Friday, November 6, 2009

Post-Booker Sentencing Provides Greater Equity

Amir Efrati, WSJ, Looser Rules on Sentencing Stir Concerns About Equity - speaks about recent sentencing of white collar offenders.  My response -

Supreme Court decisions clearly allow for more judicial discretion in white collar sentencing -  but is this a negative?  Hardly not.  It provides judges with the opportunity to examine the defendant on an individual basis as opposed to being strictly focused on a mathematical computation of loss.  In some cases the sentence may be higher than the guidelines, and in other cases it may be lower. It is easy to say that this creates disparity - but the real question is whether the disparity was there and this now corrects that disparity.

It is important to recognize that some of these white collar sentences are above the guidelines.  Further many double-digit white collar sentences are now being handed down (see, e,g, here, here and what about Ebbers, Skilling, MacFarland, and others), and there are even triple digits now seen on occasion.  One would be hard-pressed to find the number of double-digit sentences we are presently seeing in white collar cases, in the pre-guideline years. Further, it is clear that the "culture" of the guidelines is respected by most judges and that the government has an appellate process when they believe that the sentence is unreasonable.

But what is also clear is that the guidelines are not the end of the sentencing process.  Supreme Court decisions now allow neutral judges necessary discretion to sentence the specific individual before her or him.  One important improvement coming from these Supreme Court decisions is that it levels the playing field between the prosecution and defense.  The prosecution has had the sole ability to reduce a sentence by filing a 5K1.1 motion - a disparity that often went unnoticed.  The new Supreme Court decisions allow the defense to also now be heard.

So what's my opinion? Looser rules should not be "stir[ring] concerns about equity."  Rather, looser rules are now allowing us to achieve greater equity by giving judges the ability to account for circumstances that are beyond an efficiency based arithmetic exercise.  

(esp)(blogging from Portland, Oregon)

November 6, 2009 in About This Blog | Permalink | Comments (0) | TrackBack (0)


Thursday, November 5, 2009

In the News & Around the Blogosphere

Tuesday, November 3, 2009

Cert Petition in Brown

A Petition for Cert has been filed in the Supreme Court in the case of Brown v. U.S., coming from the 5th Circuit. It's the Brown from the Merrill Lynch- Enron case. Brown I was dismissed by the court holding that  "the alleged conduct is not a federal crime under the honest services theory of fraud specifically." The problem was that the government decided to recycle the case without the 1346 allegation.  A fascinating question presented is whether section 1343 is a separate offense from 1346 - and how does this play with double jeopardy. 1346 was created to define that a scheme to defraud could include an intangible right to honest services.  But 1346 is a definition statute and has no additional elements. As stated in the Petition for Cert-

In these Circuits, a second trial of Brown on these wire fraud charges would violate double jeopardy because the government’s allegations of “honest services” and citation to § 1346 were superfluous – the government’s redactions changed nothing. Thus, the offense is the identical wire fraud, with the same elements, and there is no separate wire fraud for which Brown can be tried a second time for the same (non-criminal) conduct.

Petition - Download Brown FINAL CERT PETITION 1023


November 3, 2009 in Fraud | Permalink | Comments (0) | TrackBack (0)

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Monday, November 2, 2009

Conrad Black - Reply Brief - Gotcha

Up to bat in the year of the mail fraud is Conrad Black.  Set for oral argument on December 8, 2009, the briefs are now being filed. The most recent filing is the Defendant's reply brief - Download Black-Reply

One passage from page one says it all  -

The government contends that the majority rule unjustifiably adds a non-textual “element” of contemplated harm to mail fraud prosecutions, and proposes that the true path lies in the recognition that the 1988 Congress relied on the established element of materiality as the sole limitation on what federal prosecutors might choose to charge as “honest services fraud.” This is a surprising argument, because the government argued vigorously in Neder v. United States, 527 U.S. 1 (1999), a full decade after Congress supposedly contemplated such a thing, that materiality (which does not appear in the statutory text) is never an element of mail fraud. The government deservedly lost that argument, but it is a bit much for it now to say that in 1988 Congress clearly relied on a requirement for which the Solicitor General could find no evidence in 1999.

Note - Weyhrauch is also set for December 8, 2009. see here.


November 2, 2009 in Fraud | Permalink | Comments (0) | TrackBack (0)

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Mary Flood, Houston Chronicle, Ex-Enron broadband figure given home confinement


November 2, 2009 in Enron | Permalink | Comments (0) | TrackBack (0)

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