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 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, 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 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

Like the German Judge Lothar Kreyssig, a Czech lawyer by the name of Dr. Egon Schwelb was a hero too

Judge Frank E. Schwelb of the D.C. Court of Appeals (the equivalent of the Supreme Court of the District of Columbia) recently passed away. Advocates like Elaine Mittleman who argued cases before Judge Schwelb say that he was “wicked smart . . . with a wry sense of humor.” Elaine also noted that “When I thought again of him, I saw some similarities with . . . Chief Judge Kozinski.” Judge Schwelb was a Czech by birth*, and Judge Kozinski is a Romanian by birth. Brilliant, brilliant men.

We should mourn the passing of this interesting man who came to this country (and Yale and Harvard) as a young child chased out of his homeland with his parents by the Nazis. His is a story of how immigrants have enriched, and continue to enrich, our society and the legal profession in particular. Rest easily Judge Schwelb. See his Washington Post obituary here.

While I am sure that his father was proud of Judge Schwelb, that pride was reciprocated by the son for his father. And, it is that story–the story of Dr. Egon Schwelb–that I wish to highlight today. Sometime around 2006, Judge Schwelb gave a fascinating account of his father to the Czechoslovak Government in Exile Research Society. See here.

Told in the Judge’s own words, here is the story of Dr. Egon Schwelb:

• My father, Dr. Egon Schwelb, was a prominent Social Democratic attorney who handled a lot of what might now be termed civil liberties cases, and who represented, among other clients, anti-Nazi German refugees who fled to Prague after Hitler and the Nazis came to power in Germany. On March 15, 1939, German troops goose-stepped into Prague — I still have some slight memory of that — and on the following day my dad was taken into custody and held at the Pankrac prison.
• In May, 1939, my father was released, though I have never been able to find out exactly why. My parents were able to obtain British visas and an exit permit, and on August 12, 1939, we travelled by train from Prague through Nazi Germany to Holland. I know that my parents were afraid that we might be taken off the train before we crossed the Dutch border, for events were not very predictable at that time, but cross we did. We travelled in a Dutch ship from the Hook of Holland to Harwich, arriving in Britain on August 13, 1939. The war, as you know, began on September 1, when the Nazis invaded Poland, so we made it by less that three weeks. Those members of our family who did not manage to leave the country, including my mother’s younger sister, perished in the Holocaust. My parents were both of Jewish origin, though not practicing Jews.
• We spent the first few weeks of our stay in Britain in refugee hostels in Surrey. In late 1939 or early 1940, my parents obtained a flat in Mill Hill, in the northwestern part of London. We were in London during the Blitz, and I collected shrapnel splinters after air raids. Eventually, President Benes named my father to the Legal Council (Pravni Rada) of the government-in-exile. My dad served in that capacity until the end of the war. During his service as a legal adviser to the Benes government, my father sensed that postwar Czechoslovakia would not be a democratic country for very long, and (much to my dismay at the time) my parents decided not to go back.
• After serving in the United Nations War Crimes Commission from 1945 to 1947, my father was named Deputy Director of the Human Rights Division of the U.N. in 1947.
• Our family came to the United States in 1947, and lived here ever since. My dad had a very distinguished career and earned the nickname Mr. Human Rights. In 1979, shortly after his death, he posthumously received the Dag Hammarskjold Award for his contributions to peace and human rights. He died just a few months before I was named by President Carter to my first judgeship.

Like the German Judge Lothar Kreyssig, the Czech lawyer, Dr. Egon Schwelb, was a hero too. Our profession should be proud to count these men among us. We can only hope to emulate them in some small measure. But try we must.

RGK

*In the “small world department,” my son-in-law Karel holds dual Czech and Canadian citizenship and speaks Czech fluently. With daughter Lisa and their children, Karel teaches in China. Keller’s wife Stacey, residing with Keller and Fletcher in Australia, is also of Czech origin. Her maiden name is the same as Karel’s last name. My late wife and I lived in Wilbur, Nebraska when I attended law school. Wilbur is the “Czech Capital” of Nebraska. We lived in that small community so that my late wife could teach high school French to the Czech kids. By the way, if you have not tasted Kolach, a Czech pastry, you have missed one of the essential joys of life.

