Pigs get fed, hogs get slaughered

If you are a drug dealer with a Criminal History Category of I, and you cooperate, sign an appeal waiver, and then breach the appeal waiver because you are unhappy with the sentence of 188 months (151 to 188 months was the range after the cooperation departure motion) rather than somewhere at or below the statutory maximum of 240 months (without the statutory max., the range was 262 to 327 months) , what’s the worst that can happen?  According to the Third Circuit, a defendant who breaches the plea agreement in such a situation will find his 188 month sentence vacated, and the case remanded for resentencing without the motion for departure!  See United States v. Erwin, No. No. 13–3407 (3rd Cir., August 26, 2014). That is, your breach of the appeal waiver just cost you up to 52 months of extra prison time.

The Third Circuit applied contract principles to reach this result. A civil practitioner makes this point: Contract principles are intended to put the government in the same place that it would have been absent the breach. That would require the defendant to pay the cost of the government’s appeal. Contract principles are not intended to be punitive, and more than four years extra in prison appears to be punitive rather than restorative in nature. The correspondent asks: Is the remedy chosen by the Third Circuit consistent with contract principles the court claims to apply?

What do you think?

RGK

May our President relax

I watched the President’s press conference last week. The President was wearing a tan suit. To the amazement of the pundits, he said had “no strategy” for dealing with the monsters of the middle east. Despite the suit, he looked exhausted, almost haunted. I fear we are watching a young man turn old.

These thoughts were foremost in  my mind when I read the latest from Professor John Q. Barrett’s the Jackson List. This weekend, I truly hope President Obama shares time with some good friends who will encourage him to drink whiskey, smoke a cigar and play cards (or basketball).  As President Roosevelt needed the respite almost 75 years ago to the day, I am guessing so too does President Obama.

In late June 1939, Solicitor General Robert H. Jackson, his wife Irene and their daughter Mary left Washington, D.C., on a driving trip. Their stops included Chillicothe, Ohio, where Jackson visited a reformatory for first offenders; Milwaukee, where he spoke at the Wisconsin State Bar Association’s annual convention; and San Francisco, where he spoke multiple times at the American Bar Association’s annual meeting, and also at the Commonwealth Club, and visited the federal penitentiary on Alcatraz Island.

From San Francisco, the Jacksons made a side trip by train to Sun Valley, Idaho. Robert and Mary, then eighteen, going into her sophomore year at Smith College, took part in a horseback expedition in the Sawtooth National Forest.

In early August, the Jacksons returned to Washington. Robert returned to his work at the Department of Justice. He also made trips to give political speeches in Pittsburgh, and at the Illinois State Fair in Springfield.

* * *

Near the end of August, despite the growing threat of war in Europe and the increasing significance of war-related issues in Jackson’s work, he, Irene and Mary drove from Washington to their former hometown, Jamestown, New York. They planned to stay through the first week of September, visiting and relaxing with Jackson’s mother and other family and friends.

On Thursday, August 31st, General Edwin M. (“Pa”) Watson, President Franklin D. Roosevelt’s appointments secretary, telephoned Jackson in Jamestown. Watson said that the President was in the mood for a social evening with a few friends, a chance to forget about the war, and that it was being arranged for Saturday night, September 2nd. Watson said the President wanted Jackson to attend.

Jackson left Jamestown on the next evening, Friday, September 1st. Driving alone and through the night, he reached Washington on Saturday morning, September 2nd. During that day, he met with his boss, Attorney General Frank Murphy. Around 6:45 p.m., Jackson went to the White House.

President Roosevelt greeted his guests in his study. The other members of the group of six were, in addition to FDR, “Pa” Watson and Robert Jackson, Harold L. Ickes, the Secretary of the Interior; Stephen T. Early, the President’s press secretary; and Dr. Ross T. McIntire, M.D., a U.S. Navy admiral and the President’s physician.

