Sentencing in Federal Land...

I typically try to keep this blog neutral and use it as a way to keep up on the exciting cases in this District. But following up on Marc's post below, I think there should be a lot more discussion about sentencing for federal offenses. The leading blog on sentencing is Sentencing Law and Policy by Douglas Berman, which is doing a great job highlighting many of these issues.

I really believe that if more regular people knew about how sentencing really occurs, they would be horrified. Marc highlights the acquitted conduct issue which is baffling to me (the actual 11th Circuit opinion which he references can be read here, and Judge Barkett's concurrence -- blasting the idea of using acquitted conduct at sentencing -- is definitely worth a read; here is Berman's take on this issue). Under the current state of the law, if you are charged with being a felon in possession of a firearm and murder, and a jury finds you not guilty of the murder and guilty of the felon in possession, then a sentencing judge could still sentence you as though you committed the murder. I'm not kidding.

There are many, many other troubling sentencing issues. Here's a few:

• Why should crack offenders get sentenced on a 100-1 ratio to cocaine users?
• Why are probation officers allowed to interpret the law and then advise judges of their opinions in an ex parte manner?
• Why doesn't the Confrontation Clause apply with the same force at sentencing and trial?
• Why does the preponderance standard apply at sentencing when at trial the standard is beyond a reasonable doubt?
• Why don't the rules of evidence apply at sentencing?

And the Southern District just saw one of the worst sentencing problems (as serious as using acquitted conduct) -- punishing someone for exercising his right to a jury trial. One of our judges just sentenced Eduardo A. Masferrer to 30 years in prison on a white-collar offense. Thirty *years*! Thirty years ago I was three. In thirty years, Masferrer will be long gone. His co-defendants, who pleaded guilty, were sentenced to 28 months a piece. Ellen Podgor touches on the issue of being punished for proceeding to trial here.

The reason for the huge disparity between trial and plea is in part because some judges, after trial, hit the defendant with all of the guideline adjustments and enhancements possible whereas if there is a plea, both the prosecutor, probation officer, and judge are willing to negotiate those adjustments and enhancements away. This is especially evident in white collar cases like Masferrer's. It is even more true in weaker cases. In weaker cases, the prosecution really wants to bargain for lower sentences (so as not to lose at trial), increasing the risks of testing the government's case at a trial.

It's for this reason -- the enormous risks to defendants -- that trial numbers are way way down, especially in white-collar cases. The solution? I'm not sure. I suspect that our big sentencing changes (i.e. Apprendi/Blakely/Booker) aren't finished (and I'm sure that the Supreme Court will revisit the acquitted conduct issue)... But I never count on those sorts of changes. So my personal decision may sound a bit strange, but I think we (both sides) should just try more and more cases.

Anyway, enough for my Sunday rant. Back to the regular business of the blog....

Aquitted Conduct

by: Marc David Seitles
In United States v. Faust, the Eleventh Circuit did not find a constitutional problem with enhancing a sentence based on acquitted conduct. While the Eleventh Circuit is not the only circuit to hold the same, it does seem to run contrary to the whole point of why we have trials in the first place. Indeed, I would bet that if you asked 100 people (non lawyers!) whether they could be sentenced for conduct where a jury concluded that he/she was "not guilty," 99 of those folk would say "no way, that's impossible." What do you think?

Notice of Appeal

A funny notice of appeal is making the rounds...

News and notes

Quick notes:

1. The National Association of Criminal Defense Lawyers is having their annual meeting here in Miami Beach. It started tonight and it goes through Saturday. The focus is on cross-examination. Tomorrow, legendary defense lawyer Larry Pozner is lecturing. On Friday, we tap the local talent: Albert Kreiger and Jeff Weiner.

2. The Miami 7 "terror" defendants were in Court today before Judge Lenard for the first time. She set trial for March 2007, with discovery to be exchanged by this fall. She also told the parties not to leak to the press.

3. Magistrate Judge Ted Klein's cases have been reassigned temporarily to Judge Torres. The order can be found here on the court's website. Judge Klein is in all of our thoughts.

