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Gregg Sofer
Ever wonder what is going on behind the scenes as the government investigates criminal cases? Are you interested in the strategies the government employs when bringing prosecutions? I'm your host, Gregg Sofer, and along with my colleagues in Husch Blackwell's White Collar, Internal Investigations and Compliance Team, we will bring to bear over 200 years of experience inside the government to provide you and your business thought provoking and topical legal analysis.
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Gregg Sofer
As we discuss some of the country's most interesting criminal cases and issues related to compliance and internal investigations. Welcome to the latest edition of The Justice Insiders. I'm your host, Gregg Sofer, and I'm lucky enough to once again be joined by my partner, Jonathan Porter, who is in our Lincoln office. But is based in Georgia. He's also the host of a new podcast Husch Blackwell carries called the False Claims Act Insights Podcast, which has just recently started.
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Gregg Sofer
Jonathan. Welcome back to the show.
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Jonathan Porter
Thanks, Gregg. It's good to join you again.
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Gregg Sofer
Jonathan, you were last on Justice Insiders when we talked about the Sam Bankman-Fried case and we did another episode which our listeners can listen to if they access the podcast. And Mr. Bankman-Fried has been sentenced since then. He was sentenced late last month to 25 years in federal prison, and he was ordered to pay $11 billion in forfeiture, which is not a small number.
00;01;28;08 - 00;01;51;10
Gregg Sofer
And I thought we would take this opportunity to talk a little bit about federal sentencing and getting a sentence to maybe demystify a little bit for our listeners. The process and use the Sam Bankman-Fried case as an example of how this all works. So let's start with the basics, okay? Mr. Bankman-Fried went to trial law, obviously got convicted of a bunch of different offenses.
00;01;51;11 - 00;02;14;23
Gregg Sofer
I think most people know that he ran at one time the second largest cryptocurrency platform exchange in the world, and that ultimately that collapsed, causing all kinds of problems and leading to his criminal prosecution. But when he went to trial, he testified and he did his best to defend himself along the lines of what we discussed the last time and is lost.
00;02;14;24 - 00;02;22;16
Gregg Sofer
So what happens after a defendant is found guilty by a jury in the sentencing process? What's the next thing that happens?
00;02;22;28 - 00;02;48;29
Jonathan Porter
Right. So, Greg, the next thing that happens after you are convicted at trial or you plead guilty is that the probation office of the court, they do their own investigation. So the probation office, it's an arm of the court. It's part of the judicial branch. But they do their own investigation. They look at all the evidence, they do their own investigation, and they do all of that with a goal of generating a report, a pre-sentence investigative report.
00;02;49;10 - 00;03;08;09
Jonathan Porter
That report is usually restricted. A lot of times it contains sensitive mitigating information. If someone had a rough childhood, if they've got some sort of, you know, disease mental state that the judge needs to know about. That's all in the in the present investigative report. And so it's almost always locked down and no one really gets to see it.
00;03;08;18 - 00;03;34;01
Jonathan Porter
But the unique thing here is we know what part of it said, because the defense actually responded to it in a public filing. So usually in that presents a presentence investigative report. There's a recommendation from the probation office as to how long that they suggest that the defendant is said it's doing. We know here that probation recommended a sentence of 100 years for Sam Bankman-Fried.
00;03;34;09 - 00;03;55;20
Jonathan Porter
That's because the defense responded to it and said, that's ridiculous. They said 100 years. This is not just so we know that. So different probation officers work differently, but they're oftentimes just calculating the guidelines range and reporting that and sticking with some recommended sentence within that range. And I think that's maybe where we might want to talk about the sentencing guidelines themselves.
00;03;55;20 - 00;03;56;05
Jonathan Porter
What do you think?
00;03;56;19 - 00;04;27;03
Gregg Sofer
Absolutely. So let's just go back a tiny little bit. You have this PSA. They call it the pre-sentence investigation that then turns into a PSA or pre-sentence report. And as you point out, the most critical part of it often is recommendation of the applicable guidelines. And the applicable guidelines are then included in that PSR. And the court then looks at those and often judges will try to present to sentence defendants within the applicable guidelines.
00;04;27;03 - 00;04;37;15
Gregg Sofer
But the guidelines have a long history which we could do an entire podcast about, but won't. But why don't you break down a little bit what the guidelines are and how they are calculated generally?
