SDNY pretty much just set the ceiling on cooperating witnesses. Caroline Ellison was just sentenced to two years in prison and ordered to forfeit $11 billion. That's billion with a B. The crazy thing is that most of my NY friends that I spoke with are surprised she got any time as the culture there is for cooperating witnesses to get probation. They were taken aback that she got two years.
What's surprising to me is that Sam Bankman-Fried got 25 years. Way too much time for a first time, non-violent offender where the actual loss was arguably zero. I'm all for the NY system of cooperating witnesses getting no time (which is starting to catch on in other places). But 25 years for going to trial needs to be fixed.
He has a number of really good issues on appeal, including that the judge forced him to testify out of the presence of the jury before taking the stand so that the judge could determine whether his testimony would be admissible. Pretty insane.
If you were the sentencing judge, what would your sentence be for SBF and Ellison?
25 was too high, but he and his lawyers did him no good by sticking their finger in every bodies eyes. 15 seems about right. Just luck that a ton of people didn’t loose everything. If they did, then more than 25. She should have got around 5.
ReplyDeleteI would have thought a year and a day at the most for Ellison. SBF, maybe 15. Madoff got 150. This may be a cap for white-collar, non-violent. Violent cooperators will still get more in SDNY (maybe). In any event, this is poor advertising for all the would-be cooperators out there.
ReplyDeleteIn SDNY USAO it is not so much about justice as it is about headlines and status. Help us get a headline and make the big cases, and you get a big reward. FBI/DEA is happy; we are happy; defense attorney is happy; move on to the next headline.
ReplyDeleteIn the SDFL, white collar defendants get off too easy generally and cooperators rewards are about right. You can always find outliers. This thing about non-violent offenses irks me. Talk to a victim about the trauma and financial stress from losing hard earned money. The cumulative harm of all the fraud against the government is overlooked as no citizens come to court to complain for the government.
SBF's sentence is arguably too high, but because it is arguable it is not unjust or clearly wrong.
I thought 2 years was about right. She should have quit or come forward sooner. "My boyfriend" made me do it, while probably true, was no excuse. SBF should have gotten about 12 years.
ReplyDelete"In SDNY USAO it is not so much about justice as it is about headlines and status." Really brave statement, Anonymous.
ReplyDeleteWhy should a cooperator categorically get no time?
ReplyDeleteWait. Why did SBF get 25 years after losing at trial? A trial tax is unconstitutional as we all know so…. Like what happened? Judges don’t punish people for going to trial. I’ve had several look me right in the eyes and tell me that with a straight face.
ReplyDeleteMyriad reasons why it’s not a trial tax. Here are a few: (1) no acceptance of responsibility, (2) convicted of numerous more counts than a plea, (3) lied during his testimony, (4) received the appropriate sentence for an $11 Billion fraud rather than a break for pleading
DeleteMyriad reasons your logic is faulty. Acceptance of responsibility is a reason for a guidelines REDUCTION. There is no corresponding guidelines enhancement for going to trial - which would be a sixth amendment violation. We know counts are mostly meaningless under the guidelines. You can have 49 substantive counts and one conspiracy and the conspiracy yields the same sentence. Lied during testimony is interesting. Well over two hundred people have been exonerated through dna. Many of them testified. Testifying to support a defense does not mean one lied if they are convicted. Consider a person who testifies they acted in advice of counsel and is convicted. The jury can reject their defense but that doesn’t mean the defendant lied. Your defense of the sentence is just a throw against the wall all reasons you can find so as to ignore the obvious. He was punished for going to trial. QED. The ball is back in your court.
ReplyDeleteHe received a sentence the people thought appropriate based on the sentencing parameters enacted by the elected Congress and fleshed out by the sentencing commission. Except wait, the judge had discretion and went well below the guideline sentence. But yes you are correct in that he did not receive the reward he would have gotten for pleading guilty to the crimes he in fact committed.
DeleteAs far as DNA, this wasn’t a whodunit. This was the correct defendant but the jury had to determine the proper charge(s) if any and whether the Government met its burden. As far as lying during testimony that’s a separate finding at sentencing that results in increased levels. Along with the three levels not subtracted for acceptance of responsibility, he’s now 5-8 levels higher than had he pled guilty.
If you believe he’s innocent, I completely understand your frustration. But if you believe he was in fact guilty, this was in no way a trial tax. This was an egregious miscalculation on his part and his lawyers’ part to go to trial on a case with an $11 billion loss amount.
Well stayed 11:35. One man’s trial tax is another man’s guilty plea discount. However, the correct view is the later view. Fact is that the USSG calculates the advisory sentence that is appropriate for the offender and the offense under all the circumstances. It then provides a discount for admission of guilt - repentance - the first step to rehabilitation. Foregoing trial also saves resources so it is rewarded with an incentive. Society has a policy of giving people who plead guilty a break, to give them an incentive by giving them a lesser punishment than their conduct would otherwise merit. So it is a guilty plea discount, not a trial tax.
DeleteWell no. His guidelines were life. He got a below guidelines sentence after trial. He caught a huge break that he would not have recieved in this district.
ReplyDelete