"Onions"

Sometimes, OK, I admit it, sometimes late at night I stalk other defense lawyers on PACER

PACER is an acronym for Public Access to Court Records Online, and it provides electronic internet access to pleadings and motions that aren’t sealed in federal cases; my interest being in federal criminal (rather than civil) cases.

Every so often I strike actual gold with my internet research. For example, I discovered an interesting legal argument for a downward departure in a sentencing memo by researching Scott Greenfield cases on PACER in a recent mail fraud case. Short version? I plagiarized incorporated his request that the Judge consider, for 3553(a) purposes, the lower guidelines at the start of a continuing offense than those in place at the time of the plea. [**Tangent continued in the comment section.]

So tonight, while browsing, I come across this gem in a filed factual basis. After starting with the obligatory “had this matter proceeded to trial”, many paragraphs later we have:

On or about [Some Date In Time], the jail recorded a phone call from inmate DEFENDANT to his brother BRO. DEFENDANT told BRO the names of drug customers who owed him money as well as the amount that was owed.

They also discussed the need to get SOME GIRL to claim the “shit” (cocaine) that was the subject of DEFENDANT’S arrest as she would get probation. 

DEFENDANT told BRO that he still had some ounces of cocaine which he referred to as “onions”.

Number one? You’re talking on a jail phone. You Are Being Recorded. Number Two? Talking in “code” is for TV/The Sopranos. In the grand scheme of things, it’s not that hard to tell you aren’t talking about onions. And yes, the defendant in question was convicted of conspiracy to distribute narcotics. 

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Jamie - July 23, 2009 11:44 PM

[Tangent continuation: Since it seems potentially dishonest to not mention that I had my ass handed to me in that case, I feel obliged to point out that the Judge apparently rejected the argument.

Tried to walk a thin line between disputing relevant conduct in the PSR while still getting a 3 point reduction for acceptance of responsibility, but we ended up losing AOR, not getting a downward departure of any sort, and simply getting sentenced at the very lowest range of the advisory guidelines.

I wrote this War Stories post as a substitute for blogging about the case itself. I intend to fill in more details about the case later, when my War Stories time limit permits and I cool down from the eventual result.

As for the “plagiarism”, I called Scott to ask for his thoughts on his case, and he volunteered the relevant part of his memo as something I could throw in. I sheepishly admitted that I had already seen it, and was planning on stealing it with or without his permission. It should go without saying that he is not to blame for the unfortunate outcome.]

shg - July 24, 2009 4:40 AM

Sorry to hear that things didn't work out for you. It's very tricky to play things that close to the vest, and can easily backfire. Next time, let me see your sentencing memo before you submit it just to give it another set of eyeballs before putting it in front of the court.

Jamie - July 24, 2009 8:43 AM

Will do Scott. Appreciate the offer.

And, just to make it clear to others taht stumble across this post (because I know you know this)... it wasn't your creative idea that cost us. In fact, nothing in the sentencing memo cost us, it was the objections to the PSR, which ended up costing us acceptance.

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