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Bernie Ebbers Conviction and Sentence Upheld

[Reconstructed from Google Cache]

Via Sentencing Law and Policy: WorldCom's Bernie Ebbers lost his appeal today. His 25 year sentence stands. The court opinion is here. (pdf)

Among the grounds Bernie lost on: the unfairness of the use of snitch testimony when the government gets to pick who to immunize and refuses to immunize defense witnesses.

On appeal, Ebbers principally contends that the district court erred in permitting the government to introduce testimony by immunized witnesses while denying immunity to potential defense witnesses who were rendered unavailable to Ebbers by their invocation of the privilege against self-incrimination. He also claims that the court should not have given a conscious avoidance instruction and that the government should have been required to allege and prove violations of Generally Accepted Acounting Principles ("GAAP"). Finally, he challenges his sentence as based on an inaccurate calculation of losses to investors, as significantly greater than those imposed on his co-conspirators, and as unreasonable in length.

The court also upheld a two level enhancement for Ebbers "for obstruction of justice on the basis of Ebbers' having testified contrary to the jury's verdict."

Just another reason most defendants don't take the stand. You might be telling the truth, but if the jury doesn't agree, you get a longer sentence.

As for cooperators, the Court gives it stamp of approval to the disparity between Scott Sullivan who got 5 years notwithstanding he was the chief architect of the Worldcom scheme, and Ebbers who got 25 years.

However, a reasonable explanation of the different sentences here is readily apparent, namely, the varying degrees of culpability and cooperation between the various defendants. All of those named above cooperated and pled guilty. Ebbers did not.

It is just sickening that the more serious offender gets a slap on the wrist because he told the truth as the Government saw it and the jury bought it, while the defendant who chooses to exercise his constitutional right to a jury trial and hold the governmentnot to its burden of proving his guilt beyond a reasonable doubt not only gets convicted based on the cooperator's testimony but gets hammered at sentencing as well.

As to the length of Ebbers' sentence being unreasonable, the court passes the blame to Congress -- even after noting that almost any white collar offender in a publicly traded company could be looking at life if he didn't fold:

Twenty-five years is a long sentence for a white collar crime, longer than the sentences routinely imposed by many states for violent crimes, including murder, or
other serious crimes such as serial child molestation. However, Congress has directed that the Guidelines be a key component of sentence determination. Under the Guidelines, it may well be that all but the most trivial frauds in publicly traded companies may trigger sentences amounting to life imprisonment -- Ebbers' 25-year sentence is actually below the Guidelines level.

Even the threat of indictment on wafer-thin evidence of fraud may therefore compel a plea. For example, a 15¢ decline in share price in a firm with only half the number of outstanding shares that WorldCom had would constitute a loss of $200 million. No matter how many reasons other than the fraud may arguably account
for the decline, a potential defendant would face an enormous jeopardy, given the present loss table, and enhancements for more than 250 victims, for being a leader of a criminal activity involving 5 or more participants, and for being an officer of the
company.

However, the Guidelines reflect Congress' judgment as to the appropriate national policy for such crimes....Given Congress' policy decisions on sentences for fraud, the sentence is harsh but not unreasonable.

Bernie Ebbers, now 73 years old, will die in prison. From a practical standpoint, he got a life sentence. So much for judges exercising discretion under Booker. Meet the new sentencing rules, same as the old ones.

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