By Margot Moss:
1. “I helped destroy people.” No - not the words of Sal Magluta during the era of the Cocaine Cowboys. That’s FBI agent Terry Albury. Albury says that he, along with his colleagues, “were compelled to commit civil and human rights violations.” The story is here in this Sunday’s New York Times Magazine section. Albury stated: We’ve built this entire apparatus and convinced the world that there is a terrorist in every mosque, and that every newly arrived Muslim immigrant is secretly anti-American, and because we have promoted that false notion, we have to validate it. So we catch some kid who doesn’t know his ear from his [expletive] for building a bomb fed to them by the F.B.I., or we take people from foreign countries where they have secret police and recruit them as informants and capitalize on their fear to ensure there is compliance. It’s a very dangerous and toxic environment, and we have not come to terms with the fact that maybe we really screwed up here,” he says. “Maybe what we’re doing is wrong.” Albury became so convinced that it was wrong that he leaked documents to the media “exposing the hidden loopholes that allowed agents to violate the bureau’s own rules against racial and religious profiling and domestic spying as they pursued the domestic war on terror.” For sending these documents, Albury was arrested and sentenced to 4 years in prison.
Sometimes, the bad guys in the courtroom aren’t the defendants.
2. In another good read, a law review article examines the “deep flaw” of the sentencing guidelines’ loss section, which “routinely recommends arbitrary, disproportionate, and often draconian sentences.” Not only does the loss section fail to address unwarranted disparities among similarly-situated individuals, but it “actively exacerbates them.” Barry Boss and Kara Kapp lay out the history of the guideline, give examples of the outrageous sentences it recommends, and offers reforms that we should pay attention to.
They point out that some courts “have called the loss tables ‘patently absurd’ and ‘a black stain on common sense’ that rely upon a ‘flawed methodology for tabulating white-collar sentences[.]’ Accordingly, courts have concluded that imposing sentences corresponding to the loss tables would ‘effectively guarantee[ ] that many such sentences would be irrational on their face.’”
Unfortunately, not all courts see it that way and continue to give guideline sentences using the 2B1.1 table. That’s why reform is necessary. Boss and Kapp first suggest calculating loss based on actual loss, not intended loss. Or, in the alternative, to find that the intended loss was substantially likely to occur. These seem like great places to start. We all know that Medicare never pays what it’s been billed – if it pays at all. What do blog-readers think?
3. I’m fully aware that this is a blog largely devoted to the Southern District of Florida news and notes and other federal goings-on around the country. But I can’t make my first post without giving a huge shout out to state Chief Judge Nushin Sayfie. For years, I worked by her side as an APD and then looked up to her on the state bench in Miami. She is a force and an incredible asset to our community. And how great is it to have a former criminal defense attorney as the top dog?! The Passing of the Gavel ceremony recognizing her election as Chief Judge of the 11th Judicial Circuit is this Friday, September 10 at 12:15. You can watch it live here on YouTube. Congratulations, Chief Judge Sayfie!
4. Finally - R.I.P. Michael K. Williams, aka Omar Little, the greatest character on one of the best series on television, The Wire. If you haven’t watched it, the show is a must-see. I know David O. Markus likes it. Here is Michael K. Williams/Omar in a classic scene: