sentencing Guidelines): Everything Nowhere All at Once"

From the Washington Post, "Is Trump going to jail? Here’s how much prison time he could face."

For all sorts of reasons, I am quite disinclined to get too focused on potential guideline ranges given that the sentencing of an elderly former president raises so many unique and significant 3553(a) sentencing issues.  And, of course, we are a long way from any convictions, let alone sentencings.  But, as always, folks are more than welcome to provide sentencing takes (or other takes) in the comments.

Some prior related post:

August 3, 2023 in Celebrity sentencings, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (38)

Tuesday, August 01, 2023

Noticing one count in the latest federal indictment of former Prez Donald Trump could carry the death penalty

In many cases, even high-profile ones, I tend to be disinclined to focus too much on a defendant's sentencing prospects until a plea or a jury conviction seems forthcoming.  But with historic and repeated indictments of a former President who is also a front-running presidential candidate, it is hard not to talk about sentencing possibilities as soon as there is an actual indictment.  And, via an email tonight on the CrimProf listserve, Professor Jack Chin flagged a particularly interesting added sentencing element flowing from this latest indictment of former Prez Trump:

So one of the offenses Trump was charged with today carries a possible death sentence.  The NYT reports that seven people died in connection with the January 6 riots, so the conspiracy against rights is death eligible.  I assume a death notice will not be filed, and oppose the death penalty in all cases myself, but, if one supports the death penalty in principle, would seven be enough?

18 USC 241:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

August 1, 2023 in Celebrity sentencings, Death Penalty Reforms, Offender Characteristics, Offense Characteristics | Permalink | Comments (44)

Wednesday, July 26, 2023

Not a done deal: Hunter Biden ends up pleading not guilty to federal charges after district judge raises concerns about plea deal particulars

As reported in this AP piece, "President Joe Biden’s son Hunter pleaded not guilty Wednesday to two tax crimes after a deal with federal prosecutors unraveled during a court hearing following the judge’s concerns over the agreement."  Here is more:

Hunter Biden was charged last month with two misdemeanor tax crimes of failure to pay more than $100,000 in taxes from over $1.5 million in income in both 2017 and 2018, and he was expected to plead guilty after he made an agreement with prosecutors, who were planning to recommend two years of probation.  That deal is now on hold.  But during the hearing Wednesday, there was a dispute in court over whether the initial agreement gave him protection against any future charges.  U.S. District Court Judge Maryellen Noreika, who was appointed by President Donald Trump, raised concerns about the language of the deal.

Biden had also been charged with possession of a firearm by a person who is a known drug user, a felony.  He had a Colt Cobra .38 Special for 11 days in October 2018.  He had agreed to enter into a diversion agreement, which means that he would not technically plead guilty to the crime.  As long as he adhered to the terms of his agreement, the case would be wiped from his record. If not, the deal would be withdrawn.  The charge carries a maximum sentence of 10 years in prison.

The overlapping agreements created confusion for the judge, who said the lawyers needed to untangle the issues before moving forward.  “It seems to me like you are saying ‘just rubber stamp the agreement, Your Honor.’ … This seems to me to be form over substance,” she said.  She gave defense lawyers and prosecutors 30 days to explain why she should accept the deal.

The collapsed proceedings were a surprising development because the plea had been carefully negotiated over weeks and included a lengthy back-and-forth between Justice Department prosecutors and Biden’s attorneys.  It was meant to clear the air for Hunter Biden and avert a trial that would have generated weeks or months of distracting headlines.  But the politics remain as messy as ever, with Republicans insisting he got a sweetheart deal and the Justice Department pressing ahead on investigations into Trump, the GOP’s 2024 presidential primary front-runner.

Prior related posts:

July 26, 2023 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (97)

Tuesday, July 25, 2023

On eve of plea hearing for Hunter Biden, House Committee Chair urges district court to consider "improper conduct" surrounding prosecution

As reported in this CNN article, the "Republican chairman of the House Ways and Means Committee submitted materials Tuesday to the judge in Hunter Biden’s criminal case, flagging recent claims from IRS whistleblowers that the probe into President Joe Biden’s son was tainted by political interference." Here is more:

Rep. Jason Smith, a Missouri Republican, wants District Judge Maryellen Noreika to “consider” these allegations while she presides over Hunter Biden’s plea hearing on Wednesday morning in Delaware. “The Defendant appears to have benefited from political interference which calls into question the propriety of the investigation of the U.S. Attorney’s Office,” Smith’s attorney wrote in a court filing, which went to say, “it is critical that the Court consider the Whistleblower Materials before determining whether to accept the Plea Agreement.”

The GOP’s filing has become a controversy in its own right, after Noreika threatened to sanction Hunter Biden’s lawyers Tuesday after a member of his legal team “misrepresented her identity” to court officials so she could “improperly” get documents removed from the public docket, she said in an order.

Hunter Biden is set to plead guilty Wednesday to two federal tax misdemeanors, for failing to pay taxes on time in 2017 and 2018. The plea deal will also resolve a felony gun charge if Hunter Biden abides by court-imposed rules, according to court filings. CNN has previously reported that prosecutors are expected to recommend that the president’s son avoid jail.

As the judge presiding over the case, Noreika has the power to reject the plea agreement that was negotiated between Hunter Biden and the Justice Department, though that would be a surprising and unexpected move. The House committee and Smith are not parties in the case....

Also on Tuesday, the right-wing Heritage Foundation urged Noreika to postpone Wednesday’s plea hearing so she could “obtain additional information” directly from the Justice Department that might address the lingering questions about whether there was any political interference in the probe.

The filings of Rep. Smith make for an interesting read, and they are available at this link. Here is an excerpt (with footnotes/cites omitted):

Courts may reject plea agreements and there is precedent for them to do so for a variety of reasons. Legal experts have described situations where judges rejected plea agreements “if judges believe the agreements do not adequately address the nature of the crimes, the rights of victims, or the interests of the public” or when judges “disagree with prosecutors’ proposed sentence in order to avoid any surprises at the later sentencing hearing.”  For example, judges have rejected plea agreements because the plea agreement is “flawed” and they “don’t agree with the outcome;” the judge finds “the sentencing options available strikingly deficient;” the plea agreement “falls short given the backdrop of the parties’ motivation, [the individual’s] trusted employment position, and the threats to national and global security…that [the parties’] actions caused;” and “[i]t was not in the best interest of the community, or the country, to accept the[] plea agreements.”  The Court need not intrude on prosecutorial discretion.

The situation here is not that the Justice Department exercised charging or plea negotiation discretion, but the presence of credible allegations that the investigation, charging decisions, and plea negotiations were tainted by improper conduct at various levels of the government.

Prior related posts:

July 25, 2023 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, July 17, 2023

Some notable stories about Jan 6 riot cases, now more than 30 months later

I continue to keep an eye on a number of January 6 riot prosecutions because, though Jan 6 was a unique moment of lawbreaking, the subsequent prosecutions continue to provide high-profile lessons for deepening our understanding of many aspects of our federal criminal justice system.  Against that backdrop, I have seen in recent days a number of intriguing new Jan 6 prosecution and sentencing stories that seemed worth rounding up here:

From the AP, "Rioter who hurled bow like a spear at police during Jan. 6 attack gets more than 7 years in prison"

From BBC News, "The 'QAnon Shaman' and other Capitol rioters who regret pleading guilty"

From CBS News, "After courtroom outburst, Florida music teacher sentenced to 6 years in prison for Jan. 6 felonies"

From Courthouse News Service, "In rare move, federal judge acquits Jan. 6 defendant"

From The Hill, "Legal experts see strong potential for Trump charges in Jan. 6 probe"

From Insider, "QAnon Shaman, who pleaded guilty and made a heartfelt apology in Jan. 6 case, has changed his mind and wants his plea reversed"

From NBC News, "'Idiot' Jan. 6 rioter who stole John Lewis photo from Nancy Pelosi's office gets 4 years"

July 17, 2023 in Celebrity sentencings, Offense Characteristics | Permalink | Comments (5)

Wednesday, July 12, 2023

DOJ says 18 is not enough as it appeals sentence of Stewart Rhodes and other Oath Keepers

As detailed in this new Politico article, the "Justice Department on Wednesday appealed the sentences handed down to seven members of the Oath Keepers — including founder Stewart Rhodes — for their roles in the Jan. 6 attack on the Capitol, a signal that prosecutors are not satisfied with the severity of the jail terms delivered by the federal judge overseeing the case."  Here is more:

U.S. District Court Judge Amit Mehta sentenced Rhodes to 18 years in prison — the harshest sentence for any Jan. 6 defendant — reflecting his leadership of what Mehta characterized as a dangerous criminal conspiracy aimed at violently derailing the transfer of presidential power.

Nevertheless, the sentence for the Yale Law School graduate and disbarred attorney was seven years shorter than the 25-year prison term prosecutors recommended and four years below an agreed-upon “guidelines range” based upon Rhodes’ conduct.

In a series of filings, prosecutors also signaled they were appealing the sentences — all delivered by Mehta, an appointee of President Barack Obama — of several other defendants convicted for their own role in Rhodes’ alleged conspiracy. Many of Rhodes’ coconspirators faced sentences that similarly fell below the guidelines ranges for their conduct — in some cases by several orders of magnitude. Among those who, like Rhodes, were convicted of seditious conspiracy:

  • Florida Oath Keeper leader Kelly Meggs received a 12-year term; DOJ sought 21 years.
  • Roberto Minuta of New York was sentenced to 4.5 years; DOJ sought 17 years.
  • Joseph Hackett of Florida received a 3.5-year sentence; DOJ sought 12 years.
  • Ed Vallejo of Arizona received a 3-year sentence; DOJ sought 17 years.
  • David Moerschel of Florida was sentenced to three years: DOJ sought 10 years.

DOJ also appealed the conviction of two Oath Keepers acquitted of seditious conspiracy but convicted of conspiring to obstruct Congress:

  • Jessica Watkins of Ohio, who was sentenced to 8.5 years in jail; DOJ sought 18 years.
  • Kenneth Harrelson of Florida, who was sentenced to 4 years; DOJ sought 15.

The sentences reflected the fact that Mehta viewed Rhodes as the key driver of the conspiracies. During sentencing hearings, several of the defendants similarly pointed to Rhodes, claiming they were manipulated and ginned up by him to participate in the attack on the Capitol...

