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The Walking Argument for Mandatory Minimums: Jack Weinstein

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Every now and again, a single case crystalizes an argument so powerfully that there's not much left to say.  Recently, I wrote about one such case, the triple murder (of a mother and her two daughters, aged 10 and 7) by a crack dealer with a violent history who was out on early release because of Congress's 2010 version of "sentencing reform."  Had he remained in jail for his original sentence, the mother and the two kids would be alive today.

We all know that errors in sentencing are inevitable, because errors in human judgment are inevitable.  Accordingly, we know that some inmates will be incarcerated too long, and others, not long enough.  

The only adult question, then, is this:  Who should bear the risks and costs of inevitable error  --  the criminal, who made his own choice and assumed his own risks, or the future victim, who never had a chance?

The question answers itself.

So does the question posed by Judge Jack Weinstein's most recent adventure in judicial defiance:  Does a felony-level child pornographer deserve a prison sentence of zero?
I should probably begin by noting that, technically, the sentence wasn't zero.  It was five days.  As in  D-A-Y-S.  But since the defendant (a man in his fifties whose name Weinstein conceals) has already been in custody for for than five days, the sentence turns out to be zero.

Where to start?  Weinstein, an appointee of Lyndon Baines Johnson, is a reckless and lawless man who fancies himself a scholar and a humanitarian, but builds his sterling (in some quarters) reputation on the backs of child victims. He pulled a similar breathtaking stunt in an earlier child porn case, see my posts here and here, He did that in the notorious Corey Reingold matter.  Then, as now, he concealed the defendant's name (calling the case "US v. C.R.").  He went on to write a 400 page opinion that made every excuse imaginable for pornographers while castigating Congress and the Sentencing Commission for their primitive brutishness.

It took a unanimous judgment of the Second Circuit a mere 50 pages to unwind Weinstein's opus.

Weinstein's most recent thumb-in-the-eye was discussed here, on SL&P.  The link to his memorandum opinion can be found there.

I'm not going to go into the weeds of the legal analysis, since that would take me beyond the readable length of a blog entry, and would also be pointless.  Suffice it to say I'll bet $500 here and now that Weirstein is again going to get reversed in the Second Circuit, again without garnering a single vote.  One may assume arguendo, as I will here, that the child pornography guidelines are excessive for mere possessors; the problem is that, while such a belief might serve to justify a significant below-guidelines sentence, the notion that it justifies zero is preposterous.

One thing that struck me about the case was its write-up on SL&P, in which Doug Berman said:

I will need to track down and review closely Judge Weinstein's lengthy opinion in this case before I would feel comfortable weighing in on this specific sentencing decision. But I already can state that I am sure federal prosecutors involved in this case are sure to feel quite uncomfortable when trying to decide whether to appeal this sentencing decision to the Second Circuit as unreasonable.

Assuming Judge Weinstein did not disregard any applicable mandatory minimum statute nor made any other clear doctrinal error, federal prosecutors might have a hard time establishing on appeal that Judge Weinstein's exercise of his post-Booker discretion in this case was unreasonable (especially in light of the Second Cicuit's significant 2010 Dorvee ruling which stressed the "irrationality" of the child porn guidelines).  But a decision by federal prosecutors not to appeal this sentence might be viewed, perhaps properly, as a tacit admission by the government that a non-prison sentence can be appropriate in some child porn downloading cases.


Doug knows a great deal about sentencing law, but his words here show that he knows almost nothing about the workings of US Attorneys' Offices  --  or (with all respect) what it means to take pornography law seriously.

I was head of the appellate division in a reasonably large US Attorney's Office for 18 years.  The only thing that would make me "uncomfortable" would be taking more than 15 minutes to file a notice of appeal in this outrage of a case.  The US Attorney would correctly see a ruling like this  --  especially on the heels of Weinstein's Corey Reingold adventure  --  as outright defiance.  Defiance, that is, of law, of any residual seriousness in child porn sentencing, of the child victims, of sobriety in the prosecution function, and of the Second Circuit.

