Archive for the ‘Sentencing’ Category

Why Conservatives and Defense Lawyers Should LOVE the New Hate Crimes Law

Friday, October 30th, 2009

hate crime

On Wednesday, President Barack Obama signed into law the 2010 National Defense Authorization Act. As usual, the Act included provisions that had nothing whatsoever to do with National Defense Authorization. And one of the tacked-on provisions was the much-debated Hate Crimes Prevention Act.

We wrote about this back on May 1. It was one of our longer analyses, but our closing paragraphs sum it up fairly succinctly:

In short, we don’t have a legal or constitutional problem with hate crime laws. They actually seem to be a natural extension of our criminal jurisprudence. But [the House version of the bill] seems to have been passed without anyone actually reading it (not surprising, as it hardly spend any time in committee).

An administration and the same-party majority in Congress just want to push a law through, and so they will. And they will wind up passing a law that probably doesn’t mean what they wanted it to mean, and which might not stand up under scrutiny.
So what’s new?

Well, now we have a final version (read it here or in relevant part at the end of this post), codified at 18 U.S.C. §249. So let’s see what the law as passed actually says, whether it means what they wanted it to mean, and whether it might stand up under scrutiny, shall we?

As passed, the Hate Crimes Prevention Act amends the existing Hate Crimes law so that:

1. If you went after your victim because of the (actual or perceived) race, color, religion, national origin, sex, sexual orientation, “gender identity” or disability of any person (not just that of the victim)…

2. And you either hurt them on purpose, or you tried to hurt them with a weapon of some kind…

3. Then your maximum prison sentence gets increased to 10 years.

4. And you can get life if anyone died, if anyone was kidnapped, if there was aggravated sexual abuse, or you even tried to kill/kidnap/sexually abuse.

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This is slightly — but only slightly — different from the version originally passed by the House back in the Spring.

To get federal jurisdiction, they need a federal hook. Only race, color, religion and national origin seem to be automatically federal. So the statute has a “crossing state lines” and “interstate commerce” hook for offenses caused by religion, national origin, sex, sexual orientation, gender identity and disability. (Why religion and national origin are included in both sections is beyond us.)

That’s not a huge hurdle, frankly. Interstate travel and interstate commerce are so broadly defined — and have been for generations now — that most crimes are going to fit the bill. If a weapon was used, for example, it had to have been made somewhere, and even if you made it yourself it affected interstate commerce as you didn’t buy one at Wal-Mart.

The Office of Legal Counsel has issued a memorandum saying the Act’s language passes constitutional muster. With respect to the Commerce Clause, we’re inclined to agree. The Commerce Clause may be an absolute mockery as interpreted throughout living memory, but it is what it is, and that’s that.

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But isn’t this a thought crime, you ask?

Isn’t this just a second bite at the apple for the government?

Isn’t it already against the law to hurt, kill, shoot, blow up, kidnap, rape, etc.?

Doesn’t it put a greater value on the life of selected victims, as opposed to the rest of us?

Isn’t this the opposite of equal protection of the laws?

How is this just, you ask?

You’re not alone. It seems like this is the one common ground where conservative commentators and criminal defense attorneys seem to agree — they generally hate this law.

We happen to be both conservative and a criminal defense attorney. And yet we can’t help but think this law isn’t such a big deal. It’s really not that objectionable.

In fact, it seems to fit into our jurisprudence quite naturally.

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Is this a thought crime? Yes, absolutely. Just like almost every other crime out there.

Crime is something so harmful to society that we restrain the offender’s liberty, take his property, or even take his life. Not every harmful act counts, therefore. We don’t kill people for accidents.

So how do we tell which harmful acts get punished, and which ones don’t?

We look at what the heck you were thinking. For any given act, your punishment will depend entirely on what was going through your mind at the time.

If it was just an accident, then it’s not your fault, and we’re not going to punish you. If you were just a little kid, or severely retarded, or insane, or otherwise can’t be accountable for your actions, then we’re not going to punish you. There’s no point in punishing you.

We’ll punish you a little bit if you should have known better, or you should have been careful. You weren’t trying to do anything wrong, but you should have paid more attention. Your mental state is the key. Your mental state was a little bit culpable, so you get punished a little bit.

We’ll punish you more if you were just being reckless. You weren’t trying to hurt someone, but you knew it could have happened, and you went ahead and did it anyway. Your mental state was more culpable, so you get punished more.

We’ll punish you a lot if you knew it was going to happen. It might not have been your purpose, you weren’t out to hurt someone, you were trying to do something else, but you knew that someone was probably going to get hurt in the process. Your mental state was a lot culpable, so you get punished a lot.

And of course, if you were really trying to hurt someone, and sure enough they got hurt, well then of course you get punished the most.

So all crimes (with limited exceptions for strict liability crimes) are thought crimes.

This hate-crime legislation is nothing more than a new twist on this very old concept. Just like with any other crime, it looks at what you, the perpetrator, thought you were doing. You had a belief about your victim, and because of that belief, you tried to hurt him.

It’s not your mental state about the risk of harm — as all the others are — it is different. It’s your mental state about the nature of your victim.

But that also makes perfect sense, in our jurisprudence.

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Throughout our country’s history — from the fights against religious persecution, to the war against slavery, to women’s rights and the civil rights battles of the 1950s — we have come to accept a basic policy: IT IS BAD FOR SOCIETY WHEN PEOPLE ARE MISTREATED BASED ON ATTRIBUTES BEYOND THEIR CONTROL.

That is simply a no-brainer for anyone who loves freedom, individual rights, and equal justice. Americans cannot stand a bully, and will not tolerate those who hurt people for reasons their victims couldn’t help.

Nobody can help what race they happen to be. Nobody can help what religion they happen to have been born into. Nobody gets to choose whether to be born a boy or a girl. Nobody gets to choose what country they happen to have been born in.

Hurting someone because of uncontrollable attributes like these is a clear affront to society. Something we’d typically classify as a crime. It makes perfect sense to define a particular crime of hurting people because of personal attributes beyond their control.

And in recent years, our society has come to accept the fact that other attributes are also beyond our control. Nobody can help how their brains are wired with respect to sexual attraction, it’s inborn. Nobody can help the fact that they’re missing limbs, or are mentally retarded, or otherwise disabled — wouldn’t they if they could?

For our entire lifetime, there has been federal hate-crime legislation. The 1969 law covered race, color, religion, ethnicity and national origin. In later years, we added sex and disability. It makes perfect sense to now expand the already-existing law to include crimes committed against people who happen to be gay, or who were born with a girl’s brain in a boy’s body.

This is not giving extra protections to these people. It is giving extra punishment to those who would hurt someone simply for having been born. Those offenders cause extra harm to society, more than the already grievous harm caused by “ordinary” murders, rapes and assaults. Extra harm to society means extra punishment.

It’s as simple as that.

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Here is the relevant text of the bill.

Sec. 249. Hate crime acts

(a) In General-

““`(1) OFFENSES INVOLVING ACTUAL OR PERCEIVED RACE, COLOR, RELIGION, OR NATIONAL ORIGIN- Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person–

“““““(A) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

“““““(B) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if–

“““““““`(i) death results from the offense; or
“““““““`(ii) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

““`(2) OFFENSES INVOLVING ACTUAL OR PERCEIVED RELIGION, NATIONAL ORIGIN, GENDER, SEXUAL ORIENTATION, GENDER IDENTITY, OR DISABILITY-

“““““(A) IN GENERAL- Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) or paragraph (3), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person–

“““““““`(i) shall be imprisoned not more than 10 years, fined in accordance with this title, or both; and

“““““““`(ii) shall be imprisoned for any term of years or for life, fined in accordance with this title, or both, if–

“““““““““(I) death results from the offense; or

“““““““““(II) the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

“““““(B) CIRCUMSTANCES DESCRIBED- For purposes of subparagraph (A), the circumstances described in this subparagraph are that–

“““““““`(i) the conduct described in subparagraph (A) occurs during the course of, or as the result of, the travel of the defendant or the victim–

“““““““““(I) across a State line or national border; or

“““““““““(II) using a channel, facility, or instrumentality of interstate or foreign commerce;

“““““““`(ii) the defendant uses a channel, facility, or instrumentality of interstate or foreign commerce in connection with the conduct described in subparagraph (A);

“““““““`(iii) in connection with the conduct described in subparagraph (A), the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; or

“““““““`(iv) the conduct described in subparagraph (A)–

“““““““““ (I) interferes with commercial or other economic activity in which the victim is engaged at the time of the conduct; or

“““““““““(II) otherwise affects interstate or foreign commerce.

““`(3) OFFENSES OCCURRING IN THE SPECIAL MARITIME OR TERRITORIAL JURISDICTION OF THE UNITED STATES- Whoever, within the special maritime or territorial jurisdiction of the United States, engages in conduct described in paragraph (1) or in paragraph (2)(A) (without regard to whether that conduct occurred in a circumstance described in paragraph (2)(B)) shall be subject to the same penalties as prescribed in those paragraphs.

(b) Certification Requirement-

““`(1) IN GENERAL- No prosecution of any offense described in this subsection may be undertaken by the United States, except under the certification in writing of the Attorney General, or a designee, that–

“““““(A) the State does not have jurisdiction;

“““““(B) the State has requested that the Federal Government assume jurisdiction;

“““““(C) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or

“““““(D) a prosecution by the United States is in the public interest and necessary to secure substantial justice.

““`(2) RULE OF CONSTRUCTION- Nothing in this subsection shall be construed to limit the authority of Federal officers, or a Federal grand jury, to investigate possible violations of this section.

