February 2, 2005
Comey's Sentencing Memo & White Collar Crime
As noted in our last post and in Professor Doug Berman's superb sentencing blog, it looks like the AUSAs and USAs throughout the country have received their guidance from main justice on how to proceed on sentencing matters. And the tone and language certainly will raise some eyebrows. As noted by Professor Berman,
In particular, I am intrigued by the "keep your chin up" theme: DAG Comey at the outset commends prosecutors "for your flexibility, your creativity and your good humor in these difficult times" and in closing lauds prosecutors' hard work and says that their "ability and dedication will get the job done in these challenging times."
There is another interesting item on the page attached to the memo (Comey Memo (1/25/05)). Called the Booker Sentencing Report Form, it provides prosecutors with a handy-to-use form for reporting judges who sentence outside the guidelines. It specifically says that it replaces the "Blakely Sentencing Report Form." But what is particularly fascinating about this form for white collar cases is found in # 5 of the form, where it asks for "Primary Offense of Conviction" and says to "(indicate only one)." Prosecutors are given the following choices: "Drugs, Guns/violent crime, Economic Crime, Child porn/exploitation, Immigration, and Other (explain)." What isn't there? Well unless you want to include terrorism in the category of violent crime or immigration, it appears to be omitted as an exclusive category. Isn't terrorism a top priority of DOJ? Is DOJ thinking that most judges will not depart in these cases? Or are there an insignificant number of cases being filed with respect to terrorism to merit its inclusion on this form? And does the fact that economic crime is included have significance?