It's especially ironic that SL&P cites the Doryee case as supporting a no-appeal decision (while never mentioning the government's successful appeal in Reingold). In Doryee, the appellate court upheld a sentencing appeal in the post-Booker, post-Gall era of broad district court discretion, on the ground that the lower court's sentence was so out-to-lunch (too high, in that instance) that it shocked the conscience.

It is a testament to how incredibly distorted pro-defense thinking has become that it would view a sentence of zero in a child pornography case as anything but shocking to the conscience.

P.S.  I should probably note one of the comments to Doug's entry that shows why this case is going to get appealed and why the government is going to win.

The comment, from a person who identifies himself as "USPO," states:

I agree that the guidelines are too high for mere possession of child pornography. The offense level is raised for ordinary use of a computer, and for the number of images, even though one can download hundreds of images in a short period of time. However, this defendant's explanation is BUL**HIT.  It is virtually impossible to inadvertently stumble across child pornography. It is beyond credulity that it "kept popping up." It is clinically unfathomable that anyone who magically managed to experience this constant barrage would keep it on their computer and offer it for download through a P2P shared folder (not to mention move some of the files to a thumb drive) if they were not aroused by it).

The New York Journal article also mentions that defendant's downloading behavior spanned a year.

The sentencing commission (often prodded by an hysterical congress) has forfeited it's credibility. Judge Weinstein has forfeited his as well.

Again, I have $500 that says this travesty gets appealed, the government wins, and Jumpin' Jack gets nary a vote.

Any takers?





15 Comments

Bill, you show your ignorance here about modern federal sentencing law and practice: according to US Sentencing Commission data, there are dozens of CP cases every year with zero imprisonment imposed, and only a small handful have been appealed by DOJ. Stated differently, DOJ has not appealed the majority of non-prison CP sentences imposed.

That all said, many of these other cases may have involved facts more mitigating than in this latest Weinstein case. But that is why this case may be fraught with risk on appeal: if DOJ appeals and loses, this case (like Dorvee) gets cited in every CP sentencing for year to come. (The Reingold case was a kettle of different fish because in involved an applicable mandatory minimum.)

Because you know the workings inside DOJ better than me, I will not bet on the odds this case gets appealed. But if you really think a non-prison sentence is so shocking in any and all CP downloading cases, you ought to be writing a lot of letters to a lot of US Attorney offices which are regularly refusing to seek an appeal of dozens of such sentences every year.

That said, Bill, since you like to describe people who question your misuse of data as pro-criminal, I suppose I am not surprised that you have come to view data-based thinking as pro-defendant thinking.

"Bill, you show your ignorance here about modern federal sentencing law and practice."

I appealed dozens of federal sentencing cases and won the great majority. You?

I love the academic perch, I really do.

"[A]ccording to US Sentencing Commission data, there are dozens of CP cases every year with zero imprisonment imposed, and only a small handful have been appealed by DOJ."

Would that be the same DOJ that agreed that multiple child killer Wendell Callahan posed no danger to the public? And now hides from taking a shred of responsibility for that hideous error?

"[I]f DOJ appeals and loses, this case (like Dorvee) gets cited in every CP sentencing for years to come."

There is a risk of loss in all litigation. The risk here is miniscule. And if DOJ does NOT appeal, Jumpin' Jack's run-on opinion gets cited in every CP sentencing for years to come, together with this sentence (which you would be happy to contribute): "Notably, the government did not appeal Judge Weinstein's analysis, implicitly endorsing it." P.S. Dorvee was not a government appeal.

"The Reingold case was a kettle of different fish because in involved an applicable mandatory minimum."

Would that be the mandatory minimum the defense bar has been complaining about for years? Whatever. And it's the same, or a very similar, kettle of fish because it involves the same arrogant and willful defiance, and the same "defendants-are-wonderful," attitude this one does.

This is what you're missing, probably because you don't have an institutional litigator's experience: If you have a Weinstein in your district, you let him know early and often that if he pulls this kind of stunt, it's going to the circuit. Indeed, the only serious question is whether the government should seek assignment to a different and less obviously biased judge for re-sentencing on remand.

"Because you know the workings inside DOJ better than me, I will not bet on the odds this case gets appealed."

It has something to do with the workings of DOJ, yes. It has much more to do with the merits, which you make essentially no effort to argue. Still, your underlying savvy shows through in not putting your money on the line. Not for nothing do you hold a chaired professorship.

"But if you really think a non-prison sentence is so shocking in any and all CP downloading cases, you ought to be writing a lot of letters to a lot of US Attorney offices which are regularly refusing to seek an appeal of dozens of such sentences every year."

Hah! I love the way you slide in, "any and all CP downloading cases." Don't worry, though. When I want to address "any and all" cases, I will. Please quote where I did so in this post. And "quote" does mean your interpretation or extrapolation. "Quote" means "quote."

My time is better spent seeking a President who won't appoint Leftist ideologues as US Attorneys. And maybe that's how I'll spend it. Who knows?

"That said, Bill, since you like to describe people who question your misuse of data as pro-criminal..."

I use standard data, including the BJS recidivism study that you and "Jim" so repeatedly resent. I will continue to use it. And the people I call pro-criminal are those who continuously take the side of the criminal. That too will continue. I know they want to distance themselves from their position when it suits their PR purposes, sure. I am not here to indulge what they want, nor their dismissive attitude toward crime and crime victims.

"...I suppose I am not surprised that you have come to view data-based thinking as pro-defendant thinking."

Is that a Freudian slip? To conflate "pro-criminal" with "pro-defendant"? Gads, if I did that, I'd hear no end of it.

I will try to respond to all your points:

1. I was not aware you, Bill, were involved in any post-Booker appeals. I have filed amicus briefs in a few dozen such cases (if you include SCOTUS appeals). I would like to hear more about any post-Booker appeals you have been directly involved in, especially those involving government appeals of below guideline sentences.

2. Am I right to surmise that you now perhaps believe that the current DOJ, which you suggest is now full of "Leftist ideologues," might not appeal this sentencing decision? Have you actually gotten around to reading Dorvee (which is cited 16 times in Weinstein's opinion) to better understand how this 2d Cir decision will provide a strong basis for defending the reasonableness of ignoring the guidelines in this case? You seem to have misunderstood my reference to Dorvee, but reading that case should help you better understand that it provides support for the substance of the Weinstein ruling.

3. According to USSC data, the government appealed a grand total of two sentencing cases in FY2014 from the ED of NY (one of which was affirmed, one reversed). I know Judge Weinstein sentences many dozens of offenders each year, and these stats suggest that prosecutors in his district do not make a regular habit of appealing even his most extreme sentences. This is surely in part because, as I know you know, the precedential significance of any Weinstein sentencing opinion is FAR, FAR less than a Second Circuit opinion affirming as reasonable a sentence of zero imprisonment in a CP downloading case.

4. Your reference, Bill, to "a sentence of zero in a child pornography case as ... shocking to the conscience" led me to think, apparently wrongly, that you were asserting that any and all CP cases prosecuted by the feds justified some significant prison time. I am sorry that I misunderstood the nuance you thought was included in this quoted phrase with respect to CP sentencing. As a follow-up and because I do not want to be accused of misrepresenting your position, I would like to have you confirm that you do in fact believe that there can be some (many? a few?) CP cases prosecuted by the feds in which a sentence of zero imprisonment would be justifiable.

5. Especially as real voting (finally!)gets started today, I look forward to hearing who on the R side of the ledger you are supporting to be the next Prez. For the record, I am a big fan of John Kasich. Who is now your favorite horse in that race?