(c) Definitions- In this section–

““`(1) the term `bodily injury’ has the meaning given such term in section 1365(h)(4) of this title, but does not include solely emotional or psychological harm to the victim;

““`(2) the term `explosive or incendiary device’ has the meaning given such term in section 232 of this title;

““`(3) the term `firearm’ has the meaning given such term in section 921(a) of this title;

““`(4) the term `gender identity’ means actual or perceived gender-related characteristics; and

““`(5) the term `State’ includes the District of Columbia, Puerto Rico, and any other territory or possession of the United States.

(d) Statute of Limitations-

““`(1) OFFENSES NOT RESULTING IN DEATH- Except as provided in paragraph (2), no person shall be prosecuted, tried, or punished for any offense under this section unless the indictment for such offense is found, or the information for such offense is instituted, not later than 7 years after the date on which the offense was committed.

““`(2) DEATH RESULTING OFFENSES- An indictment or information alleging that an offense under this section resulted in death may be found or instituted at any time without limitation.’.

D.C. Circuit: No Extra Prison Time for Rehabilitation

Tuesday, July 28th, 2009

prisoner-group.png

The D.C. Circuit weighed in today on an important issue that has split the circuits evenly: whether a sentencing court can give extra time in prison, to increase the opportunity for rehabilitation of the prisoner. Some circuits say it’s fine, some say it’s prohibited by law.

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18 U.S.C. § 3553 says there are four purposes of criminal punishment:
(1) “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;” [retribution]
(2) “to afford adequate deterrence to criminal conduct;” [deterrence]
(3) “to protect the public from further crimes of the defendant;” [removal]
(4) “to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” [rehabilitation]

18 U.S.C. § 3582 says that a sentencing court has to consider those four purposes of punishment in deciding whether to impose a prison sentence, and in deciding how long a prison sentence should be. However, it adds that the court must recognize “that imprisonment is not an appropriate means of promoting correction and rehabilitation.”

In other words, the law implicitly recognizes that prison, in and of itself, doesn’t rehabilitate people. Departments of “Corrections” have nothing to do with correcting people’s behavior. (It’s Orwellian, isn’t it? And so is the concept of incarcerating people for the purpose of re-education.)

This comes as no surprise to anyone with any experience with the criminal justice system. Imprisonment does not make people stop committing crimes. Studies have shown that roughly 83% of people who get arrested will never get in trouble again after that one single encounter with the system. Either they’re scared straight, or their behavior was a one-off exception to an otherwise blameless life. This is why we have consent decrees, adjournments in contemplation of dismissal, and the like. Most people, if given a second chance, will never get in trouble again. Incarceration is completely unnecessary to “rehabilitate” these people.

The other 17% or so? They keep coming back. Incarceration does not stop them from getting in trouble again once they get out. It is stupidly obvious that prison does not rehabilitate repeat offenders.

Rehabilitation is not so much an aspect of punishment, so much as it is an opportunity incidental to it. There certainly are life-altering programs, typically long-term programs, that can get people out of drug dependencies or ways of life conducive to criminal behavior. But these are exceptions, not the rule. They change circumstances, not behavior. And they can sometimes be best administered in an incarcerated setting — but often they are just as effective in a non-jail setting.

Meanwhile, the circuits are split on just what § 3582 means when it says “the court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall . . . [recognize] that imprisonment is not an appropriate means of promoting correction and rehabilitation.”

Some circuits — like the Fifth, Sixth, Eighth and Ninth Circuits — say that the court should not decide whether to impose prison based on considerations of rehabilitation, but it is okay to increase a prison sentence for the purposes of rehabilitation. Other circuits — like the Second, Third, Tenth and Eleventh Circuits — say that courts shouldn’t increase prison sentences, either.

-=-=-=-

Today, the D.C. Circuit joined the Second and Third Circuits in saying that § 3582 prohibits courts from increasing a prison sentence for the purpose of rehabilitation.

In re: Sealed Case*http://pacer.cadc.uscourts.gov/common/opinions/200907/08-3029-1198396.pdf*, No. 08-3029 (July 28, 2009) dealt with an older defendant with a long rap sheet and a drug addiction. His name is sealed because at one time he had tried to cooperate with the feds, albeit unsuccessfully. The defendant pled guilty to selling less than five grams of heroin. Ordinarily, with his criminal history category and acceptance of responsibility, this would have given him a sentencing range of 24 to 30 months. However, what with his felony record and all, his Guidelines range wound up being 151 to 188 months (12.5 – 15.5 years).

This is only advisory, of course, and the court then weighed the various § 3553 factors to figure out what sentence to actually impose. The judge said his recidivism was due to his drug addiction, and the case only involved a small amount of drugs. The judge added that the defendant could benefit from some of the programs available in prison, and that these “would actually be more available and more useful for the defendant over a somewhat longer period of time than it would over a very short period of time.”

In the end, the judge went down to a sentence of 132 months (11 years), along with a recommendation that the defendant be admitted to the prison’s “500-hour” drug treatment program.

The defendant appealed, saying that the judge would have given him a shorter sentence, but increased the sentence for the purposes of rehabilitation, and that was improper. It urged the Circuit to adopt the rule of the Second and Third Circuits.

The government, on the other hand, said they should adopt the Ninth Circuit’s rule instead, permitting increases in sentencing for the purpose of rehabilitation.

In its 2-1 ruling today, the D.C. Circuit said that the plain language of the statute bars courts from seeking to achieve rehabilitation through imprisonment. A defendant can be imprisoned for other purposes, and then take advantage of rehabilitative programs while in jail, but those programs cannot be the reason for incarceration.

The government argued that this only prohibits choosing jail over a non-jail sentence based on such considerations. Once the sentencing court has decided to incarcerate, § 3553 requires courts to consider rehabilitation, so it must be a reason for determining the length of the sentence.

The Circuit said this made no sense. “If, as the government concedes, imprisonment is not an appropriate means of promoting rehabilitation, how can more imprisonment serve as an appropriate means of promoting rehabilitation?”

The court went on to find that the sentencing judge’s comments indicate that the defendant probably got extra time so as to give him more opportunities for rehabilitation. It was reasonably likely that his sentence would have been shorter, otherwise.

Maybe not a dramatically shorter sentence — after all, the judge did say that selling heroin is serious, and that the defendant had a lifelong pattern of recidivism. But that’s not the point. The point is that the defendant might have gotten a shorter sentence.

Any unwarranted extra time in prison is unfair. It’s not what our system is supposed to permit. So the Circuit vacated the sentence, and remanded for new sentencing.

The defendant might wind up getting the same sentence at the end of the day. But the sentencing court is going to have to explain that the reasons for the length of the sentence do not include the extra opportunity for rehabilitation from extra months in jail.

-=-=-=-

This exacerbates the split among the circuits. And the issue is an important one, involving the deprivation of liberty and freedoms for the purposes of social engineering.

We wouldn’t be surprised to see the Supreme Court take up this issue in the near future. Perhaps even with this case.

20 Years Sounds About Right for Dreier

Monday, July 13th, 2009

corporate-crime.png

So Marc Dreier was sentenced today to 20 years in prison, plus forfeiture of $746 million and restitution of nearly $388 million (that’s more than a billion dollars, with a “b”). That’s his punishment for his guilty plea to conspiracy, securities fraud, money laundering and wire fraud. The feds had asked for 145 years in prison, and Dreier’s counsel Gerald Shargel had asked for a sentence in the 10-12.5 year range.

We have to say, we’re not offended by this sentence. It’s high enough to be meaningful, but not so high that it will scare away future plea bargains in white collar cases.

It’s important to have a meaningful sentence, if the justice system is to function properly. If justice is not perceived to be done, then law and order lose their authority. For many years, white collar crimes were seen to be treated unjustly, with sentences too low for the harm done. A massive financial fraud could have many more victims than a violent street crime, and can do far more damage to each victim by taking not just their wallet, but the savings representing a lifetime of labor. But until recently, such frauds were punished far more lightly.

In recent years, however, the pendulum began to swing the other way. From Tyco to Enron to MCI to Madoff, we saw white-collar sentences lurch upward and upward. Madoff’s 150-year sentence earlier this summer was just amazing, and not at all proportionate to the harm done. The pendulum had swung too far.

If that was to be the new par for the course, white collar sentencing would be just as unjust as it was in the days of the old slap-on-the-wrist. In addition to the very real problems of perception, in a world where perception equals reality, there is the separate problem of efficiency.

If people think they’re going to get slammed at sentencing whether they plead guilty or not, as Madoff did, then there is no point to pleading guilty. One might as well take one’s chances with a jury and shoot for the off chance of an acquittal. It happens.

(As an aside, there’s an old story of a band of soldiers in medieval China, who had become lost in a swamp en route to a muster. The penalty for being late was death. The penalty for rebellion was death. So they rebelled. And eventually toppled the government. Extreme punishments have had extreme public reactions throughout history. *Cough*drug laws*cough*)

Here, the government wanted 145 years for Dreier, to punish him for putting one over… not on mom and pop investors, but on sophisticated hedge funds who really ought to have done their homework. That would be just five years less than what Madoff got, for essentially doing the same thing. But it would have been a horrible outcome for our criminal justice system if they actually got their way.

Fortunately, Dreier drew Judge Jed Rakoff, who has been vocal in opposing the recent trend towards ever-higher sentences in white collar cases (in addition to his criticism of the severity of the U.S. Sentencing Guidelines). Rakoff is making him give back the money he filched, and forfeit his ill-gotten gains, and serve a prison sentence equal in severity to his crimes.