00;04;37;25 - 00;04;59;21
Jonathan Porter
Yeah, we'll do a short history. So decades ago, there were wild sentencing disparities. You know, you'd have, for example, 100 cocaine dealers across the country and they were all getting just random sentences. Whatever a judge thinks is right, usually tied to sort of some anecdote in the back of their mind. Well, I saw a cocaine dealer, you know, four years ago, and I gave them 48 months.
00;05;00;03 - 00;05;15;18
Jonathan Porter
Maybe this time seems a little worse. So let's go 60 months this time. But that was not at all connected to what any other judge across the country was doing. And so a bunch of people got together and they say, well, let's study this, let's form this commission and see if we can reduce all of this down to an algorithm.
00;05;15;18 - 00;05;45;17
Jonathan Porter
So the commission called the Sentencing Guidelines Commission got together. They looked at all of these sentences and they tried to figure out what are the qualities that underlie these sentences. And they were able to work this down into a essentially a math problem. So, for example, those cocaine dealers that we just talked about, their offenses are analyzed now based on the quantity of the cocaine they were trafficking, whether death resulted from the drugs that were trafficked, whether they were leaders or organizers of a criminal organization.
00;05;45;17 - 00;06;18;23
Jonathan Porter
There's all sorts of things like that all the way down to these interesting details, like whether the drugs were trafficked using a submarine or whether the drugs were cultivated while trespassing on tribal lands. There's all these interesting parts of what they call enhancements in the guidelines that sort of drive what that guidelines range is. And so you consider all these factors and you're left with essentially a math problem that leads to a range that the members of the sentencing Guidelines Commission believe to be appropriate based on their review of how judge's sentence.
00;06;19;00 - 00;06;46;24
Gregg Sofer
How what you just described is called the offense characteristics and calculating the offense. So like you said, you have a complex system that attempts to catalog human behavior in a way that sort of trying to figure out how serious is this offense, what kind of impact does it have? Then there's another we'll call that the x axis. Although I'm such a terrible math person that it could be I think it might actually be the y axis.
00;06;47;01 - 00;06;56;13
Gregg Sofer
These y on the X axis is going to be and it is literally a chart in the end. So the y axis is how serious this offense is. What's the exact.
00;06;57;00 - 00;07;18;19
Jonathan Porter
Yeah, it's criminal history. And the weird thing is they've got these Roman numerals and you have to do a different set of math in order to figure out what Roman numeral you're in. The various previous offenses are counted several, you know, various amount of points against you. And so you ultimately end up with those two different the x axis and the Y axis, and you'll you'll sort of plot them out.
00;07;18;19 - 00;07;31;05
Jonathan Porter
And then there's this table and then you get this guidelines range and it'll tell you roughly within, you know, 6 to 12 months, however many, it depends what your guidelines range is.
00;07;31;23 - 00;08;00;15
Gregg Sofer
And that X axis is the criminal history category. And also it's pretty complicated. But bottom line is the it gets worse the farther you go from left to right and worse, the farther you go from up the down. So if you're in the bottom right end of this chart, it says Life for 360 months to life. And if you're at the top left hand part of the chart, it says that you're eligible for probation or your guidelines are zero to something month.
00;08;00;21 - 00;08;07;04
Gregg Sofer
And so you don't want to be on the bottom. Right. Where do you think Mr. Bankman-Fried ended up here?
00;08;07;10 - 00;08;28;22
Jonathan Porter
Yes. My understanding is he had no criminal history, so he'd be in criminal history, category one, which is good. But I think we talked about it on the on the last episode. His loss amount was so high, it's literally off that to be 1.1 charts, which I think stops at 550 million. The last time I checked and I think his loss amount was probably nine, ten, $11 billion.
00;08;28;22 - 00;08;38;06
Jonathan Porter
And so he was almost certainly at the far extreme of that y axis, but on the total left of the criminal history axis right.
00;08;38;08 - 00;09;03;16
Gregg Sofer
Which didn't do him much good. So that number comes out. It's part of the PSR and essentially that's what the probation department and the US probation ends up recommending. And the court will look at that and take it very seriously because sentencing within the guideline range is deemed to be reasonable in most cases, assuming as calculated correctly, how does this interface with the penalty that each offense carries under the law?
00;09;03;16 - 00;09;15;05
Gregg Sofer
In other words, when Congress said that you can get a certain amount of time for wire fraud, they didn't calculate that guidelines at all. They calculated something else. And can you explain that a little bit to our listeners?
