By Bruce Alpert, Times-Picayune
November 12, 2009, 6:16PM
William Jefferson is facing a lengthy prison sentence from U.S. District Judge T.S. Ellis III on Friday, legal experts say, but probably not the 27 to 33 years recommended by prosecutors.
Jefferson, 62, the New Orleans Democrat who served nine terms in the House of Representatives, is due for sentencing Friday afternoon in the same Alexandria, Va., federal courthouse where he was convicted in August 11 public corruption counts. The jury acquitted him on five other charges after an eight-week trial.
Those willing to predict a sentence suggest that Jefferson faces something in the range of 10 to 20 years, still the harshest punishment handed down in a congressional corruption case.
"The federal government is going to want to make an example of him," said Kevin Tamez, managing partner of a New Jersey firm that specializes in federal sentencing issues. "But I would be shocked if he got anything close to 27 or 33 years."
Ellis also will rule on a prosecution request to immediately imprison Jefferson, who the Justice Department labels a flight risk. Jefferson, many experts say, will get the customary 60 days allowed most nonviolent felons to surrender, giving him the Christmas time with his family requested by his attorney, Robert Trout.
"Generally with somebody who is not an immediate risk of committing a similar crime -- he's not a congressman right now -- most likely the judge will allow him to self surrender," said Caren Morrison, a former federal prosecutor who teaches law at Georgia State University.
But others say the holiday respite isn't guaranteed -- not from a judge who has called public corruption among the most heinous of crimes.
"There is a strong possibility that Bill Jefferson will enter the courthouse through the front door and leave in shackles in the custody of federal marshals," said Jacob Frenkel, a former New Orleans prosecutor now in private practice in Maryland.
The experts agreed there is little likelihood that Ellis will accept Jefferson's request to remain free while he pursues his appeal.
But Jefferson isn't without hope.
After the corruption conviction of former Louisiana Gov. Edwin Edwards in 2001, the 5th U.S. Circuit Court of Appeals, a conservative court just like the 4th Circuit in Virginia, overruled the trial judge and allowed Edwards to remain free for the 22 months his ultimately unsuccessful appeal was pending.
Jefferson was convicted of soliciting bribes, depriving citizens of honest service, money laundering and racketeering. The case gained its greatest notoriety for the $90,000 federal agents found hidden in the freezer of Jefferson's home in Washington, D.C.
At the hearing today, Ellis is likely to ask the prosecutors and defense lawyers to comment on the sentencing recommendations submitted by the federal Probation Office, which has not been made public.
Jefferson will be given a chance to address the court, though he is not required to make a statement. Given that he is planning to appeal the guilty verdict, Jefferson faces the awkwardness of expressing the remorse judges expect from convicted defendants, without admitting guilt.
Ellis also is likely to rule today on whether Jefferson must forfeit the $470,000 the jury concluded had been obtained as a result of his criminal activity. That effort is complicated somewhat because Jefferson and his wife, Andrea, filed for bankruptcy after the August guilty verdict, potentially generating a competition between the Justice Department and creditors owed money by the couple.
Predicting how long a sentence the defendant will get is difficult, especially now that judges are not required to strictly follow federal sentencing guidelines. Ellis appears to have established a floor by imposing stiff prison terms for two men who pleaded guilty in the case.
Brett Pfeffer, a former Jefferson aide, got eight years for conspiracy to commit bribery. Vernon Jackson, CEO of a Kentucky technology firm who testified that he sent payments to a firm headed by Jefferson's wife in return for the congressman's help landing contracts in Western Africa, was given seven years and three months.
"This is a hard one because the sentencing guidelines are almost off the charts, in effect a life sentence for Jefferson who is 62," said Harry Rosenberg, a former chief federal prosecutor in New Orleans now in private practice.
Rosenberg said he doesn't expect the judge to along with what the Justice Department wants but believes the sentence will be "significantly longer" than the terms given Jackson and Pfeffer.
