Sentencing Law and Policy

Different type of drug dealers get lengthy (though still way-below-guideline) sentences for RICO conspiracy to push opiods

There are nearly 400 drug dealers sentenced in federal courts every single week in the US, but a number of notable defendants were sentenced last week for their role in a somewhat different kind of drug conspiracy.  This Forbes article provides the basic details:

John Kapoor, the 76-year old billionaire founder of Insys Therapeutics, has been sentenced to 66-months in prison for orchestrating a system of bribery and kickbacks to physicians across the US in exchange for prescribing and over prescribing large amounts of the powerful fentanyl spray, Subsys, to patients with little to no need of the drug. Kapoor is the first ever CEO of a drug company to be convicted by the federal government in their fight to combat the opioid crisis.

Kapoor’s sentence was handed down by U.S. District Judge Allison Burroughs in a Boston federal court on Thursday January 23rd.... It is the lengthiest prison sentence imposed on any of the seven former Insys executives who were found guilty of racketeering charges in May of 2019. In addition to Kapoor’s 66-month sentence he was sentenced to three years of supervised release and a $250,000 fine.

Similar sentences have been handed down in recent days to Kapoor’s seven co-conspirators.  Michael Gurry, Insys' former vice president, along with Richard Simon, Insys’ national director of sales, each received 33-months in prison; Michael Babich, Insys’ former CEO,was sentenced to 30-months; Joseph Rowan, the company's regional sales director, received 27 months; Alec Burlakoff, the former vice president of sales, was sentenced to 26 months Thursday; and Sunrise Lee, the former regional sales director, to a year and a day in prison....

The landmark case has been notable on two major fronts, the first being big pharma’s hand in the perpetuation and exacerbation of the opioid epidemic in the US and second, Insys’ systematic defrauding of the American healthcare system. From 2012 and 2015, Insys allegedly paid physicians to prescribe Subsys to patient and then went on to lie to insurance companies and defraud hundreds of thousands of dollars from Medicare from physician to physician to ensure that the expensive fentanyl-based painkiller would be covered....

Kapoor’s five and a half year sentence is considerably less than the 15-year prison sentence that was being sought by prosecutors who asserted that Kapoor was the ‘fulcrum’ of the racketeering scheme and was the only defendant who could not have been replaced by another conspirator.  Federal prosecutors wrote in a sentencing memo, "He was the principal leader, who personally approved, and thereafter enforced, the corrupt strategies employed throughout the conspiracy," continuing, "This crime would not have happened, could not have happened, without John Kapoor. It was, in almost every way, Kapoor’s crime."

Kapoor and his four co-defendants were faced with seven victims and family members of victims whose gave emotional statements about how their lives had been destroyed by Insys’ actions.  “By the grace of God, I am here to speak for all of us including the ones who lives you took,” said victim Paul Lara, who says he still suffers from being prescribed a drug that was never meant for him. Subsys, the powerful fentanyl spray is intended for terminal cancer patients to ease the pain during end of life care....

"Today's convictions mark the first successful prosecution of top pharmaceutical executives for crimes related to the illicit marketing and prescribing of opioids," U.S. Attorney Andrew E. Lelling said in a statement.  "Just as we would street-level drug dealers, we will hold pharmaceutical executives responsible for fueling the opioid epidemic by recklessly and illegally distributing these drugs, especially while conspiring to commit racketeering along the way." Lelling continued,  "This is a landmark prosecution that vindicated the public's interest in staunching the flow of opioids into our homes and streets."

Though Kapoor will now have to be in federal prison until he is in his 80s and might not live out the term, this CBS News article reports that victims are not content with the sentences imposed. The piece is headlined "Pharmaceutical executives 'got away with murder,' says mom of woman who died of an overdose," and here is an excerpt:

The prison sentence given to the pharmaceutical executive who helped fuel the opioid crisis "wasn't fair," the mother of a woman who died of an overdose said.  Deb Fuller was at the Boston courthouse Thursday, where Insys Therapeutics founder John Kapoor was sentenced to five and a half years for his role in bribing doctors to prescribe the powerful painkiller Subsys.  "I don't think it was fair. It wasn't fair to all the victims," Fuller told CBS News consumer investigative correspondent Anna Werner....

Former Insys Therapeutics Vice President of Sales Alec Burlakoff, who was featured in a video of company employees rapping about increasing sales, also was sentenced.  He got a shorter term of 26 months in prison, reflecting the fact that he cooperated with prosecutors.  Outside the courthouse, when asked if there was anything he would say to families of people who overdosed on Subsys, he said, "I'm sorry, very sorry."

Four other executives received sentences ranging from a year and a day to 33 months, not long enough for many families. "They all got away with murder because that's exactly what they did because it's more than Sarah that died from it," Fuller said.

Rounding up previews of SCOTUS oral argument in "Bridgegate" case

More than six years after an infamous partial closing of the George Washington Bridge, and more than three years after a few staffers to then-New Jersey Governor Chris Christie were convicted of federal crimes resulting from this incident, the US Supreme Court will be hearing oral argument tomorrow in Kelly v. United States.   This affair became known as "Bridgegate," and here is how the case's question is presented in the initial  petition for certiorari:  "Does a public official 'defraud' the government of its property by advancing a 'public policy reason' for an official decision that is not her subjective 'real reason' for making the decision?"

Though this case is more about the reach and application of federal criminal statutes than about sentencing, white-collar cases (and political cases) are often worth watching closely because of how they can skew, both jurists and advocates, the usual political divisions of who is pro-defendant and pro-government.  In light of that reality, I am especially interested in how the newer Justices will engage in this case.  Helpfully, Kelly has generated lots of previews from others, so I can be content here to do a quick round-up:

• From Amy Howe at SCOTUSblog, "Argument preview: “Bridgegate” scandal comes to the court"

• From Ciara Torres Spelliscy at the Brennan Center, "The Supreme Court Considers Political Lies in the Bridgegate Case"

• From Mark Walsh at the ABA Journal, "Crosstown traffic: SCOTUS considers 'Bridgegate' prosecutions"

• From Elkan Abramowitz and Jonathan Sack at Lexology, "A bridge too far? Federalism and the ‘bridgegate’ prosecution"

And back in September, SCOTUSblog had a little on-line symposium on the case, which can be found at this link.

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):

• With guilty plea entered, former national security director Michael Flynn now faces (easy?) sentencing 
• Special Counsel says non-incarceration sentence for Michael Flynn is "is appropriate and warranted" 
• Michael Flynn in sentencing memo requests probation "not to exceed one year ... along with 200 hours of community service." 

"Punishing Pill Mill Doctors: Sentencing Disparities in the Opioid Epidemic"

The title of this post is the title of this notable new article authored by Adam Gershowitz just posted to SSRN. Here is its abstract:

Consider two pill mill doctors who flooded the streets with oxycodone and other dangerous opioids.  The evidence against both doctors was overwhelming.  They each sold millions of opioid pills.  Both doctors charged addicted patients hundreds of dollars in cash for office visits that involved no physical examinations and no diagnostic tests.  Instead, the doctors simply handed the patients opioids in exchange for cash.  To maximize their income, both doctors conspired with street dealers to import fake patients — many of them homeless — so that the doctors could write even more prescriptions.  Both doctors made millions of dollars profiting off the misery of people addicted to opioids.  Even though juries convicted both doctors of similar criminal charges, they received drastically different sentences.  The first doctor was sentenced to 5 years, while the second doctor received a 35-year-sentence.

This article reviews 25 of the worst opioid pill mill doctors to be sentenced in the last five years, and it details drastic sentencing disparities in the federal system.  In more than half the cases, judges departed well below the Federal Sentencing Guidelines to impose sentences that were decades less than would be expected.

The sentencing variations in pill mill cases are not driven by traditional explanations such as the trial penalty or the defendant’s criminal history.  Instead, the sentencing variations are explained primarily by the age of the doctors.  Many pill mill doctors are in their 60s and 70s, and judges appear to be tailoring their sentencing decisions to ensure that older doctors will not spend the rest of their lives in prison.  Additionally, prosecutors face an uphill battle in proving the drug quantity against white-collar doctors (rather than street dealers) who can claim that some of their prescriptions were legitimate.  This article documents the difficulty of equitably punishing pill mill doctors, as well as the significance of age in sentencing older, white-collar offenders.

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:

• Sentencing recommendation for Rick Gates highlights what a difference a guilty plea and lots of cooperation can make

Sentencing recommendation for Rick Gates highlights what a difference a guilty plea and lots of cooperation can make

All federal practitioners know, and all federal defendants should know, that what a defendant actually did can often matter a lot less in the sentencing process than whether that defendant pleads guilty and cooperates with authorities.  The latest reminder of this reality comes from the upcoming sentencing of Rick Gates, who was indicted two years ago in a 31-page indictment of  available via this link in which he was portrayed as a "partner in crime" with Paul Manafort. 

Manafort, of course, fought the charges and after being found guilty (on less than half of the charges given to the jury), federal prosecutors calculated his applicable guideline range as nearly 20 to 25 years in prison and seemed to argue that Manafort deserved a 20-year prison term for his criminal behaviors.  (Matters get complicated thereafter because Manafort pleaded guilty to another set of charges and he ultimately received 7.5 years in total imprisonment after two sentencings.) 

Gates, in telling contrast, decided to plead guilty and cooperate with authorities.  Doing so contributed to a guideline calculation setting this advisory Guidelines range at 46 to 57 months of imprisonment.  And, as this Politico article highlights, it has now also led the federal prosecutors not to oppose Gates' request for a sentence of probation and no fine in this 19-page sentencing memo.  Here is part of the Politico piece providing highlights:

Rick Gates should be rewarded with probation after serving as a critical high-profile government witness whose testimony helped net convictions against two of President Donald Trump’s campaign aides, the Justice Department and an attorney for the former Trump deputy campaign chairman said in a pair of new court filings.

Gates — who pleaded guilty in February 2018 to financial fraud and lying to investigators — quickly became a fountain of information for Robert Mueller’s investigators, eventually testifying against both former Trump campaign manager Paul Manafort and Roger Stone, Trump’s long-time political whisperer.

The 47-year-old GOP operative spent more than 500 hours with federal and state prosecutors, both before and after he officially flipped on Trump and his allies. He also responded to three congressional subpoenas for documents and testimony. Gates’ voice dominates the final Mueller report, as he recounts details about how Trump and his 2016 campaign coordinated and planned for the release of stolen Democratic emails at critical moments of the White House race.

