Here in Atlanta, Georgia we convinced a federal judge to impose probation as a sentence for a client in a white collar fraud case, but we now are fighting against an appeal by the government. This is happening more and more, judges ruling that sentences are just too long for some minimally involved white collar defendants, and the government appealing because they are unhappy with the sentence. Fortunately for our client, we do a lot of appeals in federal court and are comfortable in helping defend the proper sentence.
This whole issue started with the unfortunate 1984 passage of the Federal Sentencing Guidelines, a set of complicated rules that generally call for harsher sentences. The Guidelines were mandatory, and many judges felt as if they were being forced to hand down unfair sentences. Myself and many other criminal defense attorneys fought against these rules for many years, culminating in a decision from the U.S. Supreme Court which held that the Guidelines are unconstitutional, but can nevertheless be used in an “advisory” fashion. After this ruling, many judges started imposing shorter sentences.
In white collar fraud cases, some judges simply do not see the need to incarcerate a defendant who made no money, whose entire life has been turned upside down, and who already has been forced to shell out a small fortune in order to hire an attorney who knows his way around the dangers facing a criminal defendant in federal court. Earlier this year, we convinced a judge to impose a sentence of 6 months home confinement and several years of probation on just such a client.
The government was very unhappy with the decision from this respected judge, and appealed the case to the United States Court of Appeals for the Eleventh Circuit. We did a lot of research, and discovered that many other clients such as ours received similarly reduced sentences, because it was the fair thing to do. We called these other cases to the attention of the court of appeals in our brief, which can be found on the PACER system for electronic filing in federal court.
I will continue to write about appeals in white collar fraud cases in other posts. There is another major case before the U.S. Supreme Court which likely will be decided in late 2007 or early 2008, which could have an impact on these situations.