Wednesday, March 11, 2020

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

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

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

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

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

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

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

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

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

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

Tuesday, March 10, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, March 07, 2020

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, February 20, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, February 19, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, February 13, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Friday, February 07, 2020

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

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

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

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

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

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

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

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

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

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

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

Prior related Varsity Blues posts:

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

Saturday, January 18, 2020

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, January 07, 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, December 17, 2019

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

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

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

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

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

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

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

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

Prior related post:

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

Monday, November 18, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, November 13, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related Varsity Blues posts:

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

Wednesday, October 23, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related Varsity Blues posts:

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

Tuesday, October 22, 2019

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

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

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

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

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

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

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

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

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

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

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

Sunday, October 13, 2019

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

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

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

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

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

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

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

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

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

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

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

Prior related Varsity Blues posts:

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

Tuesday, October 08, 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, October 04, 2019

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, October 03, 2019

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

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

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

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

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

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

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

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

Thursday, September 26, 2019

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, September 24, 2019

Next parent sentenced in college admission scandal gets four months in federal prison

As reported in this New York Post piece, headlined "Businessman gets 4 months for bribing his son’s way into USC," the second parent sentenced in the college admissions scandal will be spending somewhat longer in prison than Felicity Huffman. Here are details:

A Los Angeles businessman who paid $250,000 in bribes to get his son into USC — lying that the kid was an international water polo star — landed four months behind bars Tuesday.

Devin Sloane, a 53-year-old water treatment company owner, had pleaded guilty in May to conniving with college admissions scamster Rick Singer and crooked University of Southern California officials to get his son into the top college....

The dad had put his son in a Speedo and swim cap and posed him with a water polo ball in the family’s backyard pool for photos to help create a fake athletic profile for the kid in the summer of 2017. With the help of his dad’s accomplices, the teen was then marketed to the university as an acclaimed international player with “the youth junior team in Italy” who participated in tournaments from Greece to Serbia and Portugal, the feds said.... The teen had never played the sport competitively.

Federal prosecutors in Boston said in court papers that Sloane also “bragged about misleading a USC development official to cover up the quid pro quo — using his dead mother as a prop for a fake donation — and even expressed outrage when high school counselors dared to question why a student who did not play water polo was being recruited to play college water polo.”

The feds had sought a year and a day in prison for Sloane, whom they said showed “moral indifference” during the scam. His lawyers argued for no jail time, instead offering that Sloane could do community service by working with kids at a private school.

Before sentencing Sloane, Judge Indira Talwani scoffed, “That’s about as tone-deaf as I’ve heard. The independent school kids are not the victims in this case,” according to WGBH-TV.

In addition to the four-month prison term, Sloane must complete 500 hours of community service and pay a $95,000 fine.

Sloane is the second parent to be sentenced in the scandal. The first, actress Felicity Huffman, received 14 days behind bars for her $15,000 bribe. Assistant US Attorney Eric Rosen said in court before Sloane’s sentencing that the dad was different from Huffman because the actress didn’t tell her daughter about the bribe scheme, thus avoiding directly involving her, while Sloane “literally threw his kid into the family pool,” according to a Law360 newswire reporter.

Rosen also noted the difference in the size of the bribes in each case.... But Sloane’s lawyers argued to Tuesday that their client didn’t completely understand that the money he was paying was a bribe.

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September 24, 2019 in Booker in district courts, Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

Monday, September 23, 2019

Gearing up for the next round of sentencings in college admissions scandal

This new Los Angeles Times article, headlined "Prosecutors in college admissions scandal fighting for prison time for parents," reports on arguments and analyses in the run up to the federal sentencings of other persons who have pleaded guilty in the high-profile college admissions scandal. Here are highlights:

Shortly before she sentenced Felicity Huffman this month to two weeks in prison for her role in the college admissions scandal, a judge settled a lingering legal dispute.  Prison sentences for parents who admitted to taking part in the scheme would not be based on how much money they paid to take part in the scam, U.S. District Judge Indira Talwani ruled.

The ruling didn’t impact Huffman because the $15,000 she paid to rig her daughter’s college entrance exams was far less than what others shelled out.  But starting this week, Talwani will sentence 10 more parents, and her decision dealt a blow to prosecutors, who tried to convince her that higher payments should mean longer sentences.

The parents and their attorneys, meanwhile, have been left with mixed signals from the judge.  On the one hand, her ruling means parents could receive significantly lower prison sentences or avoid prison altogether.  On the other, Talwani’s decision that Huffman should spend some time incarcerated is a sign she’ll come down as hard or harder on other parents, experts said.  “She would need a very compelling reason to give someone with the same or more culpability less time,” said James Felman, an attorney and expert on white-collar sentencing norms who isn’t involved in the case.

The prosecution doubled down after their defeat.  In an effort to salvage the prison sentences they maintain are warranted in the case, they are trying a new tack.  Rather than staking the rationale for incarceration to the five- and six-figure sums parents paid to access the bribery and cheating operation run by college admissions consultant William “Rick” Singer, the government wants Talwani to punish them for the deviousness and audaciousness of their crimes.

Under the new approach put forth in court papers filed by Assistant U.S. Atty. Eric Rosen, parents who took elaborate, deliberate steps to sneak their kids into a school or tried to cover their tracks afterward would be more culpable than someone who simply wrote Singer a check.

Rosen’s gamble will be tested this week when Talwani sentences two Los Angeles businessmen in court hearings Tuesday and Thursday.  Up first is Devin Sloane, an executive at a water technology company who has admitted paying Singer and an alleged accomplice $250,000 to get his son into USC by misrepresenting the teen as a talented water polo player who deserved a spot on the school’s team.

Before Talwani made her ruling, Rosen asked the judge to sentence Sloane to one year in prison.  The prosecutor did not budge from the request in a new filing last week, even though the judge’s order means Sloane — and all of the parents Talwani sentences — are eligible for sentences ranging from no time in prison to six months incarcerated under federal sentencing guidelines that judges consult.

Rosen argued in his recent filing that a year in prison was still the appropriate penalty, pointing to what he called Sloane’s “moral indifference during the fraud, and his lack of remorse afterward.”...  Rosen also revived the idea that the size of Sloane’s payment should have some bearing on his sentence, despite Talwani’s ruling.  He wrote that while the $250,000 sum is “an imperfect measure of blameworthiness,” it still amounted to an “indication, however rough, of the lengths he was willing to go to obtain the illegal fruits of a fraud scheme.”

Nathan Hochman, an attorney for Sloane, countered with a lengthy written plea, making a case for why Talwani should spare the 53-year-old father from prison.  Hochman portrayed Sloane as a stand-up, well-intentioned father who got caught up in the pressure cooker of the college application process and made a regrettable decision.  Far from eschewing responsibility, Hochman said Sloane owned up to his crime soon after he was arrested in March.  Instead of prison, Hochman urged to Talwani to give Sloane probation and 2,000 hours of community service.

Attorneys for Stephen Semprevivo, who will be sentenced Thursday, asked Talwani to spare him prison as well, saying probation and 2,000 hours of community service would suffice.  Semprevivo, they wrote in a court filing, was a “victim” of Singer, a “master manipulator” who coaxed and eventually coerced Semprevivo into going through with the fraud.

Rosen rebuffed that portrayal, saying the Los Angeles business development executive should spend 13 months in prison for conspiring with Singer to bribe a Georgetown tennis coach to recruit his son, who didn’t play tennis, at a cost of $400,000.  Rosen laced into Semprevivo for making his son “an active participant in a long-term federal crime” and making the decision to file a lawsuit against Georgetown in an attempt to keep the school from annulling his son’s credits.

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September 23, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0)

Monday, September 16, 2019

Just some (of many) perspectives on Felicity Huffman's sentencing

Lots of folks have lots of views on what we should make of the the sentencing of Felicity Huffman late last week to 14 days in incarceration in the college bribery scandal. Here are just a sampling of some of the pieces that caught my eye:

From CNN, "John Legend says prison is not always the answer after Felicity Huffman's sentence"

From Walter Palvo at Forbes, "Felicity Huffman And America's Failing Criminal Justice System"

From Fox News, "Felicity Huffman's 14 day prison sentence in college admissions scam sparks outrage on social media"

From Fox News, "Felicity Huffman's prison sentence 'more of a burden on the jail system' than on the actress: expert"

From David Oscar Marcus at The Hill, "Felicity Huffman's 14-Day Sentence is Unjust — Because It's Too High"

From Ellen Podgor at White Collar Crime Prof Blog, "More Varsity Blues — Privilege and Perspective"

To add my two cents, I will just say that I continue to be disappointed at our system's and our society's general failure to treat and view any sentencing terms other than imprisonment as "real punishment." Of course, most persons subject to any form of criminal investigation and prosecution will report that the process itself is very often a significant punishment and so too can be any period of supervision and the array of collateral consequences (both formal and informal and often lifetime) that always accompany a criminal conviction. But, problematically, the perception persists that anything other than prison, and often anything less than a lengthy period in prison, is but a trifle.

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September 16, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (7)

Friday, September 13, 2019

Felicity Huffman sentenced to 14 days in college bribery scandal 

Especially in high-profile cases, I have a tendency to predict (i.e., guess) that a judge will be inclined to impose a sentence somewhere in the middle between the two sentencing recommendations put forward by the prosecution and the defense.  Given that federal prosecutors in the Felicity Huffman case urged  one-month sentence, and that her defense team sought no jail time, I suppose I should have predicted this result (as reported by ABC News): "Felicity Huffman sentenced to 14 days in prison for 'Varsity Blues' college scam." 

This USA Today piece provides some highlights from the sentencing hearing and the preliminary "loss" ruling made by by the District Judge that also should ensure a number of the other defendants in this case are feeling better about their likely fate in future sentencings:

U.S. District Judge Indira Talwani sentenced Huffman to [14 days of] prison time as well as a $30,000 fine, supervised release for one year and 250 hours of community service in the case's first sentencing of a parent – a defendant who is also one of the case's most famous.

She was confronted in court by a prosecutor who argued for a prison term and said she had shown "disdain and contempt for the rule of law." But her legal team argued that she should not be treated "more harshly" because of her wealth and fame.

Huffman also apologized again for her actions and reiterated her regrets to her family. "I take full responsibility of my actions and making amends with my crime," she said. "I will deserve whatever punishment you give me."...

Assistant U.S. Attorney Eric Rosen argued forcefully in court, saying "the only meaningful and efficient sanction is prison" and "there is simply no excuse for what she did.”

"With all due respect to the defendant, welcome to parenthood," he said. "What parenthood does not do is it does not make you a felon, it does not make you cheat… Most parents have the moral compass to not step over the line. The defendant did not."

He noted that Huffman did not disengage from her conduct "until the very, very end.” She showed “disdain and contempt for the rule of law,” Rosen said....

Huffman's attorney, Martin Murphy, argued for 12 months of probation and 250 hours of community service for Huffman. He disputed the government’s argument that probation is “not real punishment,” calling that a “penological joke. That is simply wrong and it is wrong as a mater of law. … A sentence of [probation]is real punishment.”

Murphy called for a sentence that treats Huffman like other similarly situated defendants, "not more harshly or more favorably for her wealth....Unlike what the government says, that is not fair."...

The judge issued an order Friday agreeing with the court's probation department, which found no financial losses, and thus no victim, as a result of actions by any defendant, including Huffman. It's a blow to prosecutors, who had argued universities and testing companies suffered damages. Still, Talwani said sentences will account for "consideration of all of the factors" outlined in federal guidelines.

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September 13, 2019 in Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (3)

Wednesday, September 11, 2019

Noticing the interesting (but perhaps not too consequential) guidelines "loss" issue lurking in the college bribery cases

This Wall Street Journal piece, headlined "Weighing the Sentencing of Parents in the College-Admissions Cheating Scheme," effectively covers the high-profile hearing yesterday that focused on whether defendants in the college admission scandal cases have produced "loss" in the technical parlance of the guideline sentencing world.  Here are excerpts:

A federal judge prolonged the suspense Tuesday over whether parents who have admitted to cheating to get their children into college will serve time in jail, deciding not to rule following a hearing on sentencing guidelines.

