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?


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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.


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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.


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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?


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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

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.


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