President Biden, it’s time to use your pardon power.

President Biden, it’s time to use your pardon power.

By David Oscar Markus

The federal criminal justice system is littered with terribly unjust convictions and sentences. The President of the United States has the power, granted to him by our Constitution, to fix these injustices – either by pardoning a person convicted of a federal crime or by commuting a sentence.  Unfortunately, President Biden has barely used that power to date.  Putting aside pardons for possession of marijuana, he has granted only 25 pardons and 131 commutations (which is less than 1.5 percent of all the petitions submitted to the pardon office to date).  And almost none of these are white collar offenses, which get very little attention for this sort of review.  

But it is not too late, Mr. President.  Traditionally, most presidents wait until the final few months of their presidency to use the wide power and discretion afforded them.  Here are some cases that cry out for the President's intervention:

The first case, United States v. John Moore and Tanner Mansell, is the ideal candidate for a pardon.  Moore and Mansell were crewmembers on a boat that facilitated shark encounters in South Florida.  During one such trip, they spotted sharks caught on a long fishing line that they mistakenly believed was illegal. They recorded as they retrieved the line and released the sharks, and called Fish & Wildlife to notify law enforcement of what they had found.  It turns out that the lines had been placed lawfully, an unusual circumstance. Despite that this was a good faith mistake, Moore and Mansell were indicted and convicted for theft of property within the special maritime jurisdiction of the United States, in violation of 18 U.S.C. 661.  The appellate court affirmed the conviction, but Judge Lagoa said she did so "with reluctance" because she had never seen "in eighteen years on the bench and three years as a federal prosecutor," facts like these.  She said that the prosecution "def[ied] understanding" and that the prosecutor took "a page out of Inspector Javert's playbook" for prosecuting this case.  She said the facts "plainly suggest[] a good faith mistake" and she could not understand how "this case was worth the public expense of a criminal prosecution, and the lifelong yokes of felony convictions."   

The next two cases are perfect for clemency.  In United States v. Tyson Rhame, James Shaw, and Frank Bell, the defendants were charged with fraud for selling the Iraqi currency, called dinar (an entirely legal product).  It was undisputed that every single customer got exactly what they paid for and that not one of the thousands of customers ever complained.  In fact, the dinar is worth today almost the same amount it was worth when customers purchased it years ago.  In other words, they did not lose anything.  The defendants themselves did not say anything fraudulent to any of the customers and they spent millions of dollars on compliance to make sure that they did not cross any legal lines.  Even the judge at trial said, "Let me put it this way: I don't know where this case is going to end up ... Well for one thing, I'm not prepared to even say, well this case is going to get past directed verdict.  These people can be found completely not guilty."  Unfortunately, the jury found them guilty. Ty Rhame  -- an Iraqi war hero, has donated tens of millions to charity, always paid his taxes, and is a loving father -- was sentenced to 15 years (!!) in federal prison for selling a legal product that is still openly sold today.  

In United States v. Johnny Grobman, Raoul Doekhie, and Sherida Nabi, the defendants bought baby formula from manufacturers saying on the basis that they would sell only in foreign markets, but they actually sold in the United States. The “victims” in this case, primarily very large corporations, made a profit from their sales to the defendants.  Their complaint is that they did not make as much money as they would have had they marked it up to be resold in the U.S. Based on the premise that these corporations may have been able to make more profit from these transactions, Grobman, a father to three young daughters, was sentenced to 18 years in federal prison even though he was a first time non-violent offender.  18 years!  A co-conspirator in Johnny’s case who did not go to trial and cooperated with the prosecution received a sentence of 2 years. 

 I am particularly attuned to the facts of Rhame and Grobman since I represent both of them on appeal (I was not the trial lawyer).  I could go on and on with other cases that President Biden should look after.  Another one of my clients who is currently appealing, Neil Cole, was acquitted of conspiracy to commit securities fraud in the Southern District of New York, which was the top and most serious count.  The jury was unable to reach a verdict on the less serious counts, but the government decided to retry him anyway on the very same theory that the jury rejected for the conspiracy.  It's hard to beat the government once; it's almost impossible to beat the feds twice, especially where the government scares away defense witnesses with threats of perjury and obstruction.  

Many presidents issue a few pardons and commutations at the end of the their term to show at least a little mercy.  But President Biden has the opportunity do something truly special and unique -- clear the board of the many unjust convictions and sentences in our federal system.  Don't be stingy, President Biden.  Don't succumb to fear.  Do the right thing and make our criminal justice system just a little more fair.