In a packed courtroom, U.S. District Judge Indira Talwani heard arguments in a legal debate that has pitted federal authorities against one another in the high-profile college admissions case.

Federal probation officials have pegged sentencing guidelines for the parents at zero to six months — a range often resulting in probation — finding there was no direct financial loss to any victims. Prosecutors are arguing that some prison time is the way to send a strong message that admission spots at prestigious U.S. universities can’t be bought and have proposed ways of calculating loss.

The government is asking for one to 15 months of imprisonment for the 11 parents set to be sentenced in the coming weeks, including actress Felicity Huffman on Friday. “This was a massive nationwide fraud case fueled through bribery, fraud and corruption,” Assistant U.S. Attorney Eric Rosen told the judge....

In a sign of what’s at stake — prison time or none — defense lawyers for the 15 parents who have pleaded guilty and for the 19 who haven’t admitted guilt filled the gallery of Courtroom Nine, spilling into the empty jury box. Other lawyers dialed into a conference line, though none spoke during the hearing.

A more lenient ruling by the judge could prompt more parents to plead guilty, defense lawyers said, while others might decide to try to clear their names at trial, figuring a light punishment is the worst outcome.

Judge Talwani gave no clear sign of how she’ll rule, but she didn’t reschedule Ms. Huffman’s sentencing currently on the calendar for Friday, suggesting a decision could come soon. She asked a series of often technical questions and indicated that a public airing of the legal dispute was a good thing.

Tuesday’s hearing represented a public clash that has dogged the largest college-admissions scandal ever prosecuted by the Justice Department: Who are the financial victims, and how should the length of any prison terms be decided?

Determining appropriate punishments is complex. Sentencing in federal fraud cases are typically calculated based on direct financial impact, either as loss for the victim or gain for the perpetrator. In plea agreements, the government considered the amounts parents paid to admitted scheme mastermind William “Rick” Singer as a proxy for loss, while also taking into account factors such as how actively parents participated or involved their children.

That means prosecutors are recommending one month of incarceration for Ms. Huffman, a sentence at the low end of the zero-to-six-month range. The “Desperate Housewives” and “American Crime” actress has admitted to paying Mr. Singer $15,000 to fix her daughter’s SAT score. But they are asking for substantially more prison time for some other parents, based on the amounts they admitted to shelling out to Mr. Singer.

Prosecutors say victims include the affected colleges, including the University of Southern California and Georgetown University, and standardized testing agencies. Colleges have been sued, have had to revamp policies and conduct costly internal investigations, they said. “All these events I talked about cost money,” Mr. Rosen said. “Money that came out of the victims’ pockets.”

Probation officials, who prepare influential sentencing recommendations for the court, have so far found that the parents’ conduct caused no clear pecuniary harm, according to a recent memo filed by Mr. Rosen.  In a filing Monday, the lawyer for one parent who has pleaded guilty called the losses alleged by the government either nonexistent or speculative.

I suggest in the title of this post that a ruling on this "loss" matter might not be too consequential for a couple of reasons: (1) for certain defendants, the loss determination may not considerably alter the applicable guideline sentencing range, and (2) Judge Talwani can surely justify above- or below-guidelines sentences in these cases on any number of reasonable 3553(a) sentencing grounds no matter what the final calculated range.  That said, all federal sentencing practitioners know that calculated guidelines ranges still have an important anchoring effect on the work of judges, and so it is not at all surprising that a whole lot of defense lawyers are interested in not losing this "loss" matter.

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September 11, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6)

Monday, September 09, 2019

Feds recommending incarceration terms from 1 to 15 months for parents involved college bribery scandal

Late Friday night, sentencing memoranda were filed in the run up to highest-profile scheduled sentencings of a number of the parents involved in the college bribery scandal.  This ABC News report overviews the basics:

Federal prosecutors are recommending some period of incarceration for the parents in the college admissions scandal.... The government's sentencing memorandum refers to the college admissions scandal as "a kind of Rorschach test for middle class angst about college admissions." The government says some period of incarceration is the only meaningful sanction for these crimes.

Court documents showed prosecutors recommended jail time ranging from one month to 15 months for the defendants named in the memo.  Of the local parents who pleaded guilty to conspiracy to commit mail fraud and honest services mail fraud, Napa Vinyard Owner Agustin Huneeus is facing the longest sentencing recommendation at 15 months. Huneeus paid Rick Singer $300,000 participate in both the college entrance exam cheating scheme and the college recruitment scheme for his daughter.

Next is Marjorie Klapper of Menlo Park with a recommended sentence of four months. Klapper paid Singer $15,000 to participate in the college entrance exam cheating scheme for her son. Peter Sartorio of Menlo Park is facing a recommendation of just one month.  Sartorio agreed to pay Singer $15,000 to participate in the college entrance exam cheating scheme for his daughter.  Actress Felicity Huffman is also facing a one-month recommended sentence. 

The government says they considered the amount of the bribe, whether someone was a repeat player, an active or passive participant in the scheme and whether or not they involved their children.

I had been hoping that the US Attorney's Office in Massachusetts, which has this useful webpage with indictments, plea agreements and other documents publicly available, would also post the government's full sentencing memorandum. So far, all that is posted is a listing of the "Government Sentencing Recommendation" in each case. 

Of course, the defendant receiving the most attention in the press is actress Felicity Huffman, and here is a partial round-up of stories focused on the sentencing recommendations in her case and related matters:

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September 9, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, September 05, 2019

Gearing up for the federal sentencing of Felicity Huffman and others involved in college bribery scandal

Just over a week before the highest-profile sentencing of the bunch, USA Today has this lengthy review of federal sentencing realities and prospects for a range of defendants involved in the college bribery scandal.  The piece if headlined "Felicity Huffman to kick off sentencing of parents in college admissions case: Will judge 'send a message?'," and merits a read in full.  Here are a few excerpts:

The Justice Department suffered a setback in June when the first defendant sentenced in the nation's college admissions scandal, a former Stanford University sailing coach, avoided any prison time.  The prosecution soon has an opportunity to rebound as the historic "Varsity Blues" case enters a critical new phase.

Parents who pleaded guilty to paying Rick Singer, the mastermind of a nationwide college admissions cheating and bribery scheme, are set to be sentenced, beginning next week. Fifteen parents, three college coaches and two other co-conspirators of Singer are to be sentenced this fall.

First up is one of the two celebrities charged in the sweeping case: actress Felicity Huffman, whose sentencing is set for Sept. 13.  In a deal with prosecutors, Huffman pleaded guilty in May to conspiracy to commit mail fraud and honest services mail fraud for paying Singer $15,000 to have someone correct her daughter's SAT answers.

At the time of her plea, prosecutors recommended four months in prison for the "Desperate Housewives" actress, substantially lower than the maximum 20 years the charges could carry.  They recommended 12 months of supervised release, a $20,000 fine and other undetermined amounts of restitution and forfeiture....

If Huffman and the parents who follow her in court also avoid prison time, some criminal justice advocates said, it would signal to the public that the rich and connected can get away with cheating the system. “The criminal scheme carried out in this case shocks the conscience and underscores the way in which wealthy people can exploit their privileged status to their benefit and to the detriment of others," said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. "These federal crimes must not be treated lightly in order to send a strong message that no one is above the law and that wealthy people will be held accountable."

Clarke said the crimes committed by parents in the case "undermine public confidence" in the college admissions process and show universities must "redouble their efforts" to ensure diversity on campuses. She noted most of the wealthy parents who participated in the scheme are white.  She called the case a "unique opportunity" to hold accountable individuals "who feel that money, race and privilege can allow them to evade the justice system."

Of the 51 people charged in the college admissions scandal, 34 are parents accused of making significant payments to Singer's sham nonprofit group, the Key Worldwide Foundation.  Prosecutors said they paid to have someone secretly take ACT or SAT tests for their children, change poor results or get them falsely tagged as athletic recruits to get them into college.

Huffman was originally scheduled to be the third parent sentenced in the case, but the sentencing hearings of two other parents who pleaded guilty, Devin Sloane and Stephen Semprevivo, were pushed back to later this month.

The delays will allow U.S. District Judge Indira Talwani, who presides over the cases of Huffman and other parents, to hold a hearing Tuesday on a legal dispute that could determine the severity of some sentences.  The judge will consider whether to listen to probation officers, who identified no financial losses to any victim in the case, which could mean lighter sentences for many parents.  Prosecutors object to the potential lighter sentencing guidelines and do not want Talwani to confer with the probation department in the admissions case....

Both sides are likely to file sentencing memos to the court that will make final arguments and sentencing recommendations to Talwani before next week's hearings. "If there isn't at least a request for a strong sentence, even if it isn't granted, then I think it would seem like there's sort of different justice for different people," said Carl Tobias, a law professor at the University of Richmond who specializes in federal courts.  "I do think they will continue to press," he said of the prosecution, "and part of it is to make an example that everybody ought to be equal before law and this is not appropriate behavior."

Because no parents have been sentenced to date in the admissions scandal, Tobias said it's tricky to predict what's in store for Huffman and those sentenced after her. "We'll see what arguments are made and how her defense attorney frames it. That could be important," he said.  "And, if Huffman has more to say that may account for something, too."

Huffman, 56, apologized to the "students who work hard every day to get into college." She fought back tears when she pleaded guilty in court.  One fact that may play in her favor is the substantially lower amount of money she paid compared with other parent defendants.  Singer typically charged parents $15,000 to carry out the test cheating and higher amounts to pay off college coaches to get their children admitted as athletic recruits.  The latter cost more because it guaranteed a child's entry into college.

Sloane, CEO of Los Angeles-based waterTALENT, which builds water systems, pleaded guilty to paying $250,000 in bribes to Singer's organization to falsely designate his son as a water polo player so he could gain acceptance to the University of Southern California. Prosecutors recommended he serve 15 to 21 months in prison.  Semprevivo, an executive at Cydcor, a privately held provider of outsourced sales teams, pleaded guilty to paying $400,000 to Singer to get his son admitted into Georgetown University as a fake tennis recruit. Prosecutors recommended a prison sentence of 18 months for him....

The sentence for Vandemoer, the ex-Stanford sailing coach, was decided by U.S. District Judge Rya Zobel.  She presides over Singer's case but is not assigned to any of the cases involving parents or other coaches. Singer pleaded guilty to four felonies and is cooperating with prosecutors.  Although prosecutors didn't get the sentence they wanted for Vandemoer, the case doesn't necessarily foreshadow how the next round of sentences will go. As part of an agreement with prosecutors, Vandemoer pleaded guilty to racketeering charges.

The case had unique circumstances.  None of the students tied to the payments was admitted into Stanford as a direct result of the coach's actions, leading Zobel to question whether the university suffered any losses.  Vandemoer funneled payments directly to the school's sailing program and did not pocket any of the bribe money he took from Singer. Zobel called Vandemoer "probably the least culpable of all the defendants."

Twenty-three defendants in the college admissions case, including Huffman, pleaded guilty to felonies; 28 others pleaded not guilty, including actress Lori Loughlin.  How the first group of parents is sentenced could affect whether other parents plead guilty or dig in for trial, according to Adam Citron, a former state prosecutor in New York, who practices at Davidoff Hutcher & Citron.

That's the biggest concern for prosecutors, he said. "It could go two ways. If (the parents) are getting jail time even on pleas, a defendant may think to themselves, 'I better plea out because I don't want more jail time,' " Citron said. "By the same token, that defendant might say to themselves, 'I'm going to get jail anyways, so I might as well fight it.' "

Prior related posts:

September 5, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Friday, August 09, 2019

You be the Prez: would you grant a commutation to former Gov Blago?

