Sunday, May 31, 2009

Sotomayor and White Collar Crime Opinions

The term "liberal" is not quite the way I see Justice-To-Be Sotomayor, as her white collar crime decisions of the past provide a strong "pro-government" stance. My analysis is based on perusing approximately 100 cases she decided that had the word "fraud" within it. The accuracy of this methodolgy is certainly questionable.

The defendant "wins" are hardly earth-shattering ones.  For example, in Odunaike the court affirmed as modified, with the modification being a reduction of sentence from 87 months to 60 months when the government conceded that the sentence imposed on the count exceeded the statutory maximum.  It is difficult to see this as siding with the defense when the government hands the victory to the defense.

And some of the defense success is only partial.  For example, in U.S. v. Spencer, the panel vacated and remanded a conspiracy count while affirming the commercial bribery count.  And in U.S. v. Griffen, she joined a refusal to allow the government to resolve an issue on an interlocutory appeal. Or the defense might be successful on a partial remand when the Supreme Court issued an opinion that called for a re-examination of the sentence given to the accused. (Thomas, Males, Medes, Bunn, Martinez, Hawkins). And don't think that the remands are all for the defense.  For example, in U.S. v. Barber the remand is because the defendant should not have been given a sentence reduction that the government was appealing. (see also Cotto, Ruttner, Kennedy).

Occasionally, there is a defense victory, as in U.S. v. Dupre where she joined a panel that held that a sentencing enhancement was not proper as evangelical Christians as a class are not "unusually susceptible " to fraud.   Although she did find a sentencing enhancement proper for using lawyer skills in the conduct in another case. (Reich). 

And it is a good thing that the former Mayor of Bridgeport, Connecticut is not ruling on her confirmation as she wrote the decision affirming his conviction finding no prosecutorial misconduct warranting reversal and held the sentence to be reasonable.

There are some reversals, such as when there is a judicial failure to recuse on a case (Amico).  And yes, I did find U.S. v. Samaria, where Judge Sotomayer authored an opinion reversing an alleged credit card fraud case, finding insufficient evidence that the defendant "knowingly and intentionally participated in the crimes charged."

For those who have doubts about her abilities -  I suggest reading U.S. v. George, 386 F.3d 383 (2d Cir. 2004) - as her discussion of the Cheek, Ratzlaf, and Bryan cases and how best to interpret the term "willfully" is very impressive.  And for those who might question her experience, speaking only from a white collar crime perspective, she has ruled on a very wide breadth of cases from securities fraud, mail and wire fraud, money laundering, obstruction of justice, and RICO. She clearly is experienced. 

And to Jeff Skilling, Conrad Black, and others who may have mail fraud cases under the intangible rights doctrine coming up to the Court -- she was not on the defense side in Rybicki.

See also Adam Liptak, New York Times, Nominee’s Rulings Are Exhaustive but Often Narrow ;Scotus Blog, Judge Sotomayor's Opinions with Dissents - Part I; The Dynamic of the Nomination of Sonia Sotomayor; Lefcourt on Sonia Sotomayor in the NYTimes - Voices From a Jurist's History; Doug Berman, Sentencing Law and Policy Blog, Examining Judge Sotomayor's Criminal Justice Record.


Addendum - Tony Mauro, NLJ,, Critics Pounce on Sotomayor's Reversal Rate; Marcia Coyle, NLJ,, Big Issues Lurk Below Surface of Sotomayor Confirmation Hearings

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Precisely what I'd expect from a former prosecutor.

The Sotomayor nomination isn't at all what I'd hoped for when I spent weekends canvassing neighborhoods on Obama's behalf.

White collar convictions are red meat for the torch and pitchfork mob, but they're also the source of innumerable wrongful convictions and terrible abuses of government power.

Posted by: John K | Jun 4, 2009 6:49:31 AM

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