In a filing Monday, Gates’ attorney pleaded with U.S. District Court Judge Amy Berman Jackson to give his client probation and impose no fines when she sentences him Dec. 17. “We believe that the parties are in agreement that Mr. Gates has fulfilled every obligation he agreed to (and then some) and that he has devoted enormous energy and commitment to this task while telling the truth and maintaining his composure,” wrote Gates’ attorney, Tom Green.

Federal prosecutors — who inherited the Gates case from Mueller — said in a filing Tuesday that they wouldn’t oppose the request for probation. The former Trump deputy had “provided the government with extraordinary assistance,” wrote Molly Gaston, an assistant U.S. attorney in Washington D.C.  That included 50 meetings with investigators, during which Gates provided “truthful information” to Mueller and several other DOJ offices, as well as a vow to testify in any ongoing cases.  "Gates’ cooperation has been steadfast despite the fact that the government has asked for his assistance in high-profile matters, against powerful individuals, in the midst of a particularly turbulent environment," Gaston added.

Without elaborating, Gaston also said Gates had "received pressure not to cooperate with the government, including assurances of monetary assistance."  Gates has already helped the government at several high-profile moments.  In August 2018, he incriminated Manafort from the witness stand in several crimes, including multimillion-dollar tax evasion, bank fraud and hiding offshore accounts.  A jury later convicted Manafort, who is now serving a 7 1/2-year prison sentence. Gates also appeared last month as a star witness in the trial against Stone, who was convicted of lying to Congress about his efforts to contact WikiLeaks in the 2016 presidential race.

For so many reasons, the crimes and subsequent behaviors of Manafort and Gates are unique in many ways.  But federal practitioners know well that it is actually quite common for one defendant who goes to trial to be facing a prosecutorial recommendation of decades in prison while a cooperating co-defendant involved in comparable criminal behavior receives a recommendation for only probation.

Medical disputes before federal court as high-profile, white-collar prisoner seeks compassionate release

This NBC News article, headlined "NY prosecutors suggest former WorldCom CEO Bernie Ebbers is faking illness to get out of jail time," reports on an interesting dispute as a high-profile defendants seeks a sentencing reduction thanks to the FIRST STEP Act.  Here are the details:

Federal prosecutors say 78-year-old former WorldCom CEO Bernie Ebbers may not be in as bad physical shape as indicated in court filings seeking his early release from prison due to health concerns.

In a letter Monday to U.S. District Judge Valerie Caproni, Assistant U.S. Attorney Gina Castellano cites a note from a prison psychologist who listened in on phone calls between Ebbers and his daughter in recent weeks.  Joy Ebbers Bourne has said in a sworn declaration that her father has dementia.  “In the calls, he was alert, aware and oriented to person, place, time and situation,” the psychologist is quoted as saying, adding that Ebbers was asking about his daughter’s efforts to get him out of prison.  He is being held at the prison medical center in Fort Worth, Texas....

In a response filed in court Tuesday, Ebbers attorney Graham Carner said the alleged discrepancies can be explained by factors that have nothing to do with fakery.  “It is commonly known that people suffering from dementia (which can have many forms) can experience symptom fluctuation (i.e., ‘good days and bad days’),” Carner wrote.

The response, which notes that cognitive issues have not been the focus of Ebbers’ legal motion, cites other parts of his medical records that Carner says demonstrate Ebbers “has a substantially diminished ability to provide self-care in prison.”  Carner noted that Ebbers has suffered multiple falls, and that according to the medical report, he weighed just 148 pounds last week, down from 200 pounds in July.  “Objective medical findings show that his age and medical condition qualify as extraordinary and compelling reasons for compassionate release,” Carner wrote.

Caproni, a judge on the U.S. District Court for the Southern District of New York, had given the government until Monday to supply the additional medical data, most of which were filed under seal.  In addition to asking for any tests as to whether Ebbers was malingering, or faking his memory loss, the judge asked for information on Ebbers’ rapid weight loss — the former bouncer has reportedly withered to around 160 pounds.  Castellano said an abdominal ultrasound performed late last month found “no definitively worrisome or sonographically acute findings,” but further tests are scheduled next month.

Ebbers has served about 13 years of his 25-year sentence for orchestrating the $11 billion accounting fraud by the defunct telecommunications company. With good behavior, he is scheduled for release in 2028.

Before the FIRST STEP Act, Ebbers' request for compassionate release almost surely would have been rejected by the Bureau of Prisons and that would be the end of the matter. Now, thanks to FIRST STEP, Ebbers' can get a federal judge to consider these matters.

You be the federal judge: what sentence for Roger Stone after his conviction on all seven counts including obstruction, witness tampering and making false statements to Congress?

The question in the title of this is prompted by this criminal justice news emerging from a federal courthouse in DC today: "Roger Stone, an ally of President Donald Trump, was found guilty Friday of lying to Congress and obstructing an investigation into Russia to protect Trump and his presidential campaign."  Here is some more about the case and convictions:

The jury's verdict came after about eight hours of deliberation.  Stone, a fixture in GOP politics, has worked on campaigns stretching back to Richard Nixon's.  Stone is the latest Trump ally to be found guilty in cases sprouting from a special counsel's investigation into Russia's interference in the 2016 election.

The verdict, reached by a jury of nine women and three men, comes amid an impeachment inquiry into allegations that Trump sought to pressure Ukraine into investigating a political rival....  Trump took to Twitter shortly after the verdict was announced. He decried a "double standard" and said law enforcement officials lied, including Robert Mueller, the special counsel who headed the Russia investigation.

Stone's trial ends after a week marked with Nixon quotes, references to the Mafia movie "The Godfather" and a colorful witness who offered to do a Bernie Sanders impression before an unamused federal judge.  The proceedings attracted the attendance of controversial figures, including alt-right firebrands Milo Yiannopoulos and Jacob Wohl.

Michael Caputo, a former Trump campaign adviser who attended the trial, said he was escorted out of the courtroom by a federal marshal for turning his back on the jurors as they walked out.  "Normal Americans don’t stand a chance with an Obama judge and a Washington jury," he tweeted.

U.S. District Judge Amy Berman Jackson allowed Stone to go home as he awaits his sentencing, scheduled for Feb. 6.  A gag order preventing him from talking about the case remains in effect. He and his attorneys did not comment as they left the courthouse....

The proceedings revealed information about the Trump campaign's efforts to seek advance knowledge of emails stolen from the Democratic National Committee, which hurt Democratic presidential candidate Hillary Clinton when Trump was trailing in the polls.  Testimony indicated these efforts involved the candidate himself.

Stone, 67, stood trial on accusations that he repeatedly lied to Congress about his back-channel efforts to push for the release of those emails. He was accused of urging a possible congressional witness to either lie or scuttle his testimony.

"Roger Stone lied … because the truth looked bad for the Trump campaign and the truth looked bad for Donald Trump," Assistant U.S. Attorney Aaron Zelinsky told jurors.

Defense attorneys urged jurors to focus on Stone's state of mind, arguing he did not willfully mislead Congress.  The claim that Stone lied to protect the Trump campaign was "absolutely false," Bruce Rogow told jurors.  "It makes no sense," Rogow said, adding that the campaign was long over and Trump was already president when Stone testified before Congress in 2017. "Why would Stone lie, why would he make stuff up? ... There is no purpose, there is no reason, there is no motive."

Stone was found guilty of seven charges: one count of obstruction of an official proceeding, five counts of false statements and one count of witness tampering. The maximum penalty for all counts totals 50 years in prison, though first-time offenders generally receive significantly lower sentences.

Jurors heard from five government witnesses and saw dozens of emails and text messages that prosecutors said proved Stone lied.  His defense attorneys did not call any witnesses, and Stone, known for his flamboyance and combativeness, did not testify.  The charges stemmed from Stone's interactions with the Trump campaign in the summer of 2016, around the time that WikiLeaks, an anti-secrecy group, began publishing troves of damaging emails about the Democratic National Committee and Clinton.

Prosecutors said Stone lied to the House Intelligence Committee about his efforts to push for the release of those emails.  They said he lied about the identity of the person who tipped him off about WikiLeaks' plans — his so-called intermediary.  They said he falsely denied talking to the Trump campaign about what he learned and falsely told Congress he did not have text messages and emails in which he talked about WikiLeaks.

Prosecutors said Stone sought to silence a witness who could expose these lies by using threatening references from "The Godfather" movie.  Stone urged the witness in multiple emails to follow the steps of Frank Pentangeli, a character in "The Godfather II" who lied to Congress to avoid incriminating Mafia boss Michael Corleone.

In some settings, I would be inclined to predict that an elderly nonviolent first(?) offender is quite unlikely to get a lengthy prison term or even any prison time at all.  But these days and in these kinds of high-profile case, I am never quite sure what to expect or predict.

So, dear readers, what sentence do you think you would be inclined to impose?

SCOTUSblog online symposium previews "Bridgegate" political corruption case

Though there are other cases to be argued earlier in the coming Supreme Court Term that are sure to be of interest to sentencing fans, I suspect more than a few folks in the white-collar bar are especially excited for Kelly v. United States, a high-profile political fraud case on the SCOTUS docket this Term.  I know the great folks at SCOTUSblog are focused on this case, as they put together an online symposium this week with a lot of leading white-collar crime voices.  Here are the links, with all recommended reading:

• Amy Howe, “Bridgegate” scandal comes to the court (corrected)
• Randall Eliason, Criminal remedies for political misconduct
• Frank Bowman, Kelly v. United States: There is no political exception to fraud
• Ellen Podgor, Corruption is not a crime
• Jennifer Ahearn and Noah Bookbinder, “Paralyzing gridlock” in criminal public-corruption law

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

• Mapping out next possible celebrity sentencings in wake of indictment in college admissions scandal 
• Big batch of federal plea deals (with relatively low sentencing ranges) in college admissions scandal
• Summer sentencing (with notable particulars) for first college admission scandal parents to enter pleas in court
• Federal district judge rejects feds request for significant prison term in first sentencing of college bribery scandal
• Gearing up for the federal sentencing of Felicity Huffman and others involved in college bribery scandal 
• Feds recommending incarceration terms from 1 to 15 months for parents involved college bribery scandal 
• Noticing the interesting (but perhaps not too consequential) guidelines "loss" issue lurking in the college bribery cases
• Gearing up for the next round of sentencings in college admissions scandal
• Next parent sentenced in college admission scandal gets four months in federal prison 

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.