00;09;15;18 - 00;09;40;05
Jonathan Porter
Right. So the statutory maximum is what Congress sets. So if you're convicted of, say, in my world, health care fraud, that's a ten year statutory maximum, 20 years for wire fraud. I think it's 30 years for bank fraud and for mail fraud. So it goes up. There are various offenses that have different amounts. And what you do at trial or after a plea, if you're pleading to multiple counts, you count up all of those maximums.
00;09;40;05 - 00;09;54;21
Jonathan Porter
And so I think with Sam Bankman-Fried, I believe he was convicted on seven counts. And you just add up all the statutory maximums for those counts. I think he was eligible for a 110 years as his statutory maximum, and that's how the statutory maximum works.
00;09;55;10 - 00;10;17;19
Gregg Sofer
Okay. So the judge knows what the statutory maximum is. That is a absolute hard stop for the court. Can't go over the statutory maximum or the sentence is clearly illegal. But other than that, what happens with the guideline recommendation by probation? So the judge knows this. I can't give the guy more than 120 years or hundred and ten years, whatever is in this guy's case, clearly going to be the rest of his life.
00;10;18;06 - 00;10;43;13
Gregg Sofer
The Department of Probation here has U.S. probation has recommended a hundred years. Right. The government comes in and makes a recommendation in court as well. In this case, it was between 40 and 50 years, as I understand it. But what is the judge doing behind the scenes to try to figure out and what can the judge do? What could the judge have given this guy zero?
00;10;43;15 - 00;10;46;01
Gregg Sofer
I know the answer to this, but could have given him nothing.
00;10;46;10 - 00;11;01;02
Jonathan Porter
Yeah, good question. So before we get to that Greg Greg story, I did have a judge once try to sentence a defendant back when I was in the U.S. I tried to sit as a defendant over the statutory maximum. I think that's the only time I've ever objected to a judge's sentence from my time with the Justice Department judges.
00;11;01;02 - 00;11;21;11
Jonathan Porter
So, you know, this got pled out to a five year cap. You sentence to six years. We can't do that. Let's let's abide by what Congress said this statutory maximum is. But know what the judge is doing. The judge is thoroughly reading the pre-sentence report and the judge is required to at least consider those sentencing guidelines. They're no longer mandatory.
00;11;21;11 - 00;11;44;27
Jonathan Porter
They're advisory. So the judge really, in my experience, judges really are trying to get it right. They're guided by what's called the 3553 A factors that's 18 U.S.C. 3553. And I don't want to read the factors, but we all, those of us who practice in zero, we all know them essentially what it's trying to do is find deterrence and trying to say, look for what you did for the nature of your offense.
00;11;44;27 - 00;12;03;19
Jonathan Porter
This is what we think a just sentence is. And so obviously with SBF, Judge Kaplan said 100 years is not reasonable. That's excessive of what I think a just sentence would be. And so Judge Kaplan here went below the guidelines range and sentencing to zero months. That would have been hard to do without some sort of risk of appeal.
00;12;04;03 - 00;12;25;13
Gregg Sofer
Appeal from the government. So this is an important thing to talk about how the appeal process interfaces with all this. So this is an individual who went to trial and lost, which puts him in a different category from 90 something percent of criminal defendants who plead guilty. Most criminal defendants plead guilty and enter into a plea agreement with the United States government.
00;12;26;00 - 00;12;56;00
Gregg Sofer
And almost every one of those plea agreements actually has the defendant waive their right to appeal. That's one of the great benefits the government gets, is that the case is over. And the defendant, except for some very unusual circumstances, including prosecutorial misconduct or ineffective assistance of counsel, is unable to appeal their conviction. But here the defendant went to trial in front of the judge and not only to the judge to get the PSR and see everything that probation described, but he actually sat through all the evidence, which has a huge impact on sentencing as well.
00;12;56;06 - 00;13;19;07
Gregg Sofer
Sometimes good, sometimes bad. But he actually saw the defendant testify. He got to see all the evidence against him. And so he really is in unusually good position to gauge the case. And then, as you point out, he looks at these other factors, but appeal is an issue and the sentencing guidelines have caused massive litigation in the federal courts with respect to their application, particularly when they were mandatory.
00;13;19;07 - 00;13;36;10
Gregg Sofer
But what parts what kinds of things here could be appealed? You just described a situation where the government would get a sentence and say, well, that's just on its face unreasonable. And that's very, very, very unusual. It does happen, but it's very unusual. How does the appeal process play into the sentencing here?
