The Federal Sentencing Guidelines and Sentencing Disparities in Federal Court

If you have followed this blog, then you know that I am a former federal prosecutor, (for over 20 years), in Augusta, Georgia. You also probably realize that I still like to follow what's going on in federal court, even though I am now a criminal defense lawyer. In other words, I still handle federal criminal cases; I just sit at a different table and represent a different client when I go to federal court now!

This week, the Daily Report has featured a new issue involving federal sentencing. The article involves a request by the Department of Justice for the U.S. Sentencing Commission to investigate sentencing disparities by federal judges around the country. The article also mentions that the disparities are perhaps the greatest in fraud and child pornography cases. For instance, federal judges imposed sentences of one to four years in the AIG fraud case, (which involved more than $500 million in losses), but another federal judge sentenced a defendant involved in a $40 million Ponzi scheme to a whopping 25 years in prison. Numerous other examples abound. The article suggests that what (sentence) you get may depend on who (which judge) you get.

You might recall that, back in the 1980's, Congress enacted the federal sentencing guidelines to eliminate such sentencing disparities around the country. But then, five years ago, in Booker v. U.S., the Supreme Court struck down the mandatory nature of the guidelines and made them advisory. In other words, federal judges still check the sentencing guidelines, but they now have more discretion about not following them.

Will this new call by DOJ for a study of guidelines sentencing disparities do any good? I doubt it. And frankly, in many cases, maybe it's not such a bad thing that judges have discretion and can take into account the unique facts of each case in imposing sentences.

What do you think? Should sentences be more uniform? Or should judges have more discretion?

How Realistic Are Television Courtroom Dramas?

How about a change of pace today!? Let's talk about t.v. programs! In your opinion, are t.v. courtroom dramas realistic? And which program, in your opinion, comes the closest to reality, i.e. what criminal lawyers and criminal trials are really like?

Over the years, there have been countless law-related t.v. programs. When I was a little boy, growing up here in Georgia, Perry Mason, (Raymond Burr), was one of my role models. I also liked to watch actor E.G. Marshall, in "The Defenders." Looking back, the most unrealistic feature of these shows, in my opinion, was that the stars, including Mr. Mason, almost never lost a criminal case!

But what about more recent t.v. programs? Did you watch "The Practice," or "Law and Order?" Surely, everyone also liked the recent show, "Boston Legal!" Do you recall others? Which comes closest to the real deal? I believe "Law and Order" comes closest to reality. But, in my opinion, one of the most unrealistic features of each of these shows is that the trial lawyers, (on t.v.), can yell at, and talk back to, the trial judges!

Trust me, you wouldn't get away with that in a Georgia courtroom! Here, you would find yourself in a very real jail cell!

Crime Lab Woes

Are you, like me, a fan of the CSI television shows? Each week, the C.S.I. teams of crime lab scientists and criminal investigators manage somehow to solve intricate crime mysteries.

But have you ever toured a real crime laboratory? As a former federal prosecutor, I was allowed to tour the F.B.I. Crime Laboratory, in Washington, D.C., along with most of the G.B.I.'s crime laboratories here in the State of Georgia. While their work may not always be as dramatic as depicted on the C.S.I. shows, the real crime lab scientists generally do amazing work, too!

But sadly, sometimes it seems that the state crime labs are treated like red headed step children of the criminal justice system by many state legislatures. For example, here, in Georgia, we have recently experienced the closings of several of our state crime lab branch offices. Also, I have just read that, in San Francisco, two recently purchased DNA machines sit idle because the crime lab there cannot afford to purchase the software, (and presumably, afford to pay the personnel), to run them.

There's no telling how many inmates are still sitting in jail simply because DNA tests, which could clear them, are not being done. And there's no telling how many rapists are still "out there" committing additional crimes for the same reason, i.e. because the DNA tests are not being done, due to funding problems. This is outrageous! Don't you agree?

Here's hoping that our crime laboratories will one day get the appropriate funding and appreciation for all the good work that they do! That's the real C.S.I. mystery that needs to be solved!

Fraudulent Auto Injury Claims: Watch Out For That Other Guy!

Have you ever been driving down the road and it appears that the driver in front of you has slammed on his brakes simply to try to get you to hit him? Maybe there was a good reason for him to "stop short." But then again, maybe not.

As a former federal prosecutor, I prosecuted a number of defendants who engaged in the fraudulent practice of staging, or causing, automobile accidents. I will never forget one criminal case in which the despicable couple actually put their own baby in their car, while they drove around looking for other drivers to plow into them. They hoped to submit false injury claims for their baby, too, (whether he lived or died)!

