Georgia Federal Criminal Defense Lawyer & Attorney : Gillen Withers & Lake Law Firm : White Collar Crime, RICO, Trial : Atlanta, Savannah, GA

Zach Scruggs will be sentenced today at 10:00 a.m. before Judge Biggers. Recall that when this case was first indicted, Zach Scruggs was the number two guy on the indictment, which generally signals the government’s belief that he was number two in culpability. However, just prior to trial, the government dismissed the indictment, and let Zach plead guilty to misprision of a felony – basically taking steps to conceal his knowledge of and the existence of a felony.

The plea agreement for Zach is a rare breed in federal court – a plea where the government recommends a probated sentence. However, that recommendation is not binding on the court.

The thing that is surprising here as I’ve said before in these posts is the defendant’s lack of candor and acceptance of responsibility in entering his plea. I know plenty of judges who would reject Zach’s plea for failing to acknowledge his guilt because here is what Zach said at his guilty plea:

“I ' d like to start out by telling the Court, and the public, that I had no knowledge that Tim  Balducci bribed Judge Lackey in connection with this arbitration order. I didn' t conspire to bribe Judge Lackey in connection with an arbitration order, and I would have stopped it had I known. However, I did have some knowledge that Tim Balducci had a close personal relationship with Judge Lackey, and that he used that personal relationship to have improper ex parte contacts with the judge regarding the order.”

These words ring hollow to me, and I think, Zach loses yardage before his sentencing judge by minimizing his conduct.

Zach’s attorneys filed a sentencing memo today that does a good job of fleshing out the factors that distinguish Zach’s case from that of his former co-defendants. In the sentencing memo, his counsel argues that Zach admitted to “misprision of a felony; that is, he failed to alert authorities and the firm’s registered counsel that Tim Balducci was attempting to personally and improperly influence Judge Lackey through the benefit of his personal relationship with the judge.” Can anyone help me out here - who was this "registered counsel" for the Scruggs firm?

Apparently, the probation office disagreed with the government’s assessment of Zach’s culpability because Zach’s attorneys spend most of the sentencing memo pointing out the factual and legal distinctions in Zach’s plea. They persuasively argue that the government has taken a tiered approach to sentencing with Zach’s conduct being at the low end of that tier. It will be interesting to see how Judge Biggers reacts to the government’s view of Zach’s case and whether he will accept the government’s recommendation of a probated sentence.

Candidly, based on Judge Biggers’ earlier comments regarding this case, I can’t see him deciding that a probated sentence is an appropriate disposition for a case that involves judicial bribery where the underlying case was a dispute involving over twenty million dollars.  Zach's going to have a bad day in court and it will be a sad epilogue to his legal career.

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I had the pleasure of visiting extensively with Tom Freeland over at the Folo Blog this weekend in follow up to the Scruggs sentencing and it was interesting to get the local take on the sentencing.

A transcript of the sentencing hearing is available here.

The government took no real position at sentencing other than to state that any sentence imposed was within the court’s discretion.

John Keker, Scruggs' attorney, to his credit, relied upon his sentencing memorandum submitted to the Court, and really made no extensive comments.

One of the big questions for the general public, is did Scruggs get the benefit of his plea bargain in this case, and the answer to that is a resounding yes. Judge Biggers calculated the sentencing guideline range at 108 to 135 months, but the maximum term of imprisonment for the conspiracy charge Scruggs pleaded to limited his sentencing exposure to 60 months imprisonment. In my view, 60 months was the only sentence Scruggs could fairly receive given the severity of the conduct – judicial bribery in a case where millions were at stake.

I’ve been to more sentencings in federal court, both as a prosecutor and as a defense attorney, than I care to remember, but the judge's comments directed at Scruggs is one of the lengthiest denunciations of a defendant’s conduct that I’ve ever seen.

Interestingly, Judge Biggers stated that he was not considering any of the other crimes evidence regarding the Joey Langston plea, although the jduge did remark that Scruggs "bribed a judge, corrupted a judge, in another case in another court.”  However, the judge said that was probably something Scruggs would have to answer to later.

Judge Biggers noted that this case was really not about so much the amount of money that was given to Judge Lackey of the state court, but that it was about the effect of that bribe, of what the purpose of it was, to corrupt the ruling and the actions of the circuit court. 

Maybe someone else can answer this question, but why was Scruggs so intent on getting this case out of the local court system into an arbitration panel? Wouldn’t a guy named Dickie Scruggs want his people deciding his case?

