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Sunday, August 1, 2010

STATE V. BEN KRAMER,90-23723B (Miami- Dade Cir. Ct.)

Kramer, convicted under the federal drug 'kingpin' statute, 21 U.S.C. §848, is serving life sentence for smuggling marijuana (S.D.Ill.), money laundering and escape (helicopter crashed) (S.D.Fl.). We are seeking an evidentiary hearing in State court to vacate conviction/sentence for conspiracy to commit murder for which he was sentenced to 19 years concurrent with federal sentence. The state sentence has expired but continues to burden custody. Ben has been imprisoned for 22 years. Newly discovered evidence exonerates Kramer in the State case.

Thursday, July 8, 2010

UNITED STATES v. DOSEN, Case No. 09-20730-Cr-UU (S.D.Fl.)

Defendant attorney convicted of mortgage fraud. Government sought >$7M<$20M (63-78 months). Court found loss approximately $2.5M.

Sentencing preceded by defendant’s Motion for Production of Brady Material in Mitigation of Punishment which was denied as moot after production by government. However, it provided court with a preview of defendant’s “theory of sentencing.”

Defendant’s Motion for Downward Departure and Variance emphasized over-representation of loss and impact of intervening market conditions as well as parity in sentencing of codefendants.

Downward variance granted based on combination of §3553(a) sentencing factors. Defendant sentenced to 38 months. Restitution hearing deferred.

Defense Counsel: Benson Weintraub, Jayne Weintraub, Steve Potolsky.

Saturday, June 12, 2010

BP Prior Corporate Criminal History & Bad Acts

United States v. BP Products of North America, Inc., 610 F.Supp.2d 655, 700 (S.D. TX. 2009) The lengthy opinion begins, “BP Products North America, Inc. entered a plea of guilty to an information charging a felony violation of the federal Clean Air Act. The charge arises from the March 23, 2005 explosion at the Texas City, Texas plant that killed 15 and injured scores. The plea agreement stipulates the sentence: a $50 million fine and three years of probation with the conditions that BP Products comply with a Settlement Agreement reached with the Occupational Safety and Health Administration (“OSHA”) and an Agreed Order imposed by the Texas Commission on Environmental Quality (“TCEQ”).” Id. at 660.

The Court ordered more than $1 billion in restitution.

Thursday, May 20, 2010

New Health Care Bill Amends 18 USC 1347

The new health care law, Pub. L. No. 111-148 (Mar. 21, 2010) has controversial criminal justice ramifications apart from those provisions of the massive bill making health care policy changes. It vitiates foundational principles of criminal law with respect to trial and sentencing by: (1) diminishing the mens rea requirement under 18 U.S.C. §1347; and (2) requiring the Sentencing Commission to enact substantive Guidelines with Congressionally-mandated specific offense characteristics. For pre-publication copy of new article I wrote, leave comment.

Sunday, May 16, 2010

OPEN SOURCE SENTENCING

Welcome to the blog. This is an experiment in open source access to white collar sentencing pleadings, including appellate briefs, PSI objections, motions for downward departure or variance, 2255s, etc. We are seeking and posting innovative pleadings, novel theories of sentencing, and sentencing solutions to recurring issues such as the elusive meaning of loss.

I welcome contributions from the defense and academic communities by offering new sentencing strategies in the wake of Booker and Kimbrough.

If you have work product addressing frequently arising white collar defense issues, please post or comment with a description of the item and a means through which you can exchange documents with our group.

Technical kinks and limitations are inevitable. Thus, to contribute a document it may be easier to send it to me directly for posting: bensonweintraub@msn.com (message line Re: BLOG).

Corporate Death Penalty

As part of the plea agreement, defendant was required to dissolve the corporations convicted of health care fraud. In lieu of dissolution, the parties and court concurred that USSG §8C1.1 would be equally effective.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

Case No. 3:05-CR-240-1-SOLIS

----------------------------------------------------------------X

UNITED STATES OF AMERICA,

Plaintiff,

Vs.

ALLIANCE PHARMACY SERVICES, Inc;

AMS PHARMACEUTICAL GROUP, Inc;

CARRINGTON HEALTH CARE SYSTEM, Inc;

DALAMAR SERVICES, Inc;

EAST POINTE PHARMACY SERVICES, Inc;

EVEREST SERVICES, Inc;

INFINITI SERVICES GROUP, Inc;

MED-CARE INFUSION SERVICES, Inc;

NATIONAL EXECUTIVE MGT, Inc;

ORION PHARMACY SERVICES, Inc;

PRECISION PHARMACY SERVICE, Inc;

PREMIUM PHARMACY SERVICES, Inc;

QUANTUM INFUSION, Inc;

RELIANCE PHARMACEUTICAL, Inc;

SOUTHWEST INFUSION, Inc;

SWS PHARMACY SERVICES, Inc;

TEXAS HOME INFUSION, Inc;

TRI-PHASIC PHARMACY, Inc;

TRINITY INFUSION SERVICES, Inc; and,

TRINITY PHARMACY SERVICES, Inc.