P.S.: I did not conflate pro-criminal and pro-defendant, Bill, but was just trying as best I could to be faithful to the terms you were using in this dialogue.

The "pro-criminal" thing is so childish as to be laughable. It would be akin to calling Bill "un-American" because he cites recidivism data that are based on arrest, not conviction (therefore ignoring the presumption of innocence on which our entire justice system is based). -Jim

1. When you said "modern federal sentencing law," I took that to mean the last 30 years or so of federal sentencing law (specifically, the post-SRA era), as opposed to the prior roughly 195 years. Booker significantly changed the impact of the SRA but did not eliminate it by any means (as many of your readers often and bitterly complain).

I left the USAO in 1999 after 18 years there.

"Am I right to surmise that you now perhaps believe that the current DOJ, which you suggest is now full of "Leftist ideologues," might not appeal this sentencing decision?"

I don't know how you could have read my response and have reached that "surmise."

One thing that makes DOJ's leftism effective is its occasional feint at doing what less ideological DOJ's would do. That is why they're going to appeal this.

And my bet is still on. Shall we proceed???

2. Weinstein's initial absurdity, the "c.r." opinion, was filed on May 16, 2011, well after Dorvee had been decided, and was unanimously reversed at the government's urging on September 26, 2013 roughly THREE YEARS after Dorvee.

Dorvee didn't bail out Jack Weinstein then and it's not going to now, either.

3. When I was in charge of appeals, I let a lot of cases go that were dead meat in the circuit had the government chosen to appeal; we did not have unlimited money (and I didn't want to work 14 hours a day, either). But I never, ever let one go that was both an act of open defiance and a shock to the conscience, as this one is.

One thing I'm missing in your comments is a sense that there is ANYTHING prison-worthy about a year's worth of collecting images of the sexual abuse of children three and five years old.

I'm sorry, that kind of thing is just sick. Weinstein's indulgence of it is worse than merely contrary to law. It's disgusting. Is there no room left in sentencing law for (what I take would be an all-but universal) sense of shock?

A reasonably below-guidelines sentence is one thing for this defendant. A sentence of zero is something else.

If we just walk past this kind of stuff, I wonder what's left of civilized life.

4. When I want to refer to "any and all" cases, I will type the words "any and all." It is not a surprise by now that I believe in literal language. When instead I say "a case," I mean "a case."

There would be very, very few CP cases that actually reach indictment in which a zero sentence would be acceptable. There is no such case that would involve three and five-year old's (toddlers, that is); AND doing it for a year; AND lying to the court by saying it "just kept popping up" inadvertently.

None. Zip. Nada.

P.S. Why do you omit mentioning any of these aggravating features? You keep saying you want data-driven sentencing, but then when the most important data show up, they get pushed behind the curtain. Why?

5. Your pal John Kasich is undoubtedly a good man in some respects, but I am not supporting him. This was true even before the New York Times gave him the kiss of death, to wit, endorsed him last week for the Republican nomination.

If The Donald becomes President, I'm moving to Pluto.

As to the others: I think it's fairly widely known that I worked in White House Counsel's Office for Jeb's father. It's also no secret that I know one of the other candidates. But my personal choice is beyond the scope of this entry and of C&C generally. I have not checked with CJLF specifically, but I'm quite sure it does not endorse in primary elections.

1. When a person enthusiastically and consistently speaks up for butchers, that person is pro-butcher.

When a person enthusiastically and consistently speaks up for bakers, that person is pro-baker.

When a person enthusiastically and consistently speaks up for candlestick makers, that person is pro-candlestick maker.

And when a person enthusiastically and consistently speaks up for criminals (e.g., by supporting lower sentences) that person is........well, I think you get it.

2. I have been called un-American and worse many times; that's just the way it goes when you're a conservative.

If a point be made of it, however, the US Sentencing Commission, with a majority appointed by Democratic Presidents, says this in introducing its crack recidivism study issued in May 2014:

"For this study, recidivism was defined as any of the following criminal record events occurring within a five-year period following release from incarceration:
• a re-conviction for a new offense; • a re-arrest with no case disposition information available; or • a revocation of an offender’s supervised release."