Prez Trump has a distinctive and sometimes disturbing way of keeping policy and political stories interesting, and his use of the clemency power is no exception.  The latest developments on this front, which prompt the question in the title of this post, concern imprisoned former Illinios Gov Rod Blagojevich. Prez Trump has been talking up a possible commutation for some time, and this Politico article, headlined "Illinois Republicans urge Trump to keep Blagojevich in prison," has me suspecting that the Prez may not be prepared to "walk the walk" after talking the clemency talk.  Here are excerpts:  

Illinois’ delegation of House Republicans on Thursday urged President Donald Trump not to commute the sentence of Rod Blagojevich, the state’s former governor, after the president told reporters he was considering doing so. In a statement, Reps. Darin LaHood, John Shimkus, Adam Kinzinger, Rodney Davis and Mike Bost said that commuting Blagojevich’s sentence “sets a dangerous precedent and goes against the trust voters place in elected officials.”

“It’s important that we take a strong stand against pay-to-play politics, especially in Illinois where four of our last eight Governors have gone to federal prison for public corruption,” the congressmen wrote.

The state’s Republican delegation previously wrote to Trump in June 2018, also to oppose a presidential commutation of Blagojevich’s sentence. The Thursday statement renewed the call after Trump told reporters a day earlier that he felt Blagojevich’s seven years in prison had been enough.

“I thought he was treated unbelievably unfairly,” Trump said Wednesday. “He’s been in jail for seven years over a phone call where nothing happens.”

Blagojevich, a Democrat who served in the House before he was elected governor, was impeached and removed from office in 2009, and was later convicted on multiple charges of corruption, including trying to sell the U.S. Senate seat vacated by Barack Obama. During his trial, a recorded phone conversation revealed him saying: “I've got this thing, and it’s fucking golden. I’m just not giving it up for fucking nothing.” He was sentenced to 14 years in prison in a case that became a media frenzy. His family has tried multiple times to appeal the sentence.

Trump dismissed the phone call as “braggadocio” and nothing outside the norm of what has been said privately by several other elected officials.

On Thursday night, he tweeted that “many people” had asked him about commuting the sentence on account of its severity and that White House staff were looking into the matter. Prosecutors at the time of his trial argued that Blagojevich qualified for 30 years to life, but they recommended less time out of concern for his family.

As president, Obama declined to commute the sentence, and the Supreme Court declined to hear the case on more than one occasion. Trump, however, has raised the possibility of commutation in the past. In their 2018 letter opposing such a move, the Illinois Republicans — then including Peter Roskam and Randy Hultgren — said commuting the sentence would compromise trust in American democracy.

Notably, former Gov Blago has already served the equivalent of more than eight years of a federal prison sentence, which is considerably longer than the prior Gov George Ryan served for seemingly more extensive official misdeeds.  And I have a hard time seeing just how public safety (or "American democracy") is really served by his service of another half decade in federal prison. But, as the question in this post is meant to prompt, I am eager to hear others' thoughts on this matter.

August 9, 2019 in Celebrity sentencings, Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, August 05, 2019

“MAGA Bomber” Cesar Sayoc sentenced to 20 years in prison despite LWOP guideline range

As reported in this CNBC piece, "'MAGA Bomber' Cesar Sayoc was sentenced to 20 years in prison on Monday for sending 16 mail bombs to 13 people around the United States last year, including leading critics of President Donald Trump such as former President Barack Obama, ex-Vice President Joe Biden, former Secretary of State Hillary Clinton, actor Robert De Niro and financier George Soros." Here is more about this high-profile sentencing:

“I am beyond so very sorry for what I did,” Sayoc said before he was sentenced in U.S. District Court in Manhattan by Judge Jed Rakoff, according to the Courthouse News service.

“Now that I am a sober man, I know that I a very sick man,” Sayoc reportedly said. “I wish more than anything that I could turn back time and take back what I did ... I feel the pain and suffering of these victims.”

But Rakoff said, “The nature and cirumstances of the instant offenses are, by any measure, horrendous.”

“While none of the devices exploded ... at the very least they were intended to strike fear and terror into the minds of their victims and to intimidate those victims, mostly prominent political figures, from exercising their freedom.” Rakoff noted that Sayoc, even if he proves to be a model prison, “will be about 75 years old before he can be released.”

“No one can pretend this is not, in real terms, substantial punishment; but in the Court’s view, it is no more, and no less, than [what] he deserves,” Rakoff said.

Sayoc, a 57-year-old Florida resident whose own lawyers called him “a Donald Trump super-fan,” pleaded guilty on March 21 to 65 criminal counts, which included using weapons of mass destruction and illegal mailing of explosives with intent to kill or injure. Prosecutors said Sayoc’s crimes amounts to a “domestic terrorist attack.”

Prosecutors had asked Rakoff to sentence the former exotic dancer and steroid abuser to life in prison for the mail bombing spree....

None of the home-made bombs exploded, and “would not have functioned as designed,” according to prosecutors. But they noted that Sayoc packed PVC pipes with explosive powder and glass shards, along with pool chemicals to “increase the chances of burning the skin of” his targets....

Sayoc’s lawyers had asked that he be sentenced to just 10 years in prison, the mandatory minimum for his crimes. In their own sentencing submission, defense lawyers wrote that, “a series of traumatic events pushed Cesar Sayoc further and further into the margins of society.”

Valuably, Judge Rakoff authored this nine-page sentencing opinion explaining why he found the sentencing recommendations of the prosecution and defense not quite right and why he settled on a 20-year prison term for these crimes.

August 5, 2019 in Booker in district courts, Celebrity sentencings, Purposes of Punishment and Sentencing | Permalink | Comments (4)

Thursday, July 25, 2019

Bernie Madoff seeks from Prez Trump a commutation of his 150-year federal prison sentence for massive Ponzi scheme

Notorious Ponzi schemer Bernie Madoff has served less than 10% his 150-year federal prison sentence, but at age 81 he understandably would like to find a way not to die behind bars.  This new NBC News piece, headlined "Bernie Madoff asks Trump to reduce his prison sentence for massive Ponzi scheme," reports on this high-profile offenders making a high-profile request for clemency from Prez Donald Trump.  Here are some details and lots of context:

Bernie Madoff is asking that President Donald Trump reduce his 150-year prison sentence — a a request that Madoff’s prosecutor promptly called “the very definition of chutzpah.”

Madoff, 81, is currently locked up in a federal prison in Butner, North Carolina, for orchestrating the largest Ponzi scheme in history.

The decades-long scam conducted while he headed Bernard L. Madoff Investment Securities in New York City swindled thousands of investors out of billions of dollars. Madoff, who pleaded guilty to 11 crimes in 2009, is not asking for a pardon from the president. Instead, he is requesting clemency from Trump in the form of a sentence commutation, or reduction, according to an application filed with the Justice Department.

A search of the Justice Department’s website shows that Madoff’s clemency request is “pending.”

If Trump’s previous opinions on Madoff and his family are any indication, the uber-crook faces long odds in winning an early release from prison. Trump, in his 2009 book “Think Like a Champion,” wrote that he said “no” to Madoff’s suggestion that he invest in his fund. “I had enough going on in my own businesses that I didn’t need to be associated or involved with his,” Trump wrote in his book, according to an article at the time in U.S. News & World Report.

In that same book, Trump said he knew a number of people who had invested their life savings with the scamster. “He is without a doubt a sleazebag and a scoundrel without par,” Trump wrote.

The New York Post, citing a source close to the Madoff family, two years ago reported that after Madoff’s conviction, Trump refused to rent his wife Ruth Madoff an apartment in his Manhattan buildings when she was looking for a new place to live.

The Justice Department would not reveal when Bernie Madoff’s request for clemency was submitted. But the department noted that such an application takes between one and three months to appear on the clemency section of the website. It is not known if Trump will consider the request, or when he might do so.

Madoff’s former lawyer, Ira Lee Sorkin, told CNBC he had no information about the request. The White House referred questions about Madoff’s bid for clemency to the Justice Department.

Marc Litt, who was the lead federal prosecutor in the criminal case against Madoff, to CNBC on Wednesday, “Bernard Madoff received a fair and just sentence – one that both appropriately punished him for decades of criminal conduct that caused devastating damage to tens of thousands of victims, and sent a loud and clear message to deter would-be fraudsters.”

“Madoff’s current request is the very definition of chutzpah,” said Litt, who currently is a partner at the law firm Wachtel Missry in New York, where his office overlooks the “Lipstick Building” that formerly housed Madoff’s company. “I’m confident that the career [Justice Department] attorneys responsible for evaluating such requests will reject it out of hand.”

DOJ statistics show that the department received 1,003 petitions for pardons and another 5,657 for sentence commutations that could have been considered by Trump since he was in the White House. Trump has granted 10 pardons and just four commutations.

His pardon recipients include controversial former Arizona Sheriff Joe Arpaio, Lewis “Scooter” Libby, former chief of staff for Vice President Dick Cheney, deceased boxer Jack Johnson, conservative pundit Dinesh D’Souza, and, most recently, former media mogul Conrad Black, who wrote a biography entitled “Donald J. Trump: A President Like No Other.”

Two other pardon recipients, Oregon ranchers Dwight Hammond and his son, Steven Hammond, also had their prison sentences for arson on federal lands commuted by Trump.

Madoff’s former longtime secretary also is asking Trump for a commutation of her six-year prison term for helping facilitate the Ponzi scheme, according to the Justice Department’s webpage. In January, a federal judge rejected a separate request by that secretary, Annette Bongiorno, 70, to be released into home confinement. Bongiorno has served nearly 4½ years of her prison sentence in a federal facility in New York state.

Peter Madoff, Bernie’s younger brother, pleaded guilty in 2012 to falsifying records at the Madoff investment firm, and to conspiracy to commit securities fraud. He was sentenced to 10 years in prison, and is due to be released in October 2020. There is no record of a clemency petition from Peter Madoff on the Justice Department’s website.

Ruth Madoff in May agreed to pay $594,000 and to surrender her remaining assets when she dies as part of a settlement of claims by Irving Picard, the court-appointed trustee who for years has tried to recoup money for Madoff’s customers. Ruth Madoff was never charged in connection with her husband’s crimes.

Madoff’s scheme originally was estimated to have lost upward of $65 billion for his investors. But Picard as of last November had recovered more than $13.3 billion of the approximately $17.5 billion of claims by customers who say they were swindled by Madoff’s scheme....

Madoff’s sons have both died since he was locked up. His oldest son, Mark, hanged himself in December 2010, on the second anniversary of his father’s confession to the Madoff family of his crimes. Madoff’s other son, Andrew, died in 2014 after a long battle with a rare form of cancer. Neither Andrew nor Mark were ever charged in connection with their father’s crimes.

July 25, 2019 in Celebrity sentencings, Sentences Reconsidered, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Wednesday, July 17, 2019

Following his conviction on all counts, Joaquín "El Chapo" Guzmán receives an LWOP (plus 30 years!) federal sentence

As reported in this USA Today piece, "drug lord Joaquín 'El Chapo' Guzmán Loera was formally sentenced Wednesday to life in prison plus 30 years on drug trafficking and weapons charges." Here is more:

Guzmán, 62, a leader of Mexico's Sinaloa narcotics cartel, briefly spoke at the hearing, claiming his trial was "stained" by juror misconduct.

U.S. District Court Judge Brian Cogan imposed the sentence amid bomb-sniffing dogs, automatic rifle-toting agents and other extra security measures at the Brooklyn federal courthouse. Guzman, who wore a gray suit to the proceedings, has a history of complex and spectacular escapes from Mexican jails.

Guzman was also ordered to forfeit $12,666,191,704 based on the quantity and the value of the drugs in his crimes. There were no details available on how much, if any, money is actually available.

Guzmán, who did not testify in his own defense during the trial, complained to the judge Wednesday about conditions in jail, saying the water was unsanitary and that he was denied sufficient access to his wife and young daughters.

Defense lawyers have signaled that they plan to appeal the conviction, as well as Cogan's recent denial of a motion for an evidentiary hearing and new trial based on what they viewed as potential evidence of misconduct.