Trust me, these are not isolated cases, either! For instance, according to the Coalition Against Insurance Fraud, fraudulent auto injury claims added another $4.6 billion to $6.8 billion to auto injury claims submitted to insurance companies in 2007.

So, please be sure to "watch out for the other guy!" Not only are there unsafe drivers out there, but also some con artists on the prowl who want to sue you!

Special Challenges in Major White Collar Crime Prosecutions

This post is about another example of special challenges faced by federal prosecutors in handling major fraud, or other white collar crime, investigations. As many of you know, before I became an Augusta, Georgia criminal defense lawyer, I was a federal prosecutor for over 20 years. Today, I want to describe how lengthy federal investigations can really stress a federal prosecutor out! The real problem is that, in a lengthy federal criminal investigation, you can't get any real "closure," or sense of accomplishment, for a long, long time.

1. How Lengthy Federal Investigations Can Wear You Out!

Most criminal cases, especially on the state court level, are relatively simple to prepare and try. Even most murder cases involve just ten or so witnesses and a handful of exhibits. You try them and, win or lose, you put them to bed and go on to the next case. But it is really different when you are tasked with putting together a super-sized federal criminal investigation. For example, on one fraud and public corruption case, my team of agents and I interviewed several hundred witnesses over many months. Also, I nearly wore out my eyeballs by reading approximately a million pages of documents.

2. Lengthy Federal Investigations Are Also Like "Ground Hog Day!"

But the real problem with handling a really big case involves much more than just the tiredness and tedium inherent in dealing with so many witnesses and exhibits. The real challenge is that you also have to deal with the same case and the same problems, over and over again, every day, for many months, or even years. It's the repetition, and dealing with the same problems, and the lack of closure that can get to you. As a federal prosecutor, you sometimes feel like Bill Murray in "Ground Hog Day." For instance, if you have personality clashes with agents in your investigative task force, you might as well learn to simply live with them, because you will be seeing each other and working together on the same old stuff every day. In short, as the federal prosecutor in charge, you must deal with the problem that you won't get any "closure," or sense of accomplishment, for many months in the future, when the case is finally finished. And, at the beginning, you have no idea as to when that might be. In contrast, when you only prosecute small criminal cases, you can get them resolved, for better or worse, in just a few weeks, or months, and go on to frying other fish. But the psychology and stressors are much different when you have only one case to work on and there is no clear finish line in sight. I worked on some of my largest cases for a couple of years. So, the point is that I had to learn to cope and deal with the same problems and issues for that long, too.

3. So, Which Is Better: Prosecuting the "Big Fish" Or Prosecuting A Lot of "Smaller Fish?"

In short, learning to cope with the special problems inherent in big cases is one of the biggest challenges which a federal prosecutor must learn to face. Would you enjoy being a federal prosecutor, prosecuting the big "paper cases," and locking up the "big fish?" Or would you prefer to be a state prosecutor and handle a lot of "small fish?" Or, better yet, would you prefer, instead, to simply find another, less stressful, line of work!?

White Collar Crime, Sentencing, and Upward Departures

Many of you probably recognize this photograph of Bernie Madoff, the "investment fraud king," who is presently trying to serve several lifetimes in prison, (i.e. he was sentenced to serve a whopping 155 years in prison!) But did you know that there are "miniature Madoffs" all over the country? And did you also know that the trend is toward enhanced sentencings in many of these white collar criminal cases?

For instance, here, in Augusta, Georgia, the local media are publishing reports about a local insurance agent who is slated to be sentenced in federal court soon. The agent pled guilty in federal court a few months ago after reportedly admitting to defrauding friends and customers, (many of whom are elderly), out of about $2 million. Just like Madoff, the agent reportedly promised to invest the customers' money, but then spent it on himself.

In this case, like many other fraud cases around the country, the government is seeking an upward departure from the agent's federal guidelines sentencing range. And believe me, while we may all pray for an "upward departure" when we die, an upward departure in federal sentencing is not a good thing! It means that this defendant may face a significantly higher sentence than in a typical criminal case. And again, this is the trend, for better or for worse, (depending on your perspective), for white collar criminal defendants. In other words, criminal defense lawyers are no longer assured of probationary sentences for their clients.

What do you think about this trend toward tougher prison sentences in white collar crime cases? I'll bet we already know Bernie Madoff's opinion on this subject, don't we!?