The government’s appeals will go to the D.C. Circuit Court of Appeals, located just blocks from the Capitol and in the same federal courthouse where the trials were held. They’re likely to be considered in tandem with appeals filed by the same defendants challenging both their convictions and their sentences.

I am tempted to suggest that DOJ is adopting the "best defense is a good offense" strategy here.  Since it seems all these sentences are being appealed as too high by the defense, prosecutors might reasonably think it strategically valuable to argue on appeal that these sentences are actually too low.

I suspect that DC Circuit judges will ultimately find most, if not all, of these sentences to be reasonable.  But perhaps the coming briefing will make a persuasive case for unreasonableness one way or the other.

July 12, 2023 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (8)

Tuesday, July 11, 2023

After serving 53 years, Manson follower Leslie Van Houten released from in California prison

As reported in this New York Times article, "Leslie Van Houten, a former Charles Manson follower who played a role in the gruesome double murder of a Los Angeles couple in the summer of 1969, was released on parole on Tuesday after serving more than half a century in prison, according to her lawyer." Here is more:

Ms. Van Houten’s lawyer, Nancy Tetreault, said she was taken early Tuesday morning to transitional housing at an undisclosed location. “She’s going to have to learn to live in the world after 53 years in prison,” Ms. Tetreault said in an interview. “So that’s going to take some time.”

The California Department of Corrections and Rehabilitation confirmed her release.  Ms. Van Houten will have “three-year maximum parole term,” according to Mary Xjimenez, a department spokeswoman.

The office of California Gov. Gavin Newsom said this month that it would not challenge her release.  Mr. Newsom had reversed Ms. Van Houten’s parole grant three times since taking office, most recently in March 2022. “The Governor is disappointed by the Court of Appeal’s decision to release Ms. Van Houten but will not pursue further action as efforts to further appeal are unlikely to succeed,” a spokeswoman for the governor said.

Ms. Van Houten was 19 when she and other members of the so-called Manson family broke into the home of wealthy grocer Leno LaBianca and his wife, Rosemary, and stabbed them dozens of times on Aug. 10, 1969.

The LaBiancas were murdered one night after five people were killed at the home of movie director Roman Polanski — including his pregnant wife, the actress Sharon Tate. The murders were carried out at the direction of Charles Manson, one of the most notorious murderers of the 20th century, who died in 2017 at age 83.

In 1971, Ms. Van Houten was convicted on two counts of murder and one count of conspiracy to commit murder.  She was initially sentenced to death, but her sentence was reduced to life in prison when capital punishment was outlawed in California the next year.

Ms. Van Houten has not been shy about her role in the killings, saying in a parole board hearing in 2002 that she had pinned down Ms. LaBianca while another Manson family member, Patricia Krenwinkel, stabbed her in the collar bone. Charles D. Watson, another figure in the attack, stabbed Ms. LaBianca with a bayonet eight times before Ms. Van Houten then stabbed her in the abdomen 14 to 16 times....

Years later, Ms. Van Houten said that she regretted taking part in the murders and that she had been mentally ill, a condition aggravated by LSD use. “I believed that he was Jesus Christ,” Ms. Van Houten said of Mr. Manson. “I bought into it lock, stock and barrel.”

July 11, 2023 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (29)

Thursday, July 06, 2023

Detailed accounting of US District Judge Aileen Cannon's (modest) sentencing history

CBS News has this notable new lengthy piece on sentencing decision-making by US District Court Judge Aileen Cannon. The piece is headlined "Federal judge in Trump case has limited track record in criminal cases, hews closely to DOJ sentencing recommendations," and here are excerpts:

If Trump is convicted, Cannon would be responsible for handing down any sentence. Federal judges typically have wide discretion when imposing sentences, though they often take into account recommendations by prosecutors and defense attorneys.

A CBS News review of a half dozen of Cannon's recent criminal cases shows she has taken a harder line on criminal defendants and hewed closely to federal prosecutors' sentencing recommendations in cases involving violence or child exploitation.  She has even exceeded those recommendations for some defendants.

In a May 2023 case involving fentanyl trafficking, Cannon handed down a sentence that was more than four years longer than the sentence recommended by federal prosecutors....  In February, Cannon also imposed a stiffer sentence than recommended by prosecutors in the case of Nicholas Sorgenfrey, a Port St. Lucie man who pleaded guilty to possessing child exploitation images....  Cannon sentenced Sorgenfrey to 144 months in prison, exceeding the prosecution's recommendation of 119 months.  In a firearms and narcotics case, Cannon sentenced Lance Reterree, 44, to approximately 11 years in prison, just one year less than the sentence recommended by the Justice Department.  

The CBS News review of Cannon's recent criminal cases also found she showed more leniency in two recent nonviolent white-collar fraud cases.

She handed down a 27-month prison sentence, six months less than 33 months recommended by prosecutors, in the case of Daniel Bouaziz, who pleaded guilty to money laundering in a counterfeit art scheme out of his Palm Beach County art gallery.... In a September 2022 case, Cannon issued a sentence of 32 months in prison for Juan Guillermo Gonzalez, a Miami-area business owner accused of defrauding government agencies.  The sentence was nearly 25% shorter than the one recommended by prosecutors, who accused Gonzalez of "obtaining information from U.S. departments and agencies and improperly using it for commercial advantage and private financial gain." 

The cases offer only a limited glimpse into Cannon's brief tenure and her handling of criminal cases. Catherine Ross, a law professor at George Washington University, said Cannon's record is too short to be able to detect a pattern that might indicate how she could determine a sentence in the Trump case.

Prior related post:

July 6, 2023 in Celebrity sentencings, Who Sentences | Permalink | Comments (1)

Tuesday, June 27, 2023

Four years after Jeffrey Epstein's death, DOJ's Inspector General says mismanagement led to suicide

The four years since notorious sex offender Jeffrey Epstein was found dead in his jail cell in summer 2019 certainly have been quite eventful, though I fear not all that much has changed when it comes to federal jail and prison conditions.  Thus, I suspect there are still lessons to learn from this big new report released today by the Department of Justice's Office of the Inspector General titled "Investigation and Review of the Federal Bureau of Prisons’ Custody, Care, and Supervision of Jeffrey Epstein at the Metropolitan Correctional Center in New York, New York."  This New York Times article about the report starts this way:

Jeffrey Epstein, who was found dead in a cell with a bedsheet tied around his neck in 2019, died by suicide, not foul play — following a cascade of negligence and mismanagement at the now-shuttered federal jail in Manhattan where he was housed, according to the Justice Department’s inspector general.

The inspector general, who released a report on Tuesday after a yearslong investigation, found that the leadership and staff members at the jail, the federal Metropolitan Correctional Center, created an environment in which Mr. Epstein, a financier charged with sex trafficking, had every opportunity to kill himself.

The inspector general, Michael Horowitz, referred two supervisors at the facility responsible for ensuring Mr. Epstein’s safety for criminal prosecution by the U.S. attorney for the Southern District of New York after they were caught falsifying records and lying to investigators. But prosecutors declined to bring charges.

While the inspector general concluded the jail’s staff members “engaged in significant misconduct and dereliction of their duties,” investigators — who combed through 100,000 records and conducted dozens of interviews — “did not uncover evidence” that contradicted the Federal Bureau of Investigation’s finding that Mr. Epstein had died by his own hand, with a homemade noose.

Here is how the 128-page report's executive summary gets started:

According to its website, the Federal Bureau of Prisons (BOP)’s current mission statement is “Corrections professionals who foster a humane and secure environment and ensure public safety by preparing individuals for successful reentry into our communities.” However, the Department of Justice (DOJ) Office of the Inspector General (OIG) has repeatedly identified long-standing operational challenges that negatively affect the BOP’s ability to operate its institutions safely and securely. Many of those same operational challenges, including staffing shortages, managing inmates at risk for suicide, functional security camera systems, and management failures and widespread disregard of BOP policies and procedures, were again identified by the OIG during this investigation and review into the custody, care, and supervision of one of the BOP’s most notorious inmates, Jeffrey Epstein.

The OIG initiated this investigation upon receipt of information from the BOP that on August 10, 2019, in the Metropolitan Correctional Center in New York, New York (MCC New York), Epstein was found hanged in his assigned cell within the Special Housing Unit (SHU). The Office of the Chief Medical Examiner, City of New York, determined that Epstein had died by suicide.

The OIG conducted this investigation jointly with the Federal Bureau of Investigation (FBI), with the OIG’s investigative focus being the conduct of BOP personnel. Among other things, the FBI investigated the cause of Epstein’s death and determined there was no criminality pertaining to how Epstein had died.

This report concerns the OIG’s findings regarding MCC New York personnel’s custody, care, and supervision of Epstein while detained at the facility from his arrest on federal sex trafficking charges on July 6, 2019, until his death on August 10.

June 27, 2023 in Celebrity sentencings, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Saturday, June 24, 2023

Some reflections in headlines on Hunter Biden's "sweetheart" plea deal

I have not had a chance to read all the commentary that Hunter Biden's plea deal has generated, but I have made tome to gather here some notable pieces I have seen that capture all sorts of stories just through their headlines:

From Bloomberg, "Hunter Biden Plea Deal Pumps Up Republican Paranoia"

From Politico, "Garland denies allegations of politics impacting Hunter Biden plea deal"

From Ipsos, "Reuters/Ipsos Poll finds half of Americans think Hunter Biden is receiving favorable treatment"

From The Nation, "A Failson Meets a Failed Justice System"

From the Wall Street Journal, "It’s the Criminality, Stupid: Why Voters See Crooks in All Corners of Politics"

From the Washington Post, "Hunter Biden might have Clarence Thomas to thank for his gun plea deal"

In addition to the above pieces, I found particularly notable (and amusing) this troika of headlined:

From Newsweek, "The Hunter Biden Sweetheart Deal Endangers Us All. Every Criminal Is Going to Ask for It."