“My case was stained and you denied me a fair trial when the whole world was watching,” Guzman said in court through an interpreter. “When I was extradited to the United States, I expected to have a fair trial, but what happened was exactly the opposite.”

In a sentencing letter filed last week, prosecutors reiterated that life behind bars is the mandatory punishment for one of the crimes on which a federal jury found Guzmán guilty five months ago. The case has drawn international attention, and the line to get into the proceeding started forming Tuesday. By dawn on Wednesday, more than 50 media representatives and spectators lined the sidewalk outside the courthouse.

Guzmán is best known as a former leader of Mexico's Sinaloa drug cartel who gained fame by twice breaking out of high-security prisons in his native country – a feat he has thus far been unable to replicate in the U.S. Depending on U.S. Bureau of Prisons decisions, he could be sent to the so-called Alcatraz of the Rockies, the "administrative maximum" prison in Florence, Colorado. There he would join, but likely never meet, fellow inmates such as Unabomber Ted Kaczynski, Boston Marathon bomber Dzhokhar Tsarnaev, Sept. 11 conspirator Zacarias Moussaoui and Oklahoma City bombing accomplice Terry Nichols.

Guzmán's nearly 12-week trial ended in February with a jury of eight women and four men finding the defendant guilty on all counts during the sixth day of deliberations. The charges against Guzmán included drug trafficking and weapons counts stemming from his leadership role in the cartel's smuggling tons of cocaine and other drugs into major U.S. cities during a criminal career that stretched for decades....

The guilty verdict on the charge he engaged in a continuing criminal enterprise mandated a life prison term because of the jury's separate guilty votes on three sentencing enhancements. In a legal quirk, Guzmán's conviction for unlawful use of a machine gun in tandem with the drug crimes means he also faces the mandatory but likely unnecessary 30-year sentence that must run consecutively with the life term.

The sentencing seemingly marks an official end of Guzmán's reign as one of the world's most notorious drug lords, though his more than two years in solitary confinement in U.S. jails before the conviction had already removed him from the narcotics trafficking fray.

By many accounts, however, the Sinaloa cartel continues to thrive as it competes with other international drug trafficking organizations and diversifies into other businesses.

July 17, 2019 in Celebrity sentencings, Drug Offense Sentencing, Gun policy and sentencing | Permalink | Comments (0)

Saturday, July 13, 2019

All the Jeffrey Epstein news that's fit to print

My various criminal justice news feeds are chock full of stories about the prosecution of Jeffrey Epstein and its echoes.  Perhaps unsurprisingly, the New York Times is giving plenty of ink to this story, and here are just some of the notable pieces from the last few days that should interest criminal justice justice fans:

A few prior related posts:

July 13, 2019 in Celebrity sentencings, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0)

Monday, July 08, 2019

Some news and notes surrounding latest indictment of Jeffrey Epstein

The arrest and now (not-quite-second) federal prosecution of billionaire Jeffrey Epstein is all the buzz in the criminal justice world today, and this New York Post article provides some highlights on the indictment that was unsealed and how federal prosecutors are now approaching this matter:

Convicted pedophile Jeffrey Epstein “sexually exploited and abused” dozens of underage girls as young as 14 at his homes in New York and Florida in the early 2000s, Manhattan federal prosecutors alleged in an indictment unsealed Monday.  The billionaire financier was charged with sex trafficking and a related conspiracy count for allegedly creating “a vast network of underage victims” for him to exploit across multiple states from 2002 to 2005, the Manhattan federal court documents say.

Aided by three unidentified employees Epstein, 66, allegedly paid the girls hundreds of dollars in cash to come to his residences in Manhattan and Palm Beach to give him nude “massages” that would become “increasingly sexual in nature,” prosecutors allege.  “During the encounter, Epstein would escalate the nature and scope of physical contact with his victim to include, among other things, sex acts such as groping and direct and indirect contact with the victim’s genitals,” the indictment alleges....  Epstein “intentionally sought out” girls under 18 — and knew the girls were underage because some told him how old they were, they allege.

“The alleged behavior shocks the conscience and while the charged conduct is from a number of years ago, it is still profoundly important to the alleged victims,” Manhattan US Attorney Geoffrey Berman said at a news conference announcing the charges. “They deserve their day in court and we are proud to be standing up to them by bringing this indictment.”

The indictment shows the feds want to seize Epstein’s lavish townhouse at 9 E. 71st St. — a seven-story, 21,000-square-foot Upper East Side pad that is one of Manhattan’s largest townhouses and was allegedly one of the venues for his sick sexual pyramid scheme. Authorities “seized evidence including nude photographs what appear to be underage girls,” Berman said.

Epstein’s indictment follows a controversial deal he struck in 2008 with prosecutors in Palm Beach, Florida, after cutting a non-prosecution agreement with the Miami US Attorney’s Office, as detailed last year in an expose by the Miami Herald.  Epstein was facing up to life behind bars, but got a sentence of just 13 months.  The Miami US attorney at the time was Alex Acosta, who is now President Trump’s secretary of labor, and the Justice Department launched an investigation of that agreement in February following a request from Sen. Ben Sasse (R-Nebraska).

Berman said Epstein’s non-prosecution agreement “only binds the Southern District of Florida.”

“The Southern District of New York is not bound and is not a signatory,” he said.

Prosecutors will seek to have Epstein held without bail when he appears in court later Monday, Berman said. Berman called Epstein a “significant flight risk” due to his “enormous wealth” and the fact that the charges against him carry a maximum 45 years in prison, which Berman called “basically a life sentence” for someone of Epstein’s age. Berman also noted that Epstein owns two private plans and lives “much of the year abroad.”

Epstein was arrested around 5:30 p.m. on Saturday at Teterboro Airport in New Jersey, where he arrived in a private plane from Paris, officials said.

The full 14-page indictment in this high-profile matter is available at this link.

A few prior related posts:

UPDATE: This new Atlantic article by Ken White, headlined "The Jeffrey Epstein Case Is Like Nothing I’ve Seen Before: Great wealth insulates people from consequences, but not always, absolutely, or forever," is the best read on this case that I have seen of late.

July 8, 2019 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (4)

Thursday, May 02, 2019

Summer sentencing (with notable particulars) for first college admission scandal parents to enter pleas in court

This Los Angeles Times article, headlined "Bay Area couple first to plead guilty in college admissions scandal," reports on a huge high-profile federal fraud case now getting ever closer to sentencing for one pair of defendants. Here are the details:

A Northern California couple who secured their daughters’ spots at UCLA and USC with bribes and rigged tests pleaded guilty Wednesday to fraud and money laundering offenses, the first parents to admit their guilt before a judge in an investigation that has sent shivers through circles of Silicon Valley, Wall Street, Hollywood and some of the country’s most elite universities.

Davina Isackson of Hillsborough, Calif., pleaded guilty to one count of fraud conspiracy. Her husband, real estate developer Bruce Isackson, pleaded guilty to one count of fraud conspiracy, one count of money laundering conspiracy and one count of conspiracy to defraud the United States. They will be sentenced July 31. In Davina Isackson’s plea agreement, prosecutors recommended a sentence at the low end of federal guidelines that call for 27 to 33 months in prison. For Bruce Isackson, they suggested a sentence at the low end of 37 to 46 months in prison.

Of the 33 parents charged in the investigation, the Isacksons are the only ones to have signed cooperation deals with prosecutors. If prosecutors decide the couple provided useful and credible information, they can recommend that a judge sentence them below the federal guidelines.

Investigators want to learn from the couple who at UCLA and USC knew of an alleged recruiting scheme they used to slip their two daughters into the universities as sham athletes, The Times has reported. The Isacksons’ older daughter, Lauren, was admitted to UCLA as a recruited soccer player, given a jersey number and listed on the team roster as a midfielder for an entire season, despite never having played the sport competitively, prosecutors alleged.

To ensure she got in, they said, her parents transferred $250,000 in Facebook stock to the foundation of Newport Beach college consultant William “Rick” Singer, which Bruce Isackson later wrote off on the couple’s taxes as a charitable gift....

The Isacksons tapped Singer’s “side door” the following year to have their younger daughter admitted to USC as a recruited rower, prosecutors alleged. The couple also availed themselves of Singer’s test-rigging scheme, prosecutors said, in which he bribed SAT and ACT administrators to turn a blind eye to his 36-year-old, Harvard-educated accomplice.

With the help of the accomplice, Mark Riddell, the Isacksons’ younger daughter scored a 31 out of 36 on the ACT, prosecutors said. Her father paid Singer’s foundation $100,000 and wrote it off on taxes as a charitable gift.

I find notable that federal prosecutors think that two+ years of imprisonment is necessary for one of these the Isacksons and that three+ years is necessary for the other in accord with guideline calculations. But, because it appears that these defendants may be providing "substantial assistance," the feds may ultimately be recommending lower sentences as a kind of compensation for this kind of cooperation.

Prior related posts:

May 2, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (4)

Monday, April 08, 2019

Big batch of federal plea deals (with relatively low sentencing ranges) in college admissions scandal

This press release from the US Attorney's Office for the District of Massachusetts, headlined "14 Defendants in College Admissions Scandal to Plead Guilty," reports on the latest developments in the highest profile college fraud case I can recall. Here are the basics:

Thirteen parents charged in the college admissions scandal will plead guilty to using bribery and other forms of fraud to facilitate their children’s admission to selective colleges and universities. One coach also agreed to plead guilty.

The defendants were arrested last month and charged with conspiring with William “Rick” Singer, 58, of Newport Beach, Calif., and others, to use bribery and other forms of fraud to secure the admission of students to colleges and universities. The conspiracy involved bribing SAT and ACT exam administrators to allow a test taker to secretly take college entrance exams in place of students, or to correct the students’ answers after they had taken the exam, and bribing university athletic coaches and administrators to facilitate the admission of students to elite universities as purported athletic recruits....

All of the defendants who improperly took tax deductions for the bribe payments have agreed to cooperate with the IRS to pay back taxes.

Plea hearings have not yet been scheduled by the Court. Case information, including the status of each defendant, charging documents and plea agreements are available here.

The charge of conspiracy to commit mail fraud and honest services mail fraud provides for a maximum sentence of 20 years in prison, three years of supervised release, and a fine of $250,000 or twice the gross gain or loss, whichever is greater. The charge of conspiracy to commit money laundering provides for a maximum sentence of 20 years in prison, three years of supervised release, and a fine of $500,000 or twice the value of the property involved in the money laundering. The charge of conspiracy to defraud the United States provides for a maximum sentence of five years in prison, three years of supervised release, and a fine of $250,000. Sentences are imposed by a federal district court judge based upon the U.S. Sentencing Guidelines and other statutory factors.

Though the recitation of statutory maximum sentence sounds really serious, clicking through to the plea agreements reveals that the relatively low dollar amounts in these frauds entails relatively low guideline sentencing ranges. Specifically, for Felicity Huffman the government calculates in the plea agreement a guideline range at offense level 9 to result in a sentence range of 4 to 10 months. Notably, Huffman disputes the amount of "loss or gain" in her offense and suggests her guideline sentencing range is only 0 to 6 months.  And, significantly, the government agrees to advocate for only the low end of its calculated range, so it will be seeking only a four month sentence for Huffman.

I have not yet had a chance to look though all the other plea agreements, but I would guess their terms are comparable.  And especially because all these defendants are already suffering (and will continue to suffer) all sorts of non-traditional punishments, I am not really bother at all that they are not looking at severe guideline ranges.  But perhaps others are, and I welcome their comments on whether and how they think justice is being served in these cases now that we are moving into the sentencing phase.

April 8, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (8)

Sunday, March 31, 2019

"Searching for A Kardashian: Kim helped get clemency for Alice Johnson, who will help me?"