Prior related posts:

• Mapping out next possible celebrity sentencings in wake of indictment in college admissions scandal 
• Big batch of federal plea deals (with relatively low sentencing ranges) in college admissions scandal
• Summer sentencing (with notable particulars) for first college admission scandal parents to enter pleas in court
• Federal district judge rejects feds request for significant prison term in first sentencing of college bribery scandal
• Gearing up for the federal sentencing of Felicity Huffman and others involved in college bribery scandal 
• Feds recommending incarceration terms from 1 to 15 months for parents involved college bribery scandal 
• Noticing the interesting (but perhaps not too consequential) guidelines "loss" issue lurking in the college bribery cases

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:

• Mapping out next possible celebrity sentencings in wake of indictment in college admissions scandal 
• Big batch of federal plea deals (with relatively low sentencing ranges) in college admissions scandal
• Summer sentencing (with notable particulars) for first college admission scandal parents to enter pleas in court
• Federal district judge rejects feds request for significant prison term in first sentencing of college bribery scandal

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.

Federal district judge rejects feds request for significant prison term in first sentencing of college bribery scandal

As reported in this NBC News piece about the first sentencing in a high-profile federal criminal matter, "Stanford University's former sailing coach avoided significant prison time and was sentenced to just one day behind bars on Wednesday for his role in a massive college admissions scandal."  Here is more:

John Vandemoer was the first person to be sentenced in the sweeping corruption scandal that exposed the sophisticated network of college admissions ringleader William Rick Singer, who helped children of well-heeled clients cheat their way into elite universities.

U.S. District Court Judge Rya W. Zobel sided with defense lawyers who said their client should not get more than the one day, which the judge dismissed as time served. The government had asked the judge to sentence Vandemoer to 13 months in prison.

Before Wednesday, Vandemoer had already pleaded guilty to one count of racketeering conspiracy for accepting $770,000 in bribes in funds that all went into the school's sailing program. The money did not directly line Vandemoer's pockets, the judge and lawyers on both sides agreed. "From what I know about the other cases, there is an agreement that Vandemoer is probably the least culpable of all the defendants in all of these cases," Zobel said. "All the money he got went directly to the sailing program."

In court on Wednesday, Vandemoer's voice choked with emotion as apologized for his actions. "I want to be seen as someone who takes responsibility for mistakes," he said. "I want to tell you how I intend to live from this point forward. I will never again lose sight of my values."...

Vandemoer received three separate payments of $500,000, $110,000 and $160,000 between fall 2016 and October 2018 on behalf of the Stanford sailing program to falsely represent that three clients of Singer's were elite sailors — and thus deserving of special admission to the private school, according to court documents....

Assistant U.S. Attorney Eric Rosen pleaded with Judge Zobel to send Vandemoer to prison and send a message about the case. "The sentence that you impose will set the tone moving forward," Rosen said. The prosecutor added: "This case goes far beyond John Vandemoer. The damage on Stanford goes much further. The actions undermine the confidence in the college admissions process."

The defense asked for leniency, arguing that the money Vandemoer received didn't go into his pocket, but instead went to a fund that supported Stanford's sailing program. "It cannot be overstated: all parties agree that Mr. Vandemoer did not personally profit from the scheme," defense lawyer Robert Fisher wrote in his sentencing memo to the court. "Mr. Singer sent Mr. Vandemoer money, and he consistently turned that money over to Stanford."...

Zobel also sentenced Vandemoer to two years of supervised release and six months of home confinement. The former coach was also fined $10,000. "I am aware that these are serious offenses," Zobel said. "I find it hard in this case that Vandemoer should go to jail for more than a year."

Of the three students whose parents tried to bribe their way into Stanford, none them actually benefited from Singer and Vandemoer's scheme.  The first one's fake sailing application came too late in the recruiting season and "the student was later admitted to Stanford through the regular application process," according to prosecutors.  The next two opted to go to Brown University and Vanderbilt University, despite Vandemoer's help.

Vandemoer was fired by Stanford on March 12, hours after federal prosecutors unsealed indictments.  "Although Mr. Vandemoer's conduct resulted in donations to the Stanford sailing team, Stanford views those funds as tainted," according to a victim impact statement written to Judge Zobel by Stanford's general counsel, Debra Zumwalt. "Stanford takes no position regarding any specific sentence that this Court may impose."

Because Vandemoer does not pose any real threat to public safety, and because he has already suffered (and will continue to suffer) an array of formal and informal collateral consequences, this sentence certainly strikes me as "sufficient, but not greater than necessary, to comply with the purposes set forth" in federal sentencing law.  I suppose I am not surprised that the feds wanted a significant prison term in this first of many related sentencings, but the recommendation here of 13 months in prison is a reminder that the feds seem to think that just about every convicted defendant ought to be sent to prison for some significant period.

"The Second Step Act should give white-collar criminals a chance after release"

The title of this post is the headline of this notable recent Washington Examiner commentary authored by Cassie Monaco.  Here are excerpts:

I will also never forget the day I found out that my husband had been charged with a nonviolent criminal offense.  The emotions that I felt and the pain that I had at that very moment are indescribable, not to mention the feelings of utter shock, knowing that your life will never be the same again.  Today, my husband is serving six and a half years at a federal prison in Colorado.

As the wife of an incarcerated individual, I had two choices: Do I indulge in self-pity, or do I channel my energy and emotions into something more productive? I chose the latter. And so I got involved with national advocacy efforts on criminal justice reform, and I created an organization called A Day Closer, with the sole mission of reducing recidivism by keeping families intact while a loved one is incarcerated.

The First Step Act is providing much needed relief and assistance to many of those incarcerated and their families.  It is also restoring dignity back into our very broken criminal justice system.  However, the act still leaves behind a group that oftentimes gets over looked: individuals convicted of white-collar crimes.

I can understand the lack of sympathy out there for many white-collar criminals, but not all of them are bad people.  In addition to admitting their crimes and apologizing to the victims, they are left financially destroyed, with their professional and personal lives ruined forever....

The First Step Act understandably focuses on relief for drug offenders.  But oftentimes, those offenders do not have the burden of restitution once they are out.  The white-collar group, although they are less likely to fall victim to recidivism, will however be saddled with a life sentence in the form of extraordinary restitution.  They will never be completely free, even after time served. This needs to change.

As the national conversation shifts to the Second Step, lawmakers should sponsor and support legislation that provides some relief with regards to restitution amounts. Meanwhile, by executive order, Trump should return the Office of the Pardon Attorney to its former place under the Executive Office of the President.  Finally, Trump should create an independent commission that advises the president on matters related to Executive Clemency.

The goal is simple: give those that have committed white-collar crimes, admitted to their mistakes, and served their time a real chance to start over and rebuild their lives, without being saddled with the burden that excessive restitution creates.

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:

• Mapping out next possible celebrity sentencings in wake of indictment in college admissions scandal 
• Big batch of federal plea deals (with relatively low sentencing ranges) in college admissions scandal

Noting a notable federal prisoner now benefiting from the FIRST STEP Act's elderly offender home confinement program

The New York Times has this notable new article focused on one notable federal offender now benefiting from the FIRST STEP Act.  The headline of the piece indirectly reveals some of its themes: "He Committed a $300 Million Fraud, but Left Prison Under Trump’s Justice Overhaul."  Here are some excerpts from the piece:

Three weeks ago, a 69-year-old man convicted of bank fraud quietly left a federal prison camp in Cumberland, Md., and moved into a friend’s one-bedroom apartment in Manhattan. He was one of the early inmates to benefit from a criminal justice bill signed into law by President Trump.  The law, the First Step Act, offered prisoner rehabilitation programs and overhauled sentencing policies that supporters claimed had a disproportionate effect on poor defendants, especially minorities.

But one person who benefited from the law was Hassan Nemazee, the prisoner at Cumberland, who was once an investor of enormous wealth and who donated heavily to Democratic political causes.  He was a national finance chairman for Hillary Clinton’s 2008 presidential campaign and later raised hundreds of thousands of dollars for Barack Obama’s first presidential contest.

Mr. Nemazee, who is serving the rest of his sentence in home confinement, acknowledged in interviews that he was not a fan of Mr. Trump, but he felt personally indebted to the president and his aides for pushing through “the most significant prison reform legislation in a generation.”...

Mr. Trump said recently at the White House that “unfair sentencing rules were contributing to the cycle of poverty and crime,” and since the First Step Act’s passage, more than 500 people with “unfair sentences have been released from prison and are free to begin a new life.”  But Mr. Nemazee left prison under a less publicized part of the bill that allows certain offenders who are over 60 and not considered a threat to others to be released into home confinement if they have completed two-thirds of their sentence.

In home confinement, Mr. Nemazee does not wear an ankle bracelet, but officials may call him on a landline late at night or early in the morning to verify he is at home. He may be summoned for a urine test at any time and must submit his weekly schedule for approval, he said.  Still, it feels a lot like freedom.  He may leave his apartment to go to work, the gym, religious services or appointments with his doctors and lawyers. He may also go out to lunch, “which is always a treat, given where I have been the last eight and a half years.”...

The Bureau of Prisons has said that since the bill’s passage, 10 prisoners — of 23 thus far deemed eligible — have been released into home confinement. The bureau would not identify the prisoners or comment on their cases.  Another is reported to be a white-collar criminal named Herman Jacobowitz, 60, who pleaded guilty in Brooklyn in 2005 in another large fraud case and was sentenced to 15 years, according to court papers and a lawyer familiar with the case. Mr. Jacobowitz could not be reached for comment.

Some of many prior related posts on FIRST STEP Act implementation:

• Might the US Sentencing Commission provide some real-time updates on the implementation of the FIRST STEP Act? 
• FAMM sends letter to BOP and DOJ to urge full implementation of key provisions of the FIRST STEP Act
• "3 more steps to make 'First Step Act' work"
• Might White House provide "impact data" on FIRST STEP Act as Prez Trump celebrates the law next week? 
• "Trump Celebrates Criminal Justice Overhaul, but His Budget Barely Funds It" 
• Encouraging news and inspiring notes as White House celebrates FIRST STEP Act
• "Department of Justice Announces First Step Act Implementation Progress"
• A few comments on implementing the FIRST STEP Act in written testimony from AG William Barr 

Finding lessons in the Manafort sentencing and California's capital moratorium

Brandon Garrett has this great new little piece at The New Republic under the headline "Beyond Hard Time: What the disparate reactions to Manafort's sentence and California's death penalty ban reveal about our broken system."  I recommend the piece in full, and here is a taste:

Is it hypocritical to call for less severe sentences for “regular” criminals while decrying leniency for white-collar defendants?  Those debates are now roiling the pundit world, but as a longtime student of disparities in judicial outcomes, I find the basis of the comparison deeply misleading.  The juxtaposition of the Manafort and Newsom stories should prompt us, rather, to question anew the impulse to frame years in prison as the most appropriate response to our most pressing social problems....

