By Derek Gilna
Must as
drug defendants have often decried the un-proven drug quantities ascribed to
them in Pre- Sentence Investigations (PSR’s), which are then used to add years, if not decades to their sentences,
white-collar defendants have been equally critical of phantom “loss” amounts
which, similar to “ghost dope,” are used
to enhance their sentences. Although
there have been some favorable decisions rendered in some of the federal
circuits, the case law is unsettled and by no means uniform in its application. However, the Supreme Court has begun hearing oral
arguments on a case filed last Fall that might prove to be useful for
white-collar prisoners seeking relief.
In Robers
v. United States,
a case out the Seventh Circuit, the defendant pleaded guilty to mortgage fraud,
without stipulating to a loss amount. He
reserved appeal, claiming that he the loss amounts were excessive, because he
was entitled to credit for not only the funds the aggrieved banks had recovered
for resale of the homes fraudulently purchased by him, but also for the fair
market value of those houses.
The Seventh
Circuit, apparently somewhat troubled by the loss amounts, vacated the judgment
in part, and removing bank attorney’s fees and other questionable expenses
tacked onto defendant’s loss amount.
Both parties appealed, and the question now before the court is whether
the defendant is entitled for credit for fair market value for the houses he
returned to the banks. The case is
noteworthy because appeals courts rarely disturb district courts’ loss findings
in the absence of clearly obvious arithmetic errors.
The case should be decided sometime this summer.
The other,
broader trend that bears watching is the Supreme Court’s acceptance of more
cases that more narrowly define the seemingly unrestricted methods by which the
criminal justice system victimizes the accused, although real progress will
probably have to wait until Congress acts.
Until then, we must rely upon petitions to the court for relief under
the applicable statutes and case law, as well as also petitions to the
executive branch under the appropriate clemency remedies that exist.
