Patterico's Pontifications


Don’t Swallow Whole Just Yet What The Media Is Feeding You About the Vick Plea Deal

Filed under: General — WLS @ 3:29 pm

[Posted by WLS]

I’ve been trying to deconstruct the Vick plea agreement from looking at the indictment, the press reports of the plea agreement, and the comments of the judge in taking the pleas of the other co-defendants.   I think there is lots left that is not known, and Vick might be in a lot more jeopardy that the media now appreciates.

Here’s what is known:

Vick is going to plead guilty to the indictment as it stands, which charges only a single count of conspiracy.  That has a maximum term of 5 years.

But, one of the criminal objects of the conspiracy was the “interstate travel in aid of racketeering enterprises.”  If he had been charged with that substantive offense, rather than just a conspiracy to commit that offense, the potential maximum sentence under that statute as applied to him would have been 20 years.

This statute often makes up a series of charges that allege a RICO violation.   RICO is most easily understood as creating and operating an “enterprise” for the purpose of conducting criminal activity — like the mafia, street gangs, or drug organizations.  The benefit of a RICO charge is that the federal prosecutors are able to bring into a federal case evidence of violent state crimes that standing alone would not be federal crimes, and would not otherwise be admissible.  But a RICO charge can include  as “predicate” crimes actions that are violations of state law.

Once you have a RICO count in place, the scope of evidence admissible against a defendant is hugely expanded, and the possible range of prison sentences grows exponentially. 

Here’s why:

The following is my educated guess, without getting to see the plea agreement:

The conspiracy count has a 5 year maximum, but the sentencing guidelines that will inform the Judge’s decision-making at sentencing direct him to use the guideline that applies to the most serious underlying substantive crime that was the object of the conspiracy.   That would be the 1952 count  mentioned above.

When you go to the guideline for that offense, the “base offense level” is only 6. 

Under the guidelines, “Offense Levels” range from 1 to 43, and the “base offense level” for any crime is where the guideline calculation begins.  Where the calculation ends up is called the “Adjusted Offense Level”. 

On the Sentencing Table, where the Adjusted Guideline Level intersects with the defendant’s Criminal History Category, the sentencing “Guideline Range” is found.  This is a range of months that is the recommended sentence for the judge to consider.

As I indicated, the Sec. 1952 count now alleged as the object of the conspiracy in the pending indictment, has a base offense level of only 6 — that’s the lowest possible base offense level for a felony.

If there were to be a Sec. 1963 RICO count added, the base offense level for that count would be a 19. 

The base offense level is “adjusted” up and down by “specific offense characteristics” and “aggravating/mitigating facts”.

One fact that has been reported extensively since this case was first filed is that Judge Hudson in Richmond is known as a harsh sentencer. 

A fact that was overlooked last week when Vick’s co-defendants entered their guilty pleas was what Hudson was quoted as saying to one of them.  In discussing the possible implications of the sentencing guidlines on what sentence the defendant would be given, Judge Hudson explained how “aggravating factors” would result in a longer sentence, and Judge Hudson said something to the effect of “it certainly appears to me that there are aggravating factors here.”

I think the negotiating back and forth between Vick’s attorneys and the prosecutors has been over how best to try and mitigate the length of Vick’s sentence in light of Judge Hudson telegraphing  to all involved that he’s going to whack them come sentencing. 

The prosecutors will make a recommendation, but the Judge doesn’t have to go along with it.  

The defense wants to keep the sentence under a year, because if he is sentenced to the range of 6-12 months, there is some flexibility under the guidelines about how he can serve that sentence — up to half of a 12 month sentence can be served by a term of probation, and half can be served by what is called “community confinement”.  Community Confinement can be a half-way house, home-detention, or intermittent confinement (weekends).

If the sentence is more than one year, he is not eligible for such flexibility.

There is a report of a comment by an anonymous government source that the government is going to be seeking a sentence of 12-18 months — which would require that Vick spend time in prison. 

The difference between what the prosecution is said to be seeking and what the defense is seeking is the difference between an adjusted offense level of 13 (prosecutor) and an adjusted offense level of 10 (defense). 

The only way I see there being a 3 level difference is by Vick NOT getting an enhancement for “aggravated role”  in the offense.   To get a 3 level enhancement for “aggravated role”, the Court would have to find:

“The defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more persons or was otherwise extensive.”

 Frankly, given the facts alleged in the indictment, and the eariler comments of the Judge as reported, I think the defense is up the defecation waterway.

I think they know that and that is why they have asked for a week before the change of plea hearing, and why Vick’s attorneys started their full-court PR offensive today by announcing Vick’s intention to plea and “take responsibility” and “apologize to everyone who has been hurt by this matter.”

Had the government pursued the RICO count, and the base offense level increased to 19 as a result — before any aggravating enhancements are included, the guideline range would have increased to 30-37 months.  With aggravating enhancements, the likely adjusted offense level would have been in the mid-20s, and the sentence could have been in the range of 5-8 years.

Judge Hudson knows this. 

Message to Mike Vick — you’ve got no friend in Judge Hudson.  You’ll be lucky if he gives you only 18 months.


59 Responses to “Don’t Swallow Whole Just Yet What The Media Is Feeding You About the Vick Plea Deal”

  1. WLS,

    I’m not sure I fully understand this so it’s possible this will be a dumb question. If so, don’t beat me up too bad.

    I sympathize with the prosecution because even if the evidence is compelling, they have to be worried whether a jury would convict a sports celebrity like Vick. Thus, do you think the prosecution decided not to initially charge a RICO offense to make it more likely Vick would agree to a guilty plea on a lesser charge, knowing he could have had to face more serious charges?

