Sunday, August 1, 2010
STATE V. BEN KRAMER,90-23723B (Miami- Dade Cir. Ct.)
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.”
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
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.
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
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
Case No. 3:05-CR-240-1-SOLIS
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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.
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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
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