Saturday, February 15, 2014

Government Files Protective Appeal in Ty Warner Sentencing (2/15/14)

The Government has filed a notice of appeal from Ty Warner's sentencing. Becky Yerak, Government seeks to appeal Ty Warner's probation in tax evasion case (Chicago Tribune 2/13/14), here.  The appeal was predictable.  According to the article, 
Randall Samborn, a spokesman for the U.S. Attorney's Office, explained that the filing is a "protective notice of appeal," meaning that it’s still awaiting Justice Department authorization to proceed with the appeal. The filing notice protects its appellate rights, he said.
As noted, it is not uncommon for the Government to take protective appeals if the final decision has not been made to perfect the appeal.

Quoting Juliet Sorensen, clinical assistant professor of law at the Center for International Human Rights at Northwestern University’s law school and a former assistant U.S. attorney, the article reports:
It’s not a routine matter for the U.S. government to appeal a criminal sentence, she said. 
"It considers each case individually," she said. "The Department of Justice tries to make a calculated judgment about cases that stand the best chance for the sentence to be found unreasonable by the court of appeals."
As readers of this blog, sentencing judges now have considerable discretion to fashion a sentence they think appropriate under 18 USC 3553(a), here.  This discretion is sometimes referred to as Booker discretion, named after the key case.  United States v. Booker, 543 U.S. 220  (2005), here.  Booker freed sentencings from the rigidity of the Sentencing Guidelines, here.  Given the numbers involved in Warner's case, his guidelines range was substantial, hence in giving probation the sentencing judge gave a very large variance (variance is the Booker deviation from the Guidelines).

Courts rarely reverse the judge's exercise of Booker sentencing discretion.  But this could be a case where it does.

I suspect that the Government will argue that the probation sentence in the case of a high profile bad actor just sends the wrong message, in addition to not being commensurate with the crime.  In this regard, I quote from the Sentencing Guidelines 2T1, here.
Introductory Commentary 
The criminal tax laws are designed to protect the public interest in preserving the integrity of the nation's tax system.  Criminal tax prosecutions serve to punish the violator and promote respect for the tax laws.  Because of the limited number of criminal tax prosecutions relative to the estimated incidence of such violations, deterring others from violating the tax laws is a primary consideration underlying these guidelines.  Recognition that the sentence for a criminal tax case will be commensurate with the gravity of the offense should act as a deterrent to would-be violators.
For the prior post on the sentencing, see The Beanie Baby Man, The Tax Evader Adult Man, Ty Warner, Gets Probation! (Federal Tax Crimes Blog 1/14/14; Updated 1/18/14), here.


  1. I took a look at your previous post, and you said you hadn't read the judge's sentencing memo (if there was one) yet. Any comments on it now?

    It truly is strange that the judge would give such a light sentence. It will be appealed, and the judge will, one hopes, lose (or does he think that with a heavier sentence the evader would appeal and win because of his good lawyers?). It makes the judge look easy on crime, and rightly so. It makes him look easy on the rich, and rightly so. The offender may well commit the crime again; his contrition would be easy to feign. He's paid lots of fines, but not, I expect, as a fraction of his wealth. So what could the judge be thinking?

  2. Thanks for the comment.

    I have scanned the documents. It was as expected but I did not get deeply enough into the documents to have any meaningful comment.

    Mr. Warner had and could afford the best lawyers. They could put on the sentencing drama in the most effective way and, for now, it worked.

    Although sentencing judges have a lot of discretion in sentencing and the courts of appeals are averse to reverse the exercise of that discretion, I suspect that the Seventh Circuit is going to have to struggle with this one.

    Jack Townsend

  3. It is important to view the original sentence in light of the facts of the case. Mr. Warner attempted to enter OVDI, but unbeknownst to him the Government already had his identifying information, so he was not eligible. It seems to me that in light of this, the sentence of probation was fair. Though the government does not want to send the message that it is easy on crime, it is also important for it to consider whether seeking a harsher sentence will discourage voluntary disclosures. Anyone considering joining OVDI must now consider the risk of providing to the government information that it does not have, and essentially cooking his own goose.

  4. Agree that the unmailed return gambit was stupid. He also had the bad facts of an entity, using back to back loans to bring the money to the US, and deducting the interest without showing the offsetting income. I just wish that those who do not have these bad facts were not lumped in with the rest.
    I also noticed that this was a Mizrahi account in Israel, not Switzerland.


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