It’s odd – most lawyers spend their entire careers fighting about money. Criminal defense lawyers – even white collar criminal defense lawyers – tend to focus much more on prison time or guilt and innocence. We’re a rare breed of lawyer; we’re lawyers who don’t fight about money (most of the time).
There are downsides to not normally focusing on money.
As the Wall Street Journal recently wrote, forfeitures are out of control. The government is taking money from people with minimal process and getting away with it. Apparently, the money that law enforcement collects goes back to law enforcement coffers. This seems not to reduce the abuses of forfeiture.
The Eleventh Circuit’s recent opinion in United States v. Singletary shows another problem with failing to focus on the money.
Patrick and Robert Singletary pled guilty to participating in a scheme to commit mortgage fraud with a number of unindicted co-conspirators.
At sentencing, their guidelines ranges were 51 to 63 months and 33 to 43 months. The judge imposed sentences of a year and a day*, and 18 months.
He also imposed restitution of $1 million, and a forfeiture order of $1 million.
The issue on appeal? The restitution amount.
In federal court, restitution is available to pay back people who lost money because of a crime. In Singletary, the court had a hearing to determine how much money people lost.
But the district court said, on the record, that it didn’t buy the government’s evidence. It just didn’t find the government’s witnesses credible. So, when the government said that the amount that was lost, which would drive the sentencing guidelines and the restitution amount, was more than $3 million, the district court said no.
Instead, the court held, $1 million seemed about right. Not because the court identified transactions that added up to a round $1 million. Rather, it seems that the sentencing court selected $1 million because it was a nice round number that was less than what the government wanted.
The court used the wrong loss number for both the sentencing guidelines and the amount of restitution. Yet only the restitution part was appealed.
Even though the judge used the wrong loss amount when determining the sentencing guidelines, no one really cared. The Singletaries already received sentences under the bottom of the guidelines.
The only thing that mattered – that arbitrary order to pay $1 million.
* I can hear you wondering, “A year and a day? What an odd sentence length? Why would a judge tack on the extra day?” This is an odd circumstance where more time is actually less time. If the court had imposed a sentence of a year, the person would not have been eligible for good time credit. By adding an additional day, good time credit is possible, which, in the federal system, would be worth about 45 days of reduced sentence.
“Why not just impose a sentence of 10 and a half months?” you may ask.
I don’t really have an answer for that.
- Eleventh Circuit – Mortgage Fraud Judgment Vacated and Remanded for Re-Sentencing (lawprofessors.typepad.com)