The title of this post is the title of this notable commentary authored by Christopher Hunter and recently posted to Medium.  The piece is a poignant accounting of what it is like to be serving a lengthy federal prison term for a drug offense while there is on-going talk of clemency prospects.  I recommend the piece in full, and here is an excerpt:

In 2005, a federal judge sentenced me to 420 months in prison for selling cocaine.  That’s 35 years.  I never believed I would do all that time.  Call me crazy, but I think the Universe sets your body in the direction of your mind. So I constantly hoped that something would give.

Eventually, something did.  Between winning an appeal and a change in the sentencing laws, my time was reduced by 8 years.  But I still have too much time, and there’s no parole in federal prison.  In the 13 years I’ve spent in prison so far, I have always been searching for some way to reduce my time.

The last President understood that because of harsh mandatory minimums people received too much time in prison.  He granted around 1,700 federal commutations, specifically for non-violent drug offenses, through the Clemency Project.

I remember each month a list of his pardons would come out.  The President was like Willy Wonka, giving out “Golden Tickets.” 100 here, 89 there. I remember an older guy I worked with was turned down initially.  The Clemency Project suggested he file directly with the President.  Within a few weeks, he got a letter saying his petition was accepted. Some of the men who were pardoned left prison within week while others had to stay an complete a drug program.

At least five of the guys I worked with in the clerk’s office got out.  Everyone acted happy for them, but it was a strange feeling too.  I remember thinking, “How can they do this? How can the let some out and not others?  How?  We all deserve a second chance.  Where is the grace?” It hurt me to the bone.

I filed for clemency toward the end of Obama’s presidency, but I was not granted a “Golden Ticket.” I wasn’t denied one either.

The very first day the new president came into office, the pardon attorney contacted my counselor here and requested additional information. It was as if I was on deck. I thought, “Okay, here we go! It’s on! They are going to continue helping people.

It had been extremely difficult watching random guys with identical charges getting out and having to smile and congratulate them while being envious as hell on the inside. I told my counselor to keep me informed.  As I watched the news of Kim’s advocacy, I got the strangest feeling.  I felt as though I was already supposed to have been on top of this. Of course I didn’t know anything about what was going to happen.  It was just a weird feeling.

I realize I was day-dreaming, and routine kicks in, and I rush to my cell to put it in perfect order before making the 7:45 work call. That morning, the Kim K White House sit down was a hot topic. The general consensus of my coworkers is, “Man, Trump ain’t about to do nothing for nobody!”  Almost everyone agrees that because of Attorney General Sessions, “we ain’t got nothing coming.”

For some reason, even though I know I should agree, I just don’t. It’s that strange feeling again.  My pending pardon flashes in my mind. As I shake it off, I have to admit I didn’t think Alice Johnson was getting out anytime soon.  What happens the next day blows my mind. The news is reporting that Alice Johnson’s sentence was commuted and she was being released immediately....

The evening news flashed between Kim K’s side of the story and Alice Johnson’s reaction to being released. I felt a lump in my throat. I was genuinely happy for her. Willie Wonka gave her a “Golden Ticket.”

The next morning things seemed to get even better.  The news was reporting that the president would be doing dozens more commutations.  By the time we left work that day, everyone was tripping. The president had announced that he would be doing a lot more commutations, looking from a list of 3,000 cases similar to Ms. Johnson’s.  He also reached out to the NFL players telling them to bring him names of people who had been treated unfairly.

After hearing the news, I made up my mind that I was going to get my request for clemency in that list of 3,000.  I had to find a celebrity like Kim or an NFL player. I knew NFL players like Doug Baldwin, Malcolm Jenkins, and Anquan Boldin were standing up for prison reform.  I wondered how I could get in touch with someone or convince them that I was worthy of being helped.

I rushed to the law library, a place I know well.  The room is filled with the noise of people pecking desperately away on ancient typewriters hoping for good news.  I wrote the pardon attorney telling him of the additional programs I’ve completed since he had contacted my counselor.  I wrote the President and explained all I’ve done, and asked him for help.  I told him I don’t know any celebrities or football players, but I need help. M y pardon has been pending for two years.  I explained that I’ve been a model prisoner, how I’ve taken drug programs and many more. I explained that I work and I’ve become a part of the church. I explained I’ve been locked up 13 years on a non-violent drug charge, that I’m not a career offender, and never have had a violent charge. I wrote how I now understand that drugs poison our communities.

I asked for help from anyone.  I made 30 copies of each letter, and all the certificates I’ve accumulated. I was elated to be putting my energy into something positive. To be working and fighting.  I emailed a copy of the letter to several friends and asked them to begin emailing it to celebrities and NFL players, people like Kid Rock and Van Jones. I have a Facebook page and I’ve posted it on my wall. I got the address for as many attorneys and advocates as possible.

I remember perceiving that another inmate was skeptical of all I was doing.  I sensed him scoff at my work.  “Listen to me, bro, you never know what can happen,” I said. “Kim K didn’t get Alice Johnson out, her family who was fighting and tweeting for her did.”  I told him my pardon is right there at the top of that stack and it could be a pastor, athlete, broadway star, gas station worker, housewife, or anyone that does the one thing that propels my name forward.

If the universe sees you fight for freedom, the universe may just help you get it.  If the universe sees you’ve changed, then someone’s heart can be moved.  Without the slightest bit of doubt, I said a prayer and began mailing out my little SOS’s.

I am still waiting.

A few of many recent related posts: 

March 31, 2019 in Celebrity sentencings, Clemency and Pardons, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Wednesday, March 13, 2019

Mapping out next possible celebrity sentencings in wake of indictment in college admissions scandal

Now that Paul Manafort's sentencings are concluded (basics here and here, new commentary from Ellen Podgor here), perhaps it is time to move on to the next high-profile "celebrity" white-collar case.  Though few cases will have the political intrigue of the Manafort matter, there is plenty of star power surrounding the new indictments yesterday revealing a nationwide conspiracy that facilitated cheating on college entrance exams and the admission of students to elite universities as purported athletic recruits.

For various reasons, I generally tend to avoid making sentencing calculations or predictions before there are convictions.  But this new piece at Law&Crime, headlined "‘I Would Make an Example’: Legal Experts Weigh in on Prison Time Lori Loughlin and Felicity Huffman Could Face," has various experts already chiming in.  Here is part of the piece:

Huffman allegedly paid The Key Foundation Worldwide $15,000 “to participate in the college entrance exam cheating scheme on behalf of her oldest daughter,” according to the government’s lengthy indictment.  Loughlin allegedly made $500,000 worth of fake donations to the same charity in order to secure fake rowing profiles for both of her daughters–when neither daughter actually rowed.

So, are these parents actually facing prison time or might they manage to skate? Law&Crime asked the experts and they had answers.

Former Assistant U.S. Attorney and current Pace Law Professor Mimi Rocah thinks a little time behind bars is within the realm of possibility.  “Given the amount of money involved for each of them, particularly Loughlin, and the sophistication of the scheme, they would likely be facing jail time,” Rocah told Law&Crime.  “However, it will be within the sentencing Judge’s discretion as to whether to follow the guidelines or not and a lot of different factors will play into that.”

CNN legal analyst, criminal defense attorney and University of Georgia Law Professor Page Pate ventured his guesses as to what any prospective sentences might look like for the embattled actresses. Over the course of a series of emails, Pate said the time served in each case would depend “mostly on the ‘loss amount’ (how much money the government can tie to the alleged fraud)” and explained that “federal sentencing guidelines for fraud are primarily based on the amount of money involved, how sophisticated the fraud was what role the person played in the alleged scheme, and whether they were the ‘leader, middle, [or] low-end.'”

With that in mind, Pate estimated that Full House‘s Loughlin was facing “37-46 months if convicted at trial” and between “27-33 months [if she enters a] guilty plea.”  Since Huffman is alleged to have spent quite a bit less, Pate estimated that the Desperate Housewives actress was facing “12-18 months if convicted at trial” whereas she would be looking at “8-14 months (or possible probation)” if she were to plead guilty.

Julie Rendelman is a former prosecutor and currently a defense attorney working in New York City.... While noting that it was “a bit early” to say anything for sure about potential time behind bars, Rendelman said it was a distinct possibility due to the actress’ high profiles.  “My guess is that if the evidence is as strong as it appears, their attorneys will likely advise them to cooperate with the US attorney’s office to provide information on other individuals in the scheme, and hope that their cooperation along with any potential mitigation will help them to avoid jail time,” Rendelman said.  “Keep in mind, that the government/presiding judge may want to make an example of them to deter the act of using wealth to manipulate the system.”

March 13, 2019 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (0)

Paul Manafort gets additional (consecutive) 43 months in prison at second sentencing, resulting in 7.5 year total term

As reported in this Politico piece, headlined "Paul Manafort’s prison sentence was upped to seven-and-a-half years on Wednesday, bringing an end to Robert Mueller’s most public legal battle and capping a spectacular fall for the globe-trotting GOP consultant and former chairman of the Trump campaign." Here is more:

It's the longest sentence by far for anyone ensnared in Mueller’s nearly two-year-old probe. Manafort’s punishment reached its final length after U.S. District Court Judge Amy Berman Jackson on Wednesday gave Manafort an additional 43 months in prison for a series of lobbying and witness tampering crimes he pleaded guilty to last fall. Manafort also must serve nearly four years for his conviction in a jury trial for financial fraud crimes in Virginia.

Manafort, wearing a dark suit and seated in a wheelchair, issued a full-throated and blunt apology shortly before Jackson handed out his second — and final — prison sentence in the Mueller case. “I am sorry for what I have done and for all the activities that have gotten us here today," said Manafort, contrite and stone-faced.

But Jackson swiftly upbraided Manafort's penitence, insinuating that it was insincere and hinting that she believed Manafort had previously calibrated his statements to appeal to President Donald Trump for a pardon — the only way out of a multi-year prison sentence at this point for the ex-Trump aide, who turns 70 next month.

"Saying I'm sorry I got caught is not an inspiring plea for leniency," Jackson said, exhaustively recounting Manafort's deception and propensity for hiding money in offshore accounts, ducking millions in U.S. taxes, tampering with witnesses and repeatedly failing to come clean when confronted with his behavior.

"Why?" she asked. "Not to support a family but to sustain a lifestyle at the most opulent and extravagant level," she said, a reference to the high-end suits, designer clothes, custom rugs and luxury cars that Manafort collected over the years. "More houses than one man can enjoy, more suits than one man can wear."...

Manafort made his plea to Jackson about charges brought in the D.C. court, which centered on his lobbying work in Ukraine and conspiring with a suspected Moscow-linked business associate to tamper with potential witnesses. But his shorter-than-anticipated Virginia sentence was hanging over the entire court proceedings.

Jackson stressed that she was not there for a "review or revision" of the Virginia sentence, which drew condemnation from some in the legal community who felt the punishment was unfairly brief, given the scope of the crimes and sentencing guidelines that called for Manafort to receive between about 19 and 24 years....

As a result, one major question facing Jackson, an Obama appointee, was whether she would make Manafort serve his D.C. sentence after he completes the punishment from his Virginia case, or whether she would allow him to serve them both concurrently. Manafort has been using a cane and wheelchair in his recent court appearances and has asked for leniency by citing his deteriorating health, as well as the strains of solitary confinement at the Alexandria, Va., detention center.

Ultimately, Jackson split her decision, making some of her sentence — 30 months — concurrent with the Virginia punishment, but ordering that the rest be served consecutively. Manafort’s nine months already spent in jail since his bond was revoked last June for witness tampering will count toward his time served, meaning Manafort is on track to be released from federal custody around the end of 2025.

By my calculations, if Manafort were to get all available good time credit, he might be eligible for release in 2024.  And, thanks to the FIRST STEP Act, Manafort might also eventually be able to earn some additional time off for participating in prison programming (though the particular of "earned" time credits will likely not be fully in place until next year).