But Dane Ciolino, a Loyola University law professor, said that while the Jackson and Pfeffer sentences "are partly the result of lesser culpability, the acceptance of responsibility and cooperation with the government, Mr. Jefferson's sentence should not be grossly disproportionate to theirs."
"Otherwise, his sentence will appear to be a penalty for the exercise of his constitutional right to a fair trial," Ciolino said.
Jefferson should benefit by some calculations used in sentencing such as this being his first criminal offense and the fact that other members of Congress convicted of corruption have received sentences no higher than eight years, four months.
That sentence was given to former Rep. Duke Cunningham, R-Calif, after he pleaded guilty to taking bribes to get appropriations in House spending bills for defense contractors. Jefferson's lawyers argue that their client never introduced a bill or sought an earmark, or appropriation in return for the payments alleged by the government.
In a memorandum submitted Thursday, lead prosecutor Mark Lytle and his co-prosecutors disagreed.
"The jury found beyond a reasonable doubt that the defendant converted his congressional office into criminal racketeering enterprise in which he repeatedly sold his office to business people willing to pay cash, stock and equity interests through which the defendant and his family stood to gain more than $500 million," the prosecutors wrote. "Even the most egregious of the cases cited by the defendant do not involve the potential for payoffs of hundreds of millions of dollars."
The huge amounts the government says that Jefferson stood to gain from his illegal activities is one reason the sentencing guidelines recommended in the Probation Office report were as high as some sentences for violent crimes, according to some legal experts.
Ellis might risk a more likely appellate review of his courtroom decisions if he imposes a lengthy sentence, some of the legal experts said.
William Hurwitz, a Virginia doctor convicted in 2004 of prescribing large doses of drugs, such as oxycodone, to patients who were illegally selling and distributing the pills, had his conviction reversed by the 4th Circuit Court of Appeals and given a new trial that led to another guilty verdict, but a reduced sentence.
Some say the appeal was prompted, at least in part, by the lengthy 25-year prison sentence imposed by the trial judge.
Bruce Alpert can be reached at balpert@timespicayune.com or 202.383.7861.
November 12, 2009, 6:16PM
William Jefferson is facing a lengthy prison sentence from U.S. District Judge T.S. Ellis III on Friday, legal experts say, but probably not the 27 to 33 years recommended by prosecutors.
Jefferson, 62, the New Orleans Democrat who served nine terms in the House of Representatives, is due for sentencing Friday afternoon in the same Alexandria, Va., federal courthouse where he was convicted in August 11 public corruption counts. The jury acquitted him on five other charges after an eight-week trial.
Those willing to predict a sentence suggest that Jefferson faces something in the range of 10 to 20 years, still the harshest punishment handed down in a congressional corruption case.
"The federal government is going to want to make an example of him," said Kevin Tamez, managing partner of a New Jersey firm that specializes in federal sentencing issues. "But I would be shocked if he got anything close to 27 or 33 years."
Ellis also will rule on a prosecution request to immediately imprison Jefferson, who the Justice Department labels a flight risk. Jefferson, many experts say, will get the customary 60 days allowed most nonviolent felons to surrender, giving him the Christmas time with his family requested by his attorney, Robert Trout.
"Generally with somebody who is not an immediate risk of committing a similar crime -- he's not a congressman right now -- most likely the judge will allow him to self surrender," said Caren Morrison, a former federal prosecutor who teaches law at Georgia State University.
But others say the holiday respite isn't guaranteed -- not from a judge who has called public corruption among the most heinous of crimes.
"There is a strong possibility that Bill Jefferson will enter the courthouse through the front door and leave in shackles in the custody of federal marshals," said Jacob Frenkel, a former New Orleans prosecutor now in private practice in Maryland.
The experts agreed there is little likelihood that Ellis will accept Jefferson's request to remain free while he pursues his appeal.
But Jefferson isn't without hope.
After the corruption conviction of former Louisiana Gov. Edwin Edwards in 2001, the 5th U.S. Circuit Court of Appeals, a conservative court just like the 4th Circuit in Virginia, overruled the trial judge and allowed Edwards to remain free for the 22 months his ultimately unsuccessful appeal was pending.