Nobody can reasonably say Dreier got off light, and nobody should complain that his sentence was unjustly harsh. We think Judge Rakoff nailed this one.

Are White Collar Sentences Too Harsh Now?

Tuesday, June 30th, 2009

dilbert-wcc.pngPrison Farm

When we started law school back in ’93, we felt that white-collar criminals just weren’t punished that harshly in this country. The Dilbert strip above, from about the same time, shows that we were not alone in thinking this. It seems that this was a common perception going at least as far back as our early childhood — click on the audio button above to listen to an early ’70s National Lampoon skit called “Prison Farm.”

Like many, we felt that there was some serious injustice going on here. Socioeconomic elites were getting off lightly, even though they may have victimized far more people, far more seriously, than street-level crooks who were doing hard time. A mugger takes one person’s money, and gets a long sentence in a high-security prison. Meanwhile, a Wall Street scammer wipes out thousands of families’ savings, erases their years of labor and planning, and gets a slap on the wrist. It seemed absurd, like something from Alice in Wonderland.

And we weren’t wrong. As late as the early ’90s, we had guys like Mike Milken serving less than two years, even after the sentencing judge (Kimba Wood) had said such things as “You were willing to commit only crimes that were unlikely to be detected…. When a man of your power in the financial world… repeatedly conspires to violate, and violates, securities and tax business in order to achieve more power and wealth for himself… a significant prison term is required.”

The lesser sentences were of course due in no small part to the difficulty of spotting white-collar crime in the first place, and then proving it to a jury. Also, the law itself classified these crimes at the less-serious end of the spectrum. So you had to expect significant plea bargaining in difficult-to-prove cases, and the plea sentences were being discounted from relatively short terms in the first place.

Another important factor was the socioeconomic status of the white-collar defendants. These were not street thugs, they weren’t skeevy bottom-feeders. They were college-educated, productive members of the community, involved in charities and otherwise living “normal” lives. Their crimes weren’t violent, they were almost administrative. Victims weren’t in your face, with visceral injuries and tangible losses; they were anonymous and diffuse, with paper losses of mere money. These middle- and upper-class defendants weren’t people who belonged in prison — their loss of status, their shame, did more to rehabilitate and deter than any time behind bars. Judges felt this, and acted accordingly.

But by the time we graduated law school, this had all started to change. By then, the federal Sentencing Guidelines had gone into effect. The Guidelines had three major effects on federal cases. First, they increased the penalties for white-collar crimes, especially where the dollar amounts were high and there were many victims. Second, judges lost most of their discretion to sentence lightly based on the defendant’s socioeconomic status, and were not all that willing to put such reasoning on the record. Third, the Guidelines took away much of the plea-bargaining leeway, only permitting two or three levels of departure for taking a plea.

The biggest change happened when the tech bubble burst in 2000. In the late ’90s, Americans became investors like never before, with even cops and construction workers becoming day traders at home. Tons of our money went into IRAs, brokerage accounts and 401(k)s. And then the bubble burst, the markets dipped, and the average Joe saw his investments tank. As always happens, this revealed financial frauds that had escaped unnoticed in the up market. The middle class was outraged, and began to demand severe penalties for the fraudsters.

Prosecutors and judges got the message, and the exposed fraudsters got slammed. WorldCom’s Bernie Ebbers got 25 years. Enron’s Jeff Skilling got 24 years and 4 months (Andy Fastow, reported to be the primary Enron fraudster, cooperated and got six years). Adelphia’s John Rigas got 15 years. In state court, Tyco’s Dennis Kozlowski got 8-1/3 to 25 years.

This pattern repeated itself in the recent economic downturn. After several boom years, a credit crunch and market dip exposed many white-collar offenses (most of which we are told are still in the pre-indictment phase). Voters had lost a lot, and their voices were heard.

So now we get yesterday’s 150-year sentence of Bernie Madoff. As we’ve explained before, we’ve avoided writing about the Madoff case, because everyone else is already talking about it, and we don’t feel like we have anything new to add.

But this 150-year sentence… we’re going to go against the grain here and wonder out loud if perhaps it’s too harsh.

* * * * *

Whoa. How can we say that, when we just got done saying how unjust it seemed when white-collar types were getting off lightly? Isn’t this exactly what we wanted?

No, it isn’t. We wanted the punishment to fit the crime, and to fit the policies underlying criminal punishment. This sentence doesn’t do that.

For one thing, Madoff took a plea to avoid trial. And yet he still got the worst sentence that he could have gotten had a jury convicted him. What was the point of taking a plea? This sends a strong message to white-collar defendants now: you might as well just go to trial, because you’re going to get the same sentence if you lose — and juries being what they are, you might just win. The system could see a lot fewer pleas — pleas it relies on to keep working.

For another thing, Madoff got a bunch of consecutive sentences. Normally, even after trial, they’d mostly run concurrently. He’d have gotten about 30 years — still a life sentence for a 71-year-old guy. Judge Chin said he did so for “symbolic” reasons, to make the victims feel better. But is that a valid purpose of sentencing?

Of course it isn’t. The purpose of sentencing is not to make victims feel better, or give them closure, or anything like that. The criminal justice system does not serve the function of making victims whole. That’s the job of the civil courts. A criminal court can order restitution as a condition of sentencing, but that’s about it. The purpose of sentencing is not reparation, but punishment. Punishment is supposed to deter future crimes, retaliate against the offender, rehabilitate the offender so he doesn’t do it again, or remove a threat to society.

But maybe Judge Chin is on to something here. Perception is important. Few of the purposes of punishment work unless there is some perception. Deterrence doesn’t work, unless people get the impression that crimes are probably going to be punished, and that they will probably be punished harshly enough to make them not worth your while. (This raises an interesting thought experiment — would the criminal justice system work just as well if we could give the public the impression that crimes are punished, without actually incurring the expense and hassle of, you know, punishing them? Discuss.)

Another problem we have with this sentence is that his scam wasn’t directed at Joe Retail out there. It was a secretive investment fund that did not disclose what it was doing, as it would have had to if it had been sold to the average person. It could be secretive because it was sold to sophisticated investors. These sophisticated investors saw an unusually high and steady rate of return, and instead of investigating to see what was going on, simply told Madoff to cut them in.

Sophisticated investors have a duty to check these things out. Are we blaming the victims here? Yeah, a little. They had the size or experience to know that something that sounds too good to be true probably isn’t. And yet they shoved their money into the fund anyway. And for those who shoved all of their money into the fund, ignoring basic investment principles of diversification, they were victimizing themselves just as much as if they’d invested in Pets.com. And for those who invested beyond their discretionary income, but actually sent Madoff the money they needed to live on, that’s the epitome of dumb. These weren’t blue-collar workers, these were investors with enough dough to get in the game, and enough savvy to have known better. The law just doesn’t need to afford them the same protections as ordinary folks.

So the law doesn’t need to impose punishments harsher than those imposed on victimizers of ordinary folks.

What is needed is parity. Yes, white-collar sentences should reflect the seriousness of the harm done, just as sentences for violent crimes and street crimes need to be proportionate to the offense. A white-collar offense that causes as much harm as a back-alley mugging probably deserves a similar punishment, all else being equal. Maybe a little less, actually, as there is more likelihood of deterrence or rehabilitation. White-collar crimes are usually calculated, they aren’t crimes of the moment, and offenders usually have the smarts to take punishment into account. And white-collar offenders aren’t as likely to re-offend once they’ve gone through the system. So sure, maybe they don’t need quite as much punishment. But it ought to be about the same.

Giving 150 years here, though, is not at all proportionate. Murderers don’t get that much. Kidnappers don’t get that much. And taking someone’s life or liberty is just not the same as taking someone’s property. White-collar victims only lose money. It’s only money. It’s a big deal, but it should not be punished more severely than crimes that are obviously more severe.

The pendulum has swung too far.

Memo to Child Porn Defendants: The “It Was Only Research” Defense NEVER WORKS.

Thursday, May 7th, 2009

GEN. MELCHETT: Field Marshall Haig has formulated a brilliant new tactical plan to ensure final victory in the field.

CPT. BLACKADDER: Ah… Would this “brilliant plan” involve us climbing out of our trenches, and walking very slowly towards the enemy?

CPT. DARLING: How could you possibly know that, Blackadder? It’s classified information!

CPT. BLACKADDER: It’s the same plan that we used last time. And the seventeen times before that.

GEN. MELCHETT: Ex-ex-ex exactly! And that is what is so brilliant about it! It will catch the watchful hun totally off guard. Doing precisely what we’ve done eighteen times before is exactly the last thing they’ll expect us to do this time! There is, however, one small problem.

CPT. BLACKADDER: That everyone always gets slaughtered in the first ten seconds.

GEN. MELCHETT: That’s right.

From “Blackadder Goes Forth” Plan A: Captain Cook


(Quoted scene begins around 8:30)

Because of the frankly horrible topic of this post, we thought we’d dilute it a bit with a bit of Atkinson, Fry and Laurie. But it’s on point. As this clip illustrates, it simply defies common sense to try the same thing repeatedly and expect a different outcome.

But in child porn cases, defendants and their attorneys keep trying the same thing over and over, and all that happens is they go to jail.

We’re talking about the “I was only doing it for research” defense. Pete Townshend of The Who tried it, to no avail (although possession charges were dropped six years ago today, when no porn was found to be in his possession, he was still put on the sex offenders registry for paying to visit a child porn site). Any number of less-well-known defendants have also tried it and failed. Washington Post reporter Lawrence Charles Matthews tried it, and he actually had done a radio series on the subject, and he still got time (and his case, U.S. v. Matthews, 200 F.3d 338 (4th Cir. 2000) specifically held that there is no exception for journalistic or other allegedly-legitimate uses of child porn). A law enforcement officer, Michael McGowan, claimed to have been doing his own investigation on his own time, and wound up getting 20 years. Talk show host Bernie Ward claimed he was doing research for a book, and got 87 months last year.