Some of many prior related posts:

March 13, 2019 in Booker in district courts, Celebrity sentencings, Offender Characteristics, Offense Characteristics | Permalink | Comments (9)

Sunday, March 10, 2019

Rounding up some of many thoughts about Paul Manafort's (first) federal sentence

Lots of folks have had lots and lots to say about Paul Manafort's first federal sentence of 47 months in prison (basics here).  I am disinclined to make any definitive assessment of whether I think justice has been served in this matter until we see the results of his first federal sentencing later this week.  In the meantime, however, I am happy to share a sampling of just some of the copious commentary from notable folks about Manafort's fate to date:

From (former federal prosecutor) Frank Bowman, "The (first) Manafort sentencing"

From (former federal judge) Nancy Gertner, "US sentencing needs reform, but Manafort's 47 months was a strange one"

From (former federal prosecutor) Elie Honig, "A shockingly lenient sentence for Paul Manafort"

From (current defense attorney) David Oscar Markus, "Four years for Paul Manafort is the right sentence"

From (current defense attorney) Rachel Marshall, "I’m a public defender. My clients get none of the sympathy Manafort did."

From (former federal prosecutor) Renato Mariotti, "Racial Bias Doesn’t Fully Explain Manafort’s Sentence. It’s Unchecked Judges."

From (former federal prosecutor) Ken White, "6 Reasons Paul Manafort Got Off So Lightly"

March 10, 2019 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (4)

Thursday, March 07, 2019

Any bold predictions for Paul Manafort's (first) sentencing hearing?

As reported in this Reuters piece, "President Donald Trump’s former campaign chairman Paul Manafort will be sentenced by a U.S. judge in Virginia on Thursday for bank and tax fraud uncovered during Special Counsel Robert Mueller’s investigation into Russia’s role in the 2016 election."  Here is more reporting setting the basic context:

U.S. District Judge T.S. Ellis could deliver effectively a life sentence to Manafort, 69, if he follows federal sentencing guidelines cited by prosecutors that call for 19-1/2 to 24 years in prison for the eight charges the veteran Republican political consultant was convicted of by a jury in Alexandria last August. The sentencing hearing is scheduled for 3:30 p.m....

Manafort was convicted after prosecutors accused him of hiding from the U.S. government millions of dollars he earned as a consultant for Ukraine’s former pro-Russia government. After pro-Kremlin Ukrainian President Viktor Yanukovych’s ouster, prosecutors said, Manafort lied to banks to secure loans and maintain an opulent lifestyle with luxurious homes, designer suits and even a $15,000 ostrich-skin jacket.

Manafort faces sentencing in a separate case in Washington on March 13 on two conspiracy charges to which he pleaded guilty last September. While he faces a statutory maximum of 10 years in the Washington case, U.S. District Judge Amy Berman Jackson potentially could stack that on top of whatever prison time Ellis imposes in Virginia, rather than allowing the sentences to run concurrently. Jackson on Feb. 13 ruled that Manafort had breached his agreement to cooperate with Mueller’s office by lying to prosecutors about three matters pertinent to the Russia probe including his interactions with a business partner they have said has ties to Russian intelligence. Jackson’s ruling could impact the severity of his sentence in both cases....

Mueller’s charges led to the stunning downfall of Manafort, a prominent figure in Republican Party circles for decades who also worked as a consultant to such international figures as former Angolan rebel leader Jonas Savimbi, former Philippine President Ferdinand Marcos and Yanukovych.

Defense lawyers have asked Ellis to sentence Manafort to between 4-1/4 and 5-1/4 years in prison. They are expected to tell the judge Manafort is remorseful and that the sentencing guidelines cited by prosecutors call for a prison term disproportionate to the offenses he committed. “The Special Counsel’s attempt to vilify Mr. Manafort as a lifelong and irredeemable felon is beyond the pale and grossly overstates the facts before this court,” his lawyers wrote in their sentencing memo.

Prosecutors have not suggested a specific sentence. Mueller’s office, in court filings, said that only Manafort is to blame for his crimes, that he has shown no remorse and that his lies to prosecutors after his guilty plea should be taken into account. “The defendant blames everyone from the Special Counsel’s Office to his Ukrainian clients for his own criminal choices,” prosecutors wrote.

Manafort will be sentenced by a judge who faced criticism by some in the legal community for making comments during the trial that were widely interpreted as biased against the prosecution. Ellis repeatedly interrupted prosecutors, told them to stop using the word “oligarch” to describe people associated with Manafort because it made him seem “despicable,” and objected to pictures of Manafort’s luxury items they planned to show jurors. “It isn’t a crime to have a lot of money and be profligate in your spending,” Ellis told prosecutors.

In my very first post on this case back in October 2017 right after Paul Manafort was indicted, I noted the guideline calculations that would likely mean he was going to be facing at least 10 years of imprisonment if he were convicted of any of the most serious charges against him.  Now, roughly a year and half later, I am tempted to set the "over-under" prediction on his sentence slightly below 10 years.  Though it is hardly a bold prediction, I will here predict that Judge Ellis will impose a sentence somewhere around 100 months.  

Anyone else have predictions or prescriptions for today's high-profile federal sentencing?

Some prior related posts:

March 7, 2019 in Celebrity sentencings, White-collar sentencing, Who Sentences | Permalink | Comments (4)

Tuesday, February 26, 2019

Paul Manafort's sentencing memorandum in DC makes pitch for a sentence "significantly below" ten years

As reported in this Politico piece, counsel for "Paul Manafort, the former Trump campaign chairman, pleaded on Monday for a federal judge to spare their 69-year-old client from a sentence that would essentially send him to prison for the rest of his life."  Here is more about the latest sentencing filing:

In a 47-page filing, Manafort’s attorneys described a client who has been “personally, professionally, and financially” broken by special counsel Robert Mueller’s Russia investigation and who deserves a sentence “significantly” below the statutory maximum of 10 years he faces after pleading guilty in Washington to a pair of conspiracy charges.

“Mr. Manafort has been personally and financially devestated [sic] as a result of his conduct and the forfeiture he has agreed to,” his lawyers wrote. “There is no reason to believe that a sentence of years in prison is necessary to prevent him from committing further crimes.”

Manafort’s lawyers added that he “poses no risk to the public, which itself has certainly been generally deterred from engaging in similar conduct based on the widespread negative publicity this case has garnered, as well as his incarceration in solitary confinement.”

Two federal judges are scheduled to sentence Manafort twice next month over criminal charges brought by Mueller’s office, including tax and bank fraud, as well as witness tampering and unregistered lobbying for a foreign government. U.S. District Court Judge T.S. Ellis III is scheduled first in Virginia, on March 8, and U.S. District Court Judge Amy Berman Jackson in Washington goes second, on March 13.

The memo that Manafort’s attorneys submitted Monday aims to rebut Saturday’s filing from Mueller, who told Jackson that the longtime Republican operative “repeatedly and brazenly violated the law” for more than a decade and should be considered for a total sentence in the roughly 17-to-22-year range by stacking her sentence on top of the one Ellis issues.

The full filing is available at this link, and here is an excerpt from its introduction:

Mr. Manafort, who over the decades has served four U.S. presidents and has no prior criminal history, is presented to this Court by the government as a hardened criminal who “brazenly” violated the law and deserves no mercy.  But this case is not about murder, drug cartels, organized crime, the Madoff Ponzi scheme or the collapse of Enron.  Rather, at its core, the charges against the defendant stem from one operable set of facts: Mr. Manafort made a substantial amount of income working as a political consultant in Ukraine, he failed to report to the government the source and total amount of income he made from those activities, and he attempted to conceal his actions from the authorities. He has accepted full responsibility by pleading guilty to this conduct....

Mr. Manafort has been punished substantially, including the forfeiture of most of his assets. In light of his age and health concerns, a significant additional period of incarceration will likely amount to a life sentence for a first time offender.

Some prior related posts:

February 26, 2019 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Saturday, February 23, 2019

Latest Manafort sentencing memorandum from Special Counsel pulls few punches

As reported in this Politico article, a "federal judge should consider giving former Trump campaign chairman Paul Manafort a sentence that would send him to prison for at least 17 and a half years, special counsel Robert Mueller said in a court filing made public Saturday."  Here is more from the article about the filing and the legal context now:

Manafort faces a pair of sentencing hearings in the coming weeks in Virginia and in Washington where judges will determine what punishment he should face in two separate criminal cases brought by Mueller’s office involving tax fraud, bank fraud, unregistered lobbying for a foreign government and witness tampering.

The latest submission from Mueller accuses Manafort of a bold, brazen and wide-ranging series of crimes carried out over decades and continuing while Manafort was managing the Trump campaign in the summer of 2016, although prosecutors seemed to avoid mentioning the president directly in their new filing....

The new court submission in Washington released on Saturday makes no explicit recommendation about how much prison time Manafort should serve, but urges U.S. District Court Judge Amy Berman Jackson to consider making the longtime political consultant and lobbyist serve a total sentence in the roughly 17-to-22-year range by making her sentence consecutive to one a Virginia judge is expected to impose ahead of her early next month.

Jackson has the power in her case to sentence Manafort to up to ten years: the maximum allowed by law for the conspiracy and obstruction of justice crimes he pleaded guilty to before her last year as part of plea deal.

Last week, Mueller’s prosecutors told U.S. District Court Judge T.S. Ellis in Alexandria that sentencing guidelines applicable to Manafort’s case there call for him to serve between 19 and a half and 24 and a half years in prison. The prosecution team also made no explicit recommendation for a sentence in that case, beyond urging that the punishment be “serious” and adequate to deter others from similar conduct.

In theory, Ellis could sentence Manafort to as long as 80 years in prison on the charges of tax fraud, bank fraud and failing to report foreign bank accounts that he was convicted of at a high-profile jury trial last August.

The full 25-page filing (with a few redactions) is available at this link. Here is part of its introduction:

Based on his relevant sentencing conduct, Manafort presents many aggravating sentencing factors and no warranted mitigating factors. Manafort committed an array of felonies for over a decade, up through the fall of 2018.  Manafort chose repeatedly and knowingly to violate the law— whether the laws proscribed garden-variety crimes such as tax fraud, money laundering, obstruction of justice, and bank fraud, or more esoteric laws that he nevertheless was intimately familiar with, such as the Foreign Agents Registration Act (FARA).  His criminal actions were bold, some of which were committed while under a spotlight due to his work as the campaign chairman and, later, while he was on bail from this Court. And the crimes he engaged in while on bail were not minor; they went to the heart of the criminal justice system, namely, tampering with witnesses so he would not be held accountable for his crimes.  Even after he purportedly agreed to cooperate with the government in September 2018, Manafort, as this court found, lied to the Federal Bureau of Investigation (FBI), this office, and the grand jury.  His deceit, which is a fundamental component of the crimes of conviction and relevant conduct, extended to tax preparers, bookkeepers, banks, the Treasury Department, the Department of Justice National Security Division, the FBI, the Special Counsel’s Office, the grand jury, his own legal counsel, Members of Congress, and members of the executive branch of the United States government.  In sum, upon release from jail, Manafort presents a grave risk of recidivism. Specific deterrence is thus at its height, as is general deterrence of those who would engage in comparable concerted criminal conduct.

Some prior related posts:

February 23, 2019 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Saturday, February 16, 2019

Round three of sentencing in high-profile New Jersey deadly drunk driving case still provides no closure

Last year, I flagged in this post the notable appellate ups and downs surrounding the sentencing and resentencing of actress Amy Locane following her conviction for killing a 60-year-old woman in a 2010 car crash while driving with a blood-alcohol way over the legal limit.  This local media piece reports on the latest sentencing in the case under the headline "‘Melrose Place’ actress sentenced again for fatal drunk driving crash, but free pending another appeal," and the story seems to just get sadder (and less certain) for everyone at each additional legal proceeding.  Here are some details:

For the second time, actress Amy Locane was sentenced to prison for a 2010 drunk driving accident that killed a 60-year-old woman.  How much time she’ll actually serve behind bars, though, is unclear.

