Justice Truly Is Blind

United States v. Thomas, No. 09-2970-CR (2d Cir. Sept. 22, 2010) (found here)

Thomas contended on appeal that his "sightless condition" rendered his 140 month sentence (down from 180 months after a remand for resentencing following Booker) substantively unreasonable.  The Second Circuit disagreed, finding that the district court had "explicitly and specifically considered Appellant's blindness, weighing it against, inter alia, Appellant's prominent role in the underlying criminal conspiracy."

Importance of Digging Deep Into A Client's Past

United States v. Lehner, No. 09-CR-72 (JBW), 2010 WL 2522423 (E.D.N.Y. May 24, 2010)

Lehner pled guilty to a tax offense, for which he faced an advisory Guidelines range of imprisonment of between 24 and 30 months.  He was sentenced to 6 months in prison.  Why?  

While on the surface defendant came from a good family, defendant was subjected to sexual abuse as a child, and had a generally unsatisfactory relationship with her parents. She made an apparently happy marriage to her second husband, and she suffered severely from his early death. She became an abuser of alcohol, and tried several times to commit suicide. She is bright and competent, and a hard and persistent worker. She has attended therapy, and apparently is no longer abusing alcohol. She recently suffered the loss of her adult son. Nevertheless, her offense was serious. Defendant deliberately entered into an arrangement to defraud the government of taxes and to drive a thriving company into bankruptcy.

United States v. Lehner, No. 09-CR-72 (JBW), 2010 WL 2522423 (E.D.N.Y. May 24, 2010)

Lehner pled guilty to a tax offense, for which he faced an advisory Guidelines range of imprisonment of between 24 and 30 months.  He was sentenced to 6 months in prison.  Why?  

While on the surface defendant came from a good family, defendant was subjected to sexual abuse as a child, and had a generally unsatisfactory relationship with her parents. She made an apparently happy marriage to her second husband, and she suffered severely from his early death. She became an abuser of alcohol, and tried several times to commit suicide. She is bright and competent, and a hard and persistent worker. She has attended therapy, and apparently is no longer abusing alcohol. She recently suffered the loss of her adult son. Nevertheless, her offense was serious. Defendant deliberately entered into an arrangement to defraud the government of taxes and to drive a thriving company into bankruptcy.

United States v. Lehner, No. 09-CR-72 (JBW), 2010 WL 2522423 (E.D.N.Y. May 24, 2010)

Lehner pled guilty to a tax offense, for which he faced an advisory Guidelines range of imprisonment of between 24 and 30 months.  He was sentenced to 6 months in prison.  Why?  

While on the surface defendant came from a good family, defendant was subjected to sexual abuse as a child, and had a generally unsatisfactory relationship with her parents. She made an apparently happy marriage to her second husband, and she suffered severely from his early death. She became an abuser of alcohol, and tried several times to commit suicide. She is bright and competent, and a hard and persistent worker. She has attended therapy, and apparently is no longer abusing alcohol. She recently suffered the loss of her adult son. Nevertheless, her offense was serious. Defendant deliberately entered into an arrangement to defraud the government of taxes and to drive a thriving company into bankruptcy.

Harsh Words for Insider Trading Defendant At Sentencing

United States v. Kurland, No. 10 Cr. 69 (VM), 2010 WL 2267509 (S.D.N.Y. May 26, 2010)

Kurland pled guilty to insider trading in what is known as the Galleon hedge-fund insider trading case.  At sentencing, he moved for a finding that he was a minor-participant in his offense, a downward departure based on his "extraordinary physical impairment," and a non-Guidelines sentence based on on his contributions to family and the community.  The court rejected all.  And, in doing so, it had some choice words for Kurland -- words that reflect the attitude that white-collar defendants might well face in any case brought in today's economic environment.  Here are some selections:

In coming to its sentencing decision, the Court has considered Mr. Kurland's significant contributions to his family and to the larger community. The letters from friends, family, and associates paint a picture of the model citizen and family man; a man held in the highest regard by those around him. The Court particularly notes Mr. Kurland's involvment in his daughter's nonprofit organization, as well as his generous donations to St. Christopher's School for Kids and other charities. Today, Mr. Kurland's attorney reiterates the message conveyed by the letters: that Mr. Kurland is known for his commitment to philanthropy and the public good, kindness to friends, and devotion to family.

