Kopf: Footnote 239

As I told SHG sometime back, there is nothing sadder than an old judge trying desperately to remain relevant.

I come out of retirement, briefly, not endeavoring to remain relevant, but rather to complain about the use and characterization of one my past posts by the NACDL in its breathless report entitled, The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How To Save It (Summer 2018).[i] I have no earthly understanding of why the NACDL ended with a footnote to one of my posts from Hercules and the umpire.

As I have written before on Simple Justice, I am not much concerned with the “vanishing federal criminal jury.” See Richard G. Kopf, Kopf: A Contrarian’s View of the Vanishing Federal Criminal Jury Trial (December 27, 2017). Indeed, I sometimes joke that jury trials are unconstitutional because no sane person would randomly select from the great unwashed 12 stiffs to make a decision that can significantly impact both the public and the defendant. Besides, criminal jury trials are almost always a waste of time. With few exceptions, federal criminal jury trials are the equivalent of one long guilty plea where the defendant has rightly calculated that he or she has nothing to lose and is hoping to win the lottery. 

In a closely related vein, I am also not much concerned with the obsession of the NACDL about the so-called “trial penalty.”  As a normative matter, it makes perfect sense that people who fail to acknowledge their guilt should be treated more harshly than people who admit guilt. The question, of course, is how much harsher? The NACDL thinks “trial penalties” are too harsh and that they are applied unequally. OK, fine, the NACDL is entitled to its point of view. I’m OK with the status quo ‘cause most federal judges I know and respect are sensitive to the issues raised by the NACDL. Frankly, I am too bored with the subject to engage with the report writ large. I’ve heard and thought about that stuff before. It is old news.[ii]

But I want to bitch. That’s what old men do.

The last footnote in the report, footnote 239, cites to something I wrote.[iii]  I will first provide you with the context and then the footnote.

The Trial Penalty ends with what one expects from the closing argument of a certain segment of the criminal defense bar–that is, a rather badly reasoned appeal to emotion that does not meaningfully grapple with bad facts. Our subject this time is poor Christian Allmendinger. (My last name sucks too!)

Chris (I trust I am not being too familiar) and his partner Brent Oncale bilked people out of more than $50 million. Oncale cooperated and testified, and got 10 years later, reduced to 5 for cooperation. Allmendinger rolled the dice. He got hit with 45 years in prison.[iv]

And so, the NACDL writes, using Chris’s sad story very much as a conclusion, “locating a sentence ‘sufficient, but not greater than necessary’ can easily turn into an arbitrary task.239 In many cases, the excessive pull of the Guidelines prevents judges from meaningfully exercising their discretion under 3553(a).” The Trial Penalty, at p. 56.

Here is how footnote 239 is written:

It is possible[v] that judges find the 3553(a) factors complicated or even contradictory and so they opt to rely on the Guidelines range that has been calculated according to a defined and familiar formula. See “It’s Time To Rethink Or Junk Entirely 18 U.S.C. § 3553(a),” HERCULES AND THE UMPIRE, Blog by Judge Richard George Kopf, District of Nebraska (entry posted July 27, 2014) (expressing frustration that the 3553(a) factors “provide no meaningful guidance to the sentencing judge”), available at https://herculesandtheumpire.com/2014/07/.[vi]

Id. at 78.

Why my Herc post is cited is beyond me. It does not support the conclusion for which it is cited. It is almost as if the writer needed a filler and threw a dart at the internet to find one. Let me be more specific.

Yes, sentencing can “easily turn into an arbitrary task,” but it has little to do with “trial penalties” or the “excessive pull of the Guidelines.” I do not find the 3553(a) “factors too complicated.” I am certainly dull, but I am not quite a moron.