    DRJ (bfe07e)

  2. Joining DRJ,

    Is extreme cruelty and depravity a sentencing factor? (And three years is way too lenient in my opinion.)

    nk (e3412b)

  3. The original indictment was filed just to get the ball rolling and to put the fear of Judge Hudson into Vick’s co-defendants. It clearly worked.

    I’ve read that the grand jury was sitting to hear evidence for a superseding indictment (which would likely have had RICO charges) even as Vick agreed to his plea bargain. Vick’s lawyers obviously figured out that there would be no easy way out and advised him to plea out before he got slapped with a RICO charge. Vick won’t ever agree, but those will be the cheapest legal bills he’ll pay for some time yet.

    Captain Ned (420d33)

  4. After sitting at the right-hand of Karnak, devining this matter in the media, it appears that a RICO indictment was likely, and a conviction was probable (how many photos would it take of the dogs to roll that jury all the way to the gallows?).
    If Vick has any hope of ever playing pro-ball again, he has to take the deal. A trial, with the attendant publicity, would probably force the NFL to invoke whatever stands for a “moral turpitude” clause in the basic contract, and he might be facing a life-time ban. A RICO conviction would put him away until he was too old to play (of course, we could get another “Longest Yard” out of it).

    Another Drew (8018ee)

  5. What possible difference does it make to his moral turpitude whether he’s convicted of killing dogs after a trial or he pleas to it?

    Christoph (92b8f7)

  6. DRJ — I think Captain Ned has it right. The original indictment was a starting point. Everyone had a chance to take the cheap way out by pleading to the first charge. Anyone not inclined to do so would be doing so with their eyes wide open — knowing exactly what would be coming their way in terms of a superseding indictment.

    There are tactical considerations for going forward this way as well. Its less “messy” at trial in dealing with cooperating defendants who are going to be impeached when, rather than dismissing 15 or 20 counts against them, including the dreaded “RICO” count, you instead have a cooperating defendant who faced only one charge, pled guilty, agreed to cooperate and was sentenced.

    Its much harder for a defense attorney on cross-examination to get traction with an argument like:

    “You could have faced many more charges if you hadn’t pled guilty and agreed to snitch on my client, isn’t that true?”

    More often than not this ends up with a response of “I don’t know” or “I think so.”

    On the other hand, where a defense attorney can put that 20 count indictment under the witnesses nose and ask him to repeat every charge that was originally filed against him, and the repeat every charge was dismissed in his plea agreement — this was the most effective way I’ve ever had it done to a cooperator in one of my cases — it makes a much greater impact on the jury.

    So, a smart prosecutor will avoid giving the defense ammunition like that by not going forward right out of the gate with a long multi-count indictment when you are hoping to flip one or more defendants into cooperating against the main target.

    And, by the way, not a stupid question at all. It was a very insightful one — you knew there was probably a reason, just not sure what it was.

    WLS (077d0d)

  7. Christoph…
    The added publicity of a trial would be very uncomfortable for the “Barons” of the NFL. If this matter is taken care of sotto voce, they probably wouldn’t mind his return – even if it was with the Raiders (which will probably be the only team that would deal with him).

    Another Drew (8018ee)

  8. Yeah, I got that. Just saying it shouldn’t make any difference. If I was NFL commissioner, it wouldn’t be.

    I guess all those stories of college coaches like Lou Holtz making the ethical decision to kick a star athlete off the team for violating moral rules don’t apply to the money-driven NFL.

    It does apply to me as a fan.

    Christoph (92b8f7)

  9. “If this matter is taken care of sotto voce, they probably wouldn’t mind his return – even if it was with the Raiders (which will probably be the only team that would deal with him).”

    To the contrary, no team in the NFL would want to see hundreds of protestors outside the stadium with signs with photos of dead puppies. Vick will never again play in the NFL. Maybe you’ll see him on WWE.

    Robin Roberts (6c18fd)

  10. WLS,

    To what extent, if any, do the sentences given the co-defendants matter to what sentence Vick is given?

    nk (e3412b)

  11. WLS,

    Your patient response has emboldened me to keep asking stupid insightful questions.

    There is a lot of upside for the prosecution to do what you’ve described. I certainly think that’s what I would do in this situation. Nevertheless, if Vick takes the plea (as it’s been reported he will), then what happens when all the shocking facts come out – as they always do in a high profile case – and the public compares the crime and the punishment? Unlike the typical case where there may be local but not national interest, it’s likely there will be national media and public second-guessing re: why the prosecutor let Vick off on a lesser charge.

    For prosecutors, it could be a lose-lose situation and that’s a bummer since the prosecutors will have convicted every defendant, including one very high-profile defendant.

    And what about the Judge? If he is a law-and-order judge, he might be unhappy that this case is being disposed of so quickly and (comparatively) painlessly for the defendant. That could and probably will translate into a more severe sentence but … have you ever seen a federal judge refuse to accept a plea bargain?

    DRJ (bfe07e)

  12. P.S. Is there a federal requirement that all co-defendants be sentenced at the same sentencing hearing?

    nk (e3412b)

  13. NK,

    Sorry I interrupted your comments. Good questions, by the way.

    DRJ (bfe07e)

  14. DRJ and NK — in general in response to your questions.

    First, after a defendant changes his plea, the Probation Office will prepare a Pre-Sentence Report (referred to as PSRs). This report will have a detailed recitation of all the facts making up the “Offense Conduct”, including “Relevant Conduct”, based on the evidence produced to the Probation Officer by the government, and an interview with the defendant. One thing the Probation Officer must report on to the Judge is whether the defendant is “accepting responsibility”, and that generally requires some level of admission as to the underlying factual allegations.