Defendants.

---------------------------------------------------------------X

O R D E R

THIS MATTER AROSE UPON the Joint Motion to Divest All Net Assets [of the above-captioned corporations] and for Agreed Permanent Injunction Prohibiting the Defendants From Transacting Business pursuant to USSG§8C1.1 and 28 U.S.C. §§2201-2202, Rule 65, Fed. R. Civ. P. Upon consideration of the motion and all pleadings and proceedings had herein, it is hereby

ORDERED and ADJUDGED that the motion is GRANTED. It is further

ORDERED and ADJUDGED that a fine in the amount $ 1000 is hereby imposed upon each of the above-captioned corporations upon each count of conviction and the Court finds that said fine is sufficient to divest the corporate defendants of all their net assets. It is further

ORDERED and ADJUDGED that a federal lien shall be imposed upon said corporations in the amount of the fines imposed. It is further

ORDERED and ADJUDGED that the corporate defendants are permanently enjoined from transacting business. It is further

ORDERED and ADJUDGED that to the extent permitted by state law, the corporations are herewith dissolved.

DONE and ORDERED in chambers this ___ day of ____________, 2009.

____________________________

HON. JORGE A. SOLIS

United States District Judge

Copies Furnished:

Texas Secretary of State

Counsel of Record

US Marshal Service

Appellants Initial Brief in Internet Pharmacy Case

The issues on appeal in this internet pharmacy case are published in the TOC below. At sentencing, the government argued for loss of $211M. However, defense objection was granted, in part, resulting in advisory Guideline based on $68M. If you would like a copy of the 80-page brief--largely relating to the impact of market conditions on loss (Olis, Rutkoske), please request and it will be sent offline (80 pages):

LEGAL ARGUMENT

Point 1.

THE GOVERNMENT’S MATERIAL BREACH

OF THE PLEA AGREEMENT VITIATED THE

VOLUNTARY NATURE OF DEFENDANT’S

GUILTY PLEA

A. The Plea Agreement’s Exception to the Waiver

Of Appeal Clause Mandates A Direct Appeal

From the Conviction and Sentence to Challenge

The Voluntariness Of Defendant’s Guilty Plea

B. The Government’s Breach of the Plea Agreement

Vitiated The Voluntariness of Saran’s Guilty Plea

C. The Government Impermissibly Reduced the Extent

Of Its Sentencing Recommendation Citing Benefits

To Third Party Family Members Which It Argued

Should Not Accrue to the Defendant as the Sole

Beneficiary of Their Substantial Assistance As

Well as His Own

D. The Government Withheld Relevant Information

in Mitigation of Sentence From the Lower Court

Point 2.

THE PROSECUTOR’S ILLUSORY SENTENCING RECOMMENDATION—IN VIOLATION OF THE PLEA AGREEMENT—WAS BASED UPON CONSTITUTIONALLY IMPERMISSIBLE CONSIDERATIONS

A. Saran’s Criticism of FBI and US Attorney to CongressAnd Justice Department Headquarters 45

B. Retaliation for Exercise of Constitutionally Protected Speech

Point 3.

THE SENTENCING JUDGE APPLIED THE

INCORRECT METHODOLOGY TO LOSS DETERMINATION

IN THIS MARKET-DRIVEN CASE RESULTING IN

A MATERIAL MISAPPLICATION OF THE GUIDELINES

AND A PROCEDURALLY UNREASONABLE SENTENCE

A. Introduction

B. Reliable Loss Determination Requires Application

Of The Correct Methodology

1. Improper Methodology

Taints the Resultant “Loss” Figure

C. Pharmaceutical Economics

1. Jurisprudential Analysis of Wholesale Price

Litigation

2. AWP Versus WAC

3. Lack of Transparency

4. Introduction to Causation

5. Pre-Existing Adverse Market

Circumstances Created by the “Victims”

6. Relevant Conduct and Causation

7. Impact of Extrinsic Market

Conditions and Loss

8. Olis: A Watershed Case

D. The Government Failed to Meet its Evidentiary

Burden To Substantiated a Hotly Contested

Presentence Report

Point 4.

RESTITUTION AWARDS WERE IMPERMISSIBLY BASED

UPON CLEARLY ERRONEOUS DATA AND RELIEF

WAS GRANTED TO NON-VICTIMS

Point 5.

THE GOVERNMENT WITHHELD BRADY EVIDENCE

MATERIAL TO MITIGATION OF PUNISHMENT

Point 6.

THE SENTENCE IS UNREASONABLE BASED ON

THE JUDGE’S FAILURE TO STATE THE REASON

FOR ITS IMPOSITION WHICH IS UNCLEAR

FROM THE CONTEXT AND RECORD

Point 7.

IF REMANDED, THE CASE SHOULD BE REASSIGNED TO ANOTHER JUDGE