Let me be plain: Section 3553(a) is even more nuts than the results of a Rorschach test interpreted by a chiropractor with meth mouth. It compiles all the various goals of sentencing that scholars have worked so hard to develop as separate and distinct principle-based theories, throws them into a statute, and tells us to act like Goldilocks, “Ahhh, this porridge is just right.”[vii] The task is not “too complicated,” it is impossible.[viii] The NACDL blames the Guidelines when it is the statute that Congress passed that is the villain. The NACDL blames judges for failing to use their discretion while forgetting that one can only exercise informed discretion when the sought-after result of the exercise is evident to the decision maker.

If Congress wants me to engage in common-law judging, fine, then junk section 3553(a) completely. Yet, like Dr. David Banner, the NACDL wouldn’t like me when I’m angry.

If Congress wants retribution, merely tell me and, Sweet Baby Jesus, I will wield the guillotine.

If Congress wants me to concentrate on the offender’s life story, the probation officer and I can pretend to be social workers and do so with happy face emojis. (Although, to be frank [rather than jane], it is true that we would probably never really care.)

If Congress wants rehabilitation, then tell me and I will order RDAP and all the educational opportunities and vocational training that our massive federal deficit spending can supply.

If Congress wants incapacitation, tell me and life sentences will reign down upon those who are unspeakably vile even though the cause for their behavior is found in their genetics, the poverty in which they have been raised, the mental illnesses they suffer, or the sociopathic nature that propels them to prey upon the weak.[ix]

Rejecting the taunt hurled by José and his wife[x], I am not afraid to judge. I just want to know what the hell I am supposed to be judging. Applying section 3553(a) and the vaunted discretion of federal district judges, tell me, for example, how to sentence a very good man who has done a very bad thing? I dare you!

Now it is true that I rely upon the Guidelines and fairly heavily so. This is not because they are “calculated according to a defined and familiar formula”—the NACDL’s polite way of suggesting that judges like me lack a Yale education or are just plain lazy or cowardly. No, I rely upon the Guidelines for precisely the same reasons that the NACDL worries about “trial penalties” being unequally applied.

I rely upon the Guidelines because they slightly help to diminish, but certainly not entirely avoid, unwarranted sentencing disparity both between people in the same case and otherwise. Setting to one side the need to avoid sentencing disparity, the remainder of the section 3553(a) factors–because they are mixed together like the lunch ladies’ cafeteria offerings–amount to little more than free-floating anti-anxiety nostrums to be applied by woke judges as needed.

So, in summary, I have one piece of advice for the smart person who wrote and inserted footnote 239 into The Trial Penalty. In the future, fucking focus.

Richard G. Kopf
Senior United States District Judge (Nebraska)

[i] The Trial Penalty mixes apples and oranges. It writes about both federal and state law. The two are obviously not interchangeable, but the report confusingly conflates the two.

[ii] In fact, I agree with some, but certainly not all, of the recommendations set forth in The Trial Penalty (at pp. 59-60). For example, I would not impose an obstruction enhancement merely because a defendant testified but was found guilty.

[iii] SHG tipped me off to the report and the footnote. Coincidentally, Jeff Kay, a now retired AUSA who served as Chief of the Economic Crimes Unit in SDFL, sent me a link to the report on the same day. Great minds and all. Since I was napping, I probably would have missed it. 

[iv] Not noted in the NACDL report was the opinion by Chief Judge Traxler that affirmed the sentence and found the differences in sentences as between Allmendinger, Oncale and one other to be warranted. United States v. Alemendinger, 706 F. 3d 330 (4th Cir. 2013). In that opinion, the Court addressed the difference between Allmendinger and others:

Counsel maintained that Allmendinger and Oncale were similarly situated and should receive similar sentences, and counsel reiterated his argument that the loss found by the court was much larger than Allmendinger could reasonably have foreseen.

