How Change in Federal Sentencing Guidelines Impacts White Collar Fraud Cases

Synopsis

This program explores various issues involving sentencing in white-collar fraud cases. The federal Sentencing Guidelines focus primarily on the amount of loss in fraud cases, and often call for the imposition of decades-long sentences, even life sentences. The presenters of this course explain the function of the Guidelines, focusing on how changes in the Guidelines and related developments over the past several decades have affected the sentencing in large fraud cases. They also take a look at the case law permitting judges to impose sentences that vary from the Sentencing Guidelines, and look at cases in which judges have abandoned the Guidelines in order to base sentencing on the defendant's individual history and characteristics rather than the amount of financial loss.

The panel goes on to address some thought-provoking questions such as: Should defendants who commit high-dollar fraud go to jail for life? Are some judges going too easy on those committing fraud? Should society rely on standardized sentences in fraud cases, or should we rely on prosecutorial discretion, judicial discretion, and the appellate process to produce just results? Finally, do lengthy prison sentences deter white-collar fraud, and what amount of deterrence best serves the public interest?



Outline
I. Effect of Federal Sentencing on White Collar Crimes
    A. Introductions
    B. Historical Perspective of Federal Sentencing Guidelines
    C. How the Guidelines Function
    D. Case Law Effect
    E. The "Trend" of Sentencing
    F. A DOJ Perspective Regarding the Guidelines
    G. A Defense Attorney's Perspective Regarding the Guidelines 
        1. The Changes in the Guidelines
        2. Are the Sentencing Guidelines Reasonable?
    H. Judge's Perspective Regarding the Guidelines
        1. Severity of the Guidelines
        2. Don't Expect an Exact Science
    I. Non-Conformity of Guideline Use
        1. Main Problem
        2. Empirical Evidence
    J. Sentencing after Booker
        
1. Defense Attorney View
        2. Department of Justice View
        3. Judge's View
    K. Do Certain Offences Warrant a Life Sentence?
    L. Shift of Power to the Prosecutor
    M. More Likely to Go to Trial?
    N. What Happens to Sentencing if the Guidelines Disappear?
    O. Effect on Prison Population
    P. Individualized Sentencing: Is it the Right Answer?
    Q. How Do You Institute a Policy of Retribution?
    R. What Happens to the Money?
    S. How Can Lawyers Be Helpful in Sentencing?


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The Association of the Bar of the City of New York

The years following the Civil War were tumultuous ones for New York City, offering many opportunities to the dishonest. Unsavory politicians and errant members of the bench and bar were among those who took advantage of those troubled times. In December 1869, a letter was circulated among some of the city’s lawyers addressing those improprieties. It called for the creation of a new bar association to “sustain the profession in its proper position in the community, and thereby enable it ... to promote the interests of the public ....” More than 200 lawyers responded by signing a declaration of organization and in 1870 The Association of the Bar of the City of New York was born. The young organization quickly made its presence felt. Among its first activities was a campaign to defeat corrupt politicians and judges at the polls and to establish standards of conduct for those in the legal profession.

The association continues to work at political, legal and social reform, and maintaining high ethical standards for the legal profession. The association also continues to implement innovative means by which the disadvantaged may be helped. Much of this work is accomplished through the Association's more than 160 committees, each charged to consider a specific area of law or the profession.

The association has grown to more than 23,000 members. To serve them, the association strives to move ahead in many areas. The library is the largest member-funded law library in the country, and provides members with a “gateway” to online services, including free use of LexisNexis and WestLaw, while continuing to provide more traditional library services. The Small Law Firm Center, Career Management Program and other benefits are constantly evolving to serve members’ needs. More than 150 continuing legal education programs are presented annually.

The public good remains one of the association’s highest priorities. The Legal Referral Service, jointly sponsored by the association and the New York County Lawyers’ Association, provides an array of services directly aimed at serving the needs of the public. The City Bar Justice Center identifies the most pressing legal concerns of New York’s neediest and uses novel approaches to address them, often involving community participation.