Judicial misconduct complaints

Thanks to How Appealing (at 7:48 p.m.), I commend to your attention Gripes About Federal Bench: Banal to Bizarre, Peek into 11th Circuit misconduct file shows many complaints, no discipline. I ask you to read the article, and tell me what you think.

Here are my initial thoughts:

1.  The fact of “no discipline” from 2006 to the present does not surprise me in the least. With very few exceptions, judicial misconduct complaints are facially frivolous (the judge is controlled “by the devil,” the judge must have taken a bribe, the judge ignored the fact that “I am a sovereign citizen”) or is a gussyed up misconduct complaint which is in reality an effort to relitigate a case that the complaining party lost.* The recent cases of Judge Cebull or Judge Martin are very much the exception.**

2.   The Courts of Appeals should post all final orders on their web sites so it is easy for the press and the public to see them.

But, as I indicated, I am interested in your opinions. I am particularly interested in hearing from federal practitioners. What say you?

RGK

*The Administrative Office of the United States Courts has helpfully posted the rules for each Court of Appeals and related information entitled JUDICIAL CONDUCT & DISABILITY ACT: RESOURCES.

**For more on the sad but pending case of Judge Fuller (the hyperlink is to my earlier blog post), see here and here. Again, a hat tip to How Appealing (at 5:02 p.m.).

Lothar Kreyssig

In my post Thinking like a federal trial judge I asserted: “You will think like a real federal trial judge if you understand that: (1) there is no justice or injustice; (2) there is only the law, and that is more than enough.”* A reader commented in response: “Sounds like a recipe for getting executed after a Nuremberg Trial.” I responded that “Denying that the job of a trial judge is to do justice does not mean that the judge lacks moral sensibilities.” I cited as an example Lothar Kreyssig. In this post, I briefly elaborate on Judge Kreyssig and his commitment to the rule of law during Hitler’s reign in Germany.

In October, 1939, the Third Reich created what came to be known as the “Action T4” program. In furtherance of what the Nazis called “racial hygiene,” Reich bureaucrats, working with doctors, were authorized to identify and kill those deemed to be “unworthy of life,” that is, institutionalized patients with “severe disabilities.” Hitler called for at least 70,000 people to be killed under this program, so doctors and officials set about meeting the Fuhrer’s quotas. Fearing domestic and international reaction, the Nazis tried to hide what was going on: they lied to patients’ families and, fore-shadowing Auschwitz, they disguised the gas chambers as showers.

Dr. Lothar Kreyssig, was a judge at the Court of Guardianship in the town of Brandenburg, on the Havel River. Since his appointment in 1928, Kreyssig’s superiors considered him to be a good judge–until he began a series of minor insubordinations such as slipping out of a ceremony in his court when a bust of Hitler was unveiled and publicly protesting the suspension of three judges who failed to follow the interpretation of “Aryan laws” favored by Nazi authorities. In 1933, Kreyssig was pressured to join the Nazi party, but refused.

Hitler, and his functionaries, had decreed that the Führer was the font of law. That is, whatever Hitler said became the law. Kreyssig was having none of it. That was definitely not the rule of law.

After an increase in the number of death certificates of his wards began to accumulate on his desk, Kreyssig came to suspect that the deaths were connected to the “mercy killing” that had begun. He reported his suspicions in a letter to Minister of Justice Franz Gürtner, dated July 8, 1940. He pilloried the Nazi’s T4 euthanasia program. He also addressed the disenfranchisement of prisoners in concentration camps, making all his arguments on German legal principles. He wrote:

What is right is what benefits the people. In the name of this frightful doctrine — as yet, uncontradicted by any guardian of rights in Germany — entire sectors of communal living are excluded from [having] rights, for example, all the concentration camps, and now, all hospitals and sanatoriums.

Kreyssig then filed a charge against Reichsleiter Philipp Bouhler for murder. He filed an injunction against the institutions in which he had housed his wards, prohibiting them from transferring the wards without his consent.