Unfortunately, however, Mr. Kurland's presentation to the Court, though stressing points that argue for uniqueness, distinction, and individual consideration, is in fact not uncommon in the world of white collar crime and has been made in this courtroom many times before. Mr. Kurland urges the Court to consider that he has already shown full rehabilitation and earned redemption; that there is absolutely no likelihood of recidivism and thus no threat of future harm to society; that no further need exists to punish him because he has been wracked long enough by shame, by ruin of his family and personal life, by loss of his primary means to earn a livelihood. Mr. Kurland argues that the purposes of sentencing have already been satisfied, that a sentence of incarceration would serve little or no useful purpose, and that probation would be enough.

Let me stress at this point that the Court is not unmindful or unsympathetic to these points. There is much in the Defendant's plea to commend the compassion it seeks to evoke. But the argument, compelling as it sounds on the surface, fails in essential ways. Fundamentally, it is flawed by what it omits. In particular it makes no account of several other circumstances courts are instructed to weigh adequately in ordering a fitting sentence: to reflect the severity of the crime; to promote general respect for the law; to avoid unwarranted sentencing disparities; and to consider the impact of the crime not only on its immediate victims, but on the larger social order. These principles are interrelated. They share vital links with some basic concepts, ideals emblematic of the law, profoundly significant for sentencing to ensure a right and just result for all concerned: fairness, balance, proportionality, and equality of treatment under law for relatively similar persons and circumstances. In sentencing, these principles seek to ensure that judgments overall fairly align so as to achieve, like bodies in orbit, a special form of equilibrium, a proper balance in the delicate symmetry of justice.

. . . .

In the context of securities fraud, the whole range of harm caused cannot be measured solely by the defendant's net losses or gains. By centering entirely on effects on him, Mr. Kurland's calculus of injury improperly discounts material harm his offense caused to larger societal interests. Mr. Kurland's actions, stemming from a recognized leader of the industry, compromised the financial market's integrity at a time of financial crises and widespread concern about corruption, rampant recklessness, and arrogant greed at the highest levels of the industry, a culture of oblivion to the meaning of reasonable limits that contributed significantly to bring about the worst economic collapse in the country since the Great Depression. As has emerged from various public investigations of the aftermath, those practices played a role in the disintegration or bankruptcy of some of the most venerable financial institutions and required government rescue efforts at a cost of hundreds of billions of public dollars.

It is this Court's view of matters now common knowledge, that to some extent this country's financial meltdown was fueled precisely by the attitudes manifest by Mr. Kurland in this proceeding, and repeated by defendants in other related cases. These offenders express a view that forms a pattern: They minimize their conduct, they suggest that their roles were really minor, that the gains they made were relatively small, that others are more to blame for more culpable offenses, that the markets were not really hurt, so that the offenses charged essentially amount to victimless crimes.

These rationalizations are beside the point. Fundamentally they suggest a perception that the law applies only to the other guy, and that what are self-servingly dismissed as minor infractions have no cumulative impact on the larger community, or indeed on the nation as a whole. This view, if not effectively curtailed, can quickly deteriorate to a philosophy in which moral bounds blur or disappear altogether, engendering a reality in which everything is permitted. The real point for Mr. Kurland here was that he had a choice. As a leader of the financial industry, he could have led by law abiding example. Instead, he chose to follow. He became a joiner, surrendering to the spree of the financial market's virtual mob mentality that nearly brought down this nation's economy in the quest for ever bigger and faster gains.

Diabetes And Family Relations Results In Non-Guidelines Sentence

United States v. Burks, No. 08-CR-332 (JBW), 2010 WL 1221752 (E.D.N.Y. March 29, 2010)

Burks pled guilty to wire fraud, for which he faced an advisory Guidelines range of imprisonment of between 57 and 71 months.  He was sentenced to one month in prison -- a pretty wide variance.  Why?  "The defendant has long-standing diabetes, which is degenerative and will lead to further problems with his eyes.  The defendant has a stable family.  He provides emotional and financial support to two children, one of whom has special needs."

Non-5K Cooperation Leads (In Part) To A Non-Guidelines Sentence

United States v. Baldev, No. 08-CR-868 (JBW), 2009 WL 2878445 (E.D.N.Y. Sept. 2, 2009)

A quick note:

Baldev pled guilty to count two of a five-count indictment, which charged that he, together with others, conspired to distribute and possess with intent to distribute marijuana.  For that offense, Baldev faced an advisory Guidelines range of 18 to 24 months imprisonment.  The court, however, sentenced him to time served, which amounted to more than six and a half months imprisonment.  Why?  Because: (1) Baldev's "involvement in the conspiracy was limited and brief in duration"; (2) it was his first offense; (3) he has serious medical conditions that require treatment; and (4) perhaps most importantly, he provided information to the Government, although that information did not result in a 5K letter.