    At the change of plea hearing, Vick must admit to facts sufficient to constitute the crime with which he is charged, but nothing more. In this case he is charged only with “conspiracy”, which is an “agreement” to commit one or more crimes.

    To make a factual basis sufficient to support his plea, it is NOT necessary for him to admit that he actually did some of the horrendous things charged in the indictment — i.e., actually killing dogs himself. He must only agree that he agreed with one or more other people to commit one or more of the crimes set forth in the indictment as having been the object of the conspiracy. The agreement is the crime to which he is admitting — not the carrying out of the crime to which he agreed.

    But, when the PSR is prepared, the purpose of that document is to give the Judge a full picture of all the facts underlying the criminal conduct. What many people fail to understand is that when you are sentenced after having been convicted of a crime, the Judge can consider everything about you in deciding what is an appropriate sentence. In doing so, the Judge can take into consideration not only alleged conduct which you have not admitted to, but even conduct for which you have never been convicted of, so long as the judge is convinced that the conduct actually took place. You are not being “sentenced” for this conduct, the judge is simply taking it into account in determining what kind of risk you are to the community (i.e., how long you should be removed from society and incarcerated), and the full nature of your criminal activity even to the extent such activity goes beyond the charges to which you are actually admitting.

    The Prosecutors have not given up much with this plea, because Judge Hudson can give Vick up to 5 years in prison, and I don’t think anyone would say that is a light sentence.

    The fact is that Judge Hudson could give Vick 5 years in prison, or 18 months in prison, whether the charge is RICO or the charge to which he is pleading guilty. The lenght of the sentence really falls at the feet of the judge post-Booker, since Judges have complete discertion now, bounded only by “reasonableness.”

    There is no requirement that all defendants be sentenced together.

    And there is no strict rule on how one defendant’s sentence may influence that of another. There is a concern about “disparity” in sentences under 18 U.S.C. Sec. 3553, and similarly situated defendants are expected to be given similar sentence terms.

    But, here Judge Hudson could easily distinguish between Vick and his co-defendants. Vick brought the money to the enterprise, and without him it probably never happens — at least not on the scale that it eventually happened.

    And, the other defendants were the first to take the opportunity to confess their involvement, and agree to provide “substantial assistance” for which the law recognizes that they should be rewarded.

    Vick, on the other hand, agreed to plead guilty only after all the planets lined up against him. Its entirely likely that Judge Hudson will sentence him more harshly than he sentences the other three, even if he gives the other three only a limited benefit for their willingness to cooperate.

    Re whether the Judge can reject the plea or not —
    the obvious answer is, yes, a judge can reject a plea bargain in federal court. NORMALLY, the defendant would enter his change of plea, but the judge would defer the issue of whether or not to accept the plea until after the PSR is prepared. Only after reviewing the PSR is the judge able to determine whether the plea represents a fair and just disposition of the case.

    What is different here is that the indictment to which Vick is pleading guilty is a one count indictment. We generally refer to this as “pleading straight up” — and it really isn’t a plea bargain.

    The judge lacks discertion to reject the plea because the defendant is simply saying “I’m guilty of what I’ve been charged with”, and there is not “bargain” in the sense that other charges are being dismissed. The defendant is confessing to the only crime with which the government has charged him — what more can the court expect him to do?

    The court cannot, on separation of powers grounds, reject the plea and order to the government to bring more serious charges. The Court can only consider which is brought before it.

    A plea bargain generally involves admitting to some crimes, in exchange for having other charges dismissed. The judge must determine whether the bargain as struck is “fair” to both the defendant and the public.

    Since nothing is being dismissed, there is not “bargain” to evaluate.

    WLS (077d0d)

  15. WLS,

    You’ve gone above and beyond and answered my questions completely. Thank you.

    DRJ (bfe07e)

  16. Robin #9,

    Al Davis seems to like controversy and publicity so he might like it if people showed up with pictures of dead puppies.

    DRJ (bfe07e)

  17. DRJ, he doesn’t like that kind. You won’t see him in a Raider uniform any more than any other.

    Robin Roberts (6c18fd)

  18. Robin,

    Vick can still face state charges, has problems with the NFL’s anti-gambling requirements, and is undeniably cruel. So you may be right that Vick’s NFL career is over.

    DRJ (bfe07e)

  19. “In doing so, the Judge can take into consideration not only alleged conduct which you have not admitted to, but even conduct for which you have never been convicted of, so long as the judge is convinced that the conduct actually took place.”

    Oh my God! I didn’t realize this. This is terrible. How is this consistent with the 6th Amendment? When did we allow the Feds to so completely PISS on the “Rights of Englishmen” for which our forefathers fought when King George violated them and which are embodied in our Bill of Rights?

    Why the HELL is this a FEDERAL crime anyway?

    Jerri Lynn Ward (9f83e6)

  20. WLS #14,

    Ditto what DRJ said. Thank you. (I do hope that Vick gets the five years although in other contexts I would have feverishly argued that he should get the one year or less his co-defendants will [likely] get.)

    nk (e3412b)

  21. “With aggravating enhancements, the likely adjusted offense level would have been in the mid-20s, and the sentence could have been in the range of 5-8 years.”

    I love dogs to the point of eccentricity (I have 3), but I don’t understand a system of justice under which Federal Judges make rulings effectively allowing (by thwarting state legislatures) abortionists to literally tear late-term unborn babies limb from limb as they extract them from the womb or to burn them to death with saline–while, on the other hand, giving somebody almost a decade for cruelty to animals. I’d say that somethings a little off here.