From Reason, "Hunter Biden's Prison-Free Plea Should Be Available to Everybody"

From the Washington Times, "Va. mom of 6-year-old who shot teacher will cite Hunter Biden’s plea deal for leniency, lawyer says"

Prior related posts:

June 24, 2023 in Celebrity sentencings, White-collar sentencing, Who Sentences | Permalink | Comments (46)

Tuesday, June 20, 2023

A "sweetheart deal"?: Minor (mostly uninformed) musings about Hunter Biden's prosecution and plea deal

I woke up this morning to the surprising news of a prosecution and plea deal for Hunter Biden (basics here), and then I spent most of the rest of the day in the car.  Thus, I have had precious little time to carefully review and reflect on all the particulars (and subsequent commentary) regarding how the US Attorney in Delaware decided to approach the prosecution and plea of the son of the sitting President.  But, despite being under-informed on all the facts and on typical DOJ practices, I still cannot resist sharing a few musings on this high-profile plea:

1.  "Iceberg" timingThat Hunter was subject only now to what might be called "modest" charges after years of investigation leads me to wonder what has been going on beneath the surface with this criminal investigation (and internal DOJ debates over exactly what charges should be brought and how they might be settled).  Hunter and his lawyers were obviously made aware — recently? long ago? — about potential charges and negotiated this deal, and I wonder what kind of negotiating timeline and process was involved to result in a plea that nearly ensures that Hunter can entirely avoid any felony convictions.

2.  Avoiding felony convictions:  I am inclined to describe Hunter's deal as a sweetheart not so much because he seems likely to avoid prison time, but because he is likely to avoid any felony convictions.  US Sentencing Commission data show a good percentage of tax fraud offenders get non-prison sentences and most firearm offenders have significant criminal history that leads to prison time.  Even if Hunter had pleaded guilty to felony tax and gun charges, his lawyers would have been able to make effective sentencing arguments that he should just get probation for these offenses.  But, of course, the actual plea deal involves Hunter pleading guilty only to misdemeanor tax charges and to enter a "Pretrial Diversion Agreement with respect to the firearm [charge]" so that he will likely avoid any felony convictions.  I surmise that both of these "plea moves" are pretty rare — tax fraud defendants rarely get to plead only to misdemeanor charges and illegal gun possession defendants rarely get a diversion agreement.

3.  Echoes of Bruen:  The Supreme Court's landmark Second Amendment ruling in Bruen gave Hunter and his lawyers an interesting new argument to contest the gun charges.  At least two district courts (as noted here and here) have decided § 922(g)(3) is unconstitutional, and I suspect the US Attorney in Delaware (and others inside DOJ) did not want to shine a bright light on this issue through a contested prosecution of the president's son.  This factor certainly could justify — and may well have motivated — the "Pretrial Diversion Agreement" approach to the gun charge against Hunter.  (That said, Hunter also could have been subject to prosecution for lying on the form needed to buy a gun, and that charge would seem less likely to be subject to Second Amendment challenge.)

4.  "Sweetheart deals" for everyone?:  Other than persons who relish the idea of a Biden behind bars, I suspect most folks thinking about all the 3553(a) sentencing factors would have a hard time making a strong case that Hunter needs to be sent to federal prison for a long time.  (Please know that I would make the same 3553(a) assertion about Donald J. Trump.)  In other words, but for all the political acrimony, I sincerely believe relatively few could make a very potent argument that Hunter really needs to be incarcerated for an extended period.  In turn, to the extent arguments are being made that Hunter is benefitting from a "sweetheart deal," I would say that the problem is not that Hunter is getting a huge leniency break, but rather that similarly situated persons are too often subject to unduly severe treatment by our harsh federal criminal justice system.

5.  Hunter could still get significant prison time.  Though I expect Hunter will end up sentenced to probation on his tax misdemeanor charges, he is facing up to two years in prison.  Though I would be surprised if a sentencing judge would seriously consider maxing Hunter out, I would not be shocked at all if the judge were to decide that some short period of incarceration was needed to "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense" and "to afford adequate deterrence to criminal conduct."  18 USC 3553(a)(2)(A) and (B).  (Perhaps for my own amusement, I am already wondering if the District of Delaware has any local rules for the filing of amicus briefs in a sentencing proceedings.) 

June 20, 2023 in Celebrity sentencings, Who Sentences | Permalink | Comments (17)

Hunter Biden agrees to plea deal seeking to avoid prison time on tax and gun charges

As reported in this Politico piece, "Hunter Biden has reached a deal with federal prosecutors to resolve a five-year federal investigation into his failure to pay about $1 million in federal taxes and his purchase of a handgun in 2018." Here is more:

Under an agreement detailed Tuesday in a filing in federal court in Delaware, President Joe Biden’s son will plead guilty to a pair of misdemeanor tax charges. Prosecutors have also charged him with possessing a firearm while being a user of illegal drugs — a felony — but have agreed to dismiss that charge if he completes a two-year period of probation.

Hunter Biden, 53, is unlikely to serve time in prison if he complies with release conditions. The deal calls for both sides to recommend that he be put on probation.

The probe was overseen by Delaware U.S. Attorney David Weiss, who was appointed by former President Donald Trump and was permitted to stay in his post after Joe Biden took office in order to complete the investigation of the president’s son. The White House and the Justice Department have said they did not interfere with Weiss’ investigation.

A one-page document from federal prosecutors to the federal court in Delaware outlining the plea deal is available here.

June 20, 2023 in Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (18)

Tuesday, June 13, 2023

Can and will GOP leaders persistently attack both federal criminal justice and federal criminal justice reform?

Two new headlines this morning focused on two different aspects of federal criminal justice and the activities of former Prez Donald Trump prompt the question in the title of this post.  These two pieces are worth reading in full, but here are the complete headlines, links and key paragraphs:

From The Spectator, "The GOP is sprinting away from criminal justice reform: The nation’s violent crime wave has changed the conversation":

In the five years since it hit the president’s desk, ... the First Step Act has become a source of controversy within the Republican Party. Members of the GOP are reticent to appear soft on crime as America’s major cities undergo a post-pandemic crime wave and progressive members of the Democratic Party advocate for defunding the police and installing left-wing prosecutors who are keen on giving second — or third, or fourth — chances to criminals.  Trump has hardly talked about the landmark legislation on the 2024 campaign trail, and his primary opponents have started to use it as an attack line, as proof that they are the true law-and-order candidates....

The GOP’s abandonment of criminal justice reform is likely a welcome change for tough-on-crime mainstays like Senators Tom Cotton and John Kennedy, who voted against the First Step Act, while the libertarian wing of the party will be vexed.  The real story will be in how these internal fights are received by primary voters, as 80 percent of Republicans said crime is a real threat in communities in a March NPR poll.  Which primary candidates can run the fastest from the perception that they might be gracious to criminals?

From the Washington Post, "Republicans slam law enforcement over Trump indictment, showing shift in GOP: Many in the party have sought to discredit the integrity of federal agencies that have investigated and charged the former president, marking another step away from the GOP’s longtime positioning": 

Polling from Pew Research Center suggests that the GOP attacks on the FBI and the Justice Department have had an effect.  Only 38 percent of Republican and Republican-leaning adults said they viewed the FBI favorably in a survey released in March; and about 40 percent of those respondents viewed the Justice Department favorably.  Although Pew’s older data is not comparable to the 2023 survey because of changes in survey mode and the wording of questions, one earlier survey showed that before Trump took office, most Republicans had a positive view of the FBI.

Trump has set the tone for the invective against federal law enforcement agencies.  Shortly after the FBI search of Mar-a-Lago last year, he called the FBI and Justice Department “vicious monsters” and scoundrels.

In political speeches over the weekend, he said the FBI and the Justice Department were “corrupt” and alleged that Biden “is trying to jail his leading political opponent”....  In April, Trump called on the Republican-led Congress to defund the FBI and the Justice Department — a day after he was arraigned in Manhattan on separate charges.

For a variety of reasons, I suspect we will continue to see at least some GOP leaders continuing to attack both federal criminal justice (going after Trump's federal prosecution) and federal criminal justice reform (going after Trump's FIRST STEP support). But I am quite unsure how all these attacks might echo through and impact the politics and policies of federal criminal justice reform debates in the coming months and years as we approach another big federal election. 

Ultimately, I find it fascinating that Trump is now the nation's highest profile criminal defendant, in both state and federal courts (and also has already been found liable for a tortious sex offense), and yet he is still the most popular figure in the supposed "law and order" party.  Go figure.

June 13, 2023 in Campaign 2024 and sentencing issues, Celebrity sentencings, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (42)

Monday, June 12, 2023

Notable general and specific accountings of former Prez Trump's federal sentencing prospects

In this post from late last week, I asked "Is it too early to try to calculate former Prez Trump's possible federal sentencing guideline range?".  In the comments to that post, one helpful reader did basic calculations to suggest Donald Trump would be looking at a guideline range of at least 6.5 years and likely at least 9 years in federal prison.  I presume such a calculation in part accounts for why Prof Jonathan Turley is quoted in this new Hill piece as saying "All the government has to do is stick the landing on one count, and he could have a terminal sentence.  You’re talking about crimes that have a 10- or 20-year period as a maximum."

As those who follow my blogging about acquitted conduct know, Prof Turley is wise to not that the government only needs to "stick the landing on one count" in order to have all of Trump's conduct, including any and all conduct associated with any acquitted counts, used in his sentencing guideline calculation.  But, of course, any guideline calculation only serves as, in the words of the Supreme Court, "the starting point and the initial benchmark" for federal sentencing now that the guidelines are advisory.  The sentencing judge will need also to consider all the other statutory 3553(a) factors, including the "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."  (To work though how all the 3553(a) factors should apply to a former President starts to make my head hurt.)

Notably, others are now hard at work at possible guideline calculations based on the Trump indictment.  Specifically, over at Just Security, David Aaron has this lengthy new post titled "How Much Prison Time Does Former President Trump Face?  Applying the U.S. Sentencing Guidelines."  Sentencing fans should check out the full post for the specific calculations, but here is how the post starts:

Now that the public has seen the current list of federal charges against former President Donald Trump, there is a long road ahead. If the defendant is ultimately convicted, that road will lead to sentencing.  The Espionage Act charges the defendant faces carry a maximum prison sentence of ten years.  The Tampering (and related Conspiracy) and Concealment charges each carry a maximum prison sentence of twenty years.  The Scheme to Conceal and False Statements charges each carry a maximum prison sentence of 5 years.  Of course, in any criminal case, numerous factors affect the sentence, and focusing on the statutory maximums can be misleading.  Federal law, specifically 18 U.S.C. § 3553, directs courts to impose a sentence based on a list of considerations.  The U.S. Sentencing Commission issues Sentencing Guidelines to assist courts and promote consistent application of criminal law.  Sentencing trends in similar cases can provide reference points, but only if similar cases exist.  This quick note gives an idea of how a sentence would be calculated, with the caveat that issues such as sentencing on multiple counts of conviction, related conduct, and new factual developments could arise.