00;13;36;10 - 00;13;54;23
Jonathan Porter
Yeah, so there's a number of things that would be appealable here by Sam Bankman-Fried's team is anything I mean, there are a number of we think we talked about in the last episode, there are a number of things that happened during the trial. Sam Bankman-Fried was testified once and was subject to cross-examination before he actually gave testimony before the jury.
00;13;55;01 - 00;14;16;01
Jonathan Porter
There's several weird things that I'm sure you know, the second Circuit where the Southern District, New York lies maybe hasn't considered yet. So there's some interesting things that this is not one of those cases that sort of immune from any sort of appeal. There are various things. One of the most common things that happens after a trial and there's an appeal is everything from those sentencing guidelines.
00;14;16;02 - 00;14;32;28
Jonathan Porter
You can can appeal those and ask the court of Appeals to say, is this the correct approach? And with all those enhancements that we talked about, they can take a look at all of those. And if they say, okay, well, you said sophisticated means applied based on our understanding of what those words mean, maybe maybe they don't apply.
00;14;32;29 - 00;14;41;07
Jonathan Porter
So let's take two points off and then then send them back for sentencing. There's all sorts of things that can happen. Greg, what do you what do you think some of the most likely appealable topics would be here?
00;14;41;17 - 00;15;02;25
Gregg Sofer
Well, I think you touched on the one that was most unusual in the case. I mean, the fact of the matter is that they've already indicated 100% they're going to appeal. And in cases like this, not filing appeal is, in my view, akin to malpractise. I mean, there's no downside other than the costs and work that goes into filing an appeal.
00;15;02;25 - 00;15;24;28
Gregg Sofer
So I anticipate they'll attack any place in the in any evidentiary ruling, any calculation made by the court, particularly the things that are novel and will appeal them. I think that goes without saying almost. And you've got to be careful about appealing the sentence. Right. I've seen cases where the court sentence is appealed and the judge gave the person ten years.
00;15;25;04 - 00;15;46;25
Gregg Sofer
And then the appellate court says, the way you calculated this and the record that you made during sentencing was inappropriate and therefore, did they send it back? And then the judge gives them 15 years. So you have to be careful about, in my view, this 25 years. You know, we've talked about this started at 100. The government recommended 40 to 50 and he got 25.
00;15;46;25 - 00;16;07;02
Gregg Sofer
In my view, he did quite well. So I'd be very careful about attacking the sentence here. On the other hand, all of the rest of the proceedings, some of which were unusual, as you point out, I think will be strongly appealed in almost every federal case, most federal appeals, the defendant loses because the judges are very careful. This is a very sophisticated judge.
00;16;07;02 - 00;16;29;25
Gregg Sofer
I know of him. You probably know of him as well. He's a very smart man and he's going to be careful. The same thing is done when a judge sentences people. When he actually announced the sentence, they usually go through this whole regime. We've talked about not just the guidelines, but also the 3553 factors. And the record that they make is made carefully to preserve the sentence on appeal so it doesn't come back.
00;16;29;25 - 00;16;47;00
Gregg Sofer
Judges don't like to lose on appeal either, and nobody would want to see a case, particularly with this high profile come back. So I would anticipate that the sentencing minutes, which I did not read, are likely pretty strong in this case. All right. We've gone through the beginnings of the process, really the way it actually plays out. Defendant was convicted.
00;16;47;12 - 00;17;12;18
Gregg Sofer
There's a period of time, usually some months as occurred here between the trial and the time of the sentencing, where all of this information is gathered and given to the judge. What else is submitted to the judge in looking at the appropriate sentence? And again, we can assume here, in fact, the record is clear that, for instance, he received the judge did something like 200 or more letters, I think, from victims.
00;17;12;28 - 00;17;17;16
Gregg Sofer
What kinds of information is the court also looking at beyond what we've talked about so far?
00;17;18;08 - 00;17;37;01
Jonathan Porter
Right. So victims are permitted by law actually to tell the judge how they've been impacted by the crime. So they're allowed to say whatever they want to say. But that's a process that is really not controlled by the prosecution in practice. Sometimes it's coordinated, but the victims are able to tell the judge what they know, how they were impacted.
