Thursday, October 22, 2009

What Are the Issues Going to Be at Bill Allen's Sentencing?


From Mark Regan:

There is a 550-page Federal Sentencing Guidelines Manual with Appendices. I haven’t read it.

The basic idea seems to be that Judge Sedwick will find in the Guidelines a “level” to attach to the crimes to which Bill Allen plead guilty, adjust that level up or down depending on some specific facts about the crimes – such as how much money was used to commit them – make some more adjustments based on facts about Allen himself, and then consider the Government’s motion to reduce the level of Allen’s offenses based on his cooperation. At the end of this process, the judge will have a range of months Allen might be ordered to serve – the Government says 46 to 57 months, the defense says 27 to 33 months, minus some time for cooperation -- and will pick a specific sentence out of that range. A similar but less complex process applies to the fine Judge Sedwick will levy.

The Anchorage Daily News has put the sentencing memos on its website. Allen’s memo is longer and more detailed than the Government’s, but the Government has filed its probation officer’s presentencing report under seal, as the federal Criminal Rules require, and has also filed its “5K” motion to reduce Allen’s sentence because of his cooperation under seal, with Judge Sedwick’s permission. Presumably the motion about cooperation was filed under seal because it describes Allen’s cooperation in ongoing investigations. At any rate, the Government’s public memo is detailed enough to convey its position as a general matter. The Government’s bottom-line recommendation is for Allen to serve 46 months and pay a fine of $750,000; the defense’s recommendation is for six months in jail and six months in home detention, with a fine of $150,000.

Leaving aside the defense’s legal argument that the Government has to prove facts from sources other than Allen’s own testimony or pleas, which the defense says can’t be used against him, the first factual dispute seems to be about whether Allen’s payments to the legislators were bribes, as the Government contends, or gratuities, as Allen argues. This is an interesting argument for the defense to be making because two of the three crimes to which Allen plead guilty were bribery and conspiracy to bribe. Furthermore, Judge Sedwick is the sentencing judge, and in the Kott trial Judge Sedwick essentially rejected a defense argument that Allen is making now: that to show bribery, you need to show a quid pro quo, and the legislators would have voted VECO’s way even if Allen and Smith hadn’t given anything to them. (See Allen’s memo, pages 16-18.) If the payments were bribes, the level of the offenses goes up further than if they were gratuities.

Then there’s the question of how much money should be counted as a bribe, because the more money that is counted, the higher the level of the offenses goes. There is no dispute that Allen paid a regular salary, or retainer, or fee, or something, to Ben Stevens. The Government argues that the payments from the time Ben Stevens went into the Legislature to the time they stopped should be added up (to somewhere around $200,000) and treated as bribes. Allen argues that if the payments are treated as bribes at all, payments from 2002 through 2005 should be excluded – because the 20/20 PPT wasn’t an issue until 2006 – and then only about ¼ of the $43,000 allocated to 2006 should be counted, because the Legislature was only in session for three months that year and payments made at other times of the year can’t be linked to legislative action. Allen’s underlying position is that none of the payments to Ben Stevens should be counted because they’re all semi-legitimate consulting fees. Additionally, he has a number of arguments about how the amount of payments to Kott and Kohring shouldn’t include some sums about which he testified at their trials.

It is not clear whether Judge Sedwick is going to want to hear testimony on these two sets of issues. The facts of the payments have more-or-less been established (although the defense wouldn’t agree) and it might be that testimony wouldn’t help Judge Sedwick characterize them.

The Government’s going to argue for upward adjustments based on Allen’s being a principal mover in the various schemes. One of Allen’s arguments to the contrary is going to be that the legislators approached Allen for favors, not the other way around. Having presided over the Kott and Kohring trials, Judge Sedwick might already have developed an opinion on this subject.

Then there are the defense’s claims about Allen the family and civic benefactor, and Allen the severely ill man of questionable competency. These claims are being made principally to justify an equitable reduction in the sentence, although some of the information about Allen’s bad health appears designed to counter the idea that his cooperation isn’t worth very much because he manipulated the Feds. The odds are that there won’t be much in-court testimony about this either: the Government will accept that Allen has helped out many family members and friends, and that he’s a sick man, but it’ll say that this is essentially irrelevant.

What credit Allen should get for cooperation probably partly depends on facts that aren’t going to be made public at the hearing. It’s certain that he’ll get at least some credit. Judge Sedwick already knows (and has said that he knows) that Allen has cooperated in the Kott and Kohring cases. How much of a reduction he’s willing to grant based on that cooperation, and on cooperation in cases that aren’t being made public, is an open question.

--Mark Regan

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