The President mixed cocktails for the group. They enjoyed the drinks, talked and were able to have some laughs, including over a note that William O. Douglas, Roosevelt’s former Securities and Exchange Commission chairman and his Supreme Court appointee of a few months earlier, had sent. Justice Douglas, who also had been invited to attend that evening but was not able to be there, referred in his note to the Chief Justice of the United States, Charles Evans Hughes, as “Charles the Baptist.” This was a favorite FDR nickname for Hughes, a Baptist, who at earlier times had been something of an FDR antagonist … and never was his guest at an informal White House gathering.

After cocktails, the group went up to the White House family quarters for a simple dinner. Although the European situation was not discussed much, FDR did tell his guests that he was in constant telephone contact with the U.S. Ambassadors in Paris and London, William C. Bullitt and Joseph P. Kennedy, respectively, and that their reports indicated that prospects were ominous.

After dinner, the group returned to the President’s study. They played poker. Admiral McIntire, watching out for the President’s health, announced that the card playing would stop at 11:00 p.m. FDR objected and—being the President—he received permission for play to continue until 11:45.

In the heat and fun of the poker play, the group forgot, at times, the looming war. Jackson could see the President relax.

Roosevelt’s usual good luck at cards was not with him that night. The big winner was Ickes. He announced that he now could afford to have a baby, which his wife did two days later.

Around 10:00 p.m., the State Department delivered to the President a message from Kennedy. After reading the cable, the President said sadly, “Gentlemen, by noon tomorrow, war will have been declared.”

That was the case. On September 1st, Nazi Germany had invaded Poland. On September 3rd, its allies France and the United Kingdom declared war on Germany.

In between, and as they left the White House late on Saturday night, September 2nd—seventy-five years ago this weekend—Jackson and his colleagues felt they had contributed to President Roosevelt’s first relaxation in many days.

* * *

RGK

 

 

You be the judge: Has the Eighth Circuit gone nuts?

If a district judge in the Eighth Circuit varied downward to probation, when the Guideline range in a conspiracy to commit mail and wire fraud, tax evasion, and conspiracy to commit tax fraud case was 135 to 168 months in prison, would you think the Eighth Circuit had gone nuts if the Court affirmed that huge deviation? See Douglas Berman, Based on additional 3553(a) justifications, Eighth Circuit affirms “profound downward variance to a sentence of probation” in multi-million dollar fraud (August 29, 2014).

Professor Berman provides this gloss:

Especially in the years right after Booker, the Eighth Circuit garnered a (seemingly well-deserved) reputation as one of the circuits most likely to reverse below-guideline sentences as too lenient.  But after a number of those reversals were thereafter reversed by the Supreme Court in cases like Gall and Pepper, it seemed the Eighth Circuit became somewhat more willing to uphold below-guideline sentences, and today in US v. Cole, No. 11-1232 (8th Cir. Aug. 29, 2014) (available here), a unanimous panel has upheld a probation sentence in a high-loss, white-collar case that in the past I would expect to see reversed based on the government’s appeal.

. . . .

This ruling strikes me a one-in-a-million outcome: I cannot recall another case (out of the nearly million cases that have been sentenced in the federal system since Booker) in which the defendant faced a guideline range of 11 to 14 years and received a sentence of probation. This outcome seems all that much more remarkable given that this huge (and now declared reasonable) variance was in a a case in which the defendant did not plead guilty or provide substantial assistance to the government in any way and involved “one of the largest corporate frauds in Minnesota history and was also a significant tax fraud.”

Because this Cole case seems remarkable in many ways, and because it likely will be (and should be) cited by nearly every white-collar offender facing federal sentencing in the months and years ahead, it would not shock me if the Justice Department seriously considers pursuing an appeal up to the Supreme Court.

Here’s my tentative thoughts: (1) after the Circuit initially remanded for further elaboration, Chief Judge Davis, the sentencing judge, must have really covered his bases when discussing the section 3553(a) factors, although Court of Appeals provides little in the way of specifics regarding what the Court thought was persuasive; (2) the fact that Judge Murphy, former Chair of the Sentencing Commission, sat on the panel affirming the variance is extremely important–her stamp approval carries much weight; and (3) the opinion written by Judge Sheperd affirming the variance is short on detail and the reasoning consists of little more than a few conclusory tidbits.  The brevity and weakness of the opinion could, and probably should, consign this case to the “one off” dustbin.

