Sunday, January 31, 2010
Judge Posner (7th Circuit) offers a stinging opinion for Former Chicago Alderman Eddie Vrdolyak. (see decision here) Vrdolyak plead guilty to conspiracy to commit mail and wire fraud and received a sentence of five years probation.(see here) The government appealed this decision, and in a 2-1 opinion, Judge Poser of the Seventh Circuit wrote that:
"The gratuity of the crime suggests that there can be no assurance that if let off with a slap on the wrist, the defendant will not commit a future crime. He has lost his law license, but the crime of which he has been convicted did not require a law license. He did not benefit from the crime - but only because he was caught."
Hon. Posner notes that the trial court's "errors in calculating the guidelines range are indicative of an idée fixe that the defendant was not to receive a custodial sentence, even (as the government urged in the alternative) home confinement." And the court ordered resentencing with a different judge pursuant to a seventh circuit rule which provides:
"Whenever a case tried in a district court is remanded by this court for a new trial, it shall be reassigned by the district court for trial before a judge other than the judge who heard the prior trial unless the remand order directs or all parties request that the same judge retry the case. In appeals which are not subject to this rule by its terms, this court may nevertheless direct in its opinion or order that this rule shall apply on remand." (Circuit Rule 36)
Interestingly, the court decision is not a united one - as the Hon. Hamilton dissents. He agrees that there may have been a calculation error, but finds the error harmless. He notes the "number of factors that the district court could and did consider in mitigation. He states:
"The defendant is 71 years old, had no prior criminal record, and posed little risk of repeat offenses. He had given up his law license. The crime of fraud did not involve violence, and there was no element of public corruption. The defendant had agreed to help a friend by committing the crime, but he was not the instigator of the crime and did not actually benefit from it. The district court was also impressed by a surprising volume of information showing the defendant’s character was very different from his public image in the media. That information showed generosity with time, money, and influence to help people in need, especially where the defendant had no moral or other obligation to help them and where he received no publicity or recognition for his kindnesses. That is not the entire picture, of course, but those are all factors that could reasonably lead the district court to exercise its discretion under section 3553(a) to impose the sentence that it did."
This may be a case that produces an en banc court decision, but that remains to be seen.
See also Doug Berman, Sentencing Law & Policy Blog here and here; Chicago Breaking News, Vrdolyak's probation sentence reversed; prison possible