Even though the defense never works, people keep trying it. And so we come to erstwhile war hero Wade Sanders, the former assistant deputy Secretary of the Navy who came to national prominence when he vouched for former presidential candidate John Kerry, who just got sentenced to federal prison.

First, some background. CAUTION: EXTREMELY DISTURBING CONTENT FOLLOWS.

During an apparently typical investigation, an undercover FBI agent logged onto a peer-to-peer file sharing service (where members can copy files from each other’s computers), and searched for computers containing files with the term “pthc,” which is shorthand for “preteen hardcore.” The agent found several child porn files on Sanders’ computer, including a photo of a preteen naked girl lying on her back with ejaculate on her stomach, a 10 minute video of adult males inserting their penises into the mouths of prepubescent naked girls with one scene of ejaculation, and a photo of two naked prepubescent boys engaged in anal intercourse. It was easy to identify the location of the computer where the files were located, and a search warrant was obtained. On executing the search warrant, three computers and an external hard drive were seized, all of which contained many more equally disturbing photos and videos. (This is common. Most offenders who possess child porn possess a large quantity of it.)

During the search, Sanders spoke with the agents. When asked if any child porn would be found, he only said that he sometimes encountered it while downloading adult porn, and always deleted it. At no time did he suggest that he was conducting research that might explain any child porn they might find. And he wasn’t found to actually have any research notes or materials.

The evidence appeared strong enough that he decided to plea to the charge, under 18 U.S.C. § 2252(a)(4)(B). Under the Guidelines, his offense level was adjusted upwards for having materials involving under-12 kids, using computers, distributing materials, and possessing over 600 images, to level 29. He got the standard 3E1.1 three-level reduction for accepting responsibility, getting him to level 26, with a sentencing range of 63 to 78 months.

At sentencing, the prosecution asked for the low end of 63 months. Sanders sought probation.

In his own defense, Sanders claimed that he was researching child porn, but with a twist. He started by saying he’d gone through hell in Vietnam combat. Then, in 2004, he started supporting John Kerry for president, and was criticized by other veterans. This criticism made him feel betrayed, and sparked an onset of post-traumatic stress disorder. This PTSD manifested itself with obsessive-compulsive behavior. He then stumbled on an image of child porn, was horrified by it, and became overly protective of the little kids. So he obsessively began trying to find out where the kids came from and the conditions they lived in.

The judge, Thomas Whelan, flatly stated that he didn’t buy it. He found no evidence that Sanders was telling the truth about being involved in any research. Sanders never mentioned this during the search, either. And his own story didn’t explain the stuff he’d downloaded before 2004. Judge Whelan also pointed out that the “I was only doing research” claim, even if true, is still not a valid defense under the law.

So, although the judge did come down off the Guidelines sentence, Sanders still received 37 months in prison — at the end of which he will be 105 years old. In all likelihood, this is a life sentence for the man.

* * * * *

What puzzles us is why people keep trying this defense, when the law doesn’t recognize it and it never ever works?

If we might be a little shameless here, we’d recommend that people try our piece titled “Understanding the Investigative Process to Better Defend Your Client,” in Inside the Minds: Strategies for Defending Internet Pornography Charges (2008). Or they might take our online CLE on defending internet porn cases, (the first in our “Hope for Hopeless Cases” series with West LegalEdcenter, which also includes that chapter in the course materials.

These cases rarely go to trial. Like Sanders, defendants usually plead out because the evidence appears overwhelming. Still, appearances can be deceiving, and there are often ways to attack the evidence itself. Maybe not enough to justify taking the case to a jury, but perhaps enough to negotiate a better deal. (Not implying that was the case with Sanders, nor impugning his attorney in any way, of course.)

What is most likely to work, however, is not trying to explain it away. Rationalizing the evidence is only going to hurt your credibility, as it did to Sanders.

Instead, what is most likely going to work is to attack the evidence itself. This is time-consuming and expensive, and isn’t guaranteed to work. After all, investigators have the luxury of building their own cases, and cherry-picking the strongest cases from the enormous number of possibles they could charge. Ideally, you want to be able to give the prosecution a new way of looking at the evidence, so that they realize it’s not necessarily as strong as they originally thought. It takes deep understanding and analysis by experts, as well as compelling advocacy. But even in a less-than-ideal situation, the more you can put the prosecution on the spot to defend its evidence — that the photos are real, that they depict real people, that the kids really are minors, etc. — or the more you can raise doubt about how incriminating it is, the better your chances of a decent plea offer.

Prosecutors rarely change their assessment of what a case is worth based on excuses and rationalizations. They made up their mind based on the evidence they have. A good defense is going to give them a new way of looking at that evidence, to get them to re-assess the defendant’s culpability, their chances of success, or (yes) the amount of work they’re going to have to do if this goes to trial.

And FOR THE LAST TIME, PEOPLE, “I was only doing research” is NOT going to do the trick.

Gun Goes Off By Accident, None Hurt? You Get 10 Years.

Wednesday, April 29th, 2009

 

18 U. S. C. §924(c)(1)(A) makes it a federal crime to have a gun on you while committing certain violent or drug-related crimes. There’s a mandatory 5-year minimum sentence just for carrying the gun. If you brandish the gun, it goes up to 7 years. If the gun goes off, it goes up to 10 years.

That’s what happened to Christopher Michael Dean. He was robbing a bank, and had a gun in his hand. He probably had his finger on the trigger like an idiot, because when he reached over a teller to grab money, the gun went off. Nobody got hurt, and it was clearly unintentional. Still, the gun went off, and he got the 10 year minimum for it.

In today’s Supreme Court decision in Dean v. United States, the Court was asked to find that the enhanced 10-year minimum requires some mens rea. Some intent or mental state demonstrating culpability. In a 7-2 decision, however, the Court found that Congress did not impose any such requirement. The majority ruled that this is a crime of strict liability, and so it doesn’t matter whether the defendant meant it to happen or not.

The Court didn’t have a lot of room here. Congress didn’t put anything about mens rea in the statute. It just says you automatically get 10 years “if the firearm is discharged.” It doesn’t say “negligently,” or “knowingly” or “intentionally” or anything like that. It’s written in the passive voice, and nothing else in the statute suggests that Congress meant there to be a mental-state element of this crime.

Dean argued that the law has a progression of ever-harsher penalties. And usually in the law, penalties are increased because of a more culpable mental state. So even though Congress didn’t say it in so many words, they must have intended this 10-year minimum to apply to intentional shootings, as opposed to accidental discharges.

But of course mental state is not the only element that increases culpability. Extra facts can do so as well. Intentionally hitting someone and bruising them is one thing, and intentionally hitting them and killing them is another. Here, bringing a gun to a bank robbery is a bad thing, because there’s a chance it is going to be used, and someone could get hurt. Taking the gun out and waving it around during the heist only increases the chances that someone could get hurt. And even a random shot increases the odds even more. So it makes sense that Congress increased the penalties based on the increased risk to others.

Writing for the majority, Roberts acknowledged that “it is unusual to impose criminal punishment for the consequences of purely accidental conduct.” However, strict liability crimes for unintentional conduct certainly do exist. Statutory rape is the most commonly-cited example. The law doesn’t care whether a man knew his sexual partner was underage, or even if he had every reason to believe that she wasn’t. His mental state does not enter into it, and he goes to jail for a crime he never intended, and never realized he was committing. The law takes the act so seriously that it is deemed indefensible, and so it doesn’t care whether it was committed by mistake. Although they are uncommon, there are plenty of strict liability crimes.

The reason why strict liability crimes are uncommon is alluded to in Dean’s case. When we punish a crime, what we’re really punishing is the offender’s mental state. If someone accidentally trips and stumbles into you, society doesn’t want to punish him. What for? There’s nothing to deter, nothing to retaliate against, nothing to rehabilitate — there was no wrongdoing. But if someone had a duty to be careful with his car, but wasn’t, and his negligence hurt you, then he’s going to be punished a little bit. And if he drove dangerously, with reckless disregard of the danger to others, then he’s going to be punished even more. And if he intentionally ran you over, backed up, and did it again, then he’s going to get the most punishment. Even if the injuries are the same in every case, the more wrongful the offender’s mental state, the more culpable he is, and the more punishment he’s going to get. And if there was no mental state, then there’s really nothing to punish.

The law increases punishment for increased culpability. Increased mens rea certainly means increased culpability.

But that’s not the only factor. In addition to the mens rea element, you have the offender’s actions to consider, as well as the harm that resulted. Increasingly risky actions, with the same mens rea, are increasingly culpable. And increasingly harmful results, with no change in mens rea or actus reus, are also increasingly culpable. Dean’s argument didn’t really seem to grasp this concept.

In his dissent, Justice Stevens made the same mistake that Dean did. Stevens argued that, because of the escalating sentences, Congress must have “intended to provide escalating sentences for increasingly culpable conduct,” and therefore “the discharge provision… applies only to intentional discharges.”

Time for Stevens to bone up on his logic. That syllogism is the same as saying “All men have noses. That person has a nose. Therefore, that person is a man.” It ignores the fact that women also have noses. Here, Stevens ignores the fact that mental state is not the only thing that enhances culpability.