00;17;37;01 - 00;18;00;04
Jonathan Porter
Those, in my experience, have a great deal of impact because, you know, judges, they want to hear what this actually did to people who suffered from this. And so there were a lot of people who invested money in who had multiple consequences. And so those people gave the statements to the court victim impact statements. The defense also gets to provide letters in support of the defendant.
00;18;00;05 - 00;18;28;04
Jonathan Porter
So if a loved one wants to say, look, this doesn't really represent who the defendant is, they the other parents can can submit statements, friends, people who are known to the court that sometimes helps. But the defense gets to submit all of these letters in support. And and then both sides oftentimes in these types of cases, in trials, both sides will submit a sentencing memorandum that sort of paints a nice picture going into sentencing as to who this is.
00;18;28;04 - 00;18;45;15
Jonathan Porter
Because a lot of times judges will have an idea of what they want to sentence the defendant to. And that's based on all those submissions, the victim impact statements, the letters from defendant's family and friends and those sentencing memorandums. So the judge will go in with some sort of an idea. But I would imagine sometimes that can change at at sentencing.
00;18;47;06 - 00;19;05;22
Gregg Sofer
Yeah. So one interesting aspect of losing a trial is, as I said before, where you sat in front of the judge. In the judge, you got to see all of this. Most sentences doesn't work that way. Most sentences is probably the most substantive information the courts ever heard about the case. The case has been kicking down the road for months, sometimes years.
00;19;06;04 - 00;19;24;11
Gregg Sofer
The judge has probably read the indictment, maybe read some other papers. But if there's a fairly quick plea or there's pleas after or even some motion practice, the judge really still doesn't know all the facts of the case. So here, though, again, the judge was in a unique position to know all about the case, but that is not the normal course of events.
00;19;24;22 - 00;19;45;14
Gregg Sofer
So okay. So now the judge reads all of these kind of things. And as you point out, now it's up to the court. They sit in their chambers, most likely, and mull over this. And then there's a actual sentencing hearing set, which at some of them can be very long, in which there are all kinds of things we've talked about or contested.
00;19;45;14 - 00;20;03;11
Gregg Sofer
There could be witnesses that testify to contest one or more of the calculations in the guidelines, but let's assume that litigation has been resolved. And instead, it's sort of a what I would say, run of the mill sentencing. What actually happens and and who speaks first and how does it usually go?
00;20;03;18 - 00;20;23;16
Jonathan Porter
Yeah. So that actually brings up an interesting point. I've heard of different courts doing things different ways. I've heard that judges within districts will do things different ways. My experience or most of my judges that I practice in front of when I was in AUSA was the prosecution went first, gave a gave who said a few words about the defendant.
00;20;23;23 - 00;20;46;28
Jonathan Porter
When I was in the U.S., I usually try to say something nice about the defendant and then say, But the conduct was bad and then give you know, sometimes you give a recommendation. Some judges did not want us to give him recommendations. I thought that was interesting. So the prosecution will go the defense counsel will get to say something and then sort of critically and this is actually provided for by statute, the defendant himself or herself gets to speak at sentencing.
00;20;47;02 - 00;21;04;04
Jonathan Porter
So the judge gets to hear from the defendant himself or herself. Scott allocution. And there's a lot of strategy that goes into what the defendant should say when it's in the context of a plea, as most cases are. You sort of know what to say. You sort of own what you did, and you you just ask for mercy.
00;21;04;04 - 00;21;21;26
Jonathan Porter
You try to say, this is not what you know. This is not what I intended to do. This is, you know, my I didn't go into this intending to commit fraud. I didn't, you know, get into this because I'm a bad person. Here's some good things to know about me. It's interesting, with USBs, it's a trial, and therefore there's an appeal that's going to be expected.
00;21;21;26 - 00;21;40;27
Jonathan Porter
And so what you're going to say is, is going to be a little bit different because there's a possibility of a retrial. You don't want to go in there and said, yep, I committed all the fraud that was me. So you can't really accept responsibility. And that's really the best strategy is to go into sentencing, accept responsibility. And so judges, I'm sorry, just at least have some some mercy on me.
00;21;40;27 - 00;21;59;14
Jonathan Porter
The other thing with SBF, he spoke for 20 minutes. 20 minutes is a long time for someone who is not going to accept responsibility. But ultimately, as you and I are coaching clients through this, we can talk to them a lot about what how a court, how a judge was heard, a thousand of these going to hear you.