Instead of enacting more draconian sentences, we must invest in white-collar law enforcement the same way we invest in other measures to protect public safety.  Consider this: the Internal Revenue Service has had its budget cut over the past decade to the point where audits have decreased by 42 percent and the number of tax fraud cases the agency brings has been cut by nearly 25 percent.  Under such lax enforcement, tax fraud schemes — of the very sort repeatedly carried out by Paul Manafort — are able to thrive.  And while better white-collar crime enforcement is a key, neglected foundation of public safety, the rationale for more sustained and concerted pursuit of white-collar criminals doesn’t end there.  These offenses also pose much broader hazards to our well-being.  They endanger the national economy — and conspiring with other countries endangers national security — on a far greater scale than the harms wrought by drug possession and street crimes.

The way out of the double standard we apply to punishment is to reject the notion that true justice inheres in strictly hewing to a one-size-fits-all model of criminal sentencing. To begin using law enforcement as a means of meaningful social reform, we need, rather, to consistently apply the same standards of enforcement to all types of crime: police far more, prosecute and punish far less, utilize evidence-based treatment, and ask that violators give back and make the community whole.  Harsh sentences don’t deter crime, but changing the focus of our enforcement systems just might.

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.”

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"

Paul Manafort given (only?) 47 months in prison at first federal sentencing

I worried that my prediction this morning that Paul Manafort would get 100 months at his first federal sentencing was a little low.  Turns out, I was way too high: he got only 47 months today.   Here are some details from The Hill:

A federal judge on Thursday sentenced former Trump campaign chairman Paul Manafort to 47 months in prison, well below the amount recommended in sentencing guidelines. The sentence handed down by Judge T.S. Ellis III, a Reagan appointee, was significantly less than the 19.5 to 24 years advised in federal guidelines.

Ellis, in remarks from the bench, described Manafort’s financial crimes as “very serious” but said the guideline range was “not at all appropriate,” and pointed to significantly more-lenient sentences handed down in similar cases.

Manafort, who turns 70 next month, appeared in court in a wheelchair and wore a green jumpsuit. His prison sentence will include time served, meaning nine months will be knocked off for the time he has already spent in jail. As a result, he will be incarcerated for three years and two months.

He was also ordered to pay a $50,000 fine and up to $24 million in restitution.

“You’ve been convicted of serious crimes -- very serious crimes -- by a jury,” Ellis said to a packed courtroom after a lengthy sentencing hearing in federal court in Alexandria, Va., that lasted nearly three hours. However, he added, “I think that sentencing range is excessive. I don’t think that is warranted in this case.”

Manafort’s attorneys earlier this month asked for leniency, citing their client’s age, poor health, low risk of reoffending and assistance in Mueller’s probe. On Thursday, defense attorney Thomas Zehnle pointed to other cases in which defendants received much less prison time for similar crimes.

In remarks shortly before receiving his sentence, Manafort described himself as “humiliated and ashamed” of his behavior and for the pain he had caused his family. He thanked Ellis for a fair trial twice and asked him for compassion. “My life professionally and financially is in shambles,” Manafort said. “To say that I feel humiliated and ashamed would be a gross understatement,” “I intend to turn my notoriety into a positive.”

However, Manafort did not express remorse for his actions -- something Ellis noted before handing down the punishment. “I was surprised that I did not hear you express regret,” said Ellis. “That doesn’t make any difference on the judgment that I am about to make … but I hope you reflect on that.”

Manafort was convicted by a jury in August of eight criminal charges -- five counts of filing false tax returns, two counts of bank fraud and one count of failing to report foreign bank accounts. The financial crimes were uncovered during special counsel Robert Mueller’s Russia investigation. His case in the U.S. District Court for the Eastern District of Virginia marked the first criminal trial in the Mueller probe. But as the defense noted, Manafort’s crimes had nothing to do with Russian election meddling or collusion with the Trump campaign....

To avoid a second criminal trial on separate charges in Washington, D.C., Manafort reached a plea deal with Mueller that involved his full cooperation with federal prosecutors. But the federal judge presiding over his case in D.C. found that he lied to investigators and a federal grand jury about subjects “material” to Mueller’s investigation into Russian meddling and possible coordination between the Trump campaign and the Kremlin.

Manafort was initially scheduled for sentencing in early February, but Ellis postponed the hearing to let Judge Amy Berman Jackson in D.C. determine whether Manafort’s misstatements were unintentional, as he had argued. Ellis said at the time he thought Jackson’s ruling could impact his own sentencing of Manafort.

Sentencing in the D.C. case is scheduled for Wednesday. He faces a maximum of 10 years in prison for conspiracy against the U.S. and conspiracy to obstruct justice by tampering with witnesses. Jackson will decide whether he should serve those years consecutively or concurrently with the ones handed down by Ellis.

Manafort could walk free from federal punishment if President Trump decides to pardon him, but it’s unclear whether the president plans to pursue that avenue. The New York Times recently reported that Manhattan District Attorney Cyrus Vance Jr. is planning to bring state charges against Manafort regardless.

A few quick points in reaction:

1.  Though I do not know exactly when Manafort will get out, I can confidently predict he will not serve exactly 47 months for two reasons: (a) he may get consecutive time at his next sentencing next week (and I suspect he will), and (b) he will surely earn good-time credits and perhaps have others means of getting released earlier as an elderly offender. (Good-time credit alone could get him seven months off possibly resulting in his release before the end of 2021 on the sentence he received today).

2.  I have already seen lots of Twitter commentary complaining this sentence is way too lenient, but I sense many of the complaints really stem from folks rightly seeing a lot of other sentences as way too harsh.  Title 18 USC § 3553(a) calls upon a federal judge to impose a sentence "sufficient, but not greater than necessary, to comply with" traditional sentencing purposes.  I have a hard time developing forceful arguments that a nearly four-year prison term for a nearly 70-year-old man, plus a $50,000 fine and $24 million in restitution, is not sufficient in response to a nonviolent crime.

3.  Roughly a decade ago, when Bernie Madoff got a max sentence of 150 years, I speculated in this post about prosecutors using that high number as a sentencing benchmark in all sorts of other white-collar cases.  Now I am thinking that Paul Manafort has produced a new kind of white-collar sentencing benchmark that now should be of great use to defense attorneys.  Notably, not only was Manafort facing a guideline range of 19.5 to 24 years, but he went to trial and never fully accepted responsibility or even showed remorse.  "If unremorseful Manafort only merited 47 months in prison," so the argument should go from many defense attorneys, "this white-collar defendant should get even less."

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:

• Appreciating ugly sentencing realities facing Paul Manafort and Rick Gates after federal indictment 
• Paul Manafort has bail revoked ... and has not (yet) gotten rescued from jail by Prez Trump's clemency pen
• Paul Manafort found guilty of 8 of 18 counts ... and now faces real possibility of spending many years in federal prison
• Reported sentencing details in Paul Manafort's plea deal to wrap up his various federal prosecutions
• Paul Manafort's DC plea agreement has a calculated guideline range of 17.5 to 22 years (though he can only get 10) 
• Paul Manafort seemingly poised to get "senior discount" at upcoming sentencing 
• Special counsel saying Paul Manafort is breaching his plea agreement by lying "on a variety of subject matters"
• Paul Manafort facing potentially longer sentence after judge concludes he failed to comply with plea deal
• Special Counsel's office files sentencing memorandum for Paul Manafort seemingly supporting guideline range of 235 to 293 months' imprisonment
• Latest Manafort sentencing memorandum from Special Counsel pulls few punches 
• "Paul Manafort should not be sentenced to 20 years in prison" 
• Paul Manafort's sentencing memorandum in DC makes pitch for a sentence "significantly below" ten years 

"Paul Manafort should not be sentenced to 20 years in prison"

The title of this post is the headline of this new Hill commentary authored by David Oscar Markus. Here are excerpts:

A jury has spoken on Paul Manafort. He was found guilty, and he should be punished. But his reported sentencing guideline range of 19.5-24.5 years is a good example of how our criminal justice system has lost its way.

Once, when trials were common, our system was the envy of the world. Now, trials almost never occur. (In the 1980s, over 20 percent of cases went to trial while less than 3 percent proceed to trial today). The reason is simple: defendants who go to trial and lose in today’s system now suffer “the trial penalty,” and receive a much more severe — sometimes decades longer — sentence simply for exercising a fundamental Constitutional right to trial.

Even innocent people plead guilty because of the risk/reward analysis that all defendants consider. The risks of going to trial have become way too high. You can plead guilty and get probation or go to jail for a manageable amount of time. But if you go to trial and lose... well, you’ll be crushed.

A jury found Manafort guilty of tax and related offenses, but suggesting that a 20 year sentence is appropriate in this case is just wrong. Twenty years! Manafort is a 69-year old, first-time offender. If the judge sentences him to anywhere in that range, he will most likely leave prison in a box.

Make no mistake, the sentencing range is that high only because Manafort had the audacity to make the government actually prove its case at a trial. Does going to trial warrant a sentence 15 years longer than his co-defendant, Rick Gates? Rick Gates hasn’t been sentenced yet, but his sentencing range is around 5 years. And he will most likely get a sentence much lower than that because of his cooperation. His lawyers will certainly ask for probation as have numerous other cooperators in the Special Counsel’s cases.

Some will respond that Gates should get less time than Manafort because he is less culpable and decided to cooperate. That’s of course true. But that doesn’t mean that Manafort should get 20 years simply because he had the temerity to go to trial.

The truth is that being less culpable becomes a minor factor when the trial penalty comes into play. There are many examples of the least culpable defendant getting the highest sentence solely because of the trial penalty. One such victim of the trial penalty was James Olis, a securities fraud defendant who worked at Dynegy Corporation in Houston, Texas. Olis was sentenced to 24 years in prison after trial, while his boss who testified against him received about a year.