The former Hopewell Township resident who once appeared on Melrose Place was sentenced to five years in prison by Somerset County Superior Court Judge Kevin Shanahan Friday afternoon, nearly nine years after the fatal crash.  The judge said if he were imposing the original sentence, he would have sentenced Locane to six years.

Family members of her victim, Helene Seeman, smiled while walking out of court, but left the Somerset County Courthouse in Somerville without giving a statement to media.

James Wronko, Locane’s lawyer, said it was “an extremely thoughtful decision in all respect,” but will appeal on double jeopardy grounds, which was one of his main arguments why the actress shouldn’t return to prison.

Somerset County Assistant Prosecutor Matt Murphy requested a nine-year sentence from Shanahan, who said he was basing it on “the crime, not the criminal.”  Locane was originally convicted of vehicular homicide and assault by auto, which carries up to 15 years in prison, for the death of Helene Seeman and critical injuries to her husband, Fred Seeman.

Fred Seeman and his son, Ford Seeman, both gave emotional testimony, filled with tears, tissues and aggravation. “My mother should still be here, but she’s not because Amy Locane is a horrible human being driven by ego and pride,” he said, reading the notes off his phone while wiping his tears, at times his voice breaking.

Locane whispered “that’s not true” several times under her breath during Ford Seeman’s testimony, which including him saying Locane has made herself a victim and will not accept responsibility. He also lambasted Judge Robert Reed’s initial, lenient sentence, calling it a “mockery of the justice process” and referred to Locane’s request for a short sentence to care for her two young children, who she called collateral damage as “pathetic.”...

Locane stood to speak after the Seemans concluded their testimony. Ford Seeman left the room. “There is not a day that has gone by that I have no thought of the pain that my actions caused the Seeman family and of course Helene Seeman,” the 47-year-old said. “I made a mistake. I have done everything that I can do to not be that person who does what I did nine years ago.”

She also noted she regularly speaks at schools about the dangers of drinking and driving, and is committed to sobriety through Alcoholics Anonymous.

The actress, who appeared in the movie “Cry-Baby” with Johnny Depp, and other Hollywood pictures, was driving home from a party on June 27, 2010 when she crash into the Seemans, who were turning into their driveway. Locane’s blood alcohol content was three times the legal limit.

He first sentence, three years in prison handed down by Judge Robert Reed in February 2013, drew immediate criticism for its apparent lenience. She served two-and-a-half-years at Edna Mahan Correctional Facility in Clinton Township and was paroled in June 2015. It’s unclear if Locane will receive credit now for the time she was incarcerated.

In 2016, an appeals court ruled the sentence was not harsh enough. Locane returned to court for a second sentencing in January 2017, where Judge Reed said he erred in not sentencing her to six more months. However, he declined to give Locane more prison time.

In March 2018, an appellate court ruled again the sentence was “a hair’s breath away from illegal." The decision criticized Reed’s lack of explanation for the sentence, and asked another judge to decide her Locane’s fate at a third re-sentencing.

Fred Seeman cried and yelled during his testimony. He argued a light sentence would not deter New Jerseyans from drinking and driving, and the trauma still affects his youngest son, who saw his mother dead on their front lawn. “I cry at night, for my son Curtis who is not with us today. It hurts me and pains me,” said the 69-year-old, who suffered broken ribs and a collapsed lung in the crash, and has a hole in his diaphragm as a result of blunt force trauma from the accident....

Locane will serve 85 percent of her new sentence under the No Early Release Act and was released on her own recognizance pending an appeal.

In 2017, the Seemans were awarded a $4.8 million dollar settlement in a civil lawsuit. Locane paid $1.5 million, while Rachel and Carlos Sagebien — hosts of the party where Locane left drunk — paid $3.3 million.

Prior related post:

February 16, 2019 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Friday, February 15, 2019

Special Counsel's office files sentencing memorandum for Paul Manafort seemingly supporting guideline range of 235 to 293 months' imprisonment

As reported in this Politico article, headlined "Mueller: Manafort deserves 19.5 to 24.5 years in prison for Virginia convictions, Special Counsel Robert Mueller filed this submission "to address the sentencing of defendant Paul J. Manafort, Jr."  The Politico piece, along with lots of other press accounts, report that "Robert Mueller’s office recommended on Friday that Paul Manafort get up to 24-and-a-half years in prison for his conviction last summer for financial malfeasance."  But a careful read of the submission reveals that there is no firm sentencing recommendation in the memo, rather its introduction and conclusion includes these passages hedging a bit:

As an initial matter, the government agrees with the guidelines analysis in the Presentence Investigation Report (PSR) and its calculation of the defendant’s Total Offense Level as 38 with a corresponding range of imprisonment of 235 to 293 months, a fine range of $50,000 to $24,371,497.74, a term of supervised release of up to five years, restitution in the amount of $24,815,108.74, and forfeiture in the amount of $4,412,500.

Second, while the government does not take a position as to the specific sentence to be imposed here, the government sets forth below its assessment of the nature of the offenses and the characteristics of the defendant under Title 18, United States Code, Section 3553(a). The defendant stands convicted of the serious crimes of tax fraud, bank fraud, and failing to file a foreign bank account report.  Manafort was the lead perpetrator and a direct beneficiary of each offense.  And while some of these offenses are commonly prosecuted, there was nothing ordinary about the millions of dollars involved in the defendant’s crimes, the duration of his criminal conduct, or the sophistication of his schemes.  Together with the relevant criminal conduct, Manafort’s misconduct involved more than $16 million in unreported income resulting in more than $6 million in federal taxes owed, more than $55 million hidden in foreign bank accounts, and more than $25 million secured from financial institutions through lies resulting in a fraud loss of more than $6 million.  Manafort committed these crimes over an extended period of time, from at least 2010 to 2016. His criminal decisions were not momentary or limited in time; they were routine.  And Manafort’s repeated misrepresentations to financial institutions were brazen, at least some of which were made at a time when he was the subject of significant national attention.

Neither the Probation Department nor the government is aware of any mitigating factors. Manafort did not commit these crimes out of necessity or hardship.  He was well educated, professionally successful, and financially well off.  He nonetheless cheated the United States Treasury and the public out of more than $6 million in taxes at a time when he had substantial resources. Manafort committed bank fraud to supplement his liquidity because his lavish spending exhausted his substantial cash resources when his overseas income dwindled....

In the end, Manafort acted for more than a decade as if he were above the law, and deprived the federal government and various financial institutions of millions of dollars.  The sentence here should reflect the seriousness of these crimes, and serve to both deter Manafort and others from engaging in such conduct....

For a decade, Manafort repeatedly violated the law.  Considering only the crimes charged in this district, they make plain that Manafort chose to engage in a sophisticated scheme to hide millions of dollars from United States authorities.  And when his foreign income stream dissipated in 2015, he chose to engage in a series of bank frauds in the United States to maintain his extravagant lifestyle, at the expense of various financial institutions.  Manafort chose to do this for no other reason than greed, evidencing his belief that the law does not apply to him.  Manafort solicited numerous professionals and others to reap his ill-gotten gains.  The sentence in this case must take into account the gravity of this conduct, and serve to both specifically deter Manafort and those who would commit a similar series of crimes.

Some prior related posts:

February 15, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, White-collar sentencing, Who Sentences | Permalink | Comments (1)

Wednesday, February 13, 2019

Paul Manafort facing potentially longer sentence after judge concludes he failed to comply with plea deal

As reported in this new Politco piece, a "federal judge ruled partly in favor of special counsel Robert Mueller on Wednesday that Paul Manafort violated the terms of his guilty plea by lying to federal prosecutors and a grand jury." Here is more and why this is ultimately a sentencing story:

The decision by U.S. District Court Judge Amy Berman Jackson confirms some of Mueller’s latest set of charges against the former Donald Trump campaign chairman that he lied during guilty-plea-stipulated cooperation sessions about his contacts with Konstantin Kilimnik, a longtime aide alleged to have ties to Russian intelligence.  Jackson, however, ruled that Mueller had “failed to establish by a preponderance of the evidence” that Manafort intentionally made a false statement about his contacts with the Trump administration.

The judge’s four-page ruling against Manafort [which is available here] means the 69-year old political operative will likely get an even stiffer penalty at his March 13 sentencing hearing in Washington, D.C., federal court.  She said Mueller was “no longer bound by its obligations under the plea agreement” terms he’d reached with Manafort in September, including the special counsel’s pledge to support a less-stringent sentence.

Manafort had previously been on track to get a 10-year cap on his prison sentence in his D.C. case under the terms of the original plea deal he struck with Mueller, which limited the charges he faced to conspiracy against the U.S. and conspiracy to obstruct justice while dropping foreign-lobbying and money-laundering charges.

The plea agreement had also called for Manafort to serve time concurrently from his D.C. case with any sentence he gets from his convictions in Alexandria, Va., on charges of bank and tax fraud.  But with Jackson’s order on Wednesday, Mueller is now free to recommend that Manafort serve his sentences consecutively.

Both Jackson and U.S. District Court Judge T.S. Ellis III, who presided in Manafort’s trial in Virginia and had postponed sentencing until the dispute over the lying charges was resolved, will have the final say in the decision on whether he serves back-to-back or simultaneous sentences.

Some prior related posts:

February 13, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0)

Tuesday, February 12, 2019

Joaquin "El Chapo" Guzmán found guilty on all 10 federal counts now facing LWOP sentence ... but surely could still provide substantial assistance

As reported in this NPR piece, headlined "'El Chapo,' Notorious Drug Kingpin, Found Guilty After Dramatic Trial In New York," the federal government secured high-profile drug convictions today in New York.  Here are some details:

After a long trial held under heightened security at the Brooklyn, N.Y., federal court, a jury has found Joaquín "El Chapo" Guzmán, one of the world's most notorious drug kingpins who led Mexico's Sinaloa cartel, guilty on all ten counts related to drug trafficking. He 61-year-old faces the possibility of life in prison.

Tuesday's verdict ended a dramatic trial that started in November and was filled with explosive testimony from Guzmán's former cartel associates. It included testimony from more than 50 witnesses, many of whom described Guzmán's use of violence against his enemies.

Guzmán faced 10 charges in the indictment, including engaging in a criminal enterprise — which in itself comprised 27 violations, including conspiracy to commit murder. Other charges included using firearms and manufacturing and distributing cocaine, heroin and other drugs.

Last week, Judge Brian Cogan gave jurors about three hours of instructions for their deliberations. He said he was confident that they had followed his instructions not to read or watch news about the case. The entire jury has been anonymous for their protection. At one point, the judge told the foreperson to sign notes using her name but then corrected that instruction and told her to use her juror number instead to keep her identity secret.

The jurors — four men and eight women — deliberated for days, asking for lengthy testimonies and whether ephedrine was considered methamphetamine.

In laying out their case, prosecutors spent 11 weeks calling witnesses, while the defense took 30 minutes and brought just one witness to the stand. The prosecution and defense delivered their final arguments to the jury in January.

Jeffrey Lichtman, one of Guzmán's defense lawyers, gave an animated presentation, banging the podium, pacing before the jurors and patting his client on the shoulder.... The prosecution had produced a "scripted event," he said, with cooperating witnesses who "lie, steal, cheat, deal drugs and kill people." And if Guzmán was convicted, all of those people would be released, he said.

Lichtman cast doubt on whether some of the murders that witnesses described ever happened. He called Guzmán "the rabbit" that Mexican authorities were chasing when the true mastermind behind the Sinaloa cartel was Ismael "El Mayo" Zambada....

Assistant U.S. Attorney Amanda Liskamm led the prosecution's rebuttal, urging jurors not to fall for the defense's smear. "The day cocaine conspiracies are made in heaven is the day we can call angels as witnesses," she said....

Prosecution witnesses offered testimony that swung from the bizarre to the shocking. According to testimony, he had a diamond-encrusted pistol and a gold-plated AK-47; he kicked off a cartel war after a rival refused to shake his hand; he and a mistress once fled naked through a secret tunnel under a bath tub; he escaped from a Mexican prison with the help of his wife, Emma Coronel Aispuro; and, in one of the most controversial allegations, he bought off Enrique Peña Nieto for $100 million — a claim the former Mexican president has denied....