Stevens also would have applied the common-law presumption of mens rea — that if something has been criminalized, there is presumed to be some mental-state element of the crime. Legislatures do often leave out the mens rea element from time to time, and the courts fill it in for them. But that’s only when the statute didn’t otherwise provide a basis for the enhanced culpability. Here, however, Congress did provide a basis for enhanced culpability, in the increased risk to others posed by the actions, regardless of whether those actions were intentional.

Breyer also dissented, based on the Rule of Lenity. He felt that the word “discharge” should be interpreted as meaning “firing,” which implies active use of the weapon, and therefore implies some kind of intent. But he conceded that the majority opinion had equally strong arguments for reading this as a strict liability crime. Given these competing interpretations, the Rule of Lenity would have the Court err on the side of the defendant.

However, just because a contrary position can be articulated, that does not mean that interpretation is necessarily ambiguous. The Rule of Lenity is only applicable when the statute is so ambiguous that it didn’t give fair warning of what could happen to you if you violated it. Here, according to the majority, there was no such ambiguity. The statute simply didn’t contain a mens rea element, and it didn’t imply one, and that fact is not grievously uncertain, and so the Rule of Lenity doesn’t apply.

So don’t rob banks. But if you do, don’t bring a gun along. But if you do, don’t wave it around. But if you do, keep your finger off the trigger. Because if it goes off by accident, you’re in big trouble.

Supreme Screwup: After 27 Years of Appeals, Court’s Decision Was “Too Summary?”

Tuesday, April 28th, 2009

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The Supreme Court this morning exemplified exactly what’s wrong with the death penalty in this country. In a clear effort to avoid a decision that would impose a death sentence, the Court made a nonsense ruling so it could extend the course of appeals — appeals that have already run for three decades. The Court further delayed an outcome, continuing the stress and injustice of uncertainty to the defendant, the victims, and the criminal justice system.

One Saturday afternoon in 1980, Gary Cone robbed a Memphis jewelry store of about $112,000 worth of trinkets. He led a police officer on a high-speed chase through town and into a residential neighborhood. Abandoning his car, he ran off on foot. He shot a police officer who pursued him, and a citizen who tried to stop him. Re-thinking his abandonment of the getaway car, he tried his hand at carjacking, tried to shoot the driver, but was out of ammo.

Cone ran and hid all that day and into the next morning. He then tried to force his way into an old lady’s apartment at gunpoint, but she refused to let him in. The highly-intelligent Vietnam War veteran was foiled again. But later that Sunday afternoon, he broke into the home of an elderly couple, Shipley and Cleopatra Todd, aged 93 and 79, and brutally beat them to death.

After hiding the bodies, ransacking their home, and shaving off his beard, he made his way to Florida. There, he robbed a drugstore, got arrested, and admitted to killing the Todds and shooting the police officer.

In 1982, he was convicted of the murders, after unsuccessfully arguing that he had been on drugs and suffered from post-traumatic stress, and thus lacked the necessary mens rea. He didn’t really present a lot of evidence to back that up. The jury found him guilty, found the requisite aggravating factors, and sentenced him to death.

In yet another bleak example of modern American capital punishment, Cone spent the next 27 years filing appeal after appeal, up to the Supreme Court and back again.

This morning, the Supreme Court ruled on his federal habeas claim. Cone was arguing that the government violated his Brady rights, by withholding evidence material to his mental state.

On direct review in state court, the Tennessee Supreme Court had affirmed the conviction and the death sentence. Cone then filed a petition claiming various violations, including Brady violations. While the petition was pending, he got to see the prosecutor’s case file, and amended his petition to add more detailed Brady claims. He claimed that his thin evidence at trial would have been bolstered by this stuff, had he seen it at the time.

The reviewing court denied the petition, on the grounds that the Brady claims had already been considered and denied. Cone then sought a writ of habeas corpus, seeking relief for the alleged Brady violation. The Sixth Circuit said no to the Brady claim, because the state decision was based on grounds that weren’t applicable in federal court.

Appeals then went back and forth on other matters. In 2001, the Circuit granted relief for ineffective assistance of counsel, but the Supreme Court reversed that in 2002. In 2004, the Circuit granted relief for the use of an unconstitutional aggravating factor, but the Supreme Court reversed that one also.

Back in the Sixth Circuit in 2007 on remand, Cone once again raised the Brady claim. The Circuit again said no, that the claim was procedurally barred, because Tennessee had relied on independent state grounds in its determination of the Brady claim. And in any event, the prosecutor’s files weren’t Brady material in the first place, because nothing in them would have “overcome the overwhelming evidence of Cone’s guilt” and “the persuasive testimony that Cone was not under the influence of drugs.”

On cert to the Supreme Court this time around, Cone argued that the prosecutor’s file contained witness statements and police reports that would have corroborated his insanity defense during the guilt phase, and would have mitigated the aggravating factors during the sentencing phase. He argued that the Tennessee court’s decision did not rest on grounds that precluded federal review, contrary to the Circuit’s finding.

In its decision this morning, written for the majority by Justice Stevens, the Supreme Court ruled in Cone v. Bell that Cone was right — the Tennessee court’s decision did not rest on grounds that precluded federal review. Nevertheless, Cone was still wrong, because the prosecution’s files were not Brady material — the withheld documents simply were not material to any defense based on his mental state.

If Stevens had stopped there, this would have been a unanimous decision.

Instead, however, Stevens screwed up. “While we agree that the withheld documents were not material to the question whether Cone committed murder with the requisite mental state,” he wrote, “the lower courts failed to adequately consider whether that same evidence was material to Cone’s sentence.”

Say what? It clearly wasn’t material to the issue of guilt, but the appellate courts were too hasty in saying it was not material for sentencing? Stevens is basically saying, the files weren’t Brady, because they weren’t material to the issue of his mental state. But on the other hand, they might have been material to the issue of his mental state, so we’re remanding for a do-over.

So, in all these years of considering this very issue on appeal, the Circuit got it right when it decided that the files simply weren’t material. But in all these years of considering this very issue, the Circuit acted too hastily in deciding that the files weren’t material.

That simply doesn’t make sense, and in his dissent (joined by Scalia), Thomas makes that exact point. Alito felt the same way, and dissented to that extent, but concurred with the rest of the decision.

Chief Justice Roberts felt the same way, but wasn’t moved strongly enough to dissent, so he merely wrote a concurring opinion voicing his concerns. Instead, “this is what we are left with,” he wrote: “a fact-specific determination, under the established legal standard, viewing the unique facts in favor of the defendant, that the Brady claim fails with respect to guilt, but might have merit as to sentencing. In light of all this, I see no reason to quarrel with the Court’s ruling on the Brady claim.

That’s just weak. He and the rest of the majority clearly punted the issue. There is no distinguishing difference between the guilt phase or the sentencing phase, when determining whether something was Brady or not. Either it’s material or it isn’t. The issue in both was whether Cone’s mental state was impaired, and the courts seem to agree that the files were immaterial to that issue.

It’s clear what’s really going on, of course: the majority didn’t want to suck it up and just deny the claim. To do so would be to impose a death sentence, and the Stevens majority doesn’t want to do that unless there’s no way out for them. But they found a way out here. Not a particularly meaningful one, but it was all they needed. So they weaseled out of it, and kicked it back to the Sixth Circuit to do their dirty work for them.

We predict that the Circuit will simply make the same finding again on remand, and spill some more ink to spell out that its finding applies to both the sentencing phase as well as the guilt phase. Then today’s majority will be able to feel a little better about themselves when they affirm, and sentence Cone to death.

But delaying this foregone conclusion is unjust. It’s exactly what’s wrong with capital punishment in this country. There is no deterrent effect, because there is no predictability as to whether capital punishment will be carried out, and any such punishment is too far off in the dim and distant future to be meaningful. There is clearly no rehabilitation or attempt to rehabilitate, as the alternative is just life in prison. There is no just retribution, as society does not gain anything from punishment that neither certain nor contemporaneous.

Until the courts can work out a fair way of resolving death-penalty appeals justly and swiftly, the death penalty will continue to be an inhumane sentence in this country. Inhumane not only to defendants, but to the families of their victims, and to the community at large.

2009 New York Drug Sentencing Guide

Wednesday, April 15th, 2009

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2009 New York Drug Sentencing Guide

What with all the drug law reforms happening in New York, we thought we’d put together a quick-and-easy guide to what they mean. Click here to view it in PDF form.

We used to do this all the time back when we were prosecuting cases with Special Narcotics. New York laws are so (unnecessarily) byzantine that a single chart really became necessary to figure out what they mean. We were often gratified to see nth-generation photocopies of our drug-law charts on various judges’ benches, and they were certainly popular in the office.

Standard warnings apply, of course: this is only a guide, and is not meant to be a substitute for legal research. And like everything else on this blog, it neither provides legal advice nor implies or creates an attorney-client relationship.

Death Row: Court OK’s Federal Defenders for State Clemency Hearings

Wednesday, April 1st, 2009

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In an unusually mixed decision for the consensus-driven Roberts Court, the Supreme Court today ruled that federal public defenders can represent death-penalty clients at state clemency hearings. The more liberal justices said federal defenders could do so, but only if the state hearings followed a federal proceeding. Justice Thomas went further, saying that the law as written does not impose such a restriction, and in fact federal defenders would be allowed in any state capital case. Chief Justice Roberts agreed with the majority, but only insofar as the subsequent state proceedings are extra-judicial. Only Justices Scalia and Alito felt that federal defenders shouldn’t be allowed at state proceedings, period.

