Federal Criminal Defense

What will they do to Ken Lay? Give him life plus cancer?

That’s from Jeralyn Merritt, on July 13, 2005, the first known use of the phrase “life plus cancer”*. Her question was not as macabre as it sounds now, since we know that Lay met an untimely death, some guess by suicide, in between his own conviction and sentencing date. No, she was commenting on the 25 year sentence that had just been handed out to Bernie Ebbers, and asking how much Lay would get, since the amount of his fraud dwarfed Bernie’s.

Jeralyn is credited with coming up with the question, what are they gonna do… give him life plus cancer? Greenfield often uses the life plus cancer conceit in discussing proportionality of and disparity between sentences, especially white collar or other non violent crimes. How much is enough? If Mr. X gets 10 years, and Mr. Y’s crime is 4 times as bad mathematically, shouldn’t Mr. Y get 40?

Continue Reading No “Life Plus Cancer” In The Federal System

From Ron Chapman’s new blog/website, “Federal Criminal Lawyer – Frequently Asked Questions”, comes this post titled in the form of a question, “How Can You Avoid a Minimum Mandatory Sentence in Federal Court?”:

In federal court, there are only two ways to avoid such a sentence:

1. Safety valve; and
2. Cooperation.

Continue Reading Technically, There Are More Than Two Ways…

United States v. Ortega Reyna, 148 F.3d 540 (5th Circuit 1998):

After examining each piece of evidence from that perspective, we conclude that, like Newton’s Third Law, for every inference of guilt that may be drawn from the evidence, there is an equal and opposite benign inference to be drawn.

A beautiful turn of phrase (but see my other concerns), Newton’s 3rd Law of Motion, colloquially stated as “For every action there is an equal and opposite reaction”.

Jesus Ortega Reyna appealed his 130 month sentence for possession with intent to distribute heroin and amphetamines, in violation of 21 U.S.C. § 841(a)(1). His sole point of appeal: insufficiency of the evidence.

Continue Reading If You Press A Stone With Your Finger

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.

Continue Reading “Onions”

From the New York Times:

On Monday, Judge Ricardo M. Urbina of the United States District Court for the District of Columbia, sentenced a former senior pharmaceutical executive to write a book.

Earlier this year the executive had pleaded guilty to making a false statement to the federal government about the company’s efforts to resolve a patent dispute over the blood thinner Plavix.

So as part of his federal misdemeanor probation, the defendant must write a book. About what, and for what purpose?

Continue Reading Deterrence, Retribution or Rehabilitation?

So you spend eight months listening to evidence in a federal drug conspiracy trial, and another two months deliberating, carefully considering the evidence and the judge’s instructions.

You convict one of the defendants of distribution of five grams of cocaine base (crack) but acquit him of (from PACER):

Continue Reading Juror Number 6 on Acquitted Conduct: “Can This Be True?”

Wall Street Journal:

The Obama administration Wednesday asked Congress to end the disparity in penalties for use of crack- and powder-cocaine crimes, a stance sure to bring on contentious debate from the law-enforcement community.

"The Administration believes Congress’s goal should be to completely eliminate the sentencing disparity between crack cocaine and powder cocaine," said assistant Attorney General Lanny Breuer, who heads the Justice Department’s criminal division.

Under current law, someone caught with 500 grams of powder cocaine gets a five-year sentence, while it takes only five grams of crack cocaine to trigger the same sentence, even though there is no physiological difference.

More than half of all federal inmates were convicted of drug offenses, and in today’s economic climate, perhaps the need to cut costs will bring some sanity to our drug laws. Of course, there are those who think that a 1:1 ratio would be just fine as long as you multiplied the powder cocaine punishments by 100, rather than by dividing the crack sentencing guidelines by the same amount:

James Pasco, executive director of the Fraternal Order of Police, which represents about 325,000 uniformed officers, said that while his group is against the disparity, it would rather see it rectified by increasing the penalties for powder cocaine. "There is a widespread misconception that crack dealers are somehow being victimized by the government," he said. "It is extraordinarily difficult to victimize a criminal unless that person first commits a crime."