Prior related post:

UPDATEAnother accounting of how tocan count up former Prez Trump's guideline sentencing range can be heard via Doug Passon's Set for Sentencing podcast in this new episode titled "Reality Check: Unpacking the Trump Indictment."  As explained in this show notes: "IN THIS EPISODE: Updates to the guideline calculations now that we have a better picture of the alleged conduct; Comparing Trump's case to Reality Winner; Other musings on the inner workings of the federal criminal system."

June 12, 2023 in Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (11)

Saturday, June 10, 2023

Infamous murderer, the Unabomber Ted Kaczynski, dies in federal prison

The death of the infamous Unabomber, Ted Kaczynski, seems worth blogging in part because the threat of the death penalty seemingly played a role in Kaczynski's willingness to plead guilty and accept multiple LWOP federal sentences.  (Also, in my sentencing classes, I have long used the rich facts of Kaczynski's crimes and history to explore with students capital sentencing theories and procedures.)  This lengthy Washington Post piece provides lots of details about his life and crimes, and here are short excerpts:

For 17 years, he picked his victims with cold deliberation, leaving a grisly trail of nail- and razor-blade-packed pipe bombs across the nation that killed three people and injured 23 others, several of them maimed for life.

He knew none of his victims and struck unpredictably from coast to coast in seemingly random acts from 1978 to 1995, baffling law enforcement officers and gripping the country in a kind of menacing unease — until his capture in early 1996 in the remote mountains of Montana.  There, Ted Kaczynski, the scrawny, bearded anti-technology anarchist popularly known as the Unabomber, surrendered peaceably at the primitive plywood cabin he had called home for 25 years....

The Harvard-trained mathematics prodigy turned lone serial bomber died June 10 at a federal prison medical facility in Butner, N.C.  He was 81.... Tracking down the Unabomber led to one of the nation’s longest and most expensive investigations. Then came years of research tracing his habits, propensities and psychological markers.  Still, a veil of mystery remained over the ultimate purpose of his acts beyond simple anger at a world that wouldn’t listen to him....

In September 1995, he sent his manifesto, titled “Industrial Society and Its Future,” to The Post and the Times....  The rambling prose seemed eerily familiar to David Kaczynski, a social worker at an Albany, N.Y., shelter for runaway youths. He began to suspect, reluctantly, that his brother was the Unabomber....

David took his suspicions to the FBI, and analysts quickly spotted close parallels in phraseology, even misspellings. Directed by David, agents massed at the cabin in the Montana woods on April 3, 1996, and took Ted into custody. Inside the cabin, they found a cache of bombmaking components.  David received the FBI’s $1 million reward and said he would use it to aid families who suffered because of his brother’s actions.

On Jan. 22, 1998, after extensive legal jockeying to avoid both the death penalty and an insanity defense, Mr. Kaczynski pleaded guilty and acknowledged all 16 bombings and the deaths and injuries they caused.  Unrepentant, he was sentenced to four consecutive life terms plus 30 years by U.S. District Judge Garland E. Burrell Jr. in Sacramento.

UPDATE: The latest reporting is that Kaczynski killed himself as noted in this New York Post headline: "Unabomber Ted Kaczynski reportedly committed suicide inside his jail cell."

June 10, 2023 in Celebrity sentencings, Death Penalty Reforms | Permalink | Comments (10)

Friday, June 09, 2023

Is it too early to try to calculate former Prez Trump's possible federal sentencing guideline range?

In one of my early articles, I discussed at length the challenges for defense attorneys presented by the intricacies of federal sentencing law.  As I explained:

From the very outset of representation, a defense attorney needs to assess the range of possible trial and sentencing outcomes for his client in order to properly craft an effective defense strategy and evaluate the prospects for striking a beneficial plea bargain.  In the federal system, this not only entails basic investigation concerning the defendant’s guilt, but also requires counsel to make an initial assessment of the defendant’s possible sentence under the Federal Sentencing Guidelines.  

This old article came to mind this morning as I contemplated whether to do a post about reports that former Prez Donald Trump is now facing a multi-count federal indictment related to his handling of classified documents.  Though I doubt former Prez Trump will be seriously considering any plea deals anytime soon, his defense lawyers should still be starting on guideline calculations.

Meanwhile, though it seems the specifics of the indictment will not be public until early next week, a few press pieces are already discussing former Prez Trump's statutory sentencing exposure based on reports of the apparent charges in his indictment: 

From Forbes, "What Crimes Was Trump Charged With In Federal Documents Case? Here’s What We Know — And How Much Prison Time He Could Face"

From the New York Post, "Here are the charges and how many years Trump faces in federal Mar-a-Lago indictment"

Even though we do not know exactly the nature of all the charges, the New York Post piece concludes by asserting that "If convicted on all seven charges, the ex-president could face a 75-year prison sentence."  Of course, adding up the maximum sentence on all counts serves as a poor metric for assessing what likely sentence an indicted person might really face.  The applicable federal guideline range is a better metric, though that range is only advisory and the sentencing of a former president (and current presidential candidate) surely raises a number of unique 3553(a) sentencing issues.

Especially because we are still awaiting word from the Supreme Court on the use of acquitted conduct at sentencing (background here and here), I am tempted to use the indictment of former Prez Trump to try to bring more attention to that issue.  Based on current law, federal prosecutors could and likely would seek to have former Prez Trump sentenced on — and have his guideline range driven by — all their allegations even if he were acquitted on six of seven counts.  Interesting times.

UPDATEThe federal indictment of former Prez Donald Trump was unsealed this afternoon and can be found at this link.  The indictment runs 49 pages and has a total of 37 counts brought against the former president (with stat maxes adding up to 400 total years in prison, I believe).

June 9, 2023 in Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (17)

Wednesday, May 31, 2023

Split state appeals court finds "no evidence" supporting California Gov's rejection of parole for "Manson family" member

As reported in this AP piece, "California appeals court said Tuesday that Leslie Van Houten, who participated in two killings at the direction of cult leader Charles Manson in 1969, should be let out of prison on parole." Here is more about a notable high-profile ruling:

The appellate court's ruling reverses an earlier decision by Gov. Gavin Newsom to reject parole for Van Houten in 2020. She has been recommended for parole five times since 2016. All of those recommendations were rejected by either Newsom or former California Gov. Jerry Brown, with the latest such rejection coming in March of 2022.

California Attorney General Rob Bonta could ask the California Supreme Court to stop her release. Neither his office nor Newsom's immediately responded to requests for comment on whether they would do so.

Van Houten, now in her 70s, is serving a life sentence for helping Manson and other followers kill Leno LaBianca, a grocer in Los Angeles, and his wife Rosemary.  Van Houten was 19 at the time.  Newsom has said that Van Houten still poses a danger to society. In rejecting her parole, he said she offered an inconsistent and inadequate explanation for her involvement with Manson at the time of the killings.

The Second District Court of Appeal in Los Angeles ruled 2-1 to reverse Newsom's decision, writing there is "no evidence to support the Governor's conclusions" about Van Houten's fitness for parole.  The judges took issue with Newsom's claim that Van Houten did not adequately explain how she fell under Manson's influence.  At her parole hearings, she discussed at length how her parents' divorce, her drug and alcohol abuse, and a forced illegal abortion led her down a path that left her vulnerable to him.  They also argued against Newsom's suggestion that her past violent acts were a cause for future concern were she to be released.

The full 67-page opinion from the Second District Court of appeals can be found at this link. Here is part of the start of the opinion from the majority:

We review the Governor’s decision under the highly deferential “some evidence” standard, in which even a modicum of evidence is sufficient to uphold the reversal. Even so, we hold on this record, there is no evidence to support the Governor’s conclusions.

Van Houten provided extensive explanation as to the causative factors leading to her involvement with Manson and commission of the murders, and the record does not support a conclusion that there are hidden factors for which Van Houten has failed to account.  The Governor’s refusal to accept Van Houten’s explanation amounts to unsupported intuition.  The Governor’s finding of inconsistencies between Van Houten’s statements now and at the time of the murders fails to account for the decades of therapy, self-help programming, and reflection Van Houten has undergone in the past 50 years.  The historical factors identified in the criminal risk assessment are the sort of immutable circumstances our Supreme Court has held cannot support a finding of current dangerousness when there is extensive evidence of rehabilitation and other strong indicators of parole suitability, all of which Van Houten has demonstrated.

May 31, 2023 in Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Tuesday, May 30, 2023

Is it weird and worrisome or understandable and useful to have so much reporting about Elizabeth Holmes reporting to prison?

I was instinctively disinclined to blog about the news that former Theranos CEO Elizabeth Holmes was reporting today to federal prison.  But all my newsfeeds (which, admittedly, focus on criminal justice news) are ablaze with coverage.  Here are just a few of the new  pieces I have seen:

From the AP, "What's to know about the Texas prison where Elizabeth Holmes is starting her 11-year sentence?"

From CNN, "What Elizabeth Holmes’ life in prison could look like"

From Deadline, "Amanda Seyfried Says She 'Feels' For Children Of Jail-Bound Elizabeth Holmes"

From NPR, "Elizabeth Holmes has started her 11-year prison sentence. Here's what to know"

From the New York Times, "Elizabeth Holmes Reports to Prison to Begin More Than 11-Year Sentence"

From the Washington Post, "Elizabeth Holmes, disgraced Theranos founder, reports to prison"

As the title of this post suggests, I am genuinely unsure what to make of all the media coverage.  Because I found various documentaries and docu-dramas about Holmes and Theranos quite interesting, I can understand why there is so much media attention.  But I would sincerely be interested in various perspectives on whether all this media attention is sound or silly.