In response, the government argued that Allmendinger and Oncale actually were not similarly situated, contrasting Oncale’s prompt cooperation after he was approached by investigators with Allmendinger’s continued evasion and attempts to hide and spend his money, and his possible intention to flee. The government stressed that Allmendinger’s crimes had far-reaching impact, had “destroyed countless lives,” and thus warranted a very severe sentence in order to deter those who would consider committing similar crimes. J.A. 2403. The government also noted that Mackert, who was not an architect of the fraud and who ended up with only $250,000 from his participation in the scheme, was sentenced to almost 16 years.

. . .

Here, the district court heard extensive argument from Allmendinger and the government concerning the extent to which Allmendinger was similarly situated to his co-conspirator Oncale. The district court’s lengthy explanation for the sentence imposed left no doubt regarding the court’s reasons for selecting the particular sentence that it did. Indeed, the court specifically noted that it was considering unwarranted disparities both among defendants in general and among co-defendants within the case. We therefore conclude that the district court’s explanation satisfied the requisite standard.

Also not noted in the NACDL report, perhaps because the opinion may have come out after the report was released, Allmendinger’s section 2255 motion was successful. Appellate counsel on the direct appeal was found to be ineffective for failing to raise a “merger” argument that was nearly certain to result in reversal of the defendant’s money laundering convictions.  United States v. Allmendinger, No. 17-6447, 2018 WL 3117199, at *7 (4th Cir. June 26, 2018). So, Chris is almost certain to have his sentence reduced.

[v] It is also possible that monkeys will fly out of my butt when I summon them.

[vi] The more precise link is this one.

[vii] This is the “not more than necessary” pabulum found in section 3553(a) that is so laughably meaningless.

[viii] It is not only that some of the goals may be contradictory, but far more importantly, it is that the goals when mixed together become completely unmoored from their intellectual foundations.

[ix] See, e.g., United States v. Johnson, 69 F.3d 1092 (8th Cir. 1999) (affirming my imposition of a life sentence on the “gentle drug dealer” who, among other depraved activities, had his brother sodomize a young girl with motor oil to collect a drug debt.)

[x] This is an “inside baseball” reference for which I refuse to provide a citation.

23 comments on “Kopf: Footnote 239

    1. Richard Kopf

      Skink,

      Sorta like I miss Stormy Daniels pornos?

      Thanks, you one-eyed road kill eating nut job!

      You’re the best.

      RGK

  1. Patrick Maupin

    The trial penalty may not be problematic because of the extra sentence imposed on the guilty.

    But there may have been enough anecdotes of wrongly convicted innocent people to constitute data.

    A conviction of an innocent person is already on the wrong side of Blackstone’s ratio. Penalizing him further for not taking the prosecutor’s offer teaches that the best deal anybody can get will be from the prosecutor, turning the prosecutor into judge and jury, and the judge into executioner.

      1. Patrick Maupin

        There’s certainly an argument there, hence “may not be” instead of “is not.” But you’re right, no reason to gertrude to a judge who has heard it all before.

        BTW, 33 – 16 is, in fact, 17…

          1. Richard Kopf

            SHG,

            You’re just fuckin with me. I’m too old to learn a new captcha. The damn reply button is confusing enough. Shame on you.

            All the best.

            RGK

    1. Richard Kopf

      Patrick,

      Show me the data! The wrongful conviction anecdotes are just that–sob stories. Moreover, there is virtually no data that I am aware of that meaningfully correlates wrongful convictions with the demise of jury trials or trial penalties. Even more specifically, show me the data on wrongful convictions in the federal system.
      Forget the prosecutors, and concentrate on defendants: plea bargains are nasty but necessary for defendants. In this regard, watch SHG on CATO tomorrow. You’ll see!

      All the best.

      RGK

      1. SHG

        Empiricism rules!!! I just took a quick survey of post-conviction defendants at MCC, revealing that 97.2% were wrongfully convicted. Damn, I love stats.

        1. Richard Kopf

          SHG,

          I am shocked. I would have expected it to be 100%. I think your data collection method is flawed.

          All the best.