As has been reported extensively, Judge Biggers commented that he saw how easily and quickly Scruggs entered into the bribery scheme, and it made him think that this, perhaps, was not the first time Scruggs had engaged in bribery because he did it so easily.

The judge also commented that Scruggs had committed a reprehensible crime which is one of the most reprehensible crimes that a lawyer can commit - the corruption of the rule of law which he' s sworn to uphold.

Scruggs’ co-conspirator, and former law partner, Sid Backstrom, received a sentence of 28 months, less than the 30 month maximum sentence that was part of the plea agreement. Judge Biggers remarked that he was impressed with Backstrom’s level of remorse.

I’ve commented on several occasions that the defendants in this case seem obsessed with minimizing their criminal conduct, all the more incredible given the gravity of the offense to which they pleaded guilty – judicial bribery.

So, how much time will Scruggs actually serve? He will serve 85% of the 60 months, which is 51 months. He will spend the last 6 months in a halfway house under Bureau of Prison's pollcy, so Scruggs will do 45 months in a federal prison camp, presumably in Pensacola, Florida.

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The more I’ve reflected on Scruggs’ Sentencing Memo filed on Wednesday, the more incongruous it seems. No doubt Scruggs is ably represented. His counsel has submitted scores of letters lauding the good works Dickie has done over the years; however, recall that the government had filed a notice back in January that they were going to seek to introduce 404(b) evidence of other crimes that Scruggs had committed.

In that notice, the government informed Scruggs that there was another attempt to corruptly influence a judicial proceeding, referring to the search warrant application for the Langston Law Firm and the information, factual basis, and plea colloquy in United States v. Joseph C. Langston, Case No. 1:08CR003. And, the entire fiasco concerning the Rigsby sisters in the false claims case in front of Judge Acker in the Northern District of Alabama, so ably reported by Dave Rossmiller, just points to a way of doing business by Dickie that is disturbing in the extreme.

Much has been written about the fall of Dickie Scruggs. I will not weigh in on that debate, but he certainly held the court and judicial system in low esteem and terribly corrupted the system through which he made an extraordinary living, and through which, he at one time did some good.

However, given the pattern of the corruption of the system, the government can more than counter the letters about Dickie’s good acts. I am thankful that we’ve finally moved away from searching sentencing equality (there is none) in a numeric based sentencing system that was wildly flawed, but I can’t conceive of any way that Judge Biggers gets below 60 months for Mr. Scruggs. A sad epilogue for a meteoric legal career.

I look forward to discussing with Tom Freeland of the Folo Blog his personal observations regarding the sentencing hearing. Tom has done an extraordinary job blogging about this case seasoned with local flavor. And, kudos for Tom in getting access to the sentencing in a shout out to his blog from Judge Biggers in this Order.

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Yesterday, June 25, both Scruggs and the government filed their sentencing memorandum (available here and here). First, maybe it’s just me, but when five lawyers from San Francisco have to sign your sentencing memo and they have collectively included 81 footnotes, then methinks you are on the losing side. 

Continuing a pattern we’ve seen in this case of minimizing any criminal conduct, Scruggs’ lawyers stake out what the case is not about, arguing that:

• During the March 2007 meeting at the Scruggs Law Firm, Scruggs only asked that Balducci “go see Judge Lackey and see if Judge Lackey would be amenable to move the case to arbitration,” and Scruggs specifically cautioned Balducci that “he was not asking [him] for anything illegal.”
•  Both Balducci and Patterson testified that they do not—and did not—think a crime was contemplated at the March 2007 meeting.
• Balducci did not meet with Judge Lackey in March 2007 to bribe him or to offer him any kind of quid pro quo, and Balducci did not intend his offer of the “of counsel” position to Judge Lackey as an incentive or bribe for Judge Lackey to rule in favor of arbitration.
• Between early May and mid-September 2007, Judge Lackey and Balducci were in repeated contact but during that time Balducci never said or suggested that Scruggs would give or offer anything to Judge Lackey in exchange for an order sending the Jones case to arbitration.
• During that same time period, Balducci repeatedly told Judge Lackey that he was not trying to influence Judge Lackey improperly and that Judge Lackey should decide the arbitration motion according to the law.
• It was not Scruggs—or even Balducci—who first proposed a payment in exchange for a favorable ruling on the arbitration motion.
•  Balducci told Judge Lackey three times on September 27, 2007, that Scruggs was not aware of the payment arrangement.

So, what does Scruggs eventually concede he did wrong – “He agreed and conspired to pay a bribe to Judge Lackey, a Mississippi Circuit Court Judge. In furtherance of the conspiracy, Scruggs agreed to and did furnish funds to be paid to Judge Lackey in exchange for a favorable order, and he prepared false paperwork to cover up the existence of the criminal conspiracy.” Memo, p. 27 Well, so, someone in this thing finally admits to some wrongdoing.