A Non-Guidelines Sentence Based On The History And Characteristics Of The Defendant

United States v. Ahmad, No. 08-CR-460 (JBW), 2009 WL 700870 (E.D.N.Y. March 16, 2009)

The Court calculated Ahmad's Guidelines offense level to be 10 for Count 1 of a two count indictment (charging possession and use of a United States Permanent Resident Card issued in the name of another, knowing that the document was procured by means of a false statement and fraud).  His advisory Guidelines range was 6-12 months imprisonment.  The Court, however, imposed a non-Guidelines sentence of 1 month imprisonment for the following reasons: (1) Ahmad was well educated, having received a college degree in Pakistan; (2) he "is a hard and conscientious worker, having had success as a car service driver and gas station attendant, among other employment positions" (3) he has "paid taxes while living and working in the United States"; (4) a "substantial amount of his earnings have been sent to his wife, young children, and elderly parents in Pakistan"; and (5) he "suffers significant pain in his arm, the consequence of a serious accident in 2001, which requires ongoing medical attention."

Unfortunately, Ahmad was also convicted of aggravated identity theft, which required a mandatory, consecutive 24 month term of imprisonment.  Thus, in total, he was sentenced to 25 months imprisonment.

Second Circuit Criticizes A Somewhat Unsympathetic Sentencing Decision

United States v. Marino, No. 08-0615-cr (2d Cir. Feb. 17, 2009) (found here)

Dan Marino worked for hedge fund swindler Samuel Israel.  He pled guilty for his involvement in that massive fraud, and entered into a cooperation agreement with the Government.  The Guidelines recommended a 50 year term of imprisonment.  The district court sentenced him to 20 years.  Marino appealed, arguing that his sentence was both procedurally and substantively unreasonable.  While the Second Circuit affirmed the sentence, it issued some pretty strong language concerning the district court's sentencing decision.  Here's what it had to say:

We pause to note that we might ourselves have given greater weight than apparently did the district court to Marino's plight -- his almost complete deafness and accompanying sense of loneliness, his lack of self-esteem, his bouts with cancer, his apparent fear of and deference to Israel -- and his assistance to the government detailed in its "5K1 Letter" (noting his aid to the government in understanding the fraud, his immediate contrition and taking of responsibility upon discovery, and his contribution to the guilty pleas of his co-conspirators).  But it is not for us to substitute our judgment for that of the district court, whose sentence was procedurally and substantively proper.

I fear that the fact that the Second Circuit came close to, but ultimately did not, reverse the sentence for substantive unreasonableness will only further weaken the opportunities for and possibility of any reversal based on substantive unreasonableness.  And that begs the questions: What is substantive unreasonableness?  What circumstances qualify for a finding of substantive unreasonableness?

Judge Batts -- A Little Harsh On Downward Departures Based On Health Problems

United States v. Gutierrez, No. 04 Civ. 6529, 02 CR. 1312 (DAB), 2005 WL 2207026 (S.D.N.Y. Sept. 6, 2005)

Judge Battes imposed a sentence of 342 months imprisonment on a defendant (Gutierrez) convicted of serious narcotics offenses.  Gutierrez moved pro se pursuant to 28 U.S.C. 2255 to vacate the sentence based on (among other things) Judge Batts' failure to depart downward based on Gutierrez's serious health problems -- which, according to Judge Batts, "reportedly" included "advanced diabetes," high blood pressure, "severe renal failure," glaucoma, two strokes, confinement to a wheelchair, and daily dialysis and medication."  Judge Batts declined to revise her sentence because Gutierrez "neither claims nor provides any evidence that such health problems cannot be adequately addressed in one of the Bureau of Prison's many medical facilities" and because at sentencing Gutierrez' "attorney stated that the BOP's hospital in Fort Worth, Texas could furnish the best treatment that he needs for the various ailments that he has."

In light of Gutierrez's significant and serious medical conditions, Judge Batts' 342 month sentence seems a bit harsh.  And, even though the BOP medical facility mentioned at sentencing may be able to provide the "best treatment" for Gutierrez, the question of whether or not another sentence is appropriate is not addressed.  Rather, acknowledgement of that BOP's facility's facilities is merely an acknowledgment of the best circumstance for Gutierrez if Judge Batts does not sentence him outside of his Guidelines range.