May 30, 2023 in Celebrity sentencings, Prisons and prisoners | Permalink | Comments (9)

Thursday, May 25, 2023

Oath Keepers founder gets 18 years in federal prison for role in Jan 6 riot

As reported in this AP piece, the "founder of the Oath Keepers extremist group was sentenced Thursday to 18 years in prison for orchestrating a weekslong plot that culminated in his followers attacking the U.S. Capitol in a bid to keep President Joe Biden out of the White House after the 2020 election." Here is more:

Stewart Rhodes is the first person charged in the Jan. 6, 2021, attack to be sentenced for seditious conspiracy, and his sentence is the longest that has been handed down so far in the hundreds of Capitol riot cases.

It’s another milestone for the Justice Department’s sprawling Jan. 6 investigation, which has led to seditious conspiracy convictions against the top leaders of two far-right extremist groups authorities say came to Washington prepared to fight to keep President Donald Trump in power at all costs.

Before handing down the sentence, the judge told a defiant Rhodes that he is a continued threat to the U.S., saying it’s clear Rhodes “wants democracy in this country to devolve into violence.”

“The moment you are released, whenever that may be, you will be ready to take up arms against your government,” U.S. District Judge Amit Mehta said....

Prosecutors had sought 25 years for Rhodes, who they say was the architect of a plot to forcibly disrupt the transfer of presidential power that included “quick reaction force” teams at a Virginia hotel to ferry weapons into D.C. if they were needed. The weapons were never deployed.

In remarks shortly before the judge handed down the sentence, Rhodes slammed the prosecution as politically motivated, noted that he never went inside the Capitol and insisted he never told anyone else to do so. “I’m a political prisoner and like President Trump my only crime is opposing those who are destroying our country,” Rhodes said.

In a first for a Jan. 6 case, U.S. District Judge Amit Mehta agreed with prosecutors to apply enhanced penalties for “terrorism,” under the argument that the Oath Keepers sought to influence the government through “intimidation or coercion.”  Judges in previous sentencings had shot down the Justice Department’s request for the so-called “terrorism enhancement” — which can lead to a longer prison term — but Mehta said it fits in Rhodes’ case.

Prosecutors argued that a lengthy sentence is necessary to deter future political violence. Assistant U.S. Attorney Kathryn Rakoczy pointed to interviews and speeches Rhodes has given from jail repeating the lie 2020 election was stolen and saying it would be again in 2024. In remarks just days ago, Rhodes called for “regime change,” the prosecutor said....

A lawyer for Rhodes, who plans to appeal his conviction, said prosecutors are unfairly trying to make Rhodes “the face” of January 6. Attorney Phillip Linder told the judge that Rhodes could have had many more Oath Keepers come to the Capitol “if he really wanted to” disrupt Congress’ certification of the Electoral College vote. “If you want to put a face on J6 (Jan. 6), you put it on Trump, right-wing media, politicians, all the people who spun that narrative,” Linder said.

Another Oath Keeper convicted alongside Rhodes in November — Florida chapter leader Kelly Meggs — was expected to receive his sentence later Thursday. Two other Oath Keepers, acquitted of the sedition charge but convicted of other offenses, will be sentenced Friday. And four other members found guilty of seditious conspiracy at a second trial in January are scheduled to be sentenced next week....

Rhodes’ sentence may forecast what prosecutors will seek for former Proud Boys national chairman Enrique Tarrio, who was convicted of seditious conspiracy alongside other leaders of his far-right group this month for what prosecutors said was a separate plot to block the transfer of presidential power. The Proud Boys will be sentenced in August and September.

Rhodes, 58, and the other Oath Keepers said there was never any plan to attack the Capitol or stop Congress from certifying Biden’s victory. The defense tried to seize on the fact that none of the Oath Keepers’ messages laid out an explicit plan to storm the Capitol. But prosecutors said the Oath Keepers saw an opportunity to further their goal to stop the transfer of power and sprang into action when the mob began storming the building....

Before Thursday, the longest sentence in the more than 1,000 Capitol riot cases was 14 years for a man with a long criminal record who attacked police officers with pepper spray and a chair as he stormed the Capitol. Just over 500 of the defendants have been sentenced, with more than half receiving prison time and the remainder getting sentences such as probation or home detention.

Rhodes will not only be appealing his convictions, but surely also this sentencing.  The application of the guidelines' 'terrorism enhancement" will surely be part of any sentencing appeal, though I suspect there will be plenty of other issues raised for the DC Circuit to consider.

Prior related posts:

UPDATE with additional sentencing This CBS News piece, which is mostly about the Rhodes sentencing, includes this news about a co-defendant's subsequent sentencing:

Hours after Rhodes was sentenced, his co-defendant Kelly Meggs, the leader of the Florida chapter of the Oath Keepers, was given a sentence of 12 years behind bars. Meggs was convicted of seditious conspiracy alongside Rhodes last November. Prosecutors alleged he spearheaded the effort to enter the Capitol.

May 25, 2023 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (6)

Friday, May 19, 2023

Intriguing report that Trump legal team believes Apprendi can require downgrading his NY criminal charges

A helpful colleague made sure I did not miss this new Daily Beast article headlined "Trump’s New Ploy to Knock the Manhattan DA’s Case Down to Misdemeanors."  Here is how the piece starts:

When the Manhattan District Attorney finally indicted former President Donald Trump in March, Alvin Bragg made the curious decision to not detail Trump’s crimes in the official indictment — something critics seized on almost immediately to say this was an overblown case.

While previous investigators had wrestled with how to charge Trump with felonies, Bragg overcame that hurdle by essentially charging Trump with 34 misdemeanor counts of faking business records — then leveling them up to felonies in a parallel legal document.  Under New York law, faking business records is only a felony if it’s done while committing another crime.  In this case, prosecutors say Trump hid his 2016 porn star hush money payment in order to break election laws, therefore the 34 counts of taking business records become felonies.

But according to a source familiar with the Trump legal team’s internal discussions, the former president’s lawyers are now exploring how to use that otherwise ingenious move as a weakness to severely power down the case.  And Trump’s lawyers believe their new tactic could force the DA to reconsider if this is a fight worth having.  Their legal strategy all comes down to a Supreme Court case where a white guy in New Jersey got drunk and shot at a Black family’s home in 1994 — and then managed to get hate crime charges overturned.

Trump’s lawyers are eyeing the 2000 SCOTUS decision Apprendi v. New Jersey, which stressed the importance of putting in an indictment all the aspects of a crime that could enhance penalties.

Here is more:

When Trump was arraigned in criminal court in April, his defense lawyer Joe Tacopina assured reporters this case would “never” make it to trial.  And the Trump team’s new potential tactic threatens to downgrade the severity of the case before it ever reaches a jury, which could force the DA to consider whether a case full of misdemeanors justifies an expensive prosecution.

The legal precedent Trump’s team is considering is also buttressed by a 1999 Supreme Court decision, Jones v United States, which decided that “any fact other than prior conviction that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt.”

If Trump’s team successfully uses that defense strategy, it would be an embarrassing defeat for Bragg, who could have just as easily put all the information about the case that was included in the “Statement of Facts” in the indictment and avoided this whole mess.

May 19, 2023 in Celebrity sentencings, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (23)

Tuesday, May 16, 2023

Ninth Circuit panel rules that Elizabeth Holmes cannot stay out on bail while her appeal is pending

As reported in this new AP article, "Theranos CEO Elizabeth Holmes appears to be soon bound for prison after an appeals court Tuesday rejected her bid to remain free while she tries to overturn her conviction in a blood-testing hoax that brought her fleeting fame and fortune." Here is more:

The Ninth Circuit Court of Appeals ruling comes nearly three weeks after Holmes deployed a last-minute legal maneuver to delay the start of her 11-year prison sentence.  She had been previously ordered to surrender to authorities on April 27 by U.S. District Judge Edward Davila, who sentenced her in November.

Davila will now set a new date for Holmes, 39, to leave her current home in the San Diego area and report to prison. The punishment will separate Holmes from her current partner, William “Billy” Evans, their 1-year-old son, William, and 3-month-old daughter, Invicta.  Holmes’ pregnancy with Invicta — Latin for “invincible,” or “undefeated” — began after a jury convicted her on four counts of fraud and conspiracy in January 2022.

Davila has recommended that Holmes serve her sentence at a women’s prison in Bryan, Texas.  It hasn’t been disclosed whether the federal Bureau of Prisons accepted Davila’s recommendation or assigned Holmes to another facility.

Holmes’ former lover and top lieutenant at Theranos, Ramesh “Sunny’ Balwani, began a nearly 13-year prison sentence in April after being convicted on 12 counts of fraud and conspiracy last July in a separate trial.  Balwani, 57, was incarcerated in a Southern California prison after losing a similar effort to remain free on bail while appealing his conviction....

Holmes’s lawyers have been fighting her conviction on grounds of alleged mistakes and misconduct that occurred during her trial.  They have also contended errors and abuses that biased the jury were so egregious that she should be allowed to stay out of prison while the appeal unfolds — a request that has now been rebuffed by both Davila and the Ninth Circuit Court of Appeals.

Some prior related posts:

May 16, 2023 in Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (9)

Monday, May 08, 2023

Big spread in sentencing recommendations for Oath Keepers founder convicted of seditious conspiracy

As reported in this Washington Post piece, lawyers for "Stewart Rhodes urged a judge to sentence him to far less than the 25-year prison term sought by federal prosecutors for seditious conspiracy in the Jan. 6, 2021, Capitol attack — asking for a penalty of time served or roughly 16 months behind bars — citing his military service and his founding and leadership of the right-wing extremist group Oath Keepers." Here is more:

In a Monday morning court filing, the attorneys emphasized that Rhodes volunteered for the Army in June 1983, completed Airborne school and was honorably discharged after suffering a spinal fracture in a low-altitude night jump in 1986.  They emphasized his formation of the Oath Keepers in 2009, saying the group provided hurricane and other emergency relief, security in cities experiencing rioting, and protective details for VIPs during President Donald Trump’s rallies after the 2020 presidential election....

The defense filing came after a Friday evening memo by prosecutors asking a federal judge to sentence Rhodes to 25 years in prison and eight followers to at least 10 years behind bars, in the first punishments to be handed down to defendants convicted of seditious conspiracy in the Capitol riot.

Rhodes and the others face sentencing starting later this month. Rhodes was arrested in January 2022 and will have served roughly 16 months at that point....