Another thing, I find a little offensive about Scruggs’ Sentencing Memo, he ends by imploring the court that there are two innocent people that will bear Scruggs’ punishment – his wife and daughter. While no doubt true, I’ve heard dozens of federal and state court judges reject that argument with the simple admonition that the harm to the family is inflicted by the defendant, not the court.  My guess – Judge Biggers won’t be swayed by this pedestrian argument. He’s heard it and rejected it too many times already.

Scruggs argues that the probation office has incorrectly calculated his sentencing guidelines at the whopping guideline of 168 to 210 months (remember the maximum sentence is 60 months). Bizarrely, Scruggs' well footnoted Memo argues that the actual guideline sentence is 46-57 months, but then later argues he should be sentenced to the lower end of the range of 30-37.

Now, the real battle ground here, is what is the value to Scruggs, or as the government argues, what loss Scruggs intended by the bribe. The government, in written work that is at the very top of the game (although they need to learn some word processing keystrokes in typing “(c)”, as opposed to “©”, which appears at least three times in there papers), argues that the question is really what loss Scruggs intended through the bribery scheme, which the government calculates at millions of dollars, which still brings the sentencing guidelines range in above the statutory maximum sentence of 5 years.

My take, Judge Biggers will sentence Dickie to 60 months – the sentence the government seeks - and be well within his discretion to do so. Backstrom, truly a footnote in this proceeding, who has the benefit of an 11(c)(1)(c) plea, will receive a sentence of half of Scruggs’ sentence, 30 months.

There’s never any victory or jubilation in seeing the demise of someone like Scruggs, who has done good work, but his day of judgment awaits.

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Scruggs co-defendant and former partner, Sidney Backstrom, who plead guilty on March 14, 2008  to the count one conspiracy charge of the Scruggs indictment, is scheduled to be sentenced on June 27, 2008 and has filed his objections to the Presentence Report (PSR).

Now, first, the filing of objections to the PSR is unusual in and of itself. And, I have to say, that the work that went into these objections is less than what I’d expect of someone representing an attorney in a federal criminal case.

The factual basis from Backstrom’s plea alleges that:

• as a member of Scruggs’ Law Firm, he sent a proposed order in the Jones v. Scruggs civil case to Timothy Balducci that was then faxed to Judge Lackey. 
• then, on September 21, 2007 Balducci placed a four minute phone call to the Scruggs Law Firm and discussed the $40,000.00 bribe with Backstrom. 
• On October 18, 2007 Balducci called Backstrom and told him that he had delivered a copy of “those papers we’ve been waiting on” referring to the order obtained by the bribe.
• And, after Balducci was flipped, he wore a body wire against both Backstrom and Zach Scruggs and engaged in a conversation about the order.
• Finally, on November 13, 2007 Balducci and Backstrom engaged in a conversation about the bribery scheme and the benefit of a favorable order for the Scruggs Law Firm.

Backstrom has filed objections to both the factual accuracy of the report and to the sentencing guidelines calculation:

• First, he objects because the probation officer has used $5.3 million benefit to the defendants as the amount of loss pursuant to U.S.S.G. 2B1.1, contending that rather than the 18 level increase that results from the $5.3 million benefit (the amount the PSR claims that Scruggs saved by corruptly bribing Judge Lackey), the appropriate amount for consideration is the amount of the bribe, which would result in an enhancement of only a 6 level increase.
• Second, Backstrom contends that no role in the offense enhancement should apply because he was neither a manager, nor supervisor of criminal conspirators, but rather a “worker who takes on the yeoman task of getting work out.” ¶ 30.

In Backstrom’s plea agreement, the government agreed to recommend a “sentence not to exceed one-half (1/2) of the sentence imposed on his co-defendant, Richard Scruggs, which will not, in any event exceed 30 months incarceration.” If there is an 18 level increase in Backstrom’s guideline range, then any sentence he faces will, according to the sentencing guidelines, wildly exceed 30 months.

More importantly, Backstrom in his objections has continued a bizarre display of disputing the facts which form the basis of his guilty plea. I’m certain that this conduct can’t sit well with the district court. For instance, in his objections, Backstrom says he didn’t draft and email the proposed order that was faxed to Judge Lackey. ¶ 38-39. Then, Backstrom has a lengthy argument that the “credible evidence” shows that the September 21, 2007 phone conversation between Balducci and Backstrom did not occur. ¶ 48.