To get the result they wanted, the majority clearly made hash of the relevant statute, interpreting parts one way but other parts the opposite way, and then adding new interpretations to undo the absurdities that could have then resulted. Roberts allowed himself to justify the same outcome on a fine-point quibble. Only Thomas, Scalia and Alito had truly intellectually honest positions, but they didn’t fit the policy which the Court sought to advance. Once again, it was a case of making the law fit the Justices’ policy wishes — an undercurrent that often explains appellate decisionmaking.

At issue here was 18 U.S.C. § 3599, which provides for appointed counsel in federal proceedings. These lawyers are paid for out of the federal budget, when a client cannot afford a private attorney, and usually only handle matters in federal court. State court matters are typically handled by lawyers appointed and paid for by the state. Among other things, § 3599 sets forth what kind of matters a federally appointed lawyer can handle.

In this case, Harbison v. Bell, Edward Harbison was sentenced to death back in 1983 (yes, 26 years ago!) for beating a 62-year-old woman’s head to a pulp with a vase, after she surprised him while he was burgling her house.

Skipping over years of appellate back-and-forth, we come to a 2005 habeas petition in federal court. The Federal Defender Services of Eastern Tennessee were appointed to represent Harbison during this habeas proceeding. The petition was ultimately denied.

That having failed, Harbison tried for a clemency hearing in Tennessee state court. But he couldn’t get appointed counsel for such a hearing. The Tennessee Supreme Court had held that state law did not allow state-appointed lawyers in clemency hearings.

So Harbison’s federal defender filed a motion, asking that she be allowed to include the state clemency proceeding as part of her federally-compensated representation.

It wasn’t a huge stretch to ask for this, as §3599 permits federal defenders to represent their clients at “proceedings for executive or other clemency as may be available.” But Tennessee is in the 6th Circuit, which had previously construed §3599 as only applying to federal proceedings. So the district court denied the motion, and the 6th Circuit affirmed.

There being a split in the circuits on this issue — the 5th, 6th and 11th saying no federal assistance at the state level, but the 8th and 10th saying it’s okay — it was no surprise that the Supreme Court granted cert. Oral arguments were held in January.

The Court’s majority opinion is fairly straightforward: the plain language of §3599 doesn’t say anything limiting its scope to federal proceedings. In fact, its reference to “or other clemency” has to mean state proceedings, because federal clemency is strictly executive.

You can’t go out and get a federal defender for a state clemency hearing, however, unless you already had that federal defender to start with. In this case, the federal defender was on the case for the habeas proceeding, and the clemency one came afterward, so it was okay. But if the order had been reversed, the Court wouldn’t have permitted it.

Justice Stevens wrote the majority decision, and got the other four more liberal Justices to go along with the whole thing. Stevens was a little muddled, though, as his reading of the statute was dramatically different from clause to clause, and thus found that parts of it only apply to federal capital defendants.

Chief Justice Roberts agreed with Stevens’ result, but not with his reasoning. Roberts agreed that the federal defenders ought to be permitted at subsequent state clemency hearings. But he did not think that the plain language of §3599 said so. Just because the federal statute didn’t come out and say it was limited to federal cases, that doesn’t mean that’s not what Congress intended. Roberts felt (and Harbison conceded) that “it is highly unlikely that Congress intended federal habeas petitioners to keep their federal counsel during subsequent state judicial proceedings.”

Roberts astutely noted, however, that §3599 does not open the door to subsequent judicial proceedings. That would be a problem, because post-habeas judicial proceedings are by definition new matters, and §3599 only mentions “subsequent stages” of the federal matter. Clemency hearings, however, are non-judicial requests for mercy from the governor or a panel. We would expect this distinction to be raised for sure in some future case.

Justice Thomas was true to form, refusing to look outside the words Congress used to seek its intent, as “our task is to apply the text, not to improve upon it,” even if that produces “very bad policy.” He therefore felt the §3599 necessarily included state clemency proceedings, because the statute applied to people challenging either state or federal convictions, and state clemency is the only clemency available for state convictions.

In fact, Thomas went beyond the majority’s reading. The majority (and Roberts) assumed that parts of §3599 must be limited to federal proceedings, at least in some respects. But under Thomas-style interpretation it must be read to provide federal counsel “to indigent defendants in every criminal action in which a defendant is charged with a crime which may be punishable by death.” (Emphasis his.)

Justices Scalia and Alito were the only holdouts, finding that Congress was only talking about federal proceedings. After pointing out the obvious befuddlement of Stevens’ argument (as one would expect Scalia to do), they pointed out that “Section 3599 was enacted as part of a bill that created a new federal capital offense, and it is perfectly reasonable to assume that a federal statute, providing federally funded counsel, applies in federal proceedings only, even where the statute contains no such express limitation.” (Emphasis Scalia’s.)

As to the “or other clemency” on which the majority hung its hat, Scalia pointed out that the very congressional history which the majority felt was important “defeats the inference the Court wishes to draw.” The phrase “or other clemency” clearly did not imply or contemplate state proceedings, but was simply and unquestionably superfluous.

Supreme Court: If Prosecution Breaches Plea Deal, OBJECT!

Wednesday, March 25th, 2009

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Voting 7-2, the Supreme Court today ruled that a defendant cannot appeal when the prosecution reneged on a plea bargain, unless the issue was preserved before the trial court.

In his majority opinion for Puckett v. U.S., Justice Scalia cleared up a split among the circuits. There had been differing opinions on whether this situation was one of the exceptions to the general rule requiring that issues be preserved below. He sort of signaled his take on the issue with his first sentence: “The question presented by this case is whether a forfeited claim that the Government has violated the terms of a plea agreement is subject to the plain-error standard of review set forth in Rule 52(b) of the Federal Rules of Criminal Procedure.”

The facts of the case are going to sound familiar to anyone who’s been doing criminal law for very long. The defendant was indicted for armed robbery, and negotiated a plea deal. As part of the deal, the prosecutors promised to tell the court that he “has demonstrated acceptance of responsibility and thereby qualifies for a three-level reduction…” But then, after the plea but before sentencing, the defendant got in trouble again, this time for a scheme to defraud the Postal Service. The prosecutors changed their mind, in light of this new information, and told the sentencing court that the defendant should *not* get credit for accepting responsibility.

The defense attorney called foul, and reminded the court of the terms of the plea agreement. The judge turned to the prosecutor, who dismissed it as having been written a long time ago, and the new crime changed the situation. The judge decided that he couldn’t grant a reduction, and wouldn’t even if he could, given the new crime. He did impose a sentence at the low end of the range, however.

“Importantly,” to Scalia, “at no time during the exchange did Puckett’s counsel object that the Government was violating its obligations under the plea agreement by backing away from its request for the reduction. He never cited the relevant provision of the plea agreement. And he did not move to withdraw Puckett’s plea on grounds that the Government had broken its sentencing promises.”

On appeal, the Fifth Circuit held that error had occurred, and it was obvious, but it did not cause prejudice, so it was not “plain error.” Basically, the defendant couldn’t demonstrate that his ultimate sentence would have been any different, whether the prosecution had recommended the reduction or not, given the judge’s disinclination to grant it in the first place.

But there was a conflict among the circuits as to whether the plain-error test applies to unpreserved claims of breached plea agreements. So the Supreme Court granted cert.

In finding that Rule 52(b) does apply to unpreserved claims of breached plea agreements, Scalia started with the principle that plain-error review is rightly the norm for unpreserved errors, because “anyone familiar with the work of courts understands that errors are a constant in the trial process, and that a reflexive inclination by appellate courts to reverse because of unpreserved error would be fatal.” Exceptions to the normal rule do exist, of course. But should this situation be one of them?

Everyone took it as given that the government had broken its agreement. The issue is whether, in the absence of an objection below, anything could be done about it on appeal here.

The defendant first argued conceptually that the government’s breach of the plea agreement made that agreement void, and so voided the guilty plea. Scalia pointed out that breaching a contract does not make the whole contract void and invalid from the first; the contract remains enforceable.

The defendant next argued that there was precedent in *Santobello*, where a broken plea promise was grounds for reversal in the interests of justice, even though the breach did not affect the judge’s decision and thus the error was harmless. Scalia countered that whether or not an error is harmless is not the issue here, which is whether the error can be subjected to plain-error review. In *Santobello*, moreover, the issue clearly had been preserved below.

The defendant then argued that applying Rule 52(b) makes no sense, because objecting to a plea breach is futile; the prosecution’s wrongful action cannot be undone. The judge will have heard the improper recommendation, and can’t unhear it. Scalia stated that requiring an objection prevents defendants from “seeking a second bite at the apple” after waiting to see if they like the outcome or not. Also, some breaches are curable. And those that aren’t can be remedied by the trial court, such as by withdrawal of the plea, or by resentencing before a different judge.

The biggest point the defendant raised was that plea breaches fall within “a special category of forfeited errors that can be corrected regardless of their effect on the outcome,” so that even if there was no prejudicial effect, there still ought to be a reversal.

Scalia responded by categorizing the exceptions that do exist: errors that “necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence,” or that “defy analysis by harmless-error standards by affecting the entire adjudicatory framework,” or which involve “difficulty of assessing the effect of the error.”

None of those considerations applied here, so Scalia decided that this situation just didn’t fit as an exception to the general rule.

Justice Souter, joined by Justice Stevens, dissented. Although the defendant wasn’t terribly sympathetic, and although they agreed that the plain-error test is the right one to apply here, the dissenters felt that the Court was looking at the wrong effects.

The majority (and apparently the parties, too) looked at the effect of the error as merely being the length of the sentence, which probably wasn’t affected here. Souter, in contrast, saw the effect as being “conviction in the absence of trial,” or in the absence of “compliance with the terms of the plea agreement dispensing with the Government’s obligation to prove its case.”