Before trial, Olis had been offered 6 months in exchange for pleading guilty and cooperating. Olis’ lawyer, David Gerger, predicted: “If there’s a 20-year penalty for going to trial, then innocent as well as guilty people will simply decide they have to give up their right to a trial.” He was right. The case was ultimately reversed, and Olis was resentenced to 6 years. Until the reversal, prosecutors in Houston expressly mentioned Olis to any fraud defendant who wouldn’t plead. The line went something like this: “You can plead or risk ending up like Olis.”  Prosecutors in every district have their own “Olis line.”

Some prior related posts:

• Appreciating ugly sentencing realities facing Paul Manafort and Rick Gates after federal indictment 
• Paul Manafort has bail revoked ... and has not (yet) gotten rescued from jail by Prez Trump's clemency pen
• Paul Manafort found guilty of 8 of 18 counts ... and now faces real possibility of spending many years in federal prison
• Reported sentencing details in Paul Manafort's plea deal to wrap up his various federal prosecutions
• Paul Manafort's DC plea agreement has a calculated guideline range of 17.5 to 22 years (though he can only get 10) 
• Paul Manafort seemingly poised to get "senior discount" at upcoming sentencing 
• Special counsel saying Paul Manafort is breaching his plea agreement by lying "on a variety of subject matters"
• Paul Manafort facing potentially longer sentence after judge concludes he failed to comply with plea deal
• Special Counsel's office files sentencing memorandum for Paul Manafort seemingly supporting guideline range of 235 to 293 months' imprisonment

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:

• Appreciating ugly sentencing realities facing Paul Manafort and Rick Gates after federal indictment 
• Paul Manafort has bail revoked ... and has not (yet) gotten rescued from jail by Prez Trump's clemency pen
• Paul Manafort found guilty of 8 of 18 counts ... and now faces real possibility of spending many years in federal prison
• Reported sentencing details in Paul Manafort's plea deal to wrap up his various federal prosecutions
• Paul Manafort's DC plea agreement has a calculated guideline range of 17.5 to 22 years (though he can only get 10) 
• Paul Manafort seemingly poised to get "senior discount" at upcoming sentencing 
• Special counsel saying Paul Manafort is breaching his plea agreement by lying "on a variety of subject matters"
• Paul Manafort facing potentially longer sentence after judge concludes he failed to comply with plea deal

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:

• Appreciating ugly sentencing realities facing Paul Manafort and Rick Gates after federal indictment 
• Paul Manafort has bail revoked ... and has not (yet) gotten rescued from jail by Prez Trump's clemency pen
• Paul Manafort found guilty of 8 of 18 counts ... and now faces real possibility of spending many years in federal prison
• Reported sentencing details in Paul Manafort's plea deal to wrap up his various federal prosecutions
• Paul Manafort's DC plea agreement has a calculated guideline range of 17.5 to 22 years (though he can only get 10) 
• Paul Manafort seemingly poised to get "senior discount" at upcoming sentencing 
• Special counsel saying Paul Manafort is breaching his plea agreement by lying "on a variety of subject matters"

US Sentencing Commission releases new report titled "What Does Federal Economic Crime Really Look Like?"

Contintuing its steady production of research reports to start 2019, the US Sentencing Commission yesterday released this 87-page report under the title ""What Does Federal Economic Crime Really Look Like?". This USSC webpage provides this "Summary" and "Key Findings":

Summary

This publication provides data on the broad variety of economic crime sentenced under §2B1.1.  The Commission undertook a project to systematically identify and classify the myriad of economic crimes sentenced under §2B1.1 using offenders' statutes of conviction and offense conduct.  The Commission used this two-step methodology to assign the 6,068 offenders sentenced under §2B1.1 in fiscal year 2017 to one of 29 specific types of economic crime.

This publication provides, for the first time, data from this new project as well as a brief description of the study's methodology.

Key Findings

• The economic crime guideline (§2B1.1) accounts for approximately ten percent of the federal caseload and encompasses a wide variety of conduct.

• Embezzlement and theft offenders consistently accounted for about one-quarter of all economic crime offenders, ranging from 24.6 to 28.3 percent during the five years studied.  Financial institution fraud and government benefits fraud offenders have also been among the top five most prevalent type of economic crime offenders.

• The offense severity, as measured by several guideline enhancements, varied significantly across the 17 specific types of economic crime that were the focus of this report.  In particular, median loss amounts varied substantially, with four specific offense types involving median losses far exceeding the median loss amount for all economic crime offenders of $131,750: securities and investment fraud ($2,105,620), health care fraud ($1,086,205), mortgage fraud ($999,721), and government procurement fraud ($739,455) and two specific offense types with the lowest median loss amounts: mail related fraud ($1,815) and false statements ($0).  These differences are particularly noteworthy because the loss calculation is the primary driver of the guideline calculation under §2B1.1.

• The application rates of other guideline provisions measuring offense severity and offender culpability also varied significantly across the specific types of economic crime. For example, the victims enhancement applied in 78.1 percent of securities and investment fraud compared to 2.4 percent of false statements offenses, and the sophisticated means enhancement applied in 37.5 percent of advanced fee fraud compared to 0.6 percent of mail related fraud.

• The average sentences varied significantly across the specific types of economic crime. Securities and investment fraud offenders received the longest average sentences at 52 months, more than twice as long as the average sentence for all economic crime offenders of 23 months.  False statements offenders received the shortest average sentence at five months.

• Offender characteristics also differed across economic crime types.  For example, White offenders accounted for a substantial majority of securities and investment fraud (79.9%), computer related fraud (70.5%), and government procurement fraud (62.3%), while Black offenders accounted for the largest proportion of tax fraud (55.0%), identity theft (49.4%), and credit card fraud (45.0%).

"Bernie Madoff's secretary wants to use new Trump law to get out of jail early"

The title of this post is the juicy headline of this notable new ABC News article about a notable defendant eager of make use of the FIRST STEP Act to seek release from federal prison.  I call the headline juicy in part because of the Bernie Madoff connection, as well as the fact that the FIRST STEP Act is described as the "new Trump law."  Here are excerpts:

One of the five employees of Bernie Madoff convicted in a $20 billion Ponzi scheme is seeking early release from prison based in part on the new criminal justice reform law signed last week by President Donald Trump. Annette Bongiorno, who was Madoff’s longtime secretary, has been in prison since February 2015 and asked the judge to order her release no later than March 2019, more than a year before her scheduled release date.

In a letter to U.S. District Judge Laura Taylor Swain, defense attorneys cited the First Step Act that they contend makes Bongiorno, 70, eligible for home confinement, since she is at an advanced age and has served two-thirds of her sentence. "The new statute permits her to make a direct application to the court for this relief, and Mrs. Bongiorno respectfully makes the application," defense attorney Roland Riopelle wrote.  "She remains an 'old fashioned' family oriented person who would benefit greatly from the release to home confinement that the First Step Act provides," he wrote.

A spokesperson for federal prosecutors in the Southern District of New York was not immediately available to respond to a request for comment on Bongiorno's bid for early release.  The office declined to comment to a similar request for comment by the Associated Press....

Bongiorno was convicted in 2014 after a six-month trial during which she insisted she did not know her boss was running what is widely-seen as the biggest Ponzi scheme in American history.  Madoff, who is now 80, is serving a 150-year sentence following conviction on a fraud that was exposed a decade ago.

In his letter to the judge, Riopelle called Bongiorno a "model prisoner" who has served her sentence at FCI Coleman medium security prison in Sumterville, Florida, "without a disciplinary violation of any kind." Riopelle said she was in decent health and in "generally good spirits" though finds the holiday season "a bit depressing."

Without seeing the filing referenced in this article, it is unclear to me if Bongiorno is seeking so-called "compassionate release" or is seeking relief under an elderly prisoner reentry pilot program.  The FIRST STEP Act has important new provisions making available two different possible means for elderly prisoners to seek release to home confinement or sentence modification, but the legal requirements and process are distinct in important ways.  Bongiorno certainly will not be the only older prisoner looking to take advantage of the FIRST STEP Act, and I expect there could be a lot of interesting jurisprudence emerging in the weeks and months ahead on these fronts.

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:

• With guilty plea entered, former national security director Michael Flynn now faces (easy?) sentencing 
• Special Counsel says non-incarceration sentence for Michael Flynn is "is appropriate and warranted" 
• Michael Flynn in sentencing memo requests probation "not to exceed one year ... along with 200 hours of community service." 

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:

• Michael Cohen, Prez Trump's fixer, cuts a plea deal to fix his federal sentence between 46 to 63 months in federal prison
• Prez Trump advocating for a whole new kind of sentencing reform: he says cooperation deals "almost ought to be outlawed. It’s not fair." 
• Michael Cohen, former lawyer to Prez trump, pleads guilty to lying to Congress 
• Michael Cohen makes pitch for "time-served and restitution to the IRS" based largely on his continuing cooperation
• Feds request for Michael Cohen a "substantial term of imprisonment" though with a "modest downward variance" from Guideline range of 51-63 months in prison 

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

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

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

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

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

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

Prior related posts:

• Michael Cohen, Prez Trump's fixer, cuts a plea deal to fix his federal sentence between 46 to 63 months in federal prison
• Prez Trump advocating for a whole new kind of sentencing reform: he says cooperation deals "almost ought to be outlawed. It’s not fair." 
• Michael Cohen, former lawyer to Prez trump, pleads guilty to lying to Congress 
• Michael Cohen makes pitch for "time-served and restitution to the IRS" based largely on his continuing cooperation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

• Michael Cohen, Prez Trump's fixer, cuts a plea deal to fix his federal sentence between 46 to 63 months in federal prison
• Prez Trump advocating for a whole new kind of sentencing reform: he says cooperation deals "almost ought to be outlawed. It’s not fair." 
• Michael Cohen, former lawyer to Prez trump, pleads guilty to lying to Congress 

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

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

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

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

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

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

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

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

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

Some prior related posts:

• Appreciating ugly sentencing realities facing Paul Manafort and Rick Gates after federal indictment 
• Paul Manafort has bail revoked ... and has not (yet) gotten rescued from jail by Prez Trump's clemency pen
• Paul Manafort found guilty of 8 of 18 counts ... and now faces real possibility of spending many years in federal prison
• Reported sentencing details in Paul Manafort's plea deal to wrap up his various federal prosecutions
• Paul Manafort's DC plea agreement has a calculated guideline range of 17.5 to 22 years (though he can only get 10) 
• Paul Manafort seemingly poised to get "senior discount" at upcoming sentencing

Prez Trump reportedly to announce support for FIRST STEP Act with sentencing provisions, greatly increasing its prospects for swift passage

This new CNN article, headlined "President Trump to announce support for criminal justice overhaul proposal," reports on encouraging news regarding efforts to get major federal criminal justice reform enacted in coming weeks. Here are the details:

President Donald Trump is expected to throw his support behind bipartisan criminal justice legislation during an event at the White House on Wednesday, two sources close to the process said.