The importance of these objections is a defendant can lose the benefit of his bargain by denying his guilt. In other words, in federal court, you don’t get to say, I’m guilty, but I didn’t really do anything wrong, which seems pervasive among these defendants. It’ll be interesting to see how both the government and the court react to this sort of shenanigans.

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In Irizarry v. United States, (No. 06-7517), the Petitioner plead guilty in district court to making a threatening interstate communication to his ex-wife in violation of 18 U.S.C. § 875. Although the presentence report recommended a Federal Sentencing Guidelines range of 41-to-51 months in prison, the district court imposed the statutory maximum sentence—60 months in prison and 3 years of supervised release— rejecting the petitioner’s objection that he was entitled to notice that the court was contemplating an upward departure.  The Supreme Court announced that defendants are not entitled to notice of a variance from the guideline sentence prior to sentencing.

The Eleventh Circuit had affirmed the sentence, reasoning that Federal Rule of Criminal Procedure 32(h), which states that “[b]efore the court may depart from the applicable sentencing range on a ground not identified . . . either in the presentence report or in a party’s pre-hearing submission, the court must give the parties reasonable notice that it is contemplating such a departure,” did not apply because the sentence was a variance, not a Guidelines departure.

The Supreme Court affirmed finding that the notice requirement of Rule 32(h) does not extend to a "variance" from the recommended guidelines range. According to the Supreme Court, "The due process concerns that motivated the Court to require notice in a world of mandatory Guidelines no longer provide a basis for this Court to extend the rule set forth in [Burns v. United States, 501 U. S. 129 (1991)], either through an interpretation of Rule 32(h) itself or through Rule 32(i)(1)(C)."

The Court adopted the use of the Eleventh Circuit's term - "variance" - in finding that there is a difference between a mandatory guidelines departure and a variance pursuant to the factors set forth in 18 U.S.C. § 3553. So, departures, the Supreme Courts says, were “a term of art under the Guidelines” and referred only to non-Guidelines sentences imposed under the framework set out in the Guidelines. A "variance" is any factor under section 3553 that may warrant a non-guideline sentence, and the defendant does not have a statutory, or constitutional right to be advised of every variance, although district court’s should be cautious in making certain that defendants have adequate notice.

So, departures are now a deceased creature of the guidelines era.

 

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In affirming the convictions and sentences of Padron for conspiracy to commit mail fraud in violation of 18 U.S.C. § 371 and 4 counts of mail fraud in violation of 18 18 U.S.C. § 1341, the Eleventh Circuit (opinion available here) took up a question not previously addressed in this Circuit – does 28 U.S.C. § 2461(c) authorize criminal forfeiture of specified property in general mail fraud cases. The court noted that Congress enacted 28 U.S.C. § 2461(c), which became effective in August 2000, makes criminal forfeiture available in every case that criminal forfeiture does not reach, but for which civil forfeiture is authorized.

28 U.S.C. § 2461(c), which I had never heard of, provides in pertinent part, that, “If a person is charged in a criminal case with a violation of an Act of Congress for which the civil or criminal forfeiture of property is authorized, the Government may include notice of the forfeiture in the indictment or information pursuant to the Federal Rules of Criminal Procedure. If the defendant is convicted of the offense giving rise to the forfeiture, the court shall order the forfeiture of the property as part of the sentence in the criminal case pursuant to the Federal Rules of Criminal Procedure . . .”

The Eleventh Circuit found that since civil forfeiture was authorized under 18 U.S.C. § 981 for offenses constituting “specified unlawful activity” under 18 U.S.C. § 1956, and mail fraud is defined under section 1956 as a specified unlawful activity, civil forfeiture was authorized. Therefore, since civil forfeiture was authorized, criminal forfeiture for mail fraud convictions was authorized as well.

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In an Opinion (available here) dated March 20, 2008, but released on Monday, May 12, the Eleventh Circuit affirmed the convictions and sentences of Joya Williams, a former Coca Cola employee, and one of her conspirators, Ibrahim Dimson.

After a lengthy factual recitation regarding this case which was prosecuted by the U.S. Attorneys Office in Atlanta and which involved the attempted sale of trade secrets by Williams and others to Pepsi, the Court found no error in the curtailed cross-examination of Williams’ co-conspirator since the cross-examination conducted extensively challenged the co-conspirator’s credibility.

In a more interesting challenge, and one that always seems to get the ear of the appellate courts, the defense contended that the district court improperly instructed the jury on the meaning of reasonable doubt by using an example “which had to do with open-heart surgery the judge had previously undergone.” Although the Eleventh Circuit doesn’t tell us more, the defense contended that the example amounted to unconstitutional burden shifting. When the example was given by the district court, he apparently informed the jury, following objection, to disregard his example, and gave the pattern reasonable doubt charge, which the jury is presumed to follow.