The criminal conviction itself, not the length of sentence, is the effect on substantial rights according to Souter. Due Process and fundamental fairness require, “before the stigma of conviction can be imposed,” either a trial or a plea agreement honored by the Government. “It is hard to imagine anything less fair,” he stated, “than branding someone a criminal… because he entered a plea of guilty induced by an agreement the Government refuses to honor.” Sentencing after the prosecution breached a plea agreement would always, by definition, be plain error.

Justice Souter’s approach is, of course, attractive to those who value the fairness and integrity of jurisprudence. However, it is hard even for this defense attorney to agree that all such sentences are necessarily plain error, especially when an adequate remedy (getting to take one’s plea back) is available if the defense attorney is paying attention.

The Chutzpah Defense: Should Defendants be Able to Appeal Their Way to an 8th Amendment Violation?

Wednesday, March 11th, 2009

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Few would deny that 32 years is a long time to spend in jail. It’s a long time to spend on death row, as well. But is delaying the execution — particularly when the delay is caused by the convict’s own appeals — cruel and unusual punishment violating the 8th Amendment?

This issue has sparked a fierce debate among the justices of the Supreme Court, three of whom put their positions in writing this week. The Court itself punted the issue, which was brought by William Lee Thompson, declining to hear his claim that 32 years on death row was cruel and unusual. But Justices John Paul Stevens, Stephen Breyer and Clarence Thomas took their disagreement out of the conference room and put it on paper.

Justice Stevens has been trying to get the Court to take on this issue since 1995, when he wrote a memorandum statement arguing that, although novel at the time, the proposition was “not without foundation.” Lackey v. Texas, 514 U.S. 1045 (1995). The state’s interest in retribution, he then mused, might be satisfied by the uncertainties a prisoner must suffer during a lengthy delay of execution (though why he felt that retribution was a proper purpose of punishment in a modern civilized society is a whole nother topic). Any deterrent purpose would be negligible after such a delay, he argued, and any penalty with little marginal return would essentially be gratuitous, and therefore cruel and unusual. Stevens also pointed out that other countries’ courts had found similar arguments to be persuasive.

In his statement this week, Stevens pointed out that the average execution happens nearly 13 years after sentencing, adding that “to my mind, this figure underscores the fundamental inhumanity and unworkability of the death penalty as it is administered in the United States.”

However, he went on to say that the delays are mostly the result of judicial process. “Judicial process takes time, but the error rate in capital cases illustrates its necessity. We are duty bound to [ensure] that every safeguard is observed when a defendant’s life is at stake.” He concluded that “our experience during the past three decades has demonstrated that delays in state-sponsored killings are inescapable, and that executing defendants after such delays is unacceptably cruel.”

We’re no fans of the death penalty, but Stevens’ argument is a bit too much of a non sequitur, even for us. His argument is essentially: A) Delay is necessary to ensure justice in capital cases, and B) Delay sucks, if you’re the one on death row, so therefore C) Delay is unconstitutionally cruel and unusual. Which is the opposite of A. It doesn’t follow.

Stevens doesn’t need it to follow, however, because his ulterior motive is to find the death penalty itself unconstitutional. He says as much in his conclusion (quoting a previous opinion of his, which itself echoed his argument in the 1995 statement).

Justice Breyer has been pushing this issue almost as long as Stevens has, joining the cause in 1999 when he opposed denial of cert. in two Florida cases, Foster v. Florida, 537 U.S. 990 and Knight v. Florida, 528 U.S. 990. His statement in this week’s case can be found here.

Like Stevens, Breyer clearly had an ulterior motive for wanting to grant cert. He also agrees that delay is necessary to ensure justice in capital cases, and the defendant caused most of the delay in his case with apparently meritless appeals.

However, critically important to Breyer is the fact that a portion of the delay was spent on a meritorious appeal. The trial judge didn’t allow some evidence at the sentencing hearing, but was compelled to allow it at a new hearing. The defendant got the same sentence of death.

Breyer’s argument is that the delay involved in the meritorious appeal was unconstitutionally cruel and unusual, because the appeal would not have happened but for the sentencing judge’s error, which is state action. The delay involved in the meritless appeals is a necessary safeguard of the criminal justice system, and is just fine.

Seriously, that’s his argument. Read it yourself. What Breyer really wanted was to undo the death sentence itself, which he felt wasn’t really deserved here.

So what about Justice Thomas? He took the other side, arguing the 32 years were spent in appellate litigation brought by the petitioner. He caused the very delay of which he now complains. He used a quote from Mike Luttig to make the point: “It makes a mockery of our system of justice . . . for a convicted murderer, who, through his own interminable efforts of delay . . . has secured the almost-indefinite postponement of his sentence, to then claim that the almost-indefinite postponement renders his sentence unconstitutional.”

Thomas felt that ulterior motives should not undercut the decisions of three separate juries, each of which held that the petitioner should be executed for kidnapping and horribly torturing a woman to death. The Constitution permitted the death penalty, and it was “the considered judgment of the people of Florida” that it was warranted here.

So all three justices seem to tacitly admit that the Supreme Court will take on a case, even if the arguments presented aren’t the right arguments, if it feels there is some other injustice that needs to be cured. Stevens and Breyer wanted to take on this case, because they felt the death penalty shouldn’t have been imposed — Stevens because he thinks it should never be imposed, and Breyer because he thinks the petitioner wasn’t as guilty as his co-defendant, who didn’t get the death penalty. Thomas didn’t see any injustice, so didn’t need to overlook the defendant’s chutzpah, though his dwelling on the merits of the sentence indicate that he might have done so in another case.

As of now, there is still no “Chutzpah Defense.” But don’t be surprised if some enterprising defense attorneys don’t craft some new versions of that argument, inspired by these three opinions.

Prisons Crowded? Don’t Build More, Says Court. Just Release the Inmates.

Tuesday, February 10th, 2009

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A panel of three federal judges yesterday essentially ordered the State of California to reduce its prison population by as much as 57,000 people, because crowding is causing violations of prisoner rights. This doesn’t mean that wardens will be releasing thousands of hardened criminals back onto the streets, but it does raise questions of how to do it. In its ruling, the court accepted certain possible solutions, but rejected the one obvious solution of building more prison space.

The panel was made up of U.S. District Court judges Thelton Henderson and Lawrence Karlton, as well as Stephen Reinhardt of the Ninth Circuit. These judges are known for their left-leaning policies, so it’s hardly surprising, perhaps, that they accepted and rejected the solutions that they did. Increasing prisons is not widely regarded as a liberal position.

Although the panel only issued a “tentative ruling” in Coleman v. Schwarzenegger (link from the L.A. Times), this is probably going to be the final ruling, which is why they were confident enough to issue it formally. Unless it’s overturned on appeal, California is going to have to think up and enact some creative methods of carrying out the order, so the judges wanted to give the state time “to allow them to plan accordingly.”

The case, actually two cases, were brought by prisoners who alleged that crowding — not overcrowding, just crowding — was causing violations of their constitutional rights. These aren’t new cases — one has been in the remedy stage since 1995, and the other since 2002.

The dispute now was not over whether crowding exists, or whether care is unconstitutionally inadequate. Gov. Schwarzenegger issued a state of emergency in 2006, still in effect today, because overcrowding was putting prisoners’ and guards’ health and safety at risk. So the fact of crowding couldn’t be in dispute. Also not in dispute is a previous court ruling that the prisons were not providing constitutionally adequate medical and psychological care.

The issue here was whether the crowding was the main reason for the failure to provide adequate medical and psychological care. And if so, then what to do about it.

The court found that there aren’t enough clinical facilities, resources or personnel to accommodate all the inmates who needed them. The risk of the spread of infectious disease is also enhanced by bunking prisoners in gyms and other spaces not intended to be used for housing. Lots of experts testified that crowding was the primary cause of the problems.

That being decided, California wanted a chance to fix the problem without decreasing the prison population. California showed that, under monitoring by a receiver and special master during the past 11 years, the Department of Corrections and Rehabilitation had already made significant improvements in conditions. So they asked for more time to fix these particular problems.

The court said no. They’ve had 11 years, and haven’t fixed the problem yet, so the court didn’t trust the monitors to fix it now. And anyway, “many of their achievements have succumbed to the inexorably rising tide of population.” Furthermore, California has no money to spare for new facilities, resources and personnel. Remedies for these cases have been tried since 1995, for 14 years now, and any future efforts of the receiver and special master could take many more years to have effect. The court felt that any further continuation of the already lengthy deprivation of constitutional rights would be wrong.

The court couldn’t think of any other relief that would work, other than reducing the prison population. Because scores of remedial orders had so far failed, “we are at a loss to imagine what other relief short of a prisoner release order a court could grant.”

So back to the question of how to do it. The court suggested various methods, such as “parole reform,” which we guess would mean changing parole rules, so that violators don’t necessarily go back to prison. Or “good time credits,” which could include both granting greater time off for good behavior, and letting more bad behavior count as good behavior. Or “evidence-based programming intended to reduce recidivism,” which simply means implementing services that are scientifically proven to actually reduce subsequent criminal behavior, as opposed to trying things that just sound good.

The court felt that building more prison space, the one obvious solution, was not something the court could order California to do, because it “may not be within the court’s general powers under the PLRA.” The PLRA, 18 U.S.C. §3626(g)(4) defines a “prisoner release order” as anything that has the effect of reducing or limiting the prison population. So the examples above would work. But one that merely reduces crowding — the problem to be solved here — doesn’t count, because it doesn’t reduce the number of prisoners.