For criminal practitioners, particularly in the Eight Circuit, I am interested in your take.  Has the Circuit gone nuts?

RGK

The Edinburg Town Court Story

With a Phi Beta Kappa key, and admission to the New York Bar in 1956, John L. McMahon started a criminal defense practice in northern New York.* This is a story about one of his early cases. It is told by his daughter Jill, and I love it:

Edinburg Town Court Story

My father was a newly minted criminal defense lawyer in the 1950s. One of his early cases was defending a bar owner alleged to have assaulted her neighbor. The bar owner, D, was a longstanding member of the tiny community of Edinburg on the north shore of Sacandaga Reservoir. The complainant, S, a relative newcomer, ran a small general store next to the bar. Relations between the bar owner and the store owner were strained because the store owner alleged that the bar owner also sold alcohol for consumption away from the bar (i.e., in competition with S’s store). One summer night, the bar owner had a party on the beach across the shoreline road from the bar. There were many noisy partiers that evening, and S took a flashlight to investigate. He found D and another reveler together in a boat, in a compromising position. According to the complaint, when S shined his light on the two, D punched S in the nose.

On his way to night court, Dad stopped at a restaurant in Edinburg for a bite to eat. The owner explained to Dad that he had to eat fast because he was closing the restaurant early in order to attend THE TRIAL. The whole town was going. Dad told the guy, don’t worry, they wouldn’t start until he got there.
When he arrived at the courthouse, a small building about 30’-by-40’, it was standing room only inside. Scores of people were massed outside, closer ones with noses plastered to the windows providing play-by-play to the rest.

The site of the trial

The site of the trial

The prosecutor questioned S at length about his interactions with D. Whenever S’s answer cast D in a poor light, from deep within the gallery the stentorious voice of the Town Clerk would comment, “Bullshit.” Or, “My ass.”
When Dad’s turn came, he was able to get S to admit that during the short time they had lived there, he and his wife had filed complaints against D to the Sheriffs, the State Troopers, the Alcohol Control Board, NYS Taxation and Finance, and the IRS, ad nauseum.

I think you can guess which way the verdict went. Dad says that the victory party at the bar lasted a week, during which time he was held hostage and deprived of water.

 Thanks Jill!

RGK

*See The weasel and the pigeons: A Christmas story about lawyers in general practice, another story by Jill about her dad’s firm.

Enjoy

Thanks to Elaine M., I must call to your attention: Top 10 Photos of D.C.’s Utter Destruction in Disaster Movies, Friday, August 29, 2014, by Valerie Paschall. If wishes were horses . . .

Here’s my favorite:

 

Earth v Flying Saucers, 1950s.  I'm pretty sure I saw this movie. Even then, I think I was rooting for the aliens. For more on this classic, see  http://www.imdb.com/video/screenplay/vi1789133081

Earth v Flying Saucers, 1956. I’m pretty sure I saw this movie. Even then, I was rooting for the aliens. For a short trailer on this classic, see
http://www.imdb.com/video/screenplay/vi1789133081

RGK

The “down under” Cowboy

You may recall the post entitled Fun of Flying. Keller returning to Australia with a cowboy outfit purchased for Fletcher by Aunt Marne in ABQ ran into the Aussie dislike for toys that vaguely look like real guns. Anyway, that made me mad. It seems that Toys-R-Us is ubiquitous. In any event, it has an operation in Australia. For $9.99 (AUS) plus $11.00 for shipping I was able to obtain the “Peacemaker” for Fletcher. With his hat and boots, it was a hit.