00;22;00;03 - 00;22;19;21
Jonathan Porter
But really, this is a defendant's final words to a court that's about to impose a sentence. And if a defendant wants to speak his or her mind, you know, despite being educated on the risks, well, at times that's the that's the defendant's call. Just knowing a little bit about what we know. Well, the SBF, I would imagine his lawyers tried to convince him that short and sweet was the way to go.
00;22;20;01 - 00;22;33;29
Jonathan Porter
But he also seems like the kind of guy where maybe he's going to do his own thing. And so it's to me likely that his lawyer said, let's keep this short and sweet and express some remorse without admitting to any sort of criminal culpability. But I'd love to have been a fly on the wall in that room.
00;22;34;06 - 00;23;02;27
Gregg Sofer
Yeah. And he has very competent counsel, from what I understand as well. So I would assume there were plenty of conversations about this is probably a good time to bring up the fact that ultimately the judge who is not a computer, at least not yet in our system, is a human being who in my opinion, nine times out of ten, maybe more than that, has already decided based on all the information, particularly a trial case where they sat through all the evidence, watched the defendant testify.
00;23;02;29 - 00;23;20;03
Gregg Sofer
When the judge walks out on the bench for the hearing, I could almost guarantee you most judges have a number written down on a pad of paper of what they're going to sentence the defendant to. And so what lawyers on both sides have to try to do is anticipate, is there anything I can say that's going to really change a person's mind?
00;23;20;03 - 00;23;42;12
Gregg Sofer
If I'm a defense attorney in this case, I would be concerned that what he says actually increases the sentence more, that getting away from taking responsibility, like you say in those cases, the words I didn't intend to do this is essentially saying, I take no responsibility for what I've done in the context of a plea. You can't say that because it blows up the entire plea, potentially, including the benefits a defendant gets under the guidelines.
00;23;42;12 - 00;24;09;02
Gregg Sofer
We didn't talk about this from pleading guilty, where the guidelines actually give you points off for having admitted your guilt and taking responsibility for what you did. But ultimately, the judge sits there, and I assume that some judges are impacted by what's actually said in the courtroom. And my experience, I saw lots and lots of family members, people who are about to be sentenced to a very significant time, you know, crying and screaming and don't take my father away.
00;24;09;02 - 00;24;29;09
Gregg Sofer
And there's really heart wrenching kinds of of events. I know a lot of federal judges really don't like to sentence people. It's their least pleasant part of the entire job, even though it's probably the biggest impact they have is sentencing criminal defendants, because you are literally taking people's lives away from them and their freedom. And it's a very difficult.
00;24;29;23 - 00;24;51;09
Gregg Sofer
But they're ultimately there's a human sitting there and the human is a person who is impacted by different things in different ways. And there's no chart and there's no guidelines and there's no regime that really can help predict all of that. And so you end up really taking your chances with whomever it is there. And that gets back to the question of do the sentencing guidelines.
00;24;51;11 - 00;25;14;14
Gregg Sofer
So here, let's just go through this again. You got a judge who heard from the US probation that he should sentence the defendant to 100 years. Okay. Guaranteeing that the defendant is going to spend the rest of his life, all the guaranteeing that the defendant and the rest of his life in prison. Then the government came in and didn't recommend a guideline sentence or what not certainly not what the probation department, the US probation suggested.
00;25;15;02 - 00;25;28;14
Gregg Sofer
Instead they said 40 to 50 years and he ended up giving half over essentially what the government. So what do you think impacted him and how did this human take this and go get down from 100 years to 25?
00;25;29;04 - 00;25;55;24
Jonathan Porter
Yeah Gregg I judges would be a great future episode. I'm excited to be here. I'll tune in for that one for sure. But you're right. Judges are the big wild card. Those of us who practice in this area a lot know that you know your judge draw is a very important thing. You can do nothing about it. But your judge draw is rather important because there are people who just come in with preconceived notions about, you know, the way people should be sentenced.
00;25;56;03 - 00;26;13;27
Jonathan Porter
And so that's a big determining factor. And, you know, you go into various districts, you and I, now we have national practices and you go into various districts and you talk to people who practice in the courts a lot. They say, Oh, your judges are too good, judge lights. And in certain other, we're on the defense side or you know, it's a government friendly judge, you know, buckle up.
00;26;13;27 - 00;26;34;27
Jonathan Porter
So, you know, what you can do is sort of present your case with other similar cases as a way of saying, well, judge, in the past, this court has sentenced, you know, white collar criminals to X years. Some examples that you obviously want to find, helpful examples. Don't come in with someone who got life, but a lot of times you want to have comparisons.