Finally, both Williams and Dimson challenged their sentences contending that the district court placed undue emphasis on one factor, the seriousness of the harm, and less weight on the other 3553 factors. In affirming the above-guideline sentences imposed, the Eleventh Circuit noted that, although U.S. v. Pugh, discussed at an earlier post here, provides that an unjustified reliance on a single 3553 factor might be a “symptom” of an unreasonable sentence, here the trial judge discussed several 3553 factors and the individual weight to be given to any one factor is within the trial judge’s discretion.

Both defendants challenged their sentences, 96 and 60 months respectively, based on the alleged unwarranted disparity with their cooperating co-defendant who received 24 months. The Eleventh Circuit cited the cooperation as a factor that plainly accounted for the different sentence and affirmed.

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   Despite the Eleventh Circuit Court of Appeals' seeming to take district courts to task in other decisions for failure to consider factors under 18 U.S.C. § 3553(a) which tend to favor the government pursuant to Booker, Section 3553(a) mitigating factors which tend to favor the defendant apparently do not have to be considered, as shown by the Court's recent decision in United States v. Brown, No. 05-16128, 2008 WL 1869727 (11th Cir. 2008). Brown was convicted for enticing a minor in interstate commerce for the purpose of engaging in sexual activity and appealed, arguing, inter alia, that the sentencing court failed to consider the unwarranted sentencing disparities between individuals subject to the retroactive application of the Court's decision in United States v. Searcy, 418 F.3d 1193, 1198 (11th Cir.2005) and those who were not, as well as Brown's traumatic childhood and attempts to live a law abiding life. Id. at *15. The Court of Appeals held that the district court did not abuse its discretion in sentencing Brown, quoting its prior decision in United States v. Amedeo, 487 F.3d 823 (11th Cir.2007) for the proposition that a sentencing court "need not discuss each of these factors in either the sentencing hearing or in the sentencing order."

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     Despite the substantial deference granted to sentencing courts pursuant to Gall v. United States, 552 U.S. ----, 128 S.Ct. 586 (2007), the Eleventh Circuit Court of Appeals will still expect unusual sentences to be supported by good reasons in the record. Kenneth K. Livesay was the Assistant Controller and Chief Information Officer of HealthSouth Corporation, who was involved in a conspiracy to inflate HealthSouth's revenues by making false statements on HealthSouth's books and in filings with the Securities and Exchange Commission, which resulted in losses of $1.4 billion to investors after the fraud was discovered and HealthSouth's stock plummeted. Livesay pled guilty to conspiracy to commit wire and securities fraud and falsification of financial information, and the government filed a motion for downward departure pursuant to U.S.S.G. § 5K1.1, based on Livesay's cooperation and substantial assistance.
     Livesay's recommended sentencing level was 28 and the government recommended a three level departure in its 5K1.1 motion to level 25 and a sentence of 60 months imprisonment. The sentencing court, however, apparently harbored considerably more lenient views towards Livesay, and granted the government's motion and departed downward 18 levels to a level 10, and sentenced Livesay to 60 months probation with the first six months to be served on home detention.
     The government appealed, and the Eleventh Circuit vacated and remanded for resentencing. See United States v. Livesay, 484 F.3d 1324, 1325-26 (11th Cir.2007). On resentencing, the government again filed a 5K1.1 motion, but in light of Livesay's continued substantial assistance since the first sentencing, recommended 20 months' imprisonment. The sentencing court again granted the government's motion and again imposed a sentence of 60 months probation with 6 months home detention, finding that Livesays assistance was extraordinary and warranted an extraordinary departure. The Court further stated that, even without the downward departure, it would have made the same variance under United States v. Booker, 543 U.S. 220 (2005) based upon the factors under 18 U.S.C. s 3553(a). Another appeal followed, and the United States Supremen Court eventually remanded to the Eleventh Circuit for reconsideration pursuant to Gall. See Livesay v. United States, --- U.S. ----, 128 S.Ct. 872, 872-73 (2008).
     The Eleventh Circuit noted that a “‘sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority.’” United State v. Livesay, No. 06-11303, 2008 WL 1810195 (11th Cir., April 23, 2008) (quoting United States v. Agbai, 497 F.3d 1226, 1230 (11th Cir.2007); quoting Rita v. United States, --- U.S. ---, 127 S.Ct. 2456 (2007)). held that the sentencing court committed procedural  error pursuant to Gall by considering Livesay's repudiation or withdrawal from the conspiracy in determining the extent of the departure pursuant to 5K1.1, since withdrawal is not one of the factors enumerated under 5K1.1. Id. at *9. The Court further held that the sentencing court also committed Gall procedural error by failing to adequately explain its variance from the advisory Sentencing Guidelines range in a way which would allow for meaningful appellate review, noting that the lower court had offered:

[N]o explanation or reasoning of how a sentence of 60 months’ probation (with 6 months' home detention) for an individual who pled guilty to knowingly playing an active and crucial supervisory role in a massive $1.4 billion fraud for at least five years reflected the seriousness of the offense or the nature and circumstances of the crime. The district court did not state or explain in any way why it rejected the government's argument that, notwithstanding Livesay's timely assistance, Livesay should receive “some sentence of significance” in this $1.4 billion fraud scheme because he was a “key player, a significant cog, in the operation of this fraud at HealthSouth for a number of years.”

Id. at *11.

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With sentencing scheduled for Thursday, April 24, Snipes has:

• added another lawyer, his sixth attorney, that, apparently, will be present at sentencing,
• moved to continue sentencing, and,
• all important, has requested the use of a laptop at sentencing!

As noted here, the resolution conference to resolve disputed issues regarding the presentence investigation report was held on Friday, April 11, 2008. By Monday of the following week, April 14, 2008 the government had filed a 36 page sentencing memo arguing that by any stretch of a sentencing calculation, Snipes faces a 36 month term of incarceration.

Snipes counsel’s reaction was to file the following day, a motion to continue sentencing. That motion, filed on tax day, was denied by Judge Hodges the following day.

The government, meanwhile has filed a Motion for Bill of Costs, seeking costs of just over $250,000.00.

Yet to be filed by defense counsel is a sentencing memorandum, fairly standard practice in any case of complexity, particularly, where counsel seeks to argue that the factors set forth in 18 U.S.C. § 3553 provide some ground for departure from the applicable guideline range. My guess, any pleading filed the day before sentencing, is filed a day too late.

So, what does Judge Hodges have to consider the day before sentencing – the presentence report, which will recommend a 36 month sentence and the government’s 36 page sentencing memorandum arguing for a 36 month sentence (is there some cosmic symmetry to the pagination). Mr. Snipes should prepare for 36 months.

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Sentencing for Wesley Snipes is set for April 24, 2008 and he has just dismissed his trial counsel, Robert Bernhoft and his firm. Bernhoft, who, you will recall, was brought into the case, just prior to trial has had notable success against the government in prior IRS cases, and he did a masterful job at trial in this case. The jury acquitted Snipes of the felony charges and convicted him of three misdemeanors. 

Snipes, appearing ecstatic after the verdict, apparently, is ecstatic no longer because Bernhoft filed a motion to withdraw as counsel of record last Tuesday, April 1. Judge Hodges granted that motion the following day, noting that Snipes had instructed the Bernhoft firm to file the motion. Snipes apparently has no clue how bad this lawyer shifting makes him look, but to gain an understanding of the musical chairs at play here, take a gander at the timeline of events:

Trial was originally scheduled for October 22, 2007.

October 3, 2007 just three weeks before trial was scheduled to begin, Bernhoft filed his notice of appearance in the case, along with a Motion for Continuance, which was denied.

October 3, 2007, previous counsel for Snipes, including Daniel Meachum, filed a motion to withdraw as counsel.

October 9, 2007 Bernhoft filed a scathing Motion for Reconsideration alleging a variety of deficiencies in preparation by prior counsel.

That Motion was granted and trial was scheduled for January, 2008.

January 11, 2008, Meachum filed a notice of appearance and was back in the case.

February 1, 2008, the jury acquitted Snipes of the felony tax counts, but convicted him on three misdemeanor tax offenses.

March 28, 2008 two new counsel filed motions indicating that they were appearing as counsel for Snipes.

April 1, 2008 Judge Hodges granted those motions.

April 1, 2008, exactly three weeks before sentencing Bernhoft and his firm filed a Motion to Withdraw as counsel of record.

April 2, 2008 Judge Hodges granted the Bernhoft firm's motion to withdraw.

In an earlier post, I had posited that Snipes’ acquittal on the more serious felony charges was a pyrrhic victory since all of his relevant conduct would be taken into account at sentencing. My prediction then and now is that Snipes will receive a  sentence toward the upper end of the statutory maximum sentence of three years.