The odd thing is that the “Peacemaker” looks very much like the Single Action Army, SAA, Model P, Peacemaker, M1873, circa 1872. Why you can buy this replica in Australia but get it (or something like it) confiscated at the Sydney airport is a mystery. I guess that’s just the “land down under.” Anyway, that was my excuse for adding the video of “Men At Work – Down Under”  (“Did you hear the thunder? You better run for cover!”) at the end of this post. I absolutely love that song and the video is quirky just like the marvelous country.

May Fletcher always contribute to that thunder! Australia wouldn’t be the same without it.

Fletcher in his cowboy outfit with a mystified Ruben in the background.

Fletcher in his cowboy outfit with a mystified Ruben in the background.

photo 3

 

Fletcher with the "Peacemaker." Ruben looking out for bandits.

Fletcher with the “Peacemaker.” Ruben looking out for bandits.

And now, the Pièce de résistance,

RGK

 

 

“Officers had no choice, Chief says” regarding shooting and killing of “Cops” sound mixer and robber armed with a pellet gun that looked and sounded like a real weapon and who shot at police in an apparent hostage situation in a Wendy’s restaurant

See the front page of today’s Omaha World-Herald for this tragic story.  Why would any law enforcement agency allow officers to be followed around by a reality show, particularly during highly dangerous hostage situation involving an armed assailant? Truly, we have enough “reality” as it is!

By the way, here’s the theme song from “Cops”:

Bad boys, whatcha want
Watcha want, whatcha gonna do?
When sheriff John Brown come for you
Tell me whatcha wanna do, whatcha gonna do?

Bad boys, bad boys whatcha gonna do?
Whatcha gonna do when they come for you?
Bad boys, bad boys whatcha gonna do?
Whatcha gonna do when they come for you?

When you were eight and you had bad traits
You go to school and learn the golden rule
So why are you acting like a bloody fool?
If you get hot, you must get cool

Bad boys, bad boys whatcha gonna do?
Whatcha gonna do when they come for you?
Bad boys, bad boys whatcha gonna do?
Whatcha gonna do when they come for you?

You chuck it on that one
You chuck it on this one
You chuck it on your mother
And you chuck it on your father

You chuck it on your brother
And you chuck it on your sister
You chuck it on that one
And you chuck it on me

Bad boys, bad boys whatcha gonna do?
Whatcha gonna do when they come for you?
Bad boys, bad boys whatcha gonna do?
Whatcha gonna do when they come for you?

Bad boys, bad boys whatcha gonna do?
Whatcha gonna do when they come for you?
Bad boys, bad boys whatcha gonna do?
Whatcha gonna do when they come for you?

Nobody now give you no break
Police now give you no break
Not soldier man give you no break
Not even you idren now give you no breaks

Bad boys, bad boys whatcha gonna do?
Whatcha gonna do when they come for you?
Bad boys, bad boys whatcha gonna do?
Whatcha gonna do when they come for you?

Bad boys, bad boys whatcha gonna do?
Whatcha gonna do when they come for you?
Bad boys, bad boys whatcha gonna do?
Whatcha gonna do when they come for you?

Why did you have to act so mean?
Don’t you know you’re human being?
Born of a mother with the love of a father
Reflections come and reflections go
I know sometimes you wanna let go
I know sometimes you want to let go

Bad boys, bad boys whatcha gonna do?
Whatcha gonna do when they come for you?
Bad boys, bad boys whatcha gonna do?
Whatcha gonna do when they come for you?

You’re too bad, you’re too rude
You’re too bad, you’re too rude

Bad boys, bad boys whatcha gonna do?
Whatcha gonna do when they come for you?
Bad boys, bad boys whatcha gonna do?
Whatcha gonna do when they come for you?

You chuck it on that one
You chuck it on this one
You chuck it on your mother
And you chuck it on your father

You chuck it on your brother
And you chuck it on your sister
You chuck it on that one
And you chuck it on me

Bad boys, bad boys whatcha gonna do?
Whatcha gonna do when they come for you?

(Credit: Songwriters Lewis, Ian Munty, “Bad Boys (theme From ‘cops’)” is track #1 on the album Blazzin’ Fire: Classic Cuts. See here.)

RGK

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