Speakers / Authors:

Photo of Mark F. Pomerantz

Mark F. Pomerantz
Paul, Weiss, Rifkind, Wharton & Garrison LLP 

Mark F. Pomerantz is a partner in the Litigation Department of Paul, Weiss, Rifkind, Wharton & Garrison LLP and is a nationally known trial lawyer and senior litigator. He has extensive public and private experience in white-collar criminal and regulatory matters. He has counseled CEOs in proceedings brought by the Justice Department and the SEC, and has represented prominent corporations and individuals with regard to many sensitive and high-profile matters.

Mr. Pomerantz has represented some of the largest companies in the United States in investigations undertaken by the U.S. Department of Justice and various state and local prosecutors. He has tried cases on behalf of commercial clients and individuals before juries and arbitration panels, and also has substantial appellate experience, arguing dozens of appeals before appellate courts throughout the country.

Additionally, Mr. Pomerantz has a great deal of experience in matters involving the financial services industry, and has handled major matters and internal investigations involving all aspects of alleged corporate misconduct, including securities and bank fraud, mail and wire fraud, RICO and FCPA violations, tax offenses and bribery. In recent years, he has represented clients in matters involving equity research analysts, structured finance, the allocation of initial public offering shares, reform of the mutual fund industry and other leading issues relating to securities law enforcement by federal and state authorities.

Mr. Pomerantz has written about and is a frequent speaker on all aspects of federal criminal practice. He has taught advanced criminal procedure at Harvard Law School and federal criminal litigation, appellate advocacy and contracts at Columbia Law School. He also guest lectures at Stanford Law School.

Mr. Pomerantz is a member of the American Bar Association, the Association of the Bar of the City of New York, a former board member of the New York Council of Defense Lawyers, and a fellow of the American College of Trial Lawyers. From 2005-2011, Mr. Pomerantz was selected as one of the leading White-Collar Crime lawyers in the United States by Chambers’ Guide to America’s Leading Business Lawyers. He has been ranked by Chambers as a Star Performer since 2007 and was described in the 2011 edition as an “attorney renowned as a preeminent white-collar criminal and regulatory trial lawyer.” He is the recipient of the Chambers USA 2008 Award for Excellence in White-Collar Crime and Government Investigations, and the 2009 recipient of the Norman S. Ostrow Award from the New York Council of Defense Lawyers. Mr. Pomerantz is also listed as a leading lawyer in white-collar criminal defense in Legal 500 and was recently chosen by his peers for The Best Lawyers in America for bet-the-company and commercial litigation, criminal law: white collar defense and corporate governance and compliance law.

Mr. Pomerantz served as editor in chief of the Michigan Law Review and was elected to the Order of the Coif. He was a federal prosecutor in the U.S. Attorney’s Office for the Southern District of New York, and headed the Criminal Division in that office during 1997-1999.

Mr. Pomerantz is admitted to practice in New York and before the U.S. District Court, Southern Districts of New York, the Second, Third, Fourth and Eleventh Circuit U.S. Courts of Appeals, and the U.S. Supreme Court. He received his J.D., magna cum laude, from the University of Michigan Law School in 1975, and his B.A. from Harvard College in 1972.

Photo of Greg Andres

Greg Andres
U.S. Department of Justice

Greg Andres has served as a Deputy Assistant Attorney General in the Criminal Division at the Department of Justice since early 2010. In that capacity, he supervises the Fraud Section, the Appellate Section, the Capital Case Unit and the Organized Crime and Racketeering Section. He joined the Division on detail from the United States Attorney's Office for the Eastern District of New York, where he has been as an Assistant United States Attorney (AUSA) since 1999 and where he served in a variety of supervisory positions including Chief of the Criminal Division. Mr. Andres has been involved in several high profile prosecutions involving organized crime, terrorism and securities fraud, among other offenses. He recently served as the lead prosecutor in United States v. Eric Butler, among the most significant federal prosecutions resulting from the collapse of the subprime and auction rates securities markets. 