    Jerri Lynn Ward (9f83e6)

  22. “…I don’t understand a system of justice under which Federal Judges make rulings effectively allowing (by thwarting state legislatures) abortionists to literally tear late-term unborn babies limb from limb as they extract them from the womb or to burn them to death with saline–while, on the other hand, giving somebody almost a decade for cruelty to animals. I’d say that somethings a little off here.”

    Because an animal exists and is an independent being whereas a foetus is just a nonfeeling part of its mothers’ body, unless she decides she wants it in which case it’s a baby and you can be charged with murderer for killing it.

    Otherwise, you can pay to kill it.

    See? Makes perfect sense.

    Christoph (92b8f7)

  23. Jerri Lynn and Christoph:

    Apples and oranges. I too am very pro-life. But in this case we are not looking at the worth of the victim. We are looking at depravity and cruelty which we as a society will not tolerate regardless of whether the victim is a dog or an innocent baby.

    (P.S. I am not particularly a dog lover. But the stupid things do seem to love me just because I don’t kick them and give them a pat once in a while. How can anyone hurt such hapless beings?)

    nk (e3412b)

  24. Ron Mexico Could Face The RICO Statute…

    On “Don’t Swallow Whole Just Yet What The Media Is Feeding You About the Vick Plea Deal”…….

    Ed (47121e)

  25. I bow to the superior knowledge of the lawyers here.

    One thing I *DO* know: EVERY tabloid will be offering hundreds of thousands of dollars to low-paid legal clerks in the Court’s offices for photos, videos, or anything else that they can put on the front page and gain circulation.

    Recall the autopsy photos of Nicole Brown Simpson?

    There WILL be pictures of dead/maimed dogs with tabloid pictures of “Vick did it!” and “Sick Puppy” and all the other stuff the tabloids do.

    THAT part, the tabloid interest, will NOT go away.

    No NFL team not even the Raiders will touch Vick. Nor will the WWE dealing with it’s own steroids, deaths, Benoit murder-suicide issue want him either.

    Vick from a sports-entertainment perspective is done.

    Jim Rockford (e09923)

  26. Jerri Lynn — its really a quite simple proposition, and fully consistent with all Constitutional protections.

    When Congress passed the Conspiracy statute, it set a 5 year maximum term. What is an appropriate sentence for criminal activity is a matter that is wholly left up to the legislature.

    So, when a judge has a defendant in front of him who has been convicted of conspiracy, any setnence from 0-5 years is lawful. The question becomes how the judge arrives at his decision about whether 0 or 5 years — or some point in between — is the most appropriate for this particular defendant in these particular circumstances.

    To make that determination, the judge considers the “whole” of the person — not just the facts of the crime. Doesn’t it stand to reason that Martha Stewart convicted of conspiracy deserves less time in jail than OJ Simpson if he was also convicted of conspiracy, if you took into consideration the “whole of them”?

    We know OJ was acquitted of murdering two people under the evidentiary standard of “beyond a reasonable doubt”. We also know that the Supreme Court has said repeatedly a verdict of “acquiattal establishes no facts.” In other words, the “fact” that OJ was acquitted is not the same as saying that as a matter of “fact” someone else must have killed those two people.

    We also know that another jury found by on an evidentiary scale of 50.1% that OJ did kill two people.

    If OJ were to now come before a federal court for sentencing on a conspiracy charge, is the judge bound to ignore the second verdict and all the evidence that pointed to OJ having done it when the verdict of “acquittal” is proof of nothing?

    A defendant who stands before a judge for sentencing is only being sentenced for the crime for which he was convicted. But determining just how much of the maximum possible sentence should be imposed is where the discertion of the judge comes into play. Should the judge in making that decision be forced to poke his eyes out and remain wilfully blind to evidence of other bad conduct? If the sentence ultimately imposed is 5 years or less, he has done no violence to the standard laid down by Congress — that any sentence of up to 5 years is appropriate.

    Why is that not the proper way to evaluate every person individually for the person they are?

    wls (aad074)

  27. If Vick can’t find an NFL team that will take him he can always try boxing. Don King has no standards whatsoever and Vick could become the Great Black Hope in the Heavyweight division.

    expat (2eb53c)

  28. WLS,

    So Denfense is seeking a lower sentence… But the judge has the final say? Is it possible that the judge will look at the plea agreement, accept it, and then put Vick away for every day possible?

    And if so, how long would that be?

    Scott Jacobs (c0db90)

  29. WLS,

    Following up on what Scott asked (for one more lesson in federal criminal procedure). I think you partly answered it in previous comments but ….

    In Illinois, the charge is strictly the province of the prosecutor. The judge cannot interfere outside a formal finding of e.g. no probable cause or not guilty. Conversely, sentencing is strictly the province of the judge. An agreement between the parties is only one of the sentencing considerations which the court must consider and that is a relatively recent and reluctant amendment of the sentencing statute by the legislature. Plea deals continue to resemble blind pleas with the defendant admonished that the court is not bound by any agreement made between the defendant and the prosecutor and asked explicitly whether any promises were made to him to induce him to plead guilty. Same thing in the federal system? Or is it that if the government and Vick agreed to eighteen months and the judge sentences him to five years, it would be a basis for withdrawing his plea? Or just for appealing his sentence? Or both?

    nk (e3412b)

  30. He’s apparently accepted the deal…

    More here.

    Scott Jacobs (c0db90)

  31. Scott and nk — nk’s description is exactly the same as in federal court. The agreement is between the prosecutor and the defense — the court is not a party and the court is not bound by the agreement when it comes to sentencing. Defendants are explicitly warned that if the Court imposes a sentence not contemplated by the parties in their agreement, the Defendant will NOT be allowed to withdraw his guilty plea.