Trump is scheduled to announce on Wednesday that he is supporting the latest iteration of the First Step Act, a bill that his son-in-law and senior adviser, Jared Kushner, has been working to craft and build support for alongside a bipartisan group of senators, the sources said.  The President will be joined by supporters of the legislation during the White House event, the sources said.

Supporters of the measure expect that Trump's explicit backing will help propel the prison and sentencing overhaul bill through Congress.  The President has wavered on whether to throw his support behind the bill in recent months, but the sources said he was swayed to back the bill on Tuesday after meeting with Kushner.

Trump's support came after several law enforcement associations announced their backing for the legislation.  The National District Attorneys Association, which represents 2,500 district attorneys and 40,000 assistant district attorneys, became the latest law enforcement organization to support the bill, according to a letter the group's president addressed to Trump....

The prosecutors' association's support for the legislation came on the heels of backing from several other law enforcement organizations, including the Fraternal Order of Police, International Association of Chiefs of Police, Law Enforcement Leaders to Reduce Crime and Incarceration and the National Organization of Black Law Enforcement Executives, which also penned a letter of support to Trump.

The Major Cities Chiefs Association and Major County Sheriffs of America also withdrew their opposition to the legislation, writing in a letter to Kushner dated Tuesday that they "endorse the objectives of the First Step Act" and the legislation "strengthens how Federal prisoners may be integrated into the community and set on a path to live positive and productive lives."  Less than two weeks ago, the groups wrote to Kushner to say they could not back the bill.

Opposition from since-ousted Attorney General Jeff Sessions and Republican Sen. Tom Cotton of Arkansas, in particular, served as key stumbling blocks to advancing the legislation, with both touting opposition within law enforcement circles -- an argument that is quickly fading as groups back the proposal.  Sources close to the process said the support from law enforcement associations is key to advancing the measure and securing the President's full-throated support.

Proponents of the bill made several changes to it to win backing from law enforcement groups, including stiffer sentencing guidelines for fentanyl-related offenses and a compromise provision to modestly expand the definition of a serious violent crime.

Now the question is whether enough Democrats will rally to support the compromise package or hold out for a more ambitious overhaul of the nation's sentencing laws. Sen. Cory Booker of New Jersey, who had announced his opposition to a previous version of the bill because he felt it did not go far enough, said Tuesday that he is still looking to get more changes to the bill.

Though I am not going to count any sentencing reform chickens until they are hatched and have been signed into law, I am inclined to start predicting that we are on the verge of a remarkable federal criminal justice reform achievement that will be the most consequential statutory reform in nearly 35 years.  (I am also inclined to recall pieces from late 2016, like the one blogged here, that astutely suggested federal criminal justice reform might still be a real possibility in the Trump era.)  I am not quite yet ready to start patting a whole lot of folks on the back, but I am getting close to wanting to start celebrating the culmination of five years of very hard work by lots of folks inside and outside the Beltway.  Fingers crossed.

Some of many prior related posts:

• House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
• FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain
• Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
• Prez Trump pledges to sign prison reform that will be "best in the world"
• Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act
• An interesting political pitch for the FIRST STEP Act 
• Encouraging news from DC about prospects for prison reform with sentencing reform getting enacted in 2018
• FAMM provides detailed review of SRCA sentencing provisions most likely to be added to FIRST STEP Act
• Senator Cotton delivers faulty arguments to prop up faulty federal sentencing system
• Could enhanced FIRST STEP Act get more than 90 votes in the Senate if ever brought up for a vote?
• Senate Majority Leader Mitch McConnell promises floor vote on FIRST STEP Act after midterm election if more than 60 Senators want to move forward
• Prez Trump reiterates support for prison reform and says AG Jeff Sessions "gets overruled by me"
• Could the FIRST STEP Act, with sentencing reforms added, get through Congress in just a matter of weeks?
• Latest push for passage of FIRST STEP Act with sentencing reforms now afoot

UPDATE: A few other recent press reports reinforce my sense and concern that nothing here is a done deal yet:

From the Washington Post, "Trump receptive to compromise criminal justice overhaul backed by Kushner"

From The Hill, "Criminal justice reform faces a make-or-break moment"

Latest federal sentencing of corrupt New York pol results in former state senate leader Dean Skelos getting 51 months

This New York Post piece, headlined "Dean Skelos sentenced to more than four years in prison," reports on the latest high-profile political corruption sentencing from a state that always seeks to keep the white-collar lawyers busy. Here are the details:

Dean Skelos, once one of the most powerful men in Albany, was sentenced to more than four years in prison Wednesday for using his political office to benefit his do-nothing son — who was noticeably absent from court for his father’s day of reckoning.

Manhattan federal Judge Kimba Wood said she would’ve given the one-time state Senate majority leader less than 51 months behind bars given his advanced age, but tacked on an extra three months because she found he lied on the witness stand.  “Your repeated mischaracterizations and lies about your conduct warrant a three-month enhancement,” Wood told the 70-year-old disgraced pol.

Dean’s son, Adam Skelos, who was convicted alongside him at their retrial in July, was nowhere to be found in court, underscoring the father and son’s strained relationship. Adam will be sentenced later Wednesday afternoon.

In begging for leniency, Dean told the judge he hoped to one day repair their bond. “My son, Adam, I love him more today than yesterday,” he said, his voice cracking. “I always try to protect him and I failed. Although our relationship is strained, I hope one day it will be restored.” Dean also asked Wood to go easy on his only child. “I hope that you show him mercy so that he can be the father he wants to be,” Dean said.

The Long Island Republican, and Adam, 36, were convicted at their retrial in July of strong-arming companies seeking help from Dean into giving Adam no-show jobs and consulting gigs. The pair was first convicted in 2015, but the case was tossed on appeal — paving the way for the politician to take the stand in his own defense in July....

The feds had asked the judge — who sentenced Dean to five years after the first trial — to take it up a notch to at least six-and-a-half years. A lawyer for Dean asked for leniency, saying the case has already taken a severe toll on the once-powerful politician, including straining his relationship with Adam. Dean has also developed a drinking problem due to the stress, his lawyer said.

Adam Skelos was previously sentenced to six-and-a-half years in prison after the judge said the trial showed that he had “no moral compass.” Adam, who is expecting a second child with his fiancée next month, has also asked for leniency, saying the judge’s harsh words have forced him to seek help and to change.

As Senate majority leader, Dean Skelos served as one of the so-called “three men in a room” — the others being Gov. Andrew Cuomo and longtime state Assembly Speaker Sheldon Silver, who was sentenced in July to seven years for corruption.

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

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

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

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

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

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

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

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

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

Some prior related posts:

• Appreciating ugly sentencing realities facing Paul Manafort and Rick Gates after federal indictment 
• Paul Manafort has bail revoked ... and has not (yet) gotten rescued from jail by Prez Trump's clemency pen
• Paul Manafort found guilty of 8 of 18 counts ... and now faces real possibility of spending many years in federal prison
• Reported sentencing details in Paul Manafort's plea deal to wrap up his various federal prosecutions
• Paul Manafort's DC plea agreement has a calculated guideline range of 17.5 to 22 years (though he can only get 10) 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related post:

• In second sentencing from special counsel investigation, feds seeking incarceration "within Guidelines range of 0 to 6 months" for George Papadopoulos 

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

Former Enron CEO Jeff Skilling completes his time in federal prison

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Prior related posts:

• Appreciating ugly sentencing realities facing Paul Manafort and Rick Gates after federal indictment 
• Paul Manafort has bail revoked ... and has not (yet) gotten rescued from jail by Prez Trump's clemency pen 

In second sentencing from special counsel investigation, feds seeking incarceration "within Guidelines range of 0 to 6 months" for George Papadopoulos

As reported in this New York Times piece, special counsel Robert Mueller and his team have submitted this sentencing memo in conjunction with the upcoming scheduled sentencing of George Papadopoulos. Here is how that memocrandum gets started:

The government submits this memorandum in connection with the sentencing of George Papadopoulosscheduled for September 7, 2018. On October 5, 2017, Papadopoulos pleaded guilty to one count of making false statements in violation of 18 U.S.C. § 1001(a).  The government does not take a position with respect to a particular sentence to be imposed, but respectfully submits that a sentence of incarceration, within the applicable Guidelines range of 0 to 6 months’ imprisonment, is appropriate and warranted.

The defendant’s crime was serious and caused damage to the government’s investigation into Russian interference in the 2016 presidential election.  The defendant lied in order to conceal his contacts with Russians and Russian intermediaries during the campaign and made his false statements to investigators on January 27, 2017, early in the investigation, when key investigative decisions, including who to interview and when, were being made.  The defendant was explicitly notified of the seriousness of the ongoing investigation, and was told that he may have important information to provide.  He was warned that lying to investigators was a “federal offense” that could get him “in trouble.”  Instead of telling the truth, however, the defendant repeatedly lied throughout the interview in order to conceal the timing and significance of information the defendant had received regarding the Russians possessing “dirt” on Hillary Clinton, as well as his own outreach to Russia on behalf of the campaign.  The defendant’s false statements were intended to harm the investigation, and did so.

In light of the defendant’s conduct and the lack of mitigating circumstances, the principles of sentencing set forth in 18 U.S.C. § 3553(a) call for a period of incarceration.

Here is more from the memo and context from the NY Times story:

Mr. Mueller’s memo said Mr. Papadopoulos did not provide “substantial assistance” to the investigation, and that “much of the information provided by the defendant came only after the government confronted him with his own emails, text messages, internet search history and other information it had obtained via search warrants and subpoenas.”

Thirty-two people have been charged by Mr. Mueller’s office since it took over the investigation in May 2017. The only defendant to be sentenced so far is the lawyer Alex van der Zwaan, who pleaded guilty to making false statements about his conversations with a former Trump campaign official. In April, a judge sentenced him to 30 days in prison.