"Vamos a Cuba" back on school shelves

Judge Alan Gold in an 89-page order said the School Board in banning 24 books "abused its discretion in a manner that violated the transcendent imperatives of the First Amendment.'' Here's the Herald article. And here's Matthew Pinzur's blog post covering the story and a teacher's take before the opinion came out.

Padilla lawyers home...

... according to this DBR article:

"Three defense attorneys in a Miami terrorism case who were trapped in war-torn Beirut while interviewing witnesses got tired of waiting for the U.S. Marines to evacuate them. So they hitched a ride on a Norwegian freighter. The attorneys — Orlando do Campo of the federal public defender’s office in Miami, Andrew Patel of New York City and William Swor of Detroit — along with an Arabic-speaking interpreter they hired arrived in Cyprus last Wednesday and caught flights home the next day."

"Ally of ringleader in Liberty City terrorist plot stalled group's plans"

I missed Vanessa Blum's article yesterday about the Miami 7 terror case with the headline above. Here's the intriguing intro to the article:

The arrival in South Florida of a Chicago man linked to the ringleader of a group accused of plotting to blow up the Sears Tower in Chicago and the FBI building in Miami spoiled the FBI's plans to follow the group longer, according to investigative records.Narseal Batiste, charged with conspiracy to support terrorism and wage war on the United States, summoned his spiritual leader, Sultan Khanbey, to South Florida in early April. His visit occurred just as the FBI prepared to introduce an undercover informant posing as an explosives expert from Europe.At the time, a separate FBI informant posing as an al-Qaida agent already had infiltrated the group and asked Batiste and his followers to participate in a fictional al-Qaida plot to bomb FBI buildings in five cities. Instead of accelerating those plans, Khanbey's arrival led to infighting that disbanded the group before the FBI could gather additional evidence about their willingness to carry out an attack.

What is it good for?

The DBR's Julie Kay reports today on 3 defense lawyers who were trapped in Lebanon. (UPDATE -- THE DBR HAS MADE THE ARTICLE PUBLICLY AVAILABLE HERE). Here's the intro:

Three defense attorneys in a Miami terrorism case who were trapped in Beirut by the conflict between Israel and Lebanon have been evacuated safely to Cyprus.Miami Assistant Federal Public Defender Orlando do Campo and two private lawyers, William Swor of Detroit and Andrew Patel of New York, traveled to Lebanon about three weeks ago. They were there to do research and take depositions in preparation for the scheduled federal trial in September of accused dirty bomber Jose Padilla and four other defendants before U.S. District Judge Marcia Cooke.The lawyers were stuck at a Beirut hotel, according to Swor’s secretary. They had departed for Beirut on July 2 and were supposed to return on July 14. But war broke out July 12 when Israel began its campaign to recover two kidnapped Israeli soldiers. Israel bombed the airport, trapping the lawyers and thousands of other Americans and Europeans in Lebanon.The lawyers had no choice but to stay on at the hotel while the U.S. and other governments made plans to evacuate their citizens.While he was trapped at the hotel, Swor sent daily e-mail updates to a list of colleagues from his laptop computer. A local lawyer who was on the e-mail list described some of Swor’s dispatches.“Day 1: We’re sipping piña coladas by the pool. The staff is wonderful.Day 2: We’ve moved into one room. The French got out. This is like Hurricane Katrina all over again — Bush can’t seem to coordinate these things.”At one point, Swor was at a local church while a priest was praying and a bomb went off nearby. The priest didn’t pause, he just prayed faster, Swor reported.Do Campo and Patel represent Padilla. Swor represents Kifah Jayyousi. Padilla, Jayyousi and Adham Hassoun — along with two co-defendants who are in the Middle East and will be tried in absentia — are charged with conspiring to commit terrorism and funding terrorist groups in Bosnia and the Middle East. All have pleaded not guilty.The three attorneys were rescued Wednesday and put on a cruise ship chartered for the rescue effort. They were taken to nearby Cyprus. From there they are expected to fly back to the United States.Sources said the three men may have been rescued by the Swedish government, along with a group of Swedes who also were trapped at the hotel.