But you can indeed victimize a “criminal” by overpunishing him for his “crime”. Folks caught with small amounts of marijuana are criminals, aren’t they? Therefore it’s automatically OK to give them a 5 year sentence? 25 years? They aren’t victims, they are criminals… so any punishment is justified. (Folks not caught with marijuana are also criminals, of course…)

Mr. Pasco added that the disparity could be eliminated by lowering the amount of powder cocaine it takes to trigger the five-year sentence.

A while back Greenfield commented on one of the problems with “niche blogging”: eventually you’re going to end up repeating yourself. I paused for a quick search of my archives, because this story was ringing a pretty loud bell with me, and up pops one of my first posts ever (from November 2006):

If this isn’t shocking on its face, please reread this last quote again. Outloud. Then read it to a friend and ask them their reaction to it.

The Fraternal Order of Police would support increasing the penalties for offenses involving powder cocaine through a reduction in the quantity of powder necessary to trigger the 5- and 10-year mandatory minimum sentences, thereby decreasing the gap between the two similar offenses and addressing the concerns of those who question the current ratio without depriving law enforcement with the tools they need to control the possession, use, and sale of powder cocaine.

The 5-year mandatory minimum sentence can be triggered by 5 grams of crack cocaine. How much is 5 grams of something? 5 Sweet-and-Low packets worth of cocaine is 5 grams. So his solution to the disparity problem…increase the penalties for powder, rather than decreasing them for crack! So the disparity is a problem, one best solved by even more prison building.

The difference is that in 2006 we were still paying up to a million dollars a pop for houses worth less than half that amount, while applying for credit cards and taking out third mortgages. Not to mention the billions being paid by CEOs of car companies to themselves for doing such a good job. Now that we’re out of money, legislators have some political cover for undoing what they did a long time ago.

With every cloud a silver lining, eh? Well maybe this big-R Recession’s silver lining will be sanity in sentencing, since we can literally no longer afford huge sentences for drug addicts.

The jury instructions in U.S. v. Lori Drew read, in part:

In order for the defendant to be found guilty of the lesser crime of accessing a protected computer without authorization or in excess of authorization, the Government must prove each of the following elements beyond a reasonable doubt.

First, the Defendant intentionally accessed a computer without authorization or in excess of authorization.

Second, the Defendant’s accessing of that computer involved an interstate or foreign communication; and

Third, by accessing the computer without authorization or in excess of authorization, the Defendant obtained information from a protected computer.

You remember Lori Drew, don’t you? She’s the woman who set up a MySpace account to harass her teenage daughter’s former friend; her messages no doubt contributed in large part to the eventual suicide.

Continue Reading Please Violate Our Terms of Service

Just in time for you-know-what day, a federal judge has denied Richard Hatch’s motion to move to Argentina while on  his soon-to-be supervised release for filing a false tax return, according to the Austin American Statesman.

Hatch first gained fame as the first ever winner of the TV “reality” show Survivor, and was the first of seventeen winners – yes, that’s 17 – so far to walk off the stage with the oversized one million dollar check. Unfortunately, his defense at jury trial that he thought CBS had actually pre-paid his taxes and that the $1 million was after-tax winnings was somewhat undercut by his additional failure to report another few hundred thousand in earnings through radio appearances made possible by his sudden fame.

Bearing in mind that nothing on this blog – especially the following – is meant to be taken as legal advice, let me leave you with this thought:

26 USC §7201 – Attempt to evade income tax by filing a false individual tax return… is a felony punishable by up to 5 years in prison.

26 USC §7203 – Failure to file a tax return (at all)… is a misdemeanor.

Maybe I should start a category called “Things that make you go Hmmmmmm”.