Mr. Mueller’s office has not yet filed a sentencing memo in the case of Mr. Trump’s former national security adviser, Michael T. Flynn. He pleaded guilty in December to making false statements to investigators about his contacts with the Russian ambassador and agreed to cooperate with the authorities. Mr. Flynn was scheduled to be sentenced this year, but that has been delayed, suggesting that he is still cooperating with the government.

At resentencing, former New York Assembly speaker gets (only?) seven years in federal prison for corruption

As reported here by the New York Post, "Sheldon Silver, the disgraced ex-speaker of the New York state Assembly, was sentenced to seven years in prison — less than the 12 years he was sentenced to previously."  Here is the context:

The judge cited the 74-year-old Silver’s advanced age and the substantial monetary penalties she plans to levy, including a $1.75 million fine, in the lower sentence.

Silver was convicted in May — for a second time — of selling his office for $4 million in kickbacks, plus $1 million in profits, tied to two schemes. Before his arrest in 2015, Silver was one of the most powerful men in Albany — along with Gov. Andrew Cuomo and former Senate Majority Leader Dean Skelos.

At his 2016 sentencing, Judge Valerie Caproni — who sentenced him again this time around — ordered him to serve 12 years in prison and to forfeit nearly $5.2 in ill-gotten gains and another $1.75 million in fines. But Silver never served a day in prison because his 2015 conviction was overturned on appeal amid questions about the validity of the jury instructions, which were raised after the US Supreme Court narrowed the definition of bribery.

Silver’s lawyer Michael Feldberg has said he plans to appeal the second verdict as well, saying the feds once again failed to prove that Silver promised anything in return for the lucrative referrals he received....

During Friday’s sentencing, Caproni blasted Albany’s culture of corruption, noting that recent months have all “touched, directly and indirectly, the ‘three men in a room'” — the derisive term used to describe the governor and top leaders of the Senate and Assembly. “This has to stop,” she said. “New York state has to get its act together and do something institutionally to stop corruption.”

Still, she commended Silver for apologizing for his conduct this time around, which he did not do in 2016. “That was a wise decision on Mr. Silver’s part,” she said. “Mr. Silver’s conduct clearly caused discernible harm.” She also remarked on signs of wear and tear. “I feel like visually he’s aged more than the three years that have gone by chronologically,” she said.

Silver also spoke at the sentencing, saying that he is “extremely, extremely remorseful” for having “brought out a great deal of distrust in NY’s government.”

As noted in prior posts linked below, the original 12-year sentence given to Silver was still way below a calculated guideline range of 20+ years.  And this time around, the feds were asking for a sentence "substantially in excess" of 10 years.  So, Silver probably should feel a bit lucky he did not get an even longer term than seven years.  But even with some likely time off for good behavior, Silver now cannot be making any real retirement plans until 2025. 

Prior related posts:

• Another prominent elderly corrupt politician presenting dynamic federal sentencing issues
• Former New York Assembly speaker gets lengthy (way-below guideline) federal sentence for corruption
• "Can a criminal be sentenced to run a 'help desk'?" 

"Can a criminal be sentenced to run a 'help desk'?"

The question in the title of this post is the first line of this New York Times article about a high-profile upcoming federal (re)sentencing.  The piece is headlined "What Sentence Should Sheldon Silver Get? His Lawyers Get Creative," and here are excerpts:

Sheldon Silver, the former powerful speaker of the New York State Assembly who was convicted of public corruption charges in May, hopes [he can be sentenced to help-desk duty].

Mr. Silver, 74, is to be sentenced on July 27 in Manhattan, and federal prosecutors asked the judge on Friday to impose a sentence “substantially in excess” of 10 years. But Mr. Silver’s lawyers had a more creative proposal for how he could pay his debt to society.

After a “meaningful custodial sentence,” they suggested, he should be ordered to perform “rigorous” community service, like running a special help desk. In that role, they said, he would be helping New Yorkers “navigate their way through the state bureaucracy to answer their questions, and maximize their chances of receiving benefits to which they may be entitled.” He would be expressing his remorse, they said, and using “his unique skills to assist his fellow New Yorkers.”...

Evidence at the trial showed Mr. Silver obtained nearly $4 million in illicit payments in exchange for taking actions that helped a prominent cancer researcher at Columbia University and two real estate developers.... Mr. Silver, a Democrat, was originally convicted in 2015 and sentenced to 12 years by the judge, Valerie E. Caproni of Federal District Court. After his conviction was overturned on appeal, he was retried this year and found guilty.

“Mr. Silver is a broken man,” his lawyers wrote. “He has been humiliated and disgraced. Most of his assets are gone, either to forfeiture or fine.” But he “is also an intelligent man, with virtually unparalleled knowledge of New York State government,” they noted. Their proposal would allow the judge to exercise discretion “in a way that punishes Mr. Silver, but takes advantage of his unique talents and still affords the possibility of his living the end of his life in freedom.”

To provide a direct answer to the question in the title of this post, I would look to 18 U.S.C. § 3563(b)(12) which states that the court may provide that the defendant work "in community service as directed by the court” as a condition of supervised release. In other words, I think a federal defendant can be sentenced by a federal judge to run a help desk as a form of community service during a period of supervised release. Whether a federal judge will be inclined to do so for Sheldon Silver is another question.

Prior related posts prior to Sheldon Silver's initial sentencing:

• Federal district judge astutely asks feds for accounting of political corruption sentences before high-profile NY pol sentencing
• Another prominent elderly corrupt politician presenting dynamic federal sentencing issues

So how was it decided Reality Winner should get 63 months for leaking classified information? Does it seem about right?

The questions in the title of this post are prompted by this news out of the federal criminal justice system via the New York Times: "Reality L. Winner, a former Air Force linguist who was the first person prosecuted by the Trump administration on charges of leaking classified information, pleaded guilty on Tuesday as part of an agreement with prosecutors that calls for a sentence of 63 months in prison." Here is more of the particulars and some context:

Ms. Winner, who entered her plea in Federal District Court in Augusta, Ga., was arrested last June and accused of sharing a classified report about Russian interference in the 2016 election with the news media. Ms. Winner, who is now 26, has been jailed since her arrest and wore an orange prison jumpsuit and white sneakers to the hearing. Her decision to plead guilty to one felony count allows the government both to avoid a complex trial that had been scheduled for October and to notch a victory in the Trump administration’s aggressive pursuit of leakers.

“All of my actions I did willfully, meaning I did so of my own free will,” Ms. Winner told Chief Judge J. Randal Hall on Tuesday. Throughout the hearing, Ms. Winner kept her hands behind her back while she answered questions about whether she understood the terms of the plea deal.

Ms. Winner, who was honorably discharged from the Air Force in 2016, was working as a contractor for the National Security Agency when she obtained a copy of a report that described hacks by a Russian intelligence service against local election officials and a company that sold software related to voter registration. The Intercept, an online news outlet that a prosecutor said Ms. Winner admired, published a copy of the top secret report shortly before Ms. Winner’s arrest was made public. The report described two cyberattacks by Russia’s military intelligence unit, the G.R.U. — one in August against a company that sells voter registration-related software and another, a few days before the election, against 122 local election officials.

At a detention hearing last year, the prosecutor, Jennifer G. Solari, said that Ms. Winner had been “mad about some things she had seen in the media, and she wanted to set the facts right.”...

Once rare, leak cases have become much more common in the 21st century, in part because of such electronic trails. Depending on how they are counted, the Obama administration brought nine or 10 leak-related prosecutions — about twice as many as were brought under all previous presidencies combined.

The Justice Department prosecuted Ms. Winner under the Espionage Act, a World War I-era law that criminalizes the unauthorized disclosure of national-security secrets that could be used to harm the United States or aid a foreign adversary. Ms. Winner’s prosecution galvanized transparency advocates, who mounted a publicity campaign in her support that even included a billboard in Augusta, the east Georgia city where Ms. Winner lived at the time of her arrest. They were particularly infuriated by a judge’s ruling that she be held until her trial....

Ms. Winner is the second person known to have reached a plea agreement with the Trump administration to resolve a leak prosecution. A former F.B.I. agent, Terry J. Albury, pleaded guilty in April, but prosecutors in that case have signaled that they will ask that he serve 46 to 57 months in prison.

The Justice Department has brought at least two other leak-related cases under the Trump administration.  Earlier this month, James Wolfe, a former Senate Intelligence Committee staffer, was arrested and charged with lying to the F.B.I. about his contacts with reporters, including a Times reporter with whom he had a personal relationship and whose phone records the department secretly seized, during a leak investigation; Mr. Wolfe has not been charged with leaking classified information, however.  He has pleaded not guilty.  Also this month, Joshua A. Schulte, a former C.I.A. software engineer, with charged with violating the Espionage Act and other laws based on accusations that he sent a stolen archive of documents and electronic tools related to the agency’s hacking operations to WikiLkeas, which dubbed them the Vault 7 leak. Mr. Schulte had already been facing child pornography charges.

A judge must still decide whether to approve her sentence after reviewing a report that prosecutors will present.  But prosecutors’ recommendation of more than five years in prison — followed by three years of supervised release — was unusually harsh for a leak case.  For most of American history, people accused of leaking to the news media were not prosecuted at all.  In the flurry of cases that have arisen during the 21st century, most convicted defendants were sentenced to one to three-and-a-half years.

One — Chelsea Manning, who was convicted at a military court-martial for sending large archives of military and diplomatic documents to WikiLeaks — was sentenced to 35 years in prison, but served only about seven years because President Barack Obama commuted the remainder of her sentence.

As this article suggests, there is not a lot of history of sentences for these kinds of leaks, and arguably the Chelsea Manning case sets a notable benchmark for how high a sentence might go for this kind of illegal leaking. But there are lots of ways to distinguish Manning and Winner, and Winner still seems to be getting a sentence considerably more severe than most modern leakers. That said, if one believes that deterrence considerations are especially important and perhaps effective in this setting, perhaps it is particularly justifiable for federal prosecutors to try to throw the book at the few high-profile leakers who get convicted.

Notably, as this article notes, a federal judge has to decide whether to accept this particular plea deal with its built-in sentence of 63 months.  Comments are welcome concerning whether the judge out to have some pause about doing so.