Rhodes, a top deputy and four others were found guilty at trials in November and January of plotting to unleash political violence to prevent the Biden presidency, stashing a small arsenal of firearms at hotels in Northern Virginia before converging that afternoon at the East Capitol steps in military-style tactical gear.  Three other co-defendants were convicted of obstructing Congress as it met to confirm the results of the 2020 election, among other crimes. Both top offenses are punishable by up to 20 years in prison, but prosecutors asked the court to stack sentences for Rhodes, citing among other things an enhanced terrorism penalty for actions intended to intimidate or coerce the government.

Prosecutors called for “swift and severe” punishment for Rhodes, saying his group’s actions went far beyond the scope and magnitude of any other Jan. 6 defendants sentenced so far.  They said Rhodes exploited his public influence in the anti-government extremist movement and mobilized people for political violence after “spreading doubt about the presidential election and turning others against the government” because their preferred candidate did not win....

Mehta, Rhodes’s sentencing judge, has handed down the two longest punishments to Jan. 6 defendants so far, both for assaulting police: 14 years for Peter Schwartz of Kentucky, who attacked multiple officers and who has a long criminal history of 38 convictions, including multiple domestic and police assaults; and 10 years for Timothy Webster, a former New York City police officer who attacked a Capitol Police officer with a metal flagpole.

Rhodes’s attorneys said only those two men have been sentenced to more than eight years in Jan. 6 cases, attaching a 54-page government chart of sentences to a 16-page defense filing.  About 200 of roughly 450 people sentenced have received no jail time, and more than half of the roughly 250 people who have been sentenced to prison received terms of less than two months.

Of 110 people sentenced for felonies, about 76 who pleaded guilty have been sentenced to an average of 33 months, and about 34 who were convicted at trial have been sentenced to an average of 44 months in prison, according to a separate Washington Post analysis.

The defense's 70-page sentencing filing is available at this link; the government's 183-page sentencing filing is available at this link.

May 8, 2023 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (4)

Saturday, May 06, 2023

Longest sentence yet in Jan 6 case, 14+ years in federal prison, given to man with 38 priors

As reported in this Fox News piece, a "Kentucky man with a long criminal record was sentenced Friday to a record-setting 14 years in prison for attacking police officers with pepper spray and a chair as he stormed the U.S. Capitol with his wife." Here is more:

Peter Schwartz’s prison sentence is the longest so far among hundreds of Capitol riot cases.  The judge who sentenced Schwartz also handed down the previous longest sentence — 10 years — to a retired New York Police Department officer who assaulted a police officer outside the Capitol on Jan. 6, 2021.  Prosecutors had recommended a prison sentence of 24 years and 6 months for Schwartz, a welder.

U.S. District Judge Amit Mehta sentenced Schwartz to 14 years and two months in prison, followed by three years of supervised release.  Mehta said Schwartz was a "soldier against democracy" who participated in "the kind of mayhem, chaos that had never been seen in the country's history."

"You are not a political prisoner," the judge told him. "You're not somebody who is standing up against injustice or fighting against an autocratic regime."

Schwartz briefly addressed the judge before learning his sentence, saying, "I do sincerely regret the damage that Jan. 6 has caused to so many people and their lives."  The judge said he didn't believe Schwartz's statement, noting his lack of remorse. "You took it upon yourself to try and injure multiple police officers that day," Mehta said.

Schwartz was armed with a wooden tire knocker when he and his then-wife, Shelly Stallings, joined other rioters in overwhelming a line of police officers on the Capitol’s Lower West Terrace, where he threw a folding chair at officers. "By throwing that chair, Schwartz directly contributed to the fall of the police line that enabled rioters to flood forward and take over the entire terrace," prosecutor Jocelyn Bond wrote in a court filing.

Schwartz, 49, also armed himself with a police-issued "super soaker" canister of pepper spray and sprayed it at retreating officers.  to a tunnel entrance, Schwartz coordinated with two other rioters, Markus Maly and Jeffrey Brown, to spray an orange liquid toward officers clashing with the mob.  "While the stream of liquid did not directly hit any officer, its effect was to heighten the danger to the officers in that tunnel," Bond wrote....

Stallings pleaded guilty last year to riot-related charges and was sentenced last month to two years of incarceration.

Schwartz was tried with co-defendants Maly and Brown.  In December, a jury convicted all three of assault charges and other felony offenses.  Mehta sentenced Brown last Friday to four years and six months in prison.  Maly is scheduled to be sentenced June 9.

Schwartz’s attorneys requested a prison sentence of four years and six months.  They said his actions on Jan. 6 were motivated by a "misunderstanding" about the 2020 presidential election.  Then-President Donald Trump and his allies spread baseless conspiracy theories that Democrats stole the election from the Republican incumbent....

Schwartz was on probation when he joined the Jan. 6 riot. His criminal record includes a "jaw-dropping" 38 prior convictions since 1991, "several of which involved assaulting or threatening officers or other authority figures," Bond wrote....

The 10-year prison sentence that Mehta handed down in September to retired NYPD officer Thomas Webster had remained the longest until Friday.  Webster had used a metal flagpole to assault an officer and then tackled the same officer as the mob advanced toward the Capitol.

May 6, 2023 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (2)

Tuesday, April 11, 2023

Federal judge denies Elizabeth Holmes motion to remain free pending her appeal of fraud convictions

As reported in this new Bloomberg piece, "Elizabeth Holmes must report to prison as scheduled later this month, a judge ruled, rejecting her request to remain free on bail as she appeals her fraud conviction."  Here is more:

The decision Monday by US District Judge Edward Davila in San Jose, California, is likely his last in the case which he’s handled since Holmes was indicted in 2018. Davila presided over the Theranos Inc. founder’s four-month trial in 2021 and sentenced her in November to serve 11 1/4 years of incarceration for deceiving investors in her blood-testing startup.

Legal experts said Holmes’s bid to remain free during an appeals process that might take two years was a long shot. She’s expected to make one final request for bail from the San Francisco-based federal appeals court, which she has also asked to overturn her conviction.

Davila ruled that even if Holmes won an appeals court ruling overturning his decisions to allow evidence challenging the accuracy and reliability of Theranos’s technology, she had deceived investors in so many different ways that such a decision isn’t likely to require a reversal or new trial on all the fraud counts she was convicted of. “Whether the jury heard more or less evidence that tended to show the accuracy and reliability of Theranos technology does not diminish the evidence the jury heard of other misrepresentations Ms. Holmes had made to investors,” he wrote.

To justify her request for bail, Holmes said she has two young children, continues to work on new inventions, and has raised “substantial questions” of law or facts in her appeal that could win her a new trial. At a hearing last month, Davila was most interested in an argument prosecutors made that there’s a risk Holmes might try to flee, based on a one-way plane ticket to Mexico that was purchased while she was on trial....

“Booking international travel plans for a criminal defendant in anticipation of a complete defense victory is a bold move, and the failure to promptly cancel those plans after a guilty verdict is a perilously careless oversight,” Davila said of the plane ticket. The incident invited “greater scrutiny” of Holmes, he wrote, adding that he concluded the purchase “while ill-advised, was not an attempt to flee the country.”...

Davila previously denied a request for bail pending appeal sought by Ramesh “Sunny” Balwani, the former president of Theranos and Holmes’s ex-boyfriend who was sentenced to 13 years in prison for his fraud conviction. The appeals court upheld Davila’s decision.

This latest ruling in US v. Holmes, which runs 11 pages, can be found at this link.

Some prior related posts:

April 11, 2023 in Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (14)

Wednesday, March 01, 2023

RFK's assassin, Sirhan Sirhan, denied parole after 17th California parole board hearing

As reported in this New York Times article, a "California panel on Wednesday denied parole for Sirhan B. Sirhan, the man convicted in the 1968 assassination of Senator Robert F. Kennedy, in its first review of the case since Gov. Gavin Newsom decided last year that Mr. Sirhan, 78, should not be released." Here is more:

The parole board’s latest decision, which followed a hearing via videoconference from the state prison in San Diego, where Mr. Sirhan has been held, was the second time in three years that Mr. Sirhan’s release had been considered.  He has spent more than a half-century behind bars for shooting Mr. Kennedy, then a candidate for president, inside the Ambassador Hotel in Los Angeles at the end of a campaign appearance in 1968.  At the time, Mr. Sirhan was 24.

His lawyers have argued that he is not a danger to the public and should be released.  In 2021, a panel of the parole board agreed. But after an extraordinary chain of events, the governor overruled the panel last year, charging that Mr. Sirhan had not yet been rehabilitated.

On Wednesday, after Mr. Sirhan’s 17th parole hearing, the new recommendation was made by a commissioner and a deputy commissioner who were not part of the review panel in 2021. Governor Newsom had no comment....

By 2021, California law required the parole board, when making a determination on releasing an inmate, to consider the inmate’s advanced age and his relative youth at the time a crime was committed.  After 15 prior denials, a panel of commissioners granted him parole that year.  They noted then that Mr. Sirhan had improved himself by taking classes in prison. Two of Mr. Kennedy’s sons had also urged leniency.

But most of the family was adamant that Mr. Sirhan remain behind bars and pleaded with Mr. Newsom to exercise his power under California law to reject the panel’s recommendation.  In January 2022, after more than four months of review, the Democratic governor — who has long spoken of Mr. Kennedy as a role model — granted that plea.

“After decades in prison, he has failed to address the deficiencies that led him to assassinate Senator Kennedy,” the governor wrote last year. “Mr. Sirhan lacks the insight that would prevent him from making the same types of dangerous decisions he made in the past.”

Mr. Sirhan’s lawyer, Angela Berry, has since asked a Los Angeles Superior Court judge to reverse Mr. Newsom’s 2022 parole denial. With that petition pending, she said on Wednesday that she believed the panel’s latest decision had been influenced by the governor’s rejection last year.

Prior related posts:

March 1, 2023 in Celebrity sentencings, Sentences Reconsidered, Who Sentences | Permalink | Comments (29)

Thursday, February 23, 2023

Second-round celebrity sex offenders sentencing day

I got two alerts from the New York Times this afternoon about celebrity sentencings, and both involve sex offenders getting sentenced for the second time. Here are the headlines and the basics:

"Harvey Weinstein Sentenced to 16 Years for Los Angeles Sex Crimes"

Harvey Weinstein, the movie producer whose treatment of women propelled the #MeToo movement in 2017, was sentenced on Thursday to 16 years in prison for committing sex crimes in Los Angeles County. The sentence in Los Angeles adds to the 23 years Mr. Weinstein is serving in New York after his conviction there in 2020.