In other words, I use the same definition of recidivism used by the USSC. As I'm sure you know, that is also the standard definition.

3. Would you care to actually take on the substance of this entry and its major points, rather than pick out some tiny sliver? For example, do you think the government should, and will, appeal this decision? Did you approve of Weinstein's earlier disposition in the Corey Reingold case? Do you approve of his concealing the (adult) defendant's name? Why or why not?

4. Referring to me or to any poster or commenter as "childish" or "laughable" is insulting and is not to be done. In the future, I will not publish any such insulting remarks. You have been reminded about this before, and this is the last time.

"Referring to me or to any poster or commenter as 'childish' or 'laughable' is insulting and is not to be done."

And yet referring to someone who challenges your use of data as "pro-criminal" is somehow less insulting? Good one.

And I'll again politely decline to your invitation to expand the discussion to myriad new fronts that have nothing to do with my original comment. I actually don't have any real disagreement with anything else you wrote. Just your needlessly inflammatory language about anyone who objects to anything you say. -Jim

Bill, some quick responses:

1. Just to be clear, it seem you now acknowledge that I was right when I expressed concern about your understanding of modern (e.g., post-Booker) federal sentencing law and practice. Specifically, you have ZERO experience with post-Booker appeals based on "unreasonableness," which is what will be the critical post-Booker appellate standard that DOJ will have to meet in order to secure a reversal in this case.

2. Regarding Reingold and Dorvee, you keep missing the critical fact that the Reingold's case involve an applicable mandatory minimum (of 5 years' imprisonment) due to a CP distribution conviction in that case, whereas this latest Weinstein case does not involve any MM as the defendant pleaded only to CP possession. Especially because you think MMs are so critical, I would think you would full appreciate this critical legal difference between the two cases (and why Dorvee, which concerned whether the CP guidelines ought to be followed after Booker, was not germane to the constitutional issue in Reingold). Weinstein had to make a constitutional ruling in Reingold to avoid the 5-year MM, and the Second Circuit said that ruling was wrong. Such a constitutional conclusion is different than saying that the sentence imposed in this new case was "unreasonable" in light of the 3553(a) factors. (Since you have not done any post-Booker appeals, I suppose I understand why this basic legal distinction seems not to be clear to you, but it is truly essential for a full understanding of what DOJ and perhaps the Second Circuit would be facing on any appeal here.)

3. If you had experience, Bill, in post-Booker CP cases, you would know that, sadly, most about every modern federal case involving CP downloading involves "collecting images of the sexual abuse of children three and five years old." I keep forgetting that you have no real experience with real modern federal sentencing cases anymore and that your musings are the one's really coming from, in your words, "the academic perch." I have not chimed in on the merits, Bill, because I have not yet had a chance to read the opinion so as to take full stock of both the aggravating and mitigating circumstances in this case. And that is what I would hope any serious student of the law would do: actually read a legal ruling and try to understand it before asserting it is wrong (and doing so based on a general sense of what is "sick" coupled with a lack of understanding of the current applicable legal standards).

4. You may be right that I will not want to defend a zero prison term once I read all the facts of this case. But I try not to make my judgments about a case before I am properly informed about it. (E.g., I just noticed that, according to Weinstein, the prosecutors here agreed to have the defendant called only RV in the opinion.) I am not trying to hide anything, just trying to reserve judgment until I have all the information needed to make an informed judgment.

1. If you think you have a better understanding of the applicable law and how it will be looked at by DOJ in making the appeal decision, feel free. You also thought, under the applicable law, that DOJ would be bullied off the death penalty in the Boston Marathon bombing. I disagreed, and I was right (even though I have never litigated a death penalty case).

That doesn't necessarily mean I'm right here. But I'll take my chances.