    The only exception to this rule is a provision of Rule 11 which is called a “stipulated sentence” plea. In such an agreement the Court is told in advance that the defendant’s plea of guilty is conditioned upon a specific sentence that the parties have agreed upon. These are very rare because judges don’t like to have their discretion taken from them by the parties. What a judge usually does is to either reject the plea, or to reserved accepting the plea until he/she sees the Pre-Sentence Report. If the stipulated sentence to which the parties have agreed is appropriate in light of the PSR, the Judge can then accept the plea of guilty and impose the sentence comtemplated by the parties. Federal judges don’t like to do those types of pleas, and neither do prosecutors.

    wls (aad074)

  32. Scott — the article you link strikes me as having a glaring error, although it could be correct.

    The article says Vick is going to be “sentenced” next Monday. In federal court, a sentencing usually doesn’t take place until 10-12 weeks after a guilty plea. The Pre-Sentence report that I’ve mentioned here are quite lengthy — I’ve seen them run as long as 50-60 pages, single spaced. I think the only thing that is happening next Monday is that he will be changing his plea, and a sentencing date will be set sometime in Nov or Dec.

    wls (aad074)

  33. Web Reconnaissance for 08/21/2007…

    A short recon of what’s out there that might draw your attention, updated throughout the day…so check back often….

    The Thunder Run (59ce3a)

  34. wls said:

    “A defendant who stands before a judge for sentencing is only being sentenced for the crime for which he was convicted. But determining just how much of the maximum possible sentence should be imposed is where the discertion of the judge comes into play. Should the judge in making that decision be forced to poke his eyes out and remain wilfully blind to evidence of other bad conduct?”

    We ask juries not to consider things all the time. Also, in this case, the judge will not hear anything but the government’s side of the evidence underlying allegations for which he is not being convicted. Thus, if allegations are considered by this judge that are not part of the underlying conduct for which he is being convicted–via plea bargain, his punishment is being determined by allegations that have not been determined by even a preponderance of the evidence, much less beyond a reasonable doubt–all without the opportunity for a defense. I disagree with giving judges such god-like power.

    This same kind of thing could happen in the Conrad Black case where the judge might consider the counts upon which Black was acquitted, from what I’ve read. That seems fundamentally unfair and gives the prosecution an unproven bite at the apple.


    “Apples and oranges. I too am very pro-life. But in this case we are not looking at the worth of the victim. We are looking at depravity and cruelty which we as a society will not tolerate regardless of whether the victim is a dog or an innocent baby.”

    I consider an abortionist more depraved and cruel than people who stage fights between dogs and between chickens, in part, because they kill and maim and are doing so to human beings. To imprison a person for doing this to dogs and chickens–while legalizing the acts of abortionists is to make a mockery of justice.

    Moreover, we even have laws that distinguish between victims–as misguided as those may be–hate crimes, protection of children and the elderly.

    I ascribe to Blackstone’s view that “ punishments are chiefly prevention of future crimes, it is but reasonable that among crimes of different natures those be most severely punished, which are the most destructive of the public safety and happiness.”

    I don’t think that Blackstone was thinking about the safety of dogs or chickens.

    Jerri Lynn Ward (86312b)

  35. Robin …
    I personally don’t give a rat’s ass as to whether or not Vick ever plays ball again. I do think a lifetime ban for “bringing the League in disrepute” would be appropriate.
    As someone on radio today said, the NFL has become the National Felons’ League.
    My point was, that if he has any chance of playing again, it would be with Oakland, since Al Davis has a reputation of trying to re-hab bad boys, and profitting from the attendant notoriety.

    Another Drew (a28ef4)

  36. Jerri Lynn:

    Your view is simply wrong, and has never been the law. The Supreme Court has upheld the use of uncharged and acquitted conduct at sentencing for decades.

    A jury is asked to decide the question of guilt or innocence which may lead to a deprivation of liberty.

    A judge is asked to sentence someone who no longer has the presumption of innocence in his favor. The judge isn’t finding him “guilty” of uncharged or acquitted conduct, he’s only making a judgment based on the evidence as to whether or not such uncharged or acquitted conduct actually happened.

    Its not true that the decision is made based on only one side’s evidence, or that there is no established standard of proof. THe Supreme Court has held that the sentencing judge must determine from all the evidence whether it is more likely than not that the conduct occurred — i.e., by a preponderance of evidence — but beyond that the Supreme Court has said the Due Process Clause does not require the “constitutionalizing burdens of proof at sentencing.” Pennsylvania v. McMillan. I’ve got an unpublished law review article on this very question that I didn’t submit because of the upheaval in sentencing after Apprendi and Booker.

    The defendant has the right to confront that evidence at sentencing, meaning that if he contests the facts as alleged in the Pre-Sentence report the Prosecution is obligated to put on evidence to satisfy the burden. But, the rules of evidence don’t strictly apply, although most judges don’t stray too far from them, or consider evidentiary defects with respect to the weight they give to such evidence.

    The defendant is still being sentenced only for the crime that he actually admitted or was convicted of. The judge is just considering all available “information” about the character of the defendant based on the defendant’s conduct both in the case at hand, and in the rest of his life. That informed judgment is the cornerstone of individualized sentencing, while the judge remains bound by the statutory maximum authorized by Congress or the state legislature.