"R. Kelly Sentenced to 20 Years for Child Sex Crimes"

A federal judge on Thursday sentenced R. Kelly to 20 years in prison for child sex crimes, after a jury found that he had produced three videos of himself sexually abusing his 14-year-old goddaughter.  In a victory for the defense, the judge ruled that all but one year of the prison sentence would be served at the same time as a previous 30-year sentence that Mr. Kelly received after a jury in Brooklyn convicted him of racketeering and sex trafficking charges.

February 23, 2023 in Celebrity sentencings, Sex Offender Sentencing | Permalink | Comments (29)

Friday, January 20, 2023

Citing prior "attempt to flee the country," feds urging that Elizabeth Holmes start her prison sentence in April

If producers are thinking about developing Season 2 of The Dropout, a legal filing today by federal prosecutors provide some dramatic materials.  This CNN article, headlined "Elizabeth Holmes made an ‘attempt to flee the country’ after her conviction, prosecutors say," provides these details:

Elizabeth Holmes made an “attempt to flee the country” by booking a one-way ticket to Mexico departing in January 2022, shortly after the Theranos founder was convicted of fraud, prosecutors alleged in a new court filing Friday.

Holmes was convicted last January of defrauding investors while running the failed blood testing startup Theranos. In November, she was sentenced to more than 11 years in prison. She has appealed her conviction and does not start her prison sentence until this spring, a waiting period that prosecutors described as “generous” and due to her being pregnant.

The claim that she tried to leave the country last year surfaced as part of a new filing from prosecutors arguing that Holmes should begin serving her prison sentence rather than living on an estate reported to have $13,000 in monthly expenses for upkeep.

In the filing, prosecutors argue Holmes has not shown convincing evidence that she is not a flight risk, as her lawyers have stated, and used the alleged 2022 incident to support their concerns that she could pose such a risk. “The government became aware on January 23, 2022, that Defendant Holmes booked an international flight to Mexico departing on January 26, 2022, without a scheduled return trip,” the court filing states. “Only after the government raised this unauthorized flight with defense counsel was the trip canceled.”

The filing adds that prosecutors anticipate Holmes will “reply that she did not in fact leave the country as scheduled” but said “it is difficult to know with certainty” what she would have done “had the government not intervened.” Now, in the wake of her sentencing, prosecutors say “the incentive to flee has never been higher” and Holmes “has the means to act on that incentive.”...

The court filing includes an email from one of Holmes’ attorneys to the prosecution, claiming that the travel reservation was made before the verdict. In the email, Holmes’ attorney claims the former Theranos CEO hoped the verdict would be different and that she would be able to make this trip to attend the wedding of friends in Mexico.

In an earlier court filing, Holmes’ attorneys argued for her release from custody pending appeal, saying she was not a flight risk or a threat to the community. Holmes has been ordered to turn herself into custody on April 27, 2023, at which point her prison sentence will begin.

“There are not two systems of justice – one for the wealthy and one for the poor – there is one criminal justice system in this country,” prosecutors stated in the filing. They argue that “under that system, the time has come” for Holmes to answer for her crimes.

Some prior related posts:

January 20, 2023 in Celebrity sentencings, Offender Characteristics | Permalink | Comments (101)

Friday, January 06, 2023

Reviewing prosecutions and sentencings two years after January 6 Capitol riots

A number of major papers today provide some major reviews of the prosecution and sentencing of January 6 rioters on the two-year anniversary of the storming of the Capitol.  Here are headlines and links, as well as an except from the story most focused on sentencing outcomes:

From the New York Times, "Two Years Later, Prosecutions of Jan. 6 Rioters Continue to Grow: The Justice Department’s investigation of the Capitol attack, already the largest it has ever conducted, has resulted in 900 arrests, with the potential for scores or hundreds more to come."

From USA Today, "More than 950 people have been charged in Jan. 6 Capitol riot, but investigation 'far from over'"

From the Washington Post, "Review of Jan. 6 cases finds judges give harsh lectures, lighter sentences: Judges have gone below prosecutors’ recommendations three-quarters of time, and below federal sentencing guidelines a little less than 40 percent":

Of more than 460 people charged with felonies, only 69 have been convicted and sentenced so far, mostly for assaulting police or obstructing Congress; all but four have received jail or prison time. The average prison sentence for a felony conviction so far is 33 months, according to a Washington Post database....

About half of the arrests so far have been for misdemeanors, and for those given actual jail time, the average sentence has been 48 days. But most of the misdemeanants have not received any jail time: most have received probation, home detention or halfway house time, or a fine. These defendants are typically rioters who entered the Capitol and didn’t engage with the police, but left a trail of social media posts and photos before, during and after Jan. 6.

If we include those who didn’t receive jail time among the misdemeanor sentences, the average jail time drops to 22 days. The number of defendants being held in jail before trial, or awaiting sentencing, is about 50, according to a list provided by the Justice Department....

For the 25 defendants sentenced so far for assaulting law enforcement, the average sentence has been more than 48 months — in line with the nationwide average for that offense in recent years, according to data from the U.S. Sentencing Commission. Former New York City police officer Thomas Webster received a 10-year term for fighting with an officer and helping breach the outer perimeter. There are still nearly 180 defendants whose assault cases are pending.

The most serious charge for those not accused of assaulting the police has been obstruction of an official proceeding. Only 28 people have been sentenced for obstruction or conspiracy to obstruct the certification of the electoral vote, receiving an average sentence of about 42 months....

The judges appointed by Democratic presidents have imposed jail or prison sentences in 61 percent of their cases, and probation in 18 percent of the cases, while judges appointed by Republican presidents have given jail or prison sentences in 48 percent of their cases, and probation in 34 percent of cases. In the remaining cases, judges have sentenced defendants to home detention or a halfway house, or imposed a fine. Judge Tanya Chutkan, an Obama appointee, has handled 22 sentencings and imposed incarceration in every one, but another Obama appointee, Judge Rudolph Contreras, has handled 16 sentencings and jailed only one defendant.

Judges Dabney Friedrich and Trevor N. McFadden, both Trump appointees, have given probation sentences to about half of their Jan. 6 defendants. McFadden is also the only judge to have acquitted a defendant at trial and the only judge to have imposed only a fine on a defendant.

January 6, 2023 in Celebrity sentencings, Data on sentencing, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences | Permalink | Comments (2)

Tuesday, January 03, 2023

You be the judge: what federal sentence for Varsity Blues college admission scandal mastermind Rick Singer?

Wednesday afternoon brings a high-profile federal sentencing in Boston federal court, and I'd be interested in predictions (and/or recommendations) as to the sentence to be given to the man behind the Varsity Blues college admission scandal.  This lengthy NPR piece provides a preview, and here are excerpts:

The mastermind of the Varsity Blues college admissions scandal, Rick Singer, is set to be sentenced Wednesday in Boston for a scheme that federal prosecutors say is "staggering in its scope and breathtaking in its audacity." Prosecutors want him sentenced to six years in prison, while Singer is asking the judge to let him off with little or no prison time.

His sentencing is the capstone in the years-long investigation and prosecution of Singer and more than 50 co-conspirators, and puts the focus back on what has and has not changed since the scandal broke open in March 2019.

Singer, 62, pleaded guilty to raking in some $25 million by selling what he liked to call "a side door" into highly selective universities such as Yale, Georgetown and USC to dozens of clients, from actresses Felicity Huffman and Lori Loughlin to business titans and big-shot lawyers.  "We help the wealthiest families in the U.S. get their kids in school," Singer bragged as he pitched one of his clients on a call recorded by the FBI. "They want guarantees. They want this thing done."

His scheme involved, for instance, bribing college coaches to take students as athletic recruits, even if they were mediocre or had never even played the sport.  Singer would just make up a totally fake resume, complete with a student's face photoshopped onto an image of a real athlete.  His menu of cheating services also included fixing students' wrong answers on their college admissions tests or having someone take the test in their place....

Of the more than 50 parents, coaches and others caught up in the scheme, more than a third were sentenced to three months or less in prison.  Roughly a quarter of the defendants got no time at all behind bars, including five people who cooperated with prosecutors.

Singer is hoping his cooperation will earn him leniency, too. "He believes he will get some time, but I don't think he believes it will be a lot of time," says Bill Blankenship, who lives next door to Singer in a mobile home park in St. Petersburg, Fla.... "I have lost everything," Singer wrote in court filings pleading for leniency. He says he's "woken up every day feeling shame, remorse and regret."

"He is already serving a life sentence of sorts," his lawyers say, "vilified by the public, and ostracized, living an isolated, lonely life," and having lost "the trust and respect of family, friends."  Despite pleading guilty to conspiracy to commit racketeering, conspiracy to commit money laundering, obstruction of justice and conspiracy to defraud the United States, Singer's lawyers have asked the court to sentence him to home confinement instead of prison.  Or if Singer must serve time, his lawyers suggest, he should get no more than six months behind bars.

The lawyers also say Singer deserves credit for his "crucial" cooperation, helping prosecutors nab his former clients. He secretly recorded hundreds of phone calls with some 30 co-conspirators, methodically and craftily getting them to incriminate themselves by acknowledging the payments and bribes they paid as the tape rolled.  His ruse was to tell them that his fake charitable foundation that he used to launder bribe money was being audited by the IRS....

"Prosecutors made a deal with the devil in this case, but they always do," says former federal Judge Nancy Gertner. What makes this case unusual is that the deal is not with low-level co-conspirators ratting out the kingpin, it's with the kingpin himself, flipping on his former clients.  "I think this is an extraordinarily difficult sentencing," Gertner says, "because on the one hand, Singer's cooperation is enormously important. And you get people to cooperate by telling them they will get a benefit in their sentencing."  On the other hand, she notes, as the kingpin who masterminded the whole scheme and used more than $15 million of his clients' bribe money for his own benefit, Singer would be considered "more culpable than anyone — his cooperation notwithstanding."