On November 13, 1940, Kreyssig was summoned by Gürtner, who laid before Kreyssig Hitler’s personal letter that had started the euthanasia program and which constituted the sole legal basis for it. Kreyssig replied, “The Führer’s word does not create a right,” clearly signifying that German law did not authorize Hitler to kill his fellow Germans. (Emphasis added.) Gürtner then told Kreyssig, “If you cannot recognise the will of the Führer as a source of law, then you cannot remain a judge.” In December 1940, Kreyssig was suspended. Efforts by the Gestapo to send him to a concentration camp failed probably because of the fear that the T4 program would be revealed. Two years later, in March 1942, Hitler forced Kreyssig to retire.

Kreyssig returned to his farm and lived there until the end of the war. Unknown to the Nazis, Kreyssig hid two Jewish women on his property till the end of the war.  

In his book, Hitler’s Justice: The Courts of the Third Reich, Ingo Muller writes of the courageous judge of Brandenburg: “No matter how hard one searches for stout-hearted men among the judges of the Third Reich, for judges who refused to serve the regime from the bench, there remains a grand total of one: Dr. Lothar Kreyssig.”**

After the war,  Kreyssig founded Action Reconciliation Service for Peace. In 1958, he said that young Germans should go to former enemy countries and to Israel to ask for forgiveness and by volunteering to do good deeds to atone for the crimes of World War II. As a result, thousands of Germans have volunteered in numerous countries through the organization that Judge Kreyssig founded. This brave man died on July 6, 1986.

In summary, while I continue to believe that doing “justice” is far beyond the abilities of even the smartest federal trial judge, I also believe that the rule of law in the hands of intellectually honest judges is sufficient to combat barbarity. Judge Lothar Kreyssig is a good example.

RGK

*If you want to understand the meaning of “justice,” I suggest you start with Otto A. Bird, The Idea of Justice, Concepts in Western Thought, Institute for Philosophical Research, Frederick A Praeger Publishers (1966). In that wonderful book, Professor Bird surveys and categorizes the various concepts of “justice.” For me: “Justice is a wider notion than that of law, inasmuch as questions of justice arise independent of questions of law.” Id. at 156.

**For information on the Nuremberg trial of German judges, and Lothar Kreyssig, the University of Missouri at Kansas City law school has a wonderful online collection. See here.

The fun of flying

I have previously written about what a pain in the butt it is to travel by air. Flying back from Hong Kong, the poor woman I observed going through customs in Chicago only to be pulled out of the line because the TSA beagle sniffed out a banana in her purse is a good example. After a snarky lecture about bringing fruit into the US of A (incidentally United Airlines offered everyone a banana on the flight to the States), and the seizure of the offending banana, the beagle and her handler, resplendent in her military outfit, strolled away with her sidearm at her hip stoney-faced but triumphant.

Guess what, that sort of nonsense is not limited to Amerika. Our son, Keller, recently visited his sister in New Mexico. She bought Keller’s little boy, Fletcher, a cowboy outfit with a toy gun and a holster. Keller dutifully packed the outfit in his checked bag, and flew off to Australia. Arriving in Sydney yesterday on his Australian passport, he was pulled out of line and questioned extensively as to why he had gun in his baggage. When he calmly explained that it was a toy as clearly shown on the x-ray machine by the orange stopper in the barrel, he offered to open his bag and show the screener.  Oh, no. This called for questioning and a search by the Australian Federal Police.

After the search was over, and the offending toy seized, Keller was informed never to do that again. While he was not fined or arrested, and was treated pleasantly, he was firmly informed that a record of his offense (having a toy gun in his baggage) would be made. If he ever did that again the Aussies would come down hard. When pressed to explain where it says that you can’t bring your Australian kid a toy pistol from the US, no explanation was forthcoming. Just don’t do that again, he was told.

So, Keller is apparently on a “no fly” list, sorta. He can keep himself off the list so long as he does not shop at Toys R Us. At least he was not accosted by a Beagle with an attitude.

RGK

 

 

Would you want to try a case to a jury before this federal trial judge?

The Washington Post has a detailed but generally flattering article on Senior U.S. District Judge James R. Spencer. The judge is presiding over the corruption trial of former Virginia governor Robert F. McDonnell and his wife, Maureen.

The piece in the post is entitled, McDonnell judge presides with humor and impatience. I urge you to read the article. Afterwards, let me know whether you would want to try a case to jury before Judge Spencer. I am interested in knowing whether trial judges who preside with an edge or a flair in jury cases scare trial lawyers.

RGK