We think that’s probably wrong. Building more prison space would solve the problem complained of. It may not be within the scope of the PLRA, but that’s not the sole authority that the court has. It has equitable power to order the state to do whatever works to stop the constitutional violations.

The court went on to say that California’s inmate population was about 200% of intended capacity, but reducing that population to about 120% to 145% would be sufficient. The court felt that this was the proper balance between concerns of public safety and prisoner rights.

The state immediately announced that it will appeal, of course. This will be one to watch, as pretty much every state is operating prisons beyond their design capacity, and fixes need to start happening soon. What happens here will influence how other states deal with the problem.

“Not With Me, They Don’t” – Race Not a Factor in Sentence, Says Judge

Thursday, January 22nd, 2009

 

District Court Judge Percy Anderson sentenced Jeanetta Standefor to more than 12 years in prison on Tuesday, for running an $18 million Ponzi scheme that preyed on middle-class black investors.

Standefor, who is also black, solicited investments from 650 people around Pasadena who thought the money would go to buying properties about to go into foreclosure. To maintain the illusion of profits, Standefor transferred $14 million of the invested money to early investors. She also spent about a million per year on herself, according to AUSA Stephanie Yonekura-McCaffery. The operation was run through her company Accelerated Funding Group — a name that is practically probable cause in itself.

At the sentencing hearing in the Central District of California, victims told Judge Anderson how they had trusted Standefor with their savings, often their life savings, after she first befriended them. Investors were told that they could make 50% profits in the first month.

Standefor’s attorney, federal defender Charles Brown, argued for leniency. “She is not a serial killer,” he said. “She is not a drug dealer. This is not a person who needs to be thrown in jail and locked up to learn her lesson.” He added that she was a foster child “who worked her entire life to prove her worth. . . [but] she took shortcuts, and started taking from Peter to pay Paul, and that’s how we got here.”

Judge Anderson disagreed with the defense attorney’s characterization, telling Standefor that even if this was just a white-collar crime, she was just as guilty “as if you’d taken a gun out and held it to the victims’ heads.”

Judge Anderson then ruled on sentence. Shortly before he imposed the sentence, however, Brown made one last attempt for leniency. Urging the judge to reconsider, Brown pointed out that the sentence was not consistent with those for similar cases around the country. Brown argued that it seemed to him that blacks get harsher sentences, even when they are convicted of white-collar crimes.

“Not with me, they don’t,” interrupted the judge, who is also black. “This isn’t about being black.”

Standefor was then sentenced to 151 months in prison and almost $9 million in restitution.

Supreme Court: Failure to Surrender ≠ Escape

Tuesday, January 13th, 2009

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This morning, the Supreme Court returned from its long break to issue a unanimous ruling in Chambers v. United States (No. 06-1120, Jan. 13, 2009). At issue was the crime of failure to report to jail, and whether that crime is a “violent felony” for the purposes of the Armed Career Criminal Act.

ACCA imposes a mandatory 15-year sentence for a felon who unlawfully possessed a firearm, and who also has three prior convictions for either drug crimes or violent felonies. A “violent felony” is defined by 18 U.S.C. § 924(e) as one that (among other things) “involves conduct that presents a serious potential risk of physical injury to another.”

The government wanted Chambers sentenced to the mandatory 15 years, based on prior convictions that included an Illinois crime of failing to report for weekend confinement.

Chambers said that the Illinois crime was not a violent felony for the purposes of ACCA. The government disagreed, arguing that the crime demonstrates a “special, strong aversion to penal custody,” and therefore was akin to a prison break. And prison escapes by their nature involve conduct that presents a serious potential risk of physical injury to another.

The Court didn’t buy that argument. Unlike a prison break, which is an active crime, failing to report is merely a crime of inaction, the Court said. The Court added that, sure, the defendant must have been doing *something* during his absence from jail, but there is no reason to believe that it was something risky to others. On the contrary, he’s probably less likely to draw attention to his whereabouts by “engaging in additional violent and unlawful conduct.” Aversion to penal custody, no matter how “special, is beside the point.”

The Court added that, of 160 cases involving a failure to report in a 2-year study by the Sentencing Guidelines Commission, “none at all involved violence — not during the commission of the offense itself, not during the offender’s later apprehension.” The government itself could only find three examples in 30 years.

Because of this, the Court held that this particular crime does not count as a violent felony for ACCA purposes, reversed, and remanded.

Can Skilling Get a New Trial?

Friday, January 9th, 2009

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On Tuesday, the Fifth Circuit ruled on Jeff Skilling’s appeal from his conviction in the Enron case, upholding the conviction, but sending the case back for re-sentencing. Skilling may be able to raise a Brady issue on remand, as well, so the case doesn’t seem to be over. The opinion is 106 pages long, so we will summarize the ruling and its meaning for you here.

Skilling challenged his conviction, on the grounds that the government’s theory of “honest services” fraud was wrong. The government’s case let the jury decide on three purposes of Skilling’s conspiracy, one of which was to deprive Enron of the honest services of its employees. Because the jury returned a general verdict, if any one of those legal theories was insufficient, then the verdict must be reversed.

Skilling focused on the honest services theory, arguing that it was insufficient because his actions were done to give Enron a higher stock price, so it was in the corporate interest. He didn’t act in secret, and wasn’t self-dealing.

In making this argument, Skilling relied on the Circuit’s previous Enron case, United States v. Brown, 459 F.3d 509. In that case, a loan secured by Nigerian barges was fraudulently booked as revenue. The defendants in that case were specifically ordered by their CFO, Andy Fastow, to carry out the deal. Not only did they believe that Enron had a corporate interest in the scheme, and was a willing beneficiary of it, but their superiors ordered and approved their actions. Furthermore, they were paid more depending on whether they successfully achieved the goal.

The Court held that Skilling’s reliance on Brown was misplaced. The Brown rule absolves low-level employees of liability for honest-services fraud when:

1) the employer creates a particular goal,
2) the employer aligns the employees’ interests with the employer’s interest in achieving that goal, and
3) higher-level management authorizes or orders improper conduct in order to reach the goal.

Here, the first two conditions were met, but the third was not. Condition 1 was met when Enron created a goal of meeting Wall Street earnings projections. Condition 2 was met as Skilling got paid more if Enron met those projections. But condition 3 was not met, as there was no evidence that anyone besides Skilling authorized his conduct. The Board tacitly approved several of the underlying transactions, but never authorized him to engage in fraudulent conduct.

Because the third condition was not met, the Brown rule does not absolve Skilling of his liability. His conviction was therefore upheld.

With respect to sentencing, Skilling argued that the district court got the Guidelines calculation wrong, and that the sentence is unreasonable under §3553. The Court didn’t get to the §3553 issue, because it held that the Guidelines calculation was indeed incorrect, and a court has to do the Guidelines right before the §3553 factors come into play.

Skilling appealed a §3C1.1 two-level enhancement for obstruction of justice, and a §2F1.1(b)(8)(A) four-level enhancement for jeopardizing a financial institution.

The §3C1.1 enhancement was based on a determination that Skilling perjured himself as to his sale of Enron stock right after he resigned from the company. He’d tried to sell his stock while still CEO, but it would have had to be reported. So he resigned, then tried to sell his stock. But then September 11 happened, and he wasn’t able to sell until September 17. Skilling testified to the SEC that his order to sell on September 17 was due to his concerns over the market’s reaction to 9/11. The judge decided that was perjury.

On appeal, skilling didn’t argue that it wasn’t perjury. Instead, he argued that the court should have suppressed his SEC testimony in the first place, because the SEC misled him as to the fact that the investigation was criminal in nature.

The Circuit, however, pointed out that suppressible evidence can still be used at sentencing, and none of the exceptions to that rule apply here. The Court also found no justification for the original perjury. So the two-level enhancement was proper.

The §2F1.1(b)(8)(A) enhancement was based on the finding that Enron’s retirement plans were “financial institutions” for the purposes of that Guideline. Retirement plans aren’t specifically mentioned in the Guideline’s definition, which enumerates a long list of included entities. Various kinds of pension funds are included, however. And the list does include a catch-all “any similar entity.”

With respect to “pension funds,” the Guidelines don’t define the term. But a pension requires more than just employee investment for later payout — a pension has definitely determined payouts. Here, the retirement funds didn’t have specific benefits, they were just there as a pool for funding any benefits that might be given. So the Court decided they didn’t count.

With respect to the catch-all, apart from pension funds, the Guideline definition lists classic financial institutions like banks, investment houses, and the like. The Court did not want to expand the definition to declare every corporate retirement plan to be a financial institution.

Because the retirement plans weren’t financial institutions, the four-level enhancement was improper. So Skilling’s sentence was vacated, and the case was remanded for resentencing.

In addition to these main issues, the Court also rejected Skilling’s other challenges to his trial. Giving a “deliberate ignorance” instruction was at worst harmless error. None of the other jury instructions were problematic. The venue was proper. There was no prosecutorial misconduct.

Interestingly, however, the Court specifically stated that Skilling can raise Brady issues on remand. An FBI interview note showed that Andy Fastow didn’t think he had discussed a certain list with Skilling. This was omitted from the formal “302” report provided to the defense. Skilling claims that Fastow was talking about a list of talking points that Fastow had testified at trial he actually had discussed with Skilling.

The Circuit found this troubling, but the trial court never saw the notes or ruled on this claim, so nothing could be decided on appeal. But the Court instructed that “Skilling must bring this claim to the district court before we can address it.”

Therefore, Skilling might be able to get a new trial! If Skilling can show that there was a Brady violation, this case could be far from over. The government claims that the list in question is unrelated to the case, however, so we’re just going to have to wait and see.