Paul Manifort has bail revoked ... and has not (yet) gotten rescued from jail by Prez Trump's clemency pen

As detailed in this CNN piece, a very prominent federal defendant grew the number of Americans incarcerated yesterday when he had his bail revoked and was taken immediately to jail:

Former Trump campaign chairman Paul Manafort will await his trial for foreign lobbying charges from jail.  Two weeks after special counsel Robert Mueller's prosecutors dropped new accusations of witness tampering on him, US District Judge Amy Berman Jackson on Friday revoked Manafort's bail, which had allowed him to live in his Alexandria, Virginia, apartment under house arrest.

The order marked an end to almost eight months of attempts by Manafort to lighten his house arrest restrictions after he was charged and pleaded not guilty to foreign lobbying violations. "The harm in this case is harm to the administration of justice and harm to the integrity of the court's system," Berman Jackson told Manafort in court.

The judge emphasized to Manafort how she could not make enough rulings to keep him from speaking improperly with witnesses, after he had used multiple text messaging apps and called a potential witness on an Italian cellphone.  "This is not middle school. I can't take his cellphone," she said of Manafort.  "I thought about this long and hard, Mr. Manafort. I have no appetite for this."

Manafort also entered a not guilty plea to two additional charges levied against him last week, of witness tampering and conspiracy to obstruct justice. In total, he faces seven criminal charges in DC federal court. Three US marshals led Manafort out of the packed courtroom into the prisoner holding area immediately after the judge's ruling. He was not placed in handcuffs. Before he disappeared through the door, he turned toward his wife and supporters and gave a stilted wave.

Minutes later, a marshal returned to give Manafort's wife, Kathleen, still standing in the courtroom's front row, his wallet, belt and the burgundy tie he wore Friday. Court marshals held Manafort in the bowels of the courthouse for several hours following the hearing as they considered how to keep him protected from other inmates behind bars. He arrived about 8 p.m. at the Northern Neck Regional Jail in Warsaw, Virginia, 90 miles south of Washington.

In a tweet, President Donald Trump said the decision to revoke Manafort's bail was "tough," although he referred to it as a "sentence."

I cannot help but recall in this context the decision by Prez George W. Bush, made just under 11 years ago as reported here, to commute the entire prison sentence of I. Lewis "Scooter" Libby to spare him from having to serve his 30 month prison term after his conviction in the CIA leak case.  Notably, Prez Bush's clemency grant came down just a few hours after the DC Circuit refused to allow Libby to remain free on bail during the appeal of his conviction and sentence.  In other words, as soon as Libby was subject to spending even an hour incarcerated, Prez Bush was moved to act to keep him free.  Paul Manafort, notably, has not (yet) gotten the presidential consideration as he has now already spent one (of likely many) nights in jail without even yet having been convicted of anything.  

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

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

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

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

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

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

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

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

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

Should Prez Trump grant clemency to former Illinois Gov. Rod Blagojevich?

The question in the title of this post is prompted by this notable new commentary authored by Kristen McQueary for the Chicago Tribune. Here are excerpts:

Former Illinois first lady Patti Blagojevich is back in the spotlight, pulling every lever to convince President Donald Trump to award clemency to her imprisoned husband. In several media interviews, she has tried to build camaraderie with Trump by painting former Gov. Rod Blagojevich as a victim of FBI targeting and an overzealous prosecution.

That is sure to get Trump’s attention. But the better play might be appealing to Trump’s inside knowledge of the swamp — the trading of favors and campaign contributions between politicians and special interest groups. Trump knows it well. He was part of it. “Nobody knows politicians better than I do,” Trump said during a meeting with the Tribune Editorial Board in June 2015, shortly after he announced his candidacy for president. He was in town to speak to the City Club of Chicago and the editorial board invited him to stop by. He did, along with son Donald Jr.

During the meeting, we asked him about Blagojevich, who by then had been in prison for three years. The two had met on the set of “Celebrity Apprentice” in 2010 while the former governor’s corruption case was winding through the courts.

Here’s what Trump said then: “It was good having him on. I found him to be, I can only speak for myself, I found him to be a very nice guy. Not sophisticated. Had little knowledge of computers and things and you know we found that out … We found him to be very nice,” Trump said. “Now, he was under a lot of pressure at that point.

“I think that’s an awfully tough sentence that he got for what supposedly he did,” Trump said. “Because what he did is what politicians do all the time and make deals.”

Boom. What politicians do all the time. That has been the most compelling defense of Blagojevich throughout his controversial arrest, double trial and convictions. The feds placed two bugs and six wiretaps on his home telephone, his campaign office phone and his cellphone, and also bugged his friends and chief of staff. How many other politicians would end up in prison if the government listened to their conversations?

Yes, at two trials Blagojevich was rightfully found guilty on a total of 18 corruption counts for, among other things, trying to trade an Illinois U.S. Senate seat appointment for personal gain. Blagojevich deserved to go to prison. He lied to the FBI about a firewall that he claimed existed between his campaign fund and his government responsibilities. He tried to shake down campaign donors by withholding legislation they sought from state government....

Blagojevich has served six years of a 14-year sentence. Isn’t that enough?

Trump could grant him clemency and consider time served as punishment enough for what Blagojevich plotted. Remember, prosecutors arrested him before any transactions occurred.  They got him primarily on intent, not completion.  They also indicted Blagojevich’s brother to squeeze him but dropped the charges for the second trial, an admission that perhaps they were overzealous in their pursuits....

Trump knows the swamp.  He was the real estate mogul with a fat checkbook before he was president of the United States.  Plenty of politicians courted him and vice versa.  Will he look sympathetically on a fellow swamp thing?  He might.  He should.

Some of many older related posts on the Blagojevich case:

• You make the sentencing call: What sentence should Blago get?
• Early buzz that feds think Rod Blagojevich's guideline range is 30 years to life in prison
• Feds asking for prison term of 15 to 20 years for Rod Blagojevich
• "Prison is too good for Blago"
• Bold (and misguided?) prediction of 20-25 years in the federal pen for Blago
• Do would-be white-collar offenders actually "get the message" from long sentences?
• Blagojevich sentencing and the failings (and limits?) of the federal sentencing guidelines
• "Ex-Gov. Rod Blagojevich sentenced to 14 years"
•  As federal prosecutors urged, former Gov Blagojevich resentenced to same 14-year prison term despite a few vacated convictions

Prez Trump reportedly to pardon Scooter Libby

According to this ABC News piece, "President Donald Trump is poised to pardon Scooter J. Libby, the former chief of staff to Vice President Dick Cheney, according to sources familiar with the president’s thinking." Here is more:

The president has already signed off on the pardon, which is something he has been considering for several months, sources told ABC News.

The move would mark another controversial pardon for Trump and could raise questions as an increasing number of the president’s political allies have landed themselves in legal jeopardy. The White House has repeatedly said that no pardons are currently on the table for people caught up in the Russia investigation....

Libby was convicted in 2007 of lying to the FBI and obstruction of justice in the investigation into the leak of the identity of Valerie Plame, a former covert CIA operative. Then-President George Bush commuted Libby's 30-month sentence, sparing him prison time, but didn't pardon him.

After Libby claimed that he couldn't have been the source of the leak, multiple people came forward to testify that they learned of Plame's identity from Libby prior to when Libby said he had first received the information. At trial, Libby claimed to have simply forgotten he actually learned about the identity from Cheney a month before he said he had.

Since the conviction, Libby has since had his law license restored and former Virginia Gov. Bob McDonnell restored his voting rights in 2013. Many conservatives have been urging a pardon for Libby, including attorneys Joe diGenova and his wife, Victoria Toensing.

I am sincerely not sure what to say about this news, other than that I am tempted to go back and read some of the article I helped assemble for this October 2007 issue of the Federal Sentencing Reporter titled "Learning from Libby." I suppose I should be excited by the efforts of Prez Trump to make old issues of FSR great again.

Former South Korean Prez gets 24 years in prison from three-judge sentencing panel

I do not usually cover many sentencing stories from other countries, but this news out of South Korea struck me as blogworthy: "Park Geun-hye, South Korea’s Ousted President, Gets 24 Years in Prison."  Here are some of the particulars, via the New York Times:

Park Geun-hye, South Korea’s impeached and ousted president, was sentenced on Friday to 24 years in prison on a variety of criminal charges, in a case that exposed the entrenched, collusive ties between South Korea’s government and huge conglomerates like Samsung.

A three-judge panel at the Seoul Central District Court also ordered Ms. Park to pay $17 million in fines, in a ruling that marked a climactic moment in an influence-peddling scandal that shook the country’s political and business worlds.

Ms. Park’s conviction on bribery, coercion, abuse of power and other charges was the first lower-court ruling on a criminal case to be broadcast live in South Korea.  She is the country’s first former leader to be arrested and convicted of crimes since two former military-backed presidents were found guilty of sedition and corruption in the 1990s.

Ms. Park did not appear in court for her case on Friday.  She has refused to attend any court hearings since October, staying in her solitary prison cell, complaining of poor health and insisting that she is the victim of a political conspiracy.

Although Ms. Park is expected to appeal her prison term, the sentencing is likely to bring a sense of closure to the corruption scandal that engulfed her.  Her supporters, mostly elderly South Koreans, have insisted on her innocence, and hundreds of them protested outside the courthouse Friday, demanding her release and calling her a victim of “political revenge.”...

At the center of the scandal that toppled Ms. Park’s government is the allegation that she and Choi Soon-sil, a longtime friend and confidant, collected or demanded large bribes from three big businesses, including Samsung, the country’s largest family-controlled conglomerate. Separately, the two women were accused of coercing 18 businesses into making donations worth $72 million to two foundations that Ms. Choi controlled.

The same court panel that handled Ms. Park’s case called her and Ms. Choi criminal co-conspirators when it sentenced Ms. Choi to 20 years in prison on Feb. 13 on bribery, extortion and other criminal charges.

Ms. Park has tearfully apologized to the public, cutting ties with Ms. Choi and insisting that she was not aware of many of her friend’s illegal activities.  Her lawyers also appealed for leniency, arguing that the money collected from big businesses was not used for her personal gain.  Some of the alleged bribes taken from Samsung were used to finance the equestrian pursuits of Ms. Choi’s daughter.

In Friday’s verdict, Ms. Park was convicted of collecting or demanding nearly $22 million in bribes from three of South Korea’s top business conglomerates, including Samsung, Lotte and SK.  Separately, she was found guilty of coercing the three companies — and 15 other businesses — into making donations worth $72 million to two foundations controlled by Ms. Choi.