Jefferson was convicted of soliciting bribes, depriving citizens of honest service, money laundering and racketeering. The case gained its greatest notoriety for the $90,000 federal agents found hidden in the freezer of Jefferson's home in Washington, D.C.
At the hearing today, Ellis is likely to ask the prosecutors and defense lawyers to comment on the sentencing recommendations submitted by the federal Probation Office, which has not been made public.
Jefferson will be given a chance to address the court, though he is not required to make a statement. Given that he is planning to appeal the guilty verdict, Jefferson faces the awkwardness of expressing the remorse judges expect from convicted defendants, without admitting guilt.
Ellis also is likely to rule today on whether Jefferson must forfeit the $470,000 the jury concluded had been obtained as a result of his criminal activity. That effort is complicated somewhat because Jefferson and his wife, Andrea, filed for bankruptcy after the August guilty verdict, potentially generating a competition between the Justice Department and creditors owed money by the couple.
Predicting how long a sentence the defendant will get is difficult, especially now that judges are not required to strictly follow federal sentencing guidelines. Ellis appears to have established a floor by imposing stiff prison terms for two men who pleaded guilty in the case.
Brett Pfeffer, a former Jefferson aide, got eight years for conspiracy to commit bribery. Vernon Jackson, CEO of a Kentucky technology firm who testified that he sent payments to a firm headed by Jefferson's wife in return for the congressman's help landing contracts in Western Africa, was given seven years and three months.
"This is a hard one because the sentencing guidelines are almost off the charts, in effect a life sentence for Jefferson who is 62," said Harry Rosenberg, a former chief federal prosecutor in New Orleans now in private practice.
Rosenberg said he doesn't expect the judge to along with what the Justice Department wants but believes the sentence will be "significantly longer" than the terms given Jackson and Pfeffer.
But Dane Ciolino, a Loyola University law professor, said that while the Jackson and Pfeffer sentences "are partly the result of lesser culpability, the acceptance of responsibility and cooperation with the government, Mr. Jefferson's sentence should not be grossly disproportionate to theirs."
"Otherwise, his sentence will appear to be a penalty for the exercise of his constitutional right to a fair trial," Ciolino said.
Jefferson should benefit by some calculations used in sentencing such as this being his first criminal offense and the fact that other members of Congress convicted of corruption have received sentences no higher than eight years, four months.
That sentence was given to former Rep. Duke Cunningham, R-Calif, after he pleaded guilty to taking bribes to get appropriations in House spending bills for defense contractors. Jefferson's lawyers argue that their client never introduced a bill or sought an earmark, or appropriation in return for the payments alleged by the government.
In a memorandum submitted Thursday, lead prosecutor Mark Lytle and his co-prosecutors disagreed.
"The jury found beyond a reasonable doubt that the defendant converted his congressional office into criminal racketeering enterprise in which he repeatedly sold his office to business people willing to pay cash, stock and equity interests through which the defendant and his family stood to gain more than $500 million," the prosecutors wrote. "Even the most egregious of the cases cited by the defendant do not involve the potential for payoffs of hundreds of millions of dollars."
The huge amounts the government says that Jefferson stood to gain from his illegal activities is one reason the sentencing guidelines recommended in the Probation Office report were as high as some sentences for violent crimes, according to some legal experts.
Ellis might risk a more likely appellate review of his courtroom decisions if he imposes a lengthy sentence, some of the legal experts said.
William Hurwitz, a Virginia doctor convicted in 2004 of prescribing large doses of drugs, such as oxycodone, to patients who were illegally selling and distributing the pills, had his conviction reversed by the 4th Circuit Court of Appeals and given a new trial that led to another guilty verdict, but a reduced sentence.
Some say the appeal was prompted, at least in part, by the lengthy 25-year prison sentence imposed by the trial judge.
Bruce Alpert can be reached at balpert@timespicayune.com or 202.383.7861.