Mr. Andres is the recipient of three Director's Awards from the Department of Justice (2003, 2005 and 2010), and the Attorney General's Award for Distinguished Service (2008). In 2005, he was awarded the Henry L. Stimson Medal by New York County Bar Association and named in the National Law Journal's "40 Under 40" as one of the top 40 attorneys in the United States under the age of 40. 

Mr. Andres graduated from the University of Notre Dame in 1989 and the University of Chicago Law School in 1995, where he was a member of the University of Chicago Law Review. He has clerked for two federal judges: Honorable Judge Morton A. Brody on the United States District Court for the District of Maine and later for the Honorable Robert R. Beezer on the United States Court of Appeals for the Ninth Circuit. From 1997 to 1999, Mr. Andres served as a litigation associate at the law firm of Davis Polk & Wardwell. Prior to law school, Mr. Andres served as a Peace Corps Volunteer in Benin, West Africa.

Photo of Barry H. Berke

Bary H. Berke
Kramer Levin Naftalis & Frankel LLP

Barry H. Berke is a partner in the firm of Kramer Levin Naftalis & Frankel LLP and co-chair of the firm's White Collar Defense and SEC Regulatory practice. Mr. Berke has represented individuals and corporations in many sensitive and high-profile investigations and proceedings, and has tried dozens of cases before juries and judges. He has handled major matters involving all aspects of white collar crime, including allegations of securities, accounting and bank fraud, RICO and FCPA violations, tax offenses, bribery, bid-rigging, and embezzlement. Mr. Berke also has represented prominent corporations and individuals in class action and other complex litigation.

Mr. Berke is a fellow of the American College of Trial Lawyers. He was selected in 2010 as one of the “Top 10 Lawyers in New York” by Super Lawyers, and was chosen as one of the “Top 100” by Super Lawyers from 2008-2011. The National Law Journal profiled Mr. Berke as part of a special report on five winning trial attorneys for 2011. He was named to Law360's 2011 MVP list, one of only four named nationally in the area of white collar. He has been recognized by Best Lawyers in America from 2007 to 2012, Chambers USA (2008-2011), Legal 500 U.S. (2009-2011) and Lawdragon 3000 (2011) as one of the leading white-collar criminal defense lawyers and commercial litigators in the United States. Legal 500 in 2011 cited Mr. Berke as “one of the most high-profile and sought after white-collar attorneys in New York.” Benchmark Litigation (2009-2012) has consistently named him a litigation star, citing him “for his white collar and securities achievements” and as “the go-to guy for white collar trial work.” Chambers USA in 2010 designated Mr. Berke as a leading trial lawyer and described him as "a savvy trial lawyer with a terrific track record" and “a tenacious advocate and formidable adversary." In 2007 he was profiled in The American Lawyer's "Young Litigators Fab Fifty" as one of the 50 leading litigation attorneys in the United States under the age of 45.

Mr. Berke is co-author of the textbook The Practice of Federal Criminal Law: Prosecution and Defense, published in January 2006 by Thomson/West as part of its American Casebook Series. Mr. Berke has taught courses on criminal law and professional responsibility at New York University School of Law, and lectures frequently on criminal justice issues in a variety of forums. Additionally, he is chairman of the board of directors of the Coalition for the Homeless and a member of the board of directors of the Federal Defenders of New York, Inc. Mr. Berke is also a member of the firm’s governing executive committee.

Prior to joining Kramer Levin, Mr. Berke was a trial lawyer with the Federal Defenders' Office for the Southern District of New York for four years. During that time, he defended individuals accused of a wide range of federal offenses, serving as lead counsel in numerous jury trials and achieving favorable verdicts in a large majority of those cases.

Mr. Berke is admitted to practice in New York and before the U.S. District Court, Eastern and Southern Districts of New York, and the Second Circuit U.S. Court of Appeals. He received his J.D., cum laude, from Harvard Law School in 1989, and his B.A., summa cum laude, Phi Beta Kappa, from Duke University in 1986.

Photo of Judge John Gleeson

Judge John Gleeson
U.S. District Judge Eastern District of NY

Judge Gleeson was appointed as a United States District Judge on September 28,1994, and sits in the Eastern District courthouse on Cadman Plaza in Brooklyn Heights.