2. Weinstein is a disgrace to the bench. He's ideological beyond any acceptable limit. He's bad enough to make you miss Nancy Gertner.

3. Pornography involving children a couple years past potty training is shocking, vile and disgusting. There is no earthly excuse. Can't we at least agree on that?

4. I have zero problem with your occupying an academic perch. To the extent I can be said to have gainful employment, so do I. But I had experience before then that counts, for however much you may wish to discount it.

5. My bet is still on. I do hope you'll take it. It would help Sanders-friendly redistribution of wealth from a chaired professor to a lowly adjunct.

1. When did I say DOJ would be bullied off the DP? I genuinely do not recall saying that, though I continue to believe committed abolitionists will work as hard as they can to prevent the Feds from carrying out the execution. More to the point, this is not a debate as to who will bully whom, but a conversation about post-Booker law and practice. And my point from the get go has been that DOJ has usually not appealed these kinds of outcomes which are much more common than you seem to realize.

2. I suspect your disdain for Weinstein may be shared by enough folks inside DOJ to fuel an appeal in this case, and during the Bush years right after Booker the norm was to appeal every no prison sentence. I guess we will know for sure in the coming weeks.

3. I agree that CP involving very young kids is shocking, vile and disgusting, and sadly it is also revoltingly common.

4. I do not discount your experience at all, but it is more informative on some issues than others. As to post-Booker appellate realities, your lack of experience was revealed with respect to your apparent lack of understanding of Dorvee's importance in this context.

5. I still need to read the opinion before making any bets. And is it really legal for us to make a wager on this matter?

-- You said that Judy Clarke's appointment would be seen at DOJ as the effective appointment of Superwoman, and that the Department would therefore cave in to LWOP. See the last paragraph of your post here:

http://sentencing.typepad.com/sentencing_law_and_policy/2013/04/bad-news-for-hard-core-death-penalty-fans-judy-clarke-joins-defense-team-for-boston-bomber-dzhokhar-.html

-- I very seldom did porn cases as an AUSA, so I don't know what kind of stuff people are looking at. That anyone could find a toddler sexually arousing is inexplicable. The basic thing you want to do with toddlers is give them back to their parents before they destroy the whole house, and hurt themselves in the process.

-- I don't think the bet is illegal, but I don't know for sure. It might be one of those non-mens rea offenses that you and I want to scale back. Maybe you can lobby some of your friends to get us off the hook if we get indicted. Meanwhile, I could use the $500.

Good discussion. I have a fair amount of experience with post-Booker appeals, and I think Doug B. may unfortunately be correct regarding the likelihood of a DOJ appeal. In the aftermath of Booker, DOJ authorized appeals in a lot of cases where the district judge granted a large downward variance. That changed after Kimbrough, Spears, and Gall. Those cases made it very hard for DOJ to prevail on appeal where the argument was substantive unreasonableness. Basically, if the judge checked the 3553(a) boxes and didn't commit any procedural errors then the sentence would not be challenged. There are exceptions, of course, like the Bistline case from the 6th Circuit where the district judge was twice-reversed for sentencing a child pornography defendant to 1 day in jail. This case may fall into the same category of Bistline--too over the top for DOJ to hold its nose and look the other way.

As I was reading Judge Weinstein's opinion, I was reminded of an opinion by Judge Adams of NDOH. Judge Adams skillfully shot down the argument that the child pornography guidelines are too harsh. When considering the argument that child pornography should be treated more leniently because it is easy to access, Judge Adams said this:

"The assertion that sentences should be reduced because it is easy to accumulate a large number of pictures quickly also rings hollow. The Court does not dispute that it is very likely that
a defendant could acquire more than 600 images with just a few mouse clicks and several emails.
But that number of images is not collected by accident. Instead, those images are sought out by a
troubled mind, from like-minded individuals. Thus, a defendant makes a cognitive choice to seek
out that level of images. Moreover, the Court has never before seen an argument that because a
crime is easy to commit, it should be punished less severely. Robbery is certainly simplified from
the criminal’s perspective by the use of a firearm and the choice of a feeble, elderly victim. The
Guidelines, however, do not lessen punishment because the crime was easier to commit. In fact,
seeking out a vulnerable victim leads to a 2-level enhancement under the Guidelines. U.S.S.G. §
3A1.1(b)(1). This Court, therefore, will not alter its sentence simply because accessing and
growing a database of child pornography has become easier as technology has advanced."