    WLS (077d0d)

  37. I would be surprised to not see Michael Vick return to the NFL in a couple of years, he’s too good a player and there’s too much money involved. His endorsement income is gone though. I think he’s already started on the rehabilitation path. He will do time in a federal prison camp (low security), find religion and continue to apologize. The league will suspend him for a year after his release, but will downplay gambling allegations since they won’t be charged and didn’t involve football. A couple of years from now, there will be very few protesters in the parking lots after Vick has kept apologizing and stating how his religion is now the driving feature of his life. Any one want to bet?

    JayHub` (0a6237)

  38. wls says:
    “Your view is simply wrong, and has never been the law. The Supreme Court has upheld the use of uncharged and acquitted conduct at sentencing for decades.”

    Simply because my view has never been the law and the Supreme Court has “upheld its use” doesn’t make my view wrong in the transcendental sense. I don’t dispute your knowledge of case law on this point because it is far greater than mine, and I am sure that your law review article is well written and reasoned (as are your posts and comments here)

    You and I may have different presuppositions on this point. I think that when the 6th Amendment plainly says that a person has a right to a jury trial, that it means what is says. To me what doesn’t mean is that Conrad Black gets tried again in a judge’s mind so that she can decide if counts upon which he has been acquitted should factor into his sentence because she might disagree with the jury.

    I believe that the law is to be a shield and not a Benthemite sword. I don’t like all these, what appear to me, to be “trick” laws like RICO and mail fraud that allow prosecutors shortcuts to getting convictions when they can’t prove underlying crimes. (Also, did you know that the Feds used a Patriot Act “sneak and peak” warrant to get evidence on a man who stages chicken fights? That just offends me to no end.)

    I’m glad to hear that a defendant gets to refute allegations upon which he has not been convicted and/or is not pleading to in a plea bargain when he is sentenced. Do Federal judges really give defendants sufficient time to do this?

    I don’t know how this will play out in Vick’s case–but with regard to Conrad Black’s sentencing–I think that it is fundamentally unfair for a judge to consider the counts on which he was acquitted to determine his sentence–regardless of what the Supreme Court says.

    The Supreme Court is comprised of nine lawyers, not nine gods. It is not infallible–as Roe v. Wade, with its ridiculous talk of penumbras– and other cases prove.

    Jerri Lynn Ward (86312b)

  39. Jerri Lynn,

    As I read your comments, you think the right to a jury trial and (apparently) the right to confront witnesses and the evidentiary rules should apply not only at trial – when guilt or innocence is determined – but also at sentencing. Can you identify your specific concerns or does this bother you because it seems arbitrary and unfair?

    I think one reason sentencing guidelines were established was the perception that sentencing was sometimes arbitrary and unfair.

    DRJ (bfe07e)

  40. DRJ,

    For instance, I think that it is fundamentally unfair that Conrad Black was acquitted by a jury of many of the counts with which he was charged, yet the judge can consider those counts in sentencing him. I guess, if I am reading wls correctly, that the judge would be determining whether the evidence of guilt underlying the counts upon which he was acquitted met the preponderance of the evidence burden. But, darn it, the JURY acquitted him of those counts and the penalty is criminal in nature not civil.

    Frankly, I don’t believe in the Federal Criminal system. I think that we should go back to the days when the only Federal crimes were counterfeiting, treason and piracy. I might be willing to add terrorism as long as the Feds aren’t allowed to define chicken fighting as terrorism thereby justifying “sneak and peak” warrants against hillbillies who have been staging chicken fights for generations upon generations.

    Jerri Lynn Ward (86312b)

  41. I think VIck will play in the NFL again. I seem to recall a story where a long time head coach was asked if they would consider drafting Charles Manson, and the response was “It depends on his time in the 40.”

    Marco (b6cf7b)

  42. Jerri Lynn — a couple points.

    First, as I mentioned earlier, a verdict of “acquittal” is not the same as saying someone is factually innocent — it means they are legally innocent because the government didn’t meet its burden of proof in the presentation of evidence. If determines NO FACTS as to what actually happened.

    So, as to Conrad Black, the question before the Court at sentencing is not whether he is guilty of a crime FOR taking the money about which he was accused and found not guilty, but whether he ACTUALLY TOOK the money, and if so, how that FACT should/should not guide the exercise of discertion on the part of the court in sentencing him for crime(s) that he has been convicted of commiting.

    If there is evidence of FACTUAL INNOCENCE, he can put it foward.

    If there is evidence of FACTUAL CULPABILITY, even if was deemed by the jury to be insufficient to satisfy the standard of proof beyond a reasonable doubt, there is no reason why a court should make itself wilfully blind to his conduct.

    As to “sneak and peak” warrants under the provisions of the PATRIOT ACT, I challenge you or anyone else here to find a provision in that statute that limits its application only to investigations concerning terrorism.

    The PATRIOT ACT is a law of general application. The fact that it was passed after 9/11 to address weaknesses in law enforcement authority exposed by 9/11 doesn’t limit its application.

    The plain truth is that the PATRIOT ACT was largely a hodgepodge of related law enforcement proposals that DOJ had been urging Congress to pass for several years — including the Reno Justice Dept under the Clinton Administration –and 9/11 was simply the catalyst that finally got Congress off its ass to do it.

    Do you even understand what a “sneak and peek” warrant is, and how the law was changed??

    Without awaiting a response, I’ll simply tell you that the only thing “sneak and peek” describes is a process by which law enforcement can execute a lawfully issued warrant and then delay notice of the execution of that warrant to the party who was the subject of the search.

    It applies to ALL SEARCH WARRANTS, not just terrorism search warrants.

    And, the authority to delay notice is given by the COURT issuing the warrant, its not something the law enforcement agents can determine to do on their own.