Snipes is still left with several lawyers, but Bernhoft did a magnificent job at trial. That Snipes has again dismissed his lead counsel just prior to sentencing is now an established pattern, which, quite frankly, looks bad, and my guess is, doesn't sit well with the Court. 

This set of musical chairs as sentencing approaches has the look of desperation. April 24 will be an unpleasant day for Mr. Snipes, no matter his machinations with counsel.

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One of my hopes in creating this blog is that we will be able to collectively raise the bar for federal criminal defense practitioners by sharing pleadings and discussing developments in the law. One of the most important developments in federal criminal practice in recent years has been the retroactive application of the new crack cocaine amendments. As I have posted before, this retroactive application is a start at correcting one of the most serious injustices in our criminal justice system that has resulted in crack cocaine sentences that have simply been racially discriminatory by any fair minded standard.

Now that we have this new weapon, the question arises as to how this retroactive application will in practice work.  I understand that Federal Defender offices, CJA Panel Representatives and CJA Resource Counsel are working with the Courts, U.S. Attorneys Offices and Probation Offices to attempt to develop plans for identifying clients to whom the new guidelines will apply.

So, what is the effect of the revision and what can we do? The Sentencing Commission amended the Drug Quantity Table in § 2D1.1 so that crack quantities triggering the five- and ten-year mandatory minimums are assigned base offense levels two levels lower than before.

The Commission similarly adjusted the drug threshold quantities with the net result being that for crack offenses, base offense levels across the board are two levels lower than they were before the amendment. See 72 Fed. Reg. 28,558, 28,571-73; U.S.S.G. App. C, Supp. Amend. 706; U.S.S.G. § 2D1.1 (2007).

For a reader friendly version of how to calculate the guidelines for your client, see the Federal Defender Memorandum here. Also, for those of us in the trenches, here is an excellent motion also available on the Federal Defender website that sets forth in exquisite detail the parameters of sentencing in this new scheme. Finally, as set forth here, counsel should press for the appointment of counsel for eligible defendants. See United States v. DeMott, 513 F.3d 55 (2nd Cir. 2008)(“District court violated Day’s right to be present at resentencing, his right to counsel at resentencing, and his right to notice that the court intended to impose an adverse non-Guidelines sentence”).

We hope that this post is of some assistance to the many of you in the trenches, who in doing this work, will be pressing for some measure of corrective justice for their clients. Thanks to the Federal Defender program for providing excellent guidance in this emerging area of the law.

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Continuing to troll the waters post-Kimbrough, the Eleventh Circuit reconsidered its earlier rejection of the defendant’s crack v. powder claim in U.S. v. Stratton, No.06-10080 (Eleventh Cir. Mar. 13, 2008). The Eleventh Circuit stated that it was reconsidering its earlier rejection of Stratton’s claim that the crack/powder sentencing disparity may be a factor in determining reasonableness. The case was remanded to the district court for the limited purpose of permitting the district court to consider the 3553 factors in light of Kimbrough. There is some hope for sentencing sanity in crack cases.

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Effective March 3, 2008, the crack v. powder sentencing disparity was reduced from the previously ridiculous 100 to 1 and it is predicted that as many as 20,000 federal inmates will ultimately be affected.

Senator Biden (D-Delaware), Chairman of the Senate Judiciaty Committee, has introduced The Drug Sentencing Reform and Kingpin Trafficking Act of 2007, which would impose a 1 to 1 ratio for crack/powder cocaine. The Committee held hearings last month and even Senator Sessions of Alabama came out in favor of the 20 to 1 ratio.  These promising developments herald the end of one of the sentencing guidelines greatest injustices which have wrought harm to our system of justice for decades.

Professor Berman here has done great good work in attacking this injustice. A copy of the Sentencing Commission's Order form for district court's to use is available here.

 

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In United States v. Pugh, No. 07-10183, 2008 WL 253040, *9, *12 (11th Cir., January 31, 2008), the Eleventh Circuit in a careful analysis ruled that a child pornographer would not get a probationary sentence.  This decision could be summed up as follows: this guy is not getting probation.