Indeed, prosecutors argue Singer is most culpable "by leaps and bounds" and his sentence must be longer than the longest one to date, which was the two-and-a-half years imposed on former Georgetown University tennis coach Gordon Ernst, who accepted nearly $3.5 million in bribes in cases of at least 22 students.

Prosecutors also argue that while Singer's cooperation was "singularly valuable," it was also "singularly problematic." After he was arrested for his con, Singer actually tried to con prosecutors, too.  At the same time he was vowing to cooperate to nab other targets, he tipped off at least six co-conspirators, warning they were under investigation and that if they got a call from him, they should assume they were being recorded and deny any wrongdoing.

It's partly why prosecutors are not recommending more of a reward for Singer's cooperation.  The six years they're calling for is just slightly below the range of 6 ½ to 8 years set by the sentencing guidelines that the court has accepted.

I will likely be on a plane when this interesting sentencing takes place, so I am not sure when I will get a chance to report on the outcome.  But I am inclined to predict that the judge here will land on a prison sentence between the recommendations of the parties, probably in the three- or four-year range.

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

UPDATE: This CNN report on the sentencing, headlined "College admissions scam mastermind sentenced to 3.5 years in federal prison," documents that my prediction was actually pretty sound.  (If only there was a fantasy sentencing league instead of the sports leagues in which my outcome predictions fare much worse.)

January 3, 2023 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (7)

Wednesday, December 07, 2022

Federal judge imposes (within guideline) sentence of 155 months on former Theranos COO Ramesh "Sunny" Balwani

Last month, as blogged here, US District Judge Edward Davila sentenced Theranos founder Elizabeth Holmes to a (within guideline) prison term of 135 months.  Today brought sentencing for former Theranos COO Ramesh “Sunny” Balwani, and this TechCrunch account provides these highlights of the process and outcome:

The former COO of disgraced blood testing startup Theranos, Ramesh “Sunny” Balwani was sentenced to 155 months, or about 13 years, in prison, and three years of probation. After a three-month trial, Balwani was found guilty on all 12 criminal charges, ranging from defrauding patients and investors to conspiring to commit fraud. Theranos CEO Elizabeth Holmes was convicted on four of these charges and was sentenced to 11.25 years in prison last month.

Despite the disparate outcomes from the two separate juries in two individual trials, Judge Ed Davila calculated Holmes’ and Balwani’s sentencing ranges to be exactly the same: 135 to 168 months, or 11.25 to 14 years. In both cases, prosecutor Jeff Schenk countered by asking for 15 years.

Balwani’s lawyers attempted to argue that he should get a more lenient sentence than Holmes, as he was not CEO. “He’s not Ms. Holmes. He did not pursue fame and fortune,” said Balwani’s attorney Jeffrey Coopersmith.

Judge Davila even noted that the court saw another side of Balwani when they were told about his charitable giving, some of which occurred after Theranos. Yet Balwani still received a severe sentence of 13 years....

Unlike the jury at Holmes’ trial, the jury at Balwani’s trial held him accountable for defrauding patients, not just investors.

Before the former COO’s sentencing hearing, Balwani’s lawyers filed 40 objections to the probation office’s pre-sentence investigation report, according to tweets from Law 360 reporter Dorothy Atkins, who was present at the hearing. Judge Davila, who also presided over Holmes’ trial, said that only four of those objections were substantive.

“Usually sentencing hearings are morbid regardless of the crime — like watching a car crash where you watch families and lives being destroyed in real time,” Atkins tweeted from the court room. “This one feels more like an accounting class.”

It would certainly not be unprecedented if Balwani decides to appeal this ruling. After Holmes’ own sentencing, the former Theranos CEO told a California federal judge that she would appeal her conviction. She then asked to stay out of custody while her appeal is under consideration, also citing that she is currently pregnant with her second child. As it stands, Holmes’ surrender date is April 27, while Balwani will report to prison on March 15.

December 7, 2022 in Celebrity sentencings, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (2)

Wednesday, November 23, 2022

Sentencing judge recommended prison camp for Elizabeth Holmes to serve her sentence

As reported in this new press piece, "District Judge Edward Davila has proposed sentencing Theranos founder Elizabeth Holmes to a federal prison camp in Texas, according to court filings." Here is more:

“The Court finds that family visitation enhances rehabilitation,” Davila wrote in the filing, according to Bloomberg, which summarized the terms of Holmes’ sentencing.

The prison camp is located in Bryan, Texas, and was proposed as an alternative to Holmes serving her 11-year 3-month sentence at a California prison.  There’s a few prison camps like this one across the country that typically have a low security-to-inmate ratio, dormitory housing, and a work program. “...compared to other places in the prison system, this place is heaven.  If you have to go it’s a good place to go.” Alan Ellis, a criminal defense lawyer, told Bloomberg.

Keri Axel, a criminal defense attorney told Yahoo! Finance that it is common for non-violent offenders like Holmes to serve out their time at minimum security facilities.  “Sometimes they’re called ‘Camp Fed’ because they have a little bit more amenities, and they’re a little nicer places,” she said, adding the caveat, “they’re not great places. No one wants to be there.”

Although the judge has recommended the prison camp for Holmes’ incarceration, the U.S. Bureau of Prisons will make the final decision.  Holmes was sentenced to 11 years and three months in prison on November 18 after she was found guilty of defrauding Theranos investors out of millions of dollars as part of her failed blood-testing startup.  She was also sentenced to three years of supervision after her release.

Prior related posts:

November 23, 2022 in Celebrity sentencings, Prisons and prisoners, White-collar sentencing, Who Sentences | Permalink | Comments (7)

Friday, November 18, 2022

Federal judge imposes (within guideline) sentence of 135 months on Theranos founder Elizabeth Holmes

After a lengthy sentencing hearing (and a favorable guideline calculation), Theranos founder Elizabeth Holmes heard US District Judge Edward Davila sentence her to 135 months in federal prison this afternoon.  (That's 11 years and three months for those not accustomed to math in base 12.) 

Why such a quirky number?  Apparently Judge Davila concluded the total loss in share value properly attributed to Holmes's fraud was $121 million, which was an integral finding to support his calculation that her guidelines range was 135-168 months. (The feds, some may recall, calculated her guideline range to be life.)

Here is the lede of the Wall Street Journal's coverage of the sentence: "Elizabeth Holmes, the founder of Theranos Inc. convicted of fraud, was sentenced to 135 months, or 11.25 years, in prison, capping the extraordinary downfall of a one-time Silicon Valley wunderkind."

Prior related posts:

November 18, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (8)

Sunday, November 13, 2022

Sentencing memos paint very different pictures of Elizabeth Holmes

Two Reuters articles and ledes highlight the very different portraites of Elizabeth Holmes drawn in recent sentencing filings:

"Elizabeth Holmes seeks to avoid prison for Theranos fraud":

Elizabeth Holmes urged a U.S. judge not to send her to prison, as the founder of Theranos Inc prepares to be sentenced next week for defrauding investors in the blood testing startup. In a Thursday night court filing, lawyers for Holmes asked that she receive 18 months of home confinement, followed by community service, at her Nov. 18 sentencing before U.S. District Judge Edward Davila in San Jose, California.

The lawyers said prison time was unnecessary to deter future wrongdoing, calling Holmes, 38, a "singular human with much to give" and not the robotic, emotionless "caricature" seen by the public and media. "No defendant should be made a martyr to public passion," the lawyers wrote. "We ask that the court consider, as it must, the real person, the real company and the complex circumstances surrounding the offense."

"U.S. seeks 15 years for Elizabeth Holmes over Theranos fraud":

Theranos founder Elizabeth Holmes should spend 15 years in prison and pay $800 million in restitution to investors defrauded in the blood testing start-up, U.S. prosecutors recommended late on Friday.  The Department of Justice recommendation, made in a court filing, came as Holmes prepares to be sentenced next week.

"Considering the extensiveness of Holmes' fraud... the sentencing of 180 months' imprisonment would reflect the seriousness of the offenses, provide for just punishment for the offenses, and deter Holmes and others," the prosecutors said.

The sentencing filings in this high-profile case are, unsurprisingly, quite entextensive ensice.  Holmes sentencing memorandum runs 82 pages, is available at this link, and here is part of its "preminary statement":

Section 3553(a) requires the Court to fashion a sentence “sufficient, but not greater than necessary,” to serve the purposes of sentencing.  If a period of confinement is necessary, the defense suggests that a term of eighteen months or less, with a subsequent supervised release period that requires community service, will amply meet that charge. But the defense believes that home confinement with a requirement that Ms. Holmes continue her current service work is sufficient.  We acknowledge that this may seem a tall order given the public perception of this case — especially when Ms. Holmes is viewed as the caricature, not the person; when the company is viewed as a house of cards, not as the ambitious, inventive, and indisputably valuable enterprise it was; and when the media vitriol for Ms. Holmes is taken into account.  But the Court’s difficult task is to look beyond those surface-level views when it fashions its sentence.  In doing so, we ask that the Court consider, as it must, the real person, the real company and the complex circumstances surrounding the offense conduct, and the important principle that “no defendant should be made a martyr to public passion.” United States v. Gupta, 904 F. Supp. 2d 349, 355 (S.D.N.Y. 2012) (Rakoff, J.).  As discussed in more detail in the pages that follow, this is a unique case and this defendant is a singular human with much to give.

The Government's sentencing memorandum runs 46 pages, is available at this link, and here is part of its "introduction":

The Sentencing Guidelines appropriately recognize that Holmes’ crimes were extraordinarily serious, among the most substantial white collar offenses Silicon Valley or any other District has seen.  According to the Presentence Investigation Report (“PSR”), they yield a recommended custodial sentence beyond the statutory maximum.  The factors set forth in 18 U.S.C. § 3553 — notably the nature and circumstances of the offense, the need for the sentence to reflect the seriousness of the offense and promote respect for the law, and the need for both specific deterrence and general deterrence — demand a significant custodial sentence.  With these factors in mind, the government respectfully recommends a sentence of 180 months in custody.  The Court should also order Holmes to serve a three-year term of supervised release, pay full restitution to her investors (including Walgreens and Safeway), and pay the required special assessment for each count.

I think I'd put the over/under for this sentencing at around 10 years of imprisonment, but I could readily imagine a judge going much higher or much lower.

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November 13, 2022 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (9)