Judge Cassell casts spotlight on federal prosecutors “swallowing”
I noted in this weekend post an article discussing US District Judge Paul Cassell’s criticism of federal prosecutors’ unjustified use of sentencing discretion in a tax fraud case. I just obtained a copy of Judge Cassell’s amended order in US v. Mercer, No. 2:06-CR-00161 (D. Utah Feb. 12, 2007) (downloadable below), and it is an important read. Here are the highlights from the start and end of the order:
On January 11, 2007, the court sentenced the defendant in this case — an accountant who had pled guilty to willfully aiding and assisting in the preparation and filing of a false tax return. Remarkably, however, at the sentencing hearing, the government took the position that the defendant had not used a special skill or violated a position of trust in preparing those false returns — even though the Federal Sentencing Guidelines plainly called for an enhancement in such a case. In other words, this appears to be a case of the government “swallowing the gun,” in the colorful phrase that is often used to describe a decision by prosecutors to argue a position contrary to the obvious facts. A brief opinion is appropriate to highlight the government’s failure to apply the Guidelines fairly here….
At the core of the Ashcroft Memorandum is the goal of fairness in sentencing. Compliance with the Ashcroft Memorandum prevents the spectacle of government attorneys arguing to the court things that are contrary to fact — it avoids prosecutors “swallowing the gun.” In this case, the government did swallow the gun, as the Department’s attorney ended up objecting to the court’s virtually indisputable conclusion that accountants preparing tax returns either use special skills. It seems inconsistent for the Department to take that position in this particular case, while arguing before Congress that judges’ “failure to comply with the [sentencing] guidelines has already meant reduced sentences in cases throughout the country, and if not addressed, will mean a steady erosion in the deterrent value of federal sentencing policy, and, ultimately, in reduced public safety.” The court firmly agrees with the generally-stated position of the Department that a sentencing system that involves ignoring the obvious facts is “neither desirable nor capable of sustaining long-term public confidence.”
The court has taken the trouble of writing this brief description of this case because it seems at odds with the way the sentencing process ought normally to advance. If the government wishes to recommend a sentence that differs from that recommended by the Guidelines, there are legitimate vehicles for doing so. But the facts are the facts — the government should not take disingenuous positions to the contrary in applying the Guidelines. In other words, the court fully agrees with the goals animating the Ashcroft Memorandum — ensuring the Guidelines are calculated fairly in cases before the court.
In my view, it is not at all surprising that a white-collar defendant almost got the benefit of prosecutorial “swallowing” in MercerMercer so potent and important is not only how it reveals DOJ’s hypocrisy about the exercise of federal sentencing discretion, but also how it showcases the challenges that any sentencing system faces in trying to regulate prosecutorial discretion.