Guzmán's 29-year-old wife attended the trial nearly every day, even as a mistress testified. She told The New York Times, "I don't know my husband as the person they are trying to show him as." The weeks also brought details of the sophisticated methods that the cartel used to move its contraband, from secret landing strips to container ships and submarines. People who stood in the way were allegedly bribed, kidnapped, tortured or killed....

Guzmán already had humiliated Mexico by escaping from prison twice. Once he made a getaway in a laundry cart. And then there was the mile-long tunnel that began under his maximum security prison cell's shower, a passageway that he told Penn had required sending engineers to Germany for training.

The cartel reportedly built some 90 tunnels between Mexico and the United States. After a long manhunt, he was recaptured in 2016 by Mexican authorities on the outskirts of Los Mochis and extradited to the United States the next year. He arrived on U.S. soil and pleaded not guilty to U.S. federal charges.

Guzmán showed in Mexico that he can devise ways to escape from prison, but I am hopeful US authorities will not have similar prison administration difficulties.  But, as the title of this post is meant to suggest, there is another way Guzmán could now try to work his way out of federal prison, namely by providing substantial assistance in the prosecution of others.

Ultimately, I am not sure Guzmán will be eager even at this point to cooperate with the feds, and I would be quite surprised if the feds would be willing to offer any significant sentencing discount for his cooperation.  But here it seems worth flagging the reality that, in a federal sentencing system that rewards defendants who cooperate, the greatest potential sentencing rewards can go to the most guilty of defendants who have the most potential information to offer.  Guzmán, who I believe is now facing a mandatory life sentence, would seem to be the poster child of the most guilty of defendants with the most potential information to offer.

February 12, 2019 in Celebrity sentencings, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics | Permalink | Comments (4)

Tuesday, February 05, 2019

Jerry Sandusky convictions affirmed on post-conviction review, but resentencing ordered (on a Blakely/Alleyne issue)

This USA Today article, headlined "Court rules Jerry Sandusky should be resentenced after turning down his appeal," reports on the result of a high-profile (and lengthy) intermediate state-court ruling.  Here are the details:

Jerry Sandusky lost a bid for a new trial Tuesday but a Pennsylvania appeals court ordered him to be re-sentenced for a 45-count child molestation conviction. The former Penn State assistant football coach was sentenced in 2012 to 30 to 60 years, but a Superior Court panel said that included the improper application of mandatory minimums.

In a 119-page opinion , the appeals panel struck down argument after argument that lawyers for Sandusky, 75, had made in seeking a new trial. His defense lawyer, Al Lindsay, said he was disappointed but will ask the state’s highest court to reconsider.

Lindsay said he was unsure if the new sentencing is likely to result in a substantially different sentence. “I suppose it depends on the judge and what happens before the sentencing and after the sentencing,” Lindsay said.

The U.S. Supreme Court has indicated that jurors must consider anything that could result in a longer sentence, and such elements must be proven beyond a reasonable doubt. A judge, not jury, sentenced Sandusky.

The state attorney general’s office said it was pleased that Sandusky’s convictions remained intact. “The Superior Court has agreed with our office that it was proper for the court below to reject Sandusky’s claims,” said Joe Grace, a spokesman for the prosecutors. “We look forward to appearing for the new sentencing proceedings and arguing to the court as to why this convicted sex offender should remain behind bars for a long time.”

This description of the basis of the ruling suggests our old pal, the Sixth Amendment, played a role in the sentencing outcome.

A few prior related posts:

UPDATE: I just came across this link to the full 119-page opinion in this appeal, and on page 118 one can find these sentences:

Appellant is entitled to application of Alleyne, notwithstanding his failure to raise this claim in the PCRA court.  Therefore, we agree with the parties that pursuant to the holdings in Alleyne and Wolfe, the imposition of mandatory minimum sentences was illegal.  Therefore, Appellant is entitled to a remand for re-sentencing without application of any unlawful mandatory minimum sentences.

February 5, 2019 in Blakely in the States, Celebrity sentencings, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Saturday, January 19, 2019

Former Chicago cop Jason Van Dyke sentenced in state court to only 81 months for murder of Laquan McDonald

As reported in this lengthy local article, headlined "Jason Van Dyke given relatively lenient sentence of under 7 years in prison for Laquan McDonald shooting," a high-profile killer seems to get a relative low sentence in an Illinois courtroom yesterday. Here are some of the details:

Former Chicago police Officer Jason Van Dyke was sentenced Friday to nearly seven years in prison for the fatal on-duty shooting of Laquan McDonald, bringing to a close one of the most racially fraught and socially significant chapters in recent Chicago history.  Van Dyke remained stoic as Cook County Circuit Judge Vincent Gaughan announced the sentence about 5:30 p.m. after a long day of often emotional testimony. Moments later, Van Dyke’s teenage daughter seated in the gallery burst into tears.

But the relatively lenient six-year, nine-month sentence for second-degree murder counts as a victory for Van Dyke, who could be out of custody in as little as three years, his attorney told reporters.  “He truly felt great,” the attorney, Daniel Herbert, said of Van Dyke. “He was not just relieved, he was happy. It’s the first time I’ve seen the guy — honestly since this whole ordeal started — where he was happy. He’s certainly not happy about going to jail. He’s certainly not happy about missing his family. But he’s happy about the prospect of life ahead of him.”

In October, Van Dyke became the first Chicago police officer in half a century to be convicted of murder in an on-duty shooting.  A jury found him guilty on one count of second-degree murder and 16 counts of aggravated battery — one for each bullet that hit McDonald’s body in October 2014 as the teen walked away from police on Pulaski Road while holding a knife. Graphic police dashboard camera footage of the shooting released more than a year later sparked weeks of chaos and political upheaval, exposing Chicago’s long-standing racial fault lines and exacerbating the already-fraught relationship between police and minority communities.

Though he had sought a sentence about three times lengthier, special prosecutor Joseph McMahon told reporters in the Leighton Criminal Court Building that justice had been served. “I understand the sentence is not exactly what the McDonald and Hunter families wanted,” said McMahon, who requested a prison term of 18 to 20 years.  “But the sentence, like the verdict, does hold the defendant accountable.”...

Gaughan imposed the sentence after a daylong hearing that drew tears from witnesses on the stand and from Van Dyke himself, who sat slouched at the defense table in a bright yellow jail uniform.

While predicting his sentence would disappoint “100 percent” of those in the courtroom, Gaughan made a number of key rulings in favor of the defense. In particular, he sentenced Van Dyke only for the second-degree murder conviction, meaning he will serve just half the sentence if he qualifies for day-for-day good-behavior credit. If instead the judge had sentenced him only on the aggravated battery convictions, Van Dyke could have been subject to a lengthier term behind bars. He also would have had to serve at least 85 percent of that sentence.

In fashioning his decision, Gaughan said the law required him to consider the most serious charge for which Van Dyke was convicted. Common sense, the judge found, dictated that be second-degree murder, not aggravated battery. However, Illinois law considers aggravated battery with a gun the more serious offense of the two, carrying stiffer penalties. “Is it more serious for Laquan McDonald to be shot by a firearm or is it more serious for Laquan McDonald to be murdered by a firearm?” Gaughan said in explaining his reasoning.

Witnesses called by Van Dyke’s legal team at the marathon hearing said the public attention to the case has emotionally shattered his family. “My life has been a nightmare,” Van Dyke’s wife, Tiffany, said in a choked voice, echoing similar testimony from the former officer’s father, sister and 17-year-old daughter. “Life is torture. My heart is broken.”...

Toward the end of the hearing, Van Dyke himself stood and said the day he shot McDonald was the worst of his life. It was the first time he had ever had to fire his weapon in the line of duty, he said, bending his head down to read closely from a handwritten statement. “And I’m very proud of that fact,” he said. “… The last thing I wanted to do was to shoot Laquan McDonald.” Van Dyke said he “tried to make the right decision in a rapidly escalating, dangerous situation.”...

McDonald’s great-uncle, the Rev. Marvin Hunter, read from the witness stand a letter he wrote from the perspective of his grand-nephew, saying McDonald’s death devastated the family. The letter said Hunter used McDonald’s last paycheck from his construction job to buy the suit the teen was buried in.

The killing came just weeks before McDonald was to begin living under the same roof again with his sister and mother, who had overcome drug addiction, he said. “I was so happy for the possibility of that day,” the letter said. “However, Jason Van Dyke … robbed us of this.”

The letter ended with a request to punish Van Dyke for McDonald’s killing, arguing that the former officer had shown no remorse for his actions that night. “What happened to me can never be changed, but other young black men and women will not have to face Jason Van Dyke and his evil and selfish ways,” the letter said. “I’m a real victim of murder and that can never be changed. Please think about me and my life when you sentence this person to prison.”

While the many civilian complaints against Van Dyke were not introduced at trial, prosecutors on Friday called four witnesses — all African-American men — who one after another painted Van Dyke as an abusive, out-of-control officer protected by inept police oversight agencies. One man said Van Dyke choked him to try to get him to spit out a cough drop during a DUI stop. Another said the officer berated him using a racial slur.  A third said Van Dyke deserved prison time simply for the “chaotic” way he handled a traffic stop.

There are so many substantive and procedural elements to this case, one could probably write an entire law review article about the importance and impact of prosecutorial and judicial discretion as it operates within a controversial high-profile case like this one.  For now, I am just inclined to spotlight notable sentencing differences between this case and the arguably comparable case involving former South Carolina police officer Michael Slager who killed Walter Scott on camera.  Van Dyke was convicted by a jury in state court of second-degree murder, and then he was sentenced by a local judge to a prison term of 81 months (with it seems the possibility of released in around 40 months).  Slager, whose sentence was just affirmed on appeal, pleaded guilty to federal civil rights charges after a state jury could not reach a verdict, and then he was sentenced by a federal judge to a prison term of 240 months (with perhaps the possibility of being released in around 200 months).

Notably, I am not the only one noticing how state and federal sentencing justice can play out quite differently.  This notable new local article, headlined "Patti Blagojevich ‘speechless’ Van Dyke sentence is less than half her husband’s," begins this way:

As expected, a slew of political candidates rushed to react to the sentencing of Jason Van Dyke. And then there was Patti Blagojevich, wife of a now-disgraced and imprisoned Illinois governor.

“I am speechless,” Patti Blagojevich tweeted Friday. “A 17 year old is dead and the sentence is less than half of my husbands sentence for discussions with his staff and attorney about political fundraising.”

It could be another attempt to grab the attention of the last person who apparently can get former Gov. Rod Blagojevich out of jail early: President Donald Trump. And it comes after Patti Blagojevich last year made some other moves seemingly tailor-made to catch Trump’s eye, with an appearance on Fox News in which she slammed Obama. She also has tried to connect her husband’s case to Special Counsel Robert Mueller and Former FBI Director James Comey — favorite Trump targets.

Van Dyke’s 81-month sentence means the former Chicago police officer will likely serve a little more than three years in prison after shooting the 17-year-old McDonald 16 times in 2014.

Trump himself may have gotten Patti Blagojevich’s hopes up in December, when he tweeted about another TV interview she had done with Fox News, calling her “the wonderful wife” of the imprisoned governor. Patti retweeted the president, and that was the last tweet she had sent until Friday, more than a month later.

Rod Blagojevich, serving a 14-year sentence on corruption charges, is not due out of prison until May 2024. Though an appellate court tossed five of his convictions in 2015, federal prosecutors say he remains convicted “of the same three charged shakedowns” for which he was first sentenced in 2011.

January 19, 2019 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Tuesday, December 18, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Wednesday, December 12, 2018

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

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

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

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

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

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

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

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

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

Prior related posts:

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

Tuesday, December 11, 2018

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

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

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

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

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

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

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

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

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

Prior related posts:

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