Judge Adams also explained that judges should look at the images before sentencing a child pornography defendant. On that point, he wrote:

The Court made its request to view the images shortly before the first sentencing hearing in this matter. At that time, Agent Hagan expressed surprise that the Court wished to review the
images in their entirety. Agent Hagan indicated to the Court that she had been the affiant in more
than 100 child pornography investigations and, absent a matter going forward to trial, a judge had
never requested to view the photographs at issue. While only a minor sampling, this revelation
was shocking to the Court.

As detailed above, the agents handling these matters are able to aptly describe the contents of each image. Those descriptions, however, are little more than words on paper. Absent examining the images, one cannot get a true sense of the depravity that they depict. Thus, the Court implores any reviewing Court to personally examine the images at issue and not simply rely on a written description of their contents. The Court acknowledges that the review of such images is, to say the least, uncomfortable. There are some images that are haunting, and they cannot be unseen. However, any uneasiness felt by the individual reviewing the image pales in comparison to the harm caused by the image being created in the first place."

Zac

Zac --

Great comment. One of the things it makes me wonder is whether Weinstein actually looked at each picture.

You have more recent experience than I, but having made my wager offer to Doug, I stand by it.

The way I see it, it's a win-win. If the government appeals and prevails, I get $500. But if that does not happen, it would easily be worth the $500 to me as a citizen to be able to go to Congress and say, "This kind of stuff is what present law finds itself incapable of punishing. Fix it."

The decision to appeal may revolve around the government's recommendation in this case.
Despite a 78-97 month guideline range, probation's recommendation in this case was only 24 months. If the government's recommendation was around probation's recommendation (I had difficulty locating the government's recommendation) then the government may be weary to expend the resources where the disparity between its own recommendation and the sentence is not that significant. The government also may be worried about a repeat of the Ty Warner tax evasion case where the Seventh Circuit found a non-incarcerative sentence substantively reasonable in light of the government anchoring the district court's choice with a 366 day recommendation.

*I'm not sure what utility there is in concealing the defendant's name in this case. Judge Weinstein stated in the opinion that the defendant will have to comply with sex offender notification and registration laws. Even if one assumes anonymity may aid rehabilitation that does not seem plausible in this particular case. It would seem public access to this information to the extent it can be outweighed for rehabilitative purposes cannot be outweighed here.

Your points are well-taken. I have a few responses.

First, even if the difference between the government's recommendation and the probation office's is small, it is significant because the court went down to ZERO.

The government can live with a lot of things at the end of a felony-level CP prosecution. Zero is not one of them. That is the functional equivalent of what is referred to as an "obscene hand gesture."

Weinstein is spoiling for a fight. Fine. Give him one.

Second, it's the age of the child victims -- three and five -- and the defendant's lying about how he got these images, that makes this case an outrage.

You, as the representative of the public, do not sit still for an outrage.

Third, the USAO needs to see the forest and not just the trees. This case is inseparable from Weinstein's stunt in the Corey Reingold extravaganza. The USAO is in a war with Weinstein about sentencing; when you're in a war, you fight.

Fourth, there is a broader context. I think the government is very likely to win on the legal merits, and that alone suffices to justify an appeal (the brief would not be that hard to write). But the AUSA also needs to get a grip: How do you think a normal person outside NYC's liberal hothouse would react to a sentence of zero in a case this disgusting?

Correct. A normal person would be appalled.

There are times you need to stand up, and this is one of them.

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