          RGK

      2. Patrick Maupin

        Assuming, your honor, that it really is just a sob story when the innocence project helps to get someone acquitted, then it may be acquits someone, then perhaps there is no real data.

        Your question about federal vs. state is pertinent; as you know, very few studies break that down. Statistics are problematic. You are a member of a small group (the federal judiciary), and a member of a larger group (judges in general). However, you are also an individual, so, difficult as it is to abstain, we should not tar you because of your association with either of these groups.

        Researchers have estimated that, for the larger group you are a member of, in death penalty cases, the false conviction rate may be about 4% and have noted that the propensity of juries to choose life instead of death when they are not completely sure may mean that the rate is much higher for non-capital cases.

        There has also been interesting psychological research (possibly bordering on the unethical, but how else could you get this data?) about plea bargaining from the defendant’s perspective.

        But my original argument was not so much that innocent people are sometimes coerced into plea bargaining, but rather that an innocent person who doesn’t succumb to the system and rightly maintains his innocence throughout the process will have the salt of additional time rubbed into the wounds of his wrongful conviction, simply because the judge and/or jury finds him unrepentant.

        It’s certainly plausible that, framed against the backdrop of all the other time lost to wrongful convictions, this aggregate trial penalty is noise, and any efforts at making sentencing better and more fair would be better focused elsewhere. But, of course, the trial penalty does provide a huge anecdotal sob story for the very real individuals caught by it. There are simultaneously enough of them so that it is easy to find data, and few enough of them so that the data is statistically meaningless. If Blackstone’s Ratio is itself the actual target, rather than being an aspirational statement, perhaps it is met.

        1. Richard Kopf

          Patrick,

          My use of the words “sob stories” was far too flippant. See, for example, Dean v. Searcey, No. 16-4059 (8th Cir., June 11, 2018) (the first sentence of the opinion begins this way: “This case is familiar to us, as it is to Nebraskans and much of the nation.”; affirming a jury verdict in a case I tried where the jury found that six people were wrongly convicted and served long prison sentences as a result; affirming the damage award of roughly $28.1).

          I apologize for being flippant. I am not insensitive to the concerns you raise.

          All the best.

          RGK

          1. Patrick Maupin

            There is no need to apologize for flippancy, a necessary tool for remaining as close as possible to the sane end of the spectrum when dealing with this crazy world. No, it is I who should apologize for not recognizing it. Thanks for your part in making it a little less crazy, and congrats on successfully appeal-proofing this case.

  2. losingtrader

    A couple of unrelated points:
    1)”tell me, for example, how to sentence a very good man who has done a very bad thing? I dare you!”
    I believe we’ve had this discussion before and you agreed to a max of 5 years if given the latitude. So, five years.

    2)”….had his brother sodomize a young girl with motor oil to collect a drug debt..”
    How could you give a life sentence? Did you fail to accept the argument that a lubricant was better than none? Or was it just used motor oil versus, say a clean synthetic? Seems to me the defendant showed he cared about the victim.

    3) As to the trial tax, and , knowing you and Joan as I do, how about a dog lovers’ discount?

    1. Richard Kopf

      losingtrader,

      1. Five years is enough for the offender, but often not enough for the public.
      2. As for the lubricant issue, you are one sick puppy. (Fitting right into your kennel.)
      3. Yes, I would discount the sentence for a dog lover. But, never for a feline-loving fellow such as SHG.

      If you are still in Munich, draw a straight line from the north tower of the Frauenkirche to the tower of the Heilig-Geist-Kirche and extend that line slightly more than 5000 kilometers, and you will end up in Mecca. You now have a new travel itinerary.

      All the best.

      RGK

    1. Richard Kopf

      Korey,

      “Goddamned defense lawyers.” My sentiments exactly you bald Goddamn defense lawyer, you!

      All the best.

      RGK

      PS For $35 million, Big Red must do better than “Go.”

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