    So, other than your misguided notion that there is something inherently prejudicial about a “sneak and peek” warrant, what is your specific objection to the idea that law enforcement is authorized by law to conduct a surreptitious entry, pursuant to a warrant issued on probable cause, conduct a search for evidence of criminal activity, and then delay notifying the subject of the search while further investigation takes place???

    WLS (077d0d)

  43. […] “good lawyers” and “career rehabilitators” will suck down those millions. Patterico has an excellent analysis of what kind of time he’s looking at, even before talking to the judge. He makes an educated […]

    Plucking the Feathers off a Falcon, One by One « Obi’s Sister (0de2f5)

  44. The Supreme Court establishes only the minimum Constitutional requirements. Nothing prohibits Congress or State legislatures from prohibiting “sneak and peak” warrants, or ex parte issuance of warrants for that matter. It is my biggest problem with Libertarians, that they join Liberals in making the Courts not just the final word but the only word.

    nk (e3412b)

  45. Vick can still face state charges,

    Can he? Will he? I have heard one or two media sources say the same, but always in passing and never with any elaboration as to how that option would work, or whether the state authorities have shown any interest in pursuing it. Are there any Virginia prosecutors reading this blog who can shed some light on this?

    My understanding that while the double-jeopardy rule does not bar successive prosecutions by different sovereigns (just ask the cops who beat Rodney King), many states have laws of their own that do. I don’t know if Virginia is among them, but if it’s not, I can’t help but wonder how Vick would defend himself against state charges predicated on exactly the same acts he just pleaded guilty to in federal court.

    Xrlq (6c2116)

  46. Xrlq — I recall reading before the federal indictment was returned that the feds had made a deal with the local prosecutor to allow the local prosecutor to bring his case, and the feds would stand aside. But, after a period of time there was a concern that the local guy was dragging his feet and really wasn’t interested in bringing the case. There was some thought that local politics, racial politics, and the fact that Vick was a hometown hero all contributed to a less-than-aggressive approach by the local prosecutor. He has only changed his tune after the indictment was returned — which I remember seeing reported came as a surprise to him — and seeing what was inside and the fact that one or more of the co-defendants was going to cooperate.

    WLS (077d0d)

  47. XRLQ & WLS,

    Re: Virginia charges:

    “The Atlanta Falcons quarterback faces possible prosecution in state court, where punishment might far exceed the maximum five years in prison that could await him in his federal case.

    Local prosecutor Gerald Poindexter has said he likely will pursue charges against Vick, who has plummeted from favorite son to a symbol of animal abuse in the four months since authorities raided his Surry County property. Poindexter says the case could go before a county grand jury Sept. 25.”

    DRJ (bfe07e)

  48. I understand your explanation about what an acquittal is according to the Court. You write very clearly and I get it. I just don’t agree with your presupposition that this is consistent with the intent of the 6th Amendment–regardless of what some court says.

    Also as to Conrad Black, you give a very informative explanation that makes me even more uncomfortable with the situation than I was before. I still believe that it is an infringement of the plain reading of 6th Amendment. I certainly don’t believe that the Supreme Court has been a steadfast protector of the Constitution.

    As to the Patriot Act, I realize that it is a law of general application. I don’t think most people who supported it did and would be bothered by the fact that a tool they thought was only going to be employed by Islamic terrorists can now be used against Charlie the local Gun Dealer or Sam the corner pharmacist.

    My objection to a sneak and peek warrant is that I think it is antithetical to the principles of liberty upon which this country was built and the original intent of the 4th amendment. I think it is open to all sorts of abuses by the police that cannot be monitored or prevented because it involves sneaking around by the government.

    You think of them as a tool because of your line of work. I think of them as a dangerous threat to liberty and a terrible aggrandizement of power for those I don’t trust and never will.

    By the way, why do you find it necessary to slip little insults into your comments when the other party is simply trying to have a civil and interesting debate with you?

    Jerri Lynn Ward (bf2d8c)

  49. I would say that the exception to double jeopardy works both ways. That just as a finding of not guilty in federal court would not preclude trial in state court, a finding or plea of guilty in federal court would not override the Constitutional requiremements of trial, by jury, and proof beyond a reasonable doubt as to the state charges. So no, the federal guilty plea is not a “judicial admission” in regard to any state charges. I suppose Vick’s allocution, if any, in the federal sentencing hearing might be used against him and I suppose the federal conviction could be read in the record solely for purposes of impeachment were he to take the stand.

    nk (e3412b)

  50. Jerri Lynn #48,

    I hope you remember from earlier threads that you and I more often agree than disagree. And I try very hard not to gratuitously insult anyone. But how on earth can we blame the courts or the prosecutors for something that is preventable by the democratic process? Taking it a step further — there is no responsibility without power. By blaming the courts and prosecutors are we not ceding their power to act as they do? We should blame ourselves for the legislators we have elected.

    nk (e3412b)

  51. Jerri Lynn — I hope you believe me when I say that I have not intended to gratuitously insult you in my posts. I’m not sure which words have offended you, but I apologize for them. I’m expressing my view in strong terms becuase I’m certainly willing to entertain contrary points of view but I become exasperated when those points of view come without a logical explication that can be contested.

    For example, you now say that you think delayed notification is antithetical to the principles of liberty and the original intent of the 4th Amendment.

    The 4th Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    It says nothing about giving notice to the person subject to the search. That requirement was imposed by Congress, just as the 10 day limitation was imposed by Congress and the “only search between 6:00 a.m. and 10:00 p.m.” limit was imposed by Congress. The “delayed notification” provision of the PATRIOT Act simply changes the limits Congress previously imposed, and does no violence to the 4th Amendment.