00;26;34;27 - 00;27;01;13
Jonathan Porter
And that's why I think this case is interesting because while there hasn't been a, you know, an X like case where there was isn't really like a Ponzi scheme where you're just stealing money from people, it's a different type of crime and there's not a lot of analogous cases to it. The one that stands out in my mind immediately is Elizabeth Hobbs, who the you know, she was the founder of Theranos, was running the business and a few rules and, you know, committed fraud.
00;27;01;13 - 00;27;24;11
Jonathan Porter
And there were a lot of people who lost or who lost a lot of money. She got sentenced to 11 years and a $450 million restitution order. So this is quite a bit more than Elizabeth Holmes. Obviously, this this restitution order is, you know, 20 or more times that. So how you sort of compare those two is is interesting but 25 years is is a lot more than Elizabeth Holmes.
00;27;24;20 - 00;27;45;02
Jonathan Porter
And to sort of make your point, Gregg, my friend and I, we teach a white collar crime class is adjunct law professors at Mercer University School of Law in Macon, Georgia. We spent a lot of time this spring talking to our students about sbs's. We what we walked through the trial. We talked about the sentencing guidelines and I asked my students right before sentencing.
00;27;45;09 - 00;28;03;15
Jonathan Porter
I said work through the guidelines. And then I want you to predict if you were the judge, what would you give SBF and what do you think this judge is going to get off the SBF? And I'll tell you, most of our students thought that SBF would be sentenced to a lot less time than he actually got. But, you know, most of them were close to like 15 years.
00;28;03;24 - 00;28;23;10
Jonathan Porter
But it's interesting that they're all over the map and that sort of shows that sort of makes your point, Gregg. That these are humans. These are humans who are, at the end of the day, picking a number. The guidelines probably help inform what that number is, but at the end of the day, it really is just someone, you know, saying, I think this is this is this bad in terms of years.
00;28;23;21 - 00;28;42;03
Gregg Sofer
Yeah. And as much as we'd like to say that you can get out and abacus or a calculator or some other advanced computing device to figure this out. Human behavior is not easily quantified that way and ultimately a just sentence, which is what the system is all about, is something that is up to a human being to decide.
00;28;42;03 - 00;29;00;09
Gregg Sofer
Now, I have to tell you, 25 years is not an insignificant sentence. There are plenty of people who commit murder in this country who are sentenced every day to far less than 25 years in prison. And we should I guess it's a good time because we're running a little low on time to discuss what that actually means. You get sentenced to 25 years in prison.
00;29;00;09 - 00;29;25;02
Gregg Sofer
Now Sam Bankman-Fried gets transferred from a jail. Jail is a place where you spend pretrial or serving. Usually a year or less of time. So there's another terminology between jail and prison. Everyone says, Oh, you're going to jail. A jail is usually a place you're held for pretrial or sentenced to a year or less or a prison where you actually go to do your significant sentence in this case.
00;29;25;20 - 00;29;49;02
Gregg Sofer
And he's off to a federal prison. So there's a whole industry now that has arisen in helping criminal defendants, particularly ones who have a lot of money, or at least some money, like Mr. Fried probably does have a left. I noticed both his parents were Stanford law professors or graduates. And so he's got enough resources that he probably was able to hire somebody in this regard.
00;29;49;20 - 00;29;59;28
Gregg Sofer
Now you get sentenced to prison. So the judge then sees through the federal prison and your sentence in the federal case to the Bureau of Prisons, tell us a little bit about how that regime works.
00;30;00;08 - 00;30;21;12
Jonathan Porter
Right. So one of the big disparities, at least where I am on the state side in Georgia, there is such a thing as as parole and you can get out of state prison early if the parole board decides that you should. There's no parole in the federal system. There's that that is not a that's not a thing. You still can get out a little early based on behaving yourself while in prison.
00;30;21;21 - 00;30;41;29
Jonathan Porter
But that is not as easy as it is in the States either. There aren't like, you know, the right things. Now during COVID, some things changed where there were a lot of people released for crowding issues or health issues that that happened a lot. But absent that, there's not a lot of ways for you to get out early, minus that credit for good time served.
00;30;42;05 - 00;30;59;12
Gregg Sofer
Which is about one eighth of the time. So you could do the calculations. It's not going to do him a tremendous amount of good. You can get about an eighth of your time if you you can imagine why the Bureau of Prisons wants to be able to incentivize people to do their time in a way that causes the least bit of disruption, violence, etc..