After law school, Judge Gleeson served as a law clerk for the Hon. Boyce F. Martin, Jr., United States Circuit Judge in the Sixth Circuit, in Louisville, Kentucky. From 1981 to 1985, he was a litigation associate at Cravath, Swaine & Moore in New York City. Judge Gleeson was an Assistant United States Attorney in the Eastern District of New York from 1985 to 1994. He served as Chief of Appeals, Chief of Special Prosecutions, Chief of Organized Crime, and Chief of the Criminal Division, the position he occupied when he was appointed to the bench.

In 1992, Judge Gleeson was awarded the Attorney General’s Distinguished Service Award for his work as lead prosecutor in the case United States v. John Gotti, et al. Judge Gleeson is an author of the treatise "Federal Criminal Practice: A Second Circuit Handbook," LexisNexis (11th Edition 2011) (with Gordon Mehler and David C. James), and of the following articles: “The Sentencing Commission and Prosecutorial Discretion: The Role of Courts in Policing Sentence Bargains,” 36 Hofstra Law Review 639 (2008); “Supervising Federal Capital Punishment: Why The Attorney General Should Defer When U.S. Attorneys Recommend Against The Death Penalty,” 89 Virginia Law Review 1697 (2003); “Supervising Criminal Investigations: The Proper Scope of the Supervisory Power of Federal Judges,” 5 Journal of Law and Social Policy 423 (1997); “Sentence Bargaining Under the Guidelines,” 8 Federal Sentencing Reporter 6 (1996); and “The Federalization of Organized Crime: The Advantages of Federal Prosecution,” 46 Hastings Law Journal 1095 (1995) (with John C. Jeffries, Jr.).

Judge Gleeson is an Adjunct Professor of Law at New York University School of Law, where he teaches courses in Complex Federal Investigations and Sentencing. He has also taught at Brooklyn Law School. In the spring of 1994, Judge Gleeson served as the John A. Ewald, Jr., Distinguished Visiting Professor of Law at the University of Virginia School of Law. From 1999 to 2008, Judge Gleeson was a member of the Defender Services Committee of the Judicial Conference of the United States, and he served as Chair of the Committee from 2005 to 2008.

Judge John Gleeson received his undergraduate degree from Georgetown University and received his law degree in 1980 from the University of Virginia School of Law.

Photo of Daniel C. Richman

Daniel C. Richman
Columbia Law School

Daniel C. Richman is the Paul J. Kellner Professor of Law at Columbia Law School, where he teaches Federal Criminal Law, Criminal Procedure, Evidence, and a Sentencing Seminar with Judge Richard Sullivan. His writing focuses on federal criminal law issues. He was a professor at Fordham Law School from 1992 until 2007. Between 1987 and 1992, Mr. Richman was an AUSA in the U.S. Attorney’s Office for the Southern District of New York, where he ended up as Chief Appellate Attorney. He was a law clerk to Chief Judge Wilfred Feinberg, Second Circuit Court of Appeals (1984-85), and Supreme Court Justice Thurgood Marshall (1985-86).

Other professional activities include Consultant, Department of Justice, Office of the Inspector General, 1997-2000; Independent Expert under the National Basketball Association/ National Basketball Players Association Anti-Drug Program, 2000-present; Peer Reviewer, National Institute of Justice, U.S. Department of Justice, 2000-present; Chairman, Local Conditional Release Commission for the City of New York, 10/2004- 9/2005 (appointed by Mayor Michael Bloomberg); and Member, Homeland Security Policy Advisory Committee, Governor-Elect Eliot Spitzer, 2006.

He received his J.D. from Yale University in 1984 where he was Editor of the Yale Law Journal, and received his A.B., Phi Betta Kappa, from Harvard in 1980.

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Details

Course Code : 773125

Release Date: 5/15/2012 12:00:00 AM
Recorded Date: 11/17/2011
Length: 2hr 12min
Format Type: Video

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