    And, the ability to obtain “sneak and peak” warrants existed previously in certain situations. In 1997 I obtained a warrant to place a videocamera inside the garage of a residence while the suspects were gone in order to watch loads of heroin arrive in vehicles that were dismantled behind closed doors inside the garage. That camera was in operation for 4 months. Every 30 days we had to go back to the Judge and justify why we could not give notice to the occupant of the house that we were in the process of “searching” the activities in the garage. We also installed microphones inside the garage, but because those were intercepting conversations, that had to be done with a separate Title III wiretap warrant.

    That was a “sneak and peek” warrant, and it was pre-9/11.

    WLS (077d0d)

  52. Is it possible that one Vick and his legal team understood that Vick could be innocent of most of the charges but could not or might not be able to prove it. Does it stand to reason that even though 4 others have criminal records the defense might have assessed it still hard to take the risk of a rico charge when what is actually at stake is 30 months or less right now? Finally is it true that though not mentioned in your explanation other facts will be considered like the fact that Vick has no criminal record, He has done many works in the community, and that he had done many things positive? Also is it true that the judge must also consider the situation without considering Mr.Vick status as a star. Meaning if Joe Snuffy on the street were convicted of the same crime but had no previous record how much time would be appropiate?

    Sinclair (aa7e8e)

  53. Sinclair — all of what you suppose is possible, but Billy Martin, Vick’s lead defense attorney, is not a guy who is afraid to try a case just becuase there are cooperators prepared to testify against his client.

    More significantly, the manner in which the indictment alleges what went on leads me to suspect there were gov’t witnesses that haven’t yet been identified. In other words, the govt’s case was stronger than simply the word of Vick against the word of his friends with criminal records who were going to testify against him.

    As to what the judge will consider at sentencing, you are correct that those things you mention do weigh in Vick’s favor. Vick will have an opportunity to present evidence of his good character in order to show his crimes to be isolated instances. Friends, family, and business associates can write letters of support to the judge.

    But, even with that, I still think Vick is looking at 24+ months — not less than 12 as his attorneys are suggesting might be the case.

    wls (aad074)

  54. “For example, you now say that you think delayed notification is antithetical to the principles of liberty and the original intent of the 4th Amendment.”


    Do you really believe that the Founding Fathers, steeped as they were in Blackstone would approve of government agents sneaking onto someone’s property like burglars, looking at private effects, taking some without leaving an inventory and doing god knows what because the subject of the investigation or his lawyer isn’t there to monitor and assure that everything is above board–and if it wasn’t above board–having no access to facts that would enable him to complain to a Judge about planting of evidence or destruction of exculpatory evidence? Moreover, having this repeated over periods of time with no recourse to the courts as to any problems with the warrant, search or conduct of the agents because you don’t know about it?

    I don’t think the fact that this is pursuant to warrant makes this reasonable. A warrant is not a magic wand which makes all things kosher and reasonable. Look at the Kathryn Johnston case. Also, I don’t think the 4th amendment means that a search is per se reasonable solely because of the existence of a warrant.

    I’m not going to be able to outdebate you on technical issues or case law regarding the 4th amendment. I know, for instance, that Brennan turned the 4th amendment debate away from the importance of property to a debate about individual liberties. I just find these searches to be unreasonable because there is no real way to hold the agents accountable for what they do as they sneak and peek–because they are the only ones there.

    It is bad enough when agents serve warrants or administrative demands (like on my clients). I have one client whose defense hinges on one exculpatory document that the State took and now claims it can’t find. At least it’s on the inventory. Had the agents snuck in to take it and then it disappeared–they could make a case that my client lied about its existence.

    And, yes, I think that some agents would do such a thing. As Lord Acton said, “power corrupts”.


    I hope that you didn’t think my comment was directed at you. I totally agree that we should hold the legislative branch responsible for the overreaching of the Federal government into criminal matters. From what I read, Congressmen actually voted on the Patriot Act without reading it. And yes, we elected them.

    The gargantuan growth of the Federal Government is exactly why I joined the Revolution. The Ron Paul Revolution. I want the Federal Government cut down to size and the Republican platform actually implemented.

    Jerri Lynn Ward (86312b)

  55. Forget Al Davis, the NAACP thinks Michael Vick should play football again:

    “An NAACP leader said Michael Vick should be allowed to return to the NFL, preferably the Atlanta Falcons, after serving his sentence for his role in a dogfighting operation.

    “As a society, we should aid in his rehabilitation and welcome a new Michael Vick back into the community without a permanent loss of his career in football,” said R.L. White, president of the group’s Atlanta chapter. “We further ask the NFL, Falcons, and the sponsors not to permanently ban Mr. Vick from his ability to bring hours of enjoyment to fans all over this country.”

    After all, it was only a dog:

    “White said he regretted that the plea deal will mean all the facts of the case might never be known. “Some have said things to save their own necks,” White said. “Michael Vick has received more negative press than if he had killed a human being.” White said he does not support dogfighting and that he considers it as bad as hunting.

    “His crime is, it was a dog,” White said.”

    DRJ (bfe07e)

  56. Never underestimate how much Americans love their dogs, cats and pets in general.

    DRJ (bfe07e)

  57. DRJ #57,

    It may be a piece of our genetic code. Civilization came about because we went from hunter-gatherers who only killed animals to agrarians who domesticated and raised animals. That those genes may be missing from some of us may also be part of the reason we need police and prisons.

    nk (e3412b)

  58. NK,

    It’s definitely part of my DNA.

    DRJ (bfe07e)

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