00;30;59;20 - 00;31;12;06
Gregg Sofer
How about where you go? Every sentencing I've ever seen often has had a request by the defense for a particular facility, usually near the person's home. And that happened here to so.
00;31;12;12 - 00;31;34;25
Jonathan Porter
I believe so. So we know that Sam Bankman-Fried his parents or Stanford, as you mentioned, Stanford law professors. There was a request to be close to his family. Most of the time, the request comes in two forms one location and two, the level of security. Now, the judge will typically make a recommendation to the Bureau of Prisons as to as to where the defendant should spend their their years.
00;31;35;04 - 00;31;52;21
Jonathan Porter
But that's not binding on Bobby, you know, but you can say, Judge, I hear you think that this person should go to a minimum security facility, but in actuality, we're going to put this person here in a in a max or, you know, so here, Sam, they've been freed. He's in a moderate security. You know, there's there are worse places.
00;31;52;21 - 00;32;08;24
Jonathan Porter
There are easier places. You know, my agent's one of the first cases I had against a white collar defendant when I was in the USA was put up at a minimum security camp. And they the my agents came in one day and said, pull up Google Maps. I want you to see there's a golf course on that place.
00;32;08;24 - 00;32;24;26
Jonathan Porter
It was actually a golf course next to the the prison camp. But they said, what are we going to do about this? And I said, we can't we can't do anything about this. This is in the hands of the Bureau of Prisons. We're not going to petition the court to move the defendant somewhere else. It's in the BP's hands exactly where where defendants go.
00;32;24;26 - 00;32;41;22
Jonathan Porter
And I'm sure there was a recommendation made here to be in California. It's a little interesting that Sam Bateman Freed wasn't put in a minimum security camp or facility. But from what I understand, Gregg, there were some security concerns with with SBF that were unique to him. What do you think?
00;32;42;03 - 00;33;01;15
Gregg Sofer
Yeah, well, I mean, I think you've characterized all this correctly. One of the things another demystification, everyone says you're going to go to club bad and B, I always get in my mind the tennis court with the champagne flutes right before you play tennis. And it's a tough day serving your time. Not quite like that. Even the camps don't look like that.
00;33;01;15 - 00;33;27;19
Gregg Sofer
They're not a place anyone would really want to be. But there's often no bars, there's often no gates. There's not the kind of thing you've seen on TV about a prison. It's a much generally safer place. The problem with the camp and a guy like Sam Bankman-Fried is he's such a well-known, now notorious person. But to the extent that the Bureau of Prisons needs to keep him safe, at least initially, the mechanisms to do that in a camp are much less available to them as well.
00;33;27;19 - 00;33;45;13
Gregg Sofer
So actually securing his safety and I don't know the extent to which he I know he wanted to be close to Palo Alto. I don't know how many camps are out there at all. So he had to go through this. And again, there's people that that charge a lot of money to help guide people who are about to be sent to prison to get it just right, to find the right place.
00;33;45;13 - 00;34;05;02
Gregg Sofer
That's the most safe and the easiest place to see your family, etc.. Bottom line is it's no fun no matter what. But those people are there to mitigate sort of the unpleasantness, especially at the beginning of your sentence. And the Bureau of Prisons, as you point out, the judge will tell the defendant when sentencing, I cannot guarantee this, but I'm willing to make a recommendation.
00;34;05;02 - 00;34;23;26
Gregg Sofer
And most of the time the Bureau of Prisons tries. But ultimately it's their it's their prisons and they they're responsible for keeping them safe. So a guy like Sam being freed presents a unique security risk just given the profile of his case. Well, Jonathan, thank you so much for coming back on the episode. Really appreciate it, as always.
00;34;23;26 - 00;34;32;15
Gregg Sofer
Very insightful. And we'll make sure to link to both for your bio and also your new podcast, False Claims Act. Insights in the Show Notes.
00;34;32;15 - 00;34;33;27
Jonathan Porter
Thanks, Gregg. It was great joining you again.
00;34;34;11 - 00;34;56;24
Gregg Sofer
Thanks for joining us on The Justice Insiders. We hope you enjoyed this episode. Please go to Apple Podcasts or wherever you listen to podcasts to subscribe, rate and review the Justice Insiders. I'm your host, Gregg Sofer. And until next time, be well.