Relying on its decisions in United States v. Martin, 455 F.3d 1227 (11th Cir.2006) and United States v. McBride, No. 06-16544, 2007 WL 4555205, at *3 (11th Cir. Dec.28, 2007) and the Supreme Court’s instruction in Booker and Gall to consider the § 3553(a) factors and the “totality of the circumstances,” has greatly reduced the discretion granted to sentencing courts by holding that a sentence may be “substantively unreasonable” where it is (1) grounded on one of the § 3553(a) factors, (2) relies on “impermissible” factors, or (3) fails to consider other “relevant” or “pertinent” § 3553(a) factors. Most importantly, “the district court must give some weight to the factors in a manner that is at least loosely commensurate with their importance to the case, and in a way that “achieve[s] the purposes of sentencing stated in § 3553(a).” Id. *21. Ergo—appellate courts can still second-guess a sentencing court and reverse where they disagree with the lower court regarding the factors or grounds considered in imposing sentence, or the weight given to any particular factor or ground. The Court rephrased the standard of review set forth in Gall, holding that remand is appropriate where the Court is “left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.” Id. at *9. It referred to the failure to consider particular grounds or factors, or to give such grounds or factors the appropriate weight, as determined by the appellate court, as “symptoms” of an unreasonable sentence. Id. at *12.

Admittedly, Pugh was extremely bad case for examining reasonable variances from the Guidelines range under Gall—Pugh plead guilty to possessing extremely graphic images of child pornography, and the sentencing court varied downward from an advisory Guidelines range of 97 to 120 months to a non-custodial sentence based on the fact that Pugh had no significant criminal history, that his possession of child pornography was “passive,” that he had reported his receipt of child pornography, that he was not a pedophile, that he was addicted to adult pornography and not child pornography, and that he had entered into treatment. Id. at *5. However, the Eleventh Circuit, in reversing the sentence imposed by the district court as substantively unreasonable, further took the opportunity to minimize the importance of § 3553(a) factors heavily relied upon by defendants, namely “the nature and circumstances of the offense and the history and characteristics of the defendant,” pursuant to 18 U.S.C. § 3553(a)(1), while critiquing the failure of the sentence imposed by the district court to account for other § 3553(a) factors which would support a sentence within the range recommended by the Guidelines and by the government. Id. at *12-*18.

A warning in the wake of Pugh: failure to consider sentencing factors which the Court of Appeals would consider important, or to give those factors the weight which the Court of Appeals would, could be “symptoms” of a Pugh reversal.

Finally, for an excellent discussion of the effect of Gall and Kimbrough in future sentencings check out this new blog from Ohio State University.

 

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The Eleventh Circuit’s decision in United States v. Pugh, No. 07-10183, 2008 WL 253040 (11th Cir., January 31, 2008) is interestingly at odds with the result in its decision in United States v. McBride, 511 F.3d 1293, 1296 (11th Cir. 2007), decided about a month before Pugh.

In McBride, in which the Court of Appeals affirmed the district court’s downward departure from a recommended Sentencing Guidelines range of 151 to 188 months to impose an 84-month sentence on the defendant, who pled guilty to distributing child pornography, because the defendant’s father had been murdered, the defendant had been physically and sexually abused as a child, suffered from various health problems and had enrolled in a sexual treatment program.

Although the Court did not cite Gall, it rejected the government’s argument on appeal that “although the district court discussed many of the [18 U.S.C.] § 3553(a) factors, it failed to give proper weight to some while overemphasizing others,” id. at 1297, holding that the Court:

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Despite the apparent limitation in Pugh, No. 07-10183 (11th Cir. Jan. 31, 2008) of a sentencing courts' discretion to grant downward variances from the ranges recommended by the United States Sentencing Guidelines, we are happy to note that the Eleventh Circuit Court of Appeals continues to affirm downward variances in deference to sentencing courts’ determinations (albeit if only through unpublished opinions).

• In United States v. Anderson, the defendant pled guilty to one count of insider trading from which the defendant profited approximately $135,000. No. 07-11848, 2008 WL 525669, *1 (11th Cir., Feb. 28, 2008) (per curiam) (unpublished). Anderson promptly repaid the monies he had earned, and the sentencing court sentenced him to 3 years probation, despite the Guidelines’ and the government’s recommendation of a sentence from 18 to 24 months. Id. The government appealed, and the Eleventh Circuit vacated Anderson’s sentence, concluding that the sentence was unsupported by “extraordinary circumstances.” Id.
• Then, in the wake of Gall v. U.S., 128 S.Ct. 586 (2007), the Court granted Anderson’s petition for rehearing, reversed itself, and affirmed the probationary sentence imposed by the district court, which was based not only upon Anderson’s disgorgement of the profits of his trading, but also, under 18 U.S.C. § 3553(a), “[i]n recognition of the limitations on Anderson’s marketability and employment, the district court reasonably imposed a probationary sentence and home confinement to ‘allow [him] to continue working.’” Id. at *3.
• Anderson is an encouraging sign from the Court of Appeals for practitioners with clients with relatively less severe charges but with persuasive facts and circumstances on the 3553(a) side.

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