Sentencing with the stars

"[I]it does not matter that the district court relied on a number, even a large number, of relevant facts in its sentencing, if it also relied on facts that it could not properly consider. Thus we would not hesitate to reverse a sentence if a judge relied on numerous relevant facts but also relied, for instance, on the morning's horoscope."

- 6th U.S. Circuit Court of Appeals Judge John M. Rogers, explaining in United States v. Hunt, that a doctor convicted of health-care fraud would have to be resentenced because the district court apparently ignored the jury's finding of fraudulent intent when sentencing the doctor to probation instead of prison.

A Tennessee doctor was nailed because he signed, for $10 a piece, after-the-fact authorizations for diagnostic tests performed by a mobile diagnostic test center, which made the rounds at senior citizen centers and corporate health fair events. The district court sentenced the doctor (Hunt) to probation, instead of the guidelines range of 27 to 33 months in prison, on the apparent belief that the test center operator (Noble) had pulled the wool over the doctor's eyes.

From Judge Rogers' opinion:

"The following give an indication that the district court relied in part on the defendant's not having had an intent to defraud in this case, a conclusion contrary to the jury verdict.

"The court stated an 'overarching impression' that defendant 'might well have not been convicted by a jury' had it not been for the presence of Mr. Noble in the case. ...

"The court also stated that Hunt 'first of all, was hoodwinked by Mr. Noble, second of all was naive, third of all was trusting, fourth of all was unknowledgeable about the business part of the practice like many, many doctors and other healthcare professionals are, but most of all was motivated to do this because he thought it was a good test, and he thought that it would detect some things that would be helpful for people to detect.' ... While this excerpt could be read as limited to a consideration solely of Hunt's motives for the crime, there is an unmistakable conveyance of the idea that Hunt did not have the intent to defraud.

"The court also stated, 'There were many things that Dr. Hunt testified gave him a measure of comfort about what Mark Noble was doing, that militated against his having fraudulent intent. The jury found he had fraudulent intent, but the court can certainly consider those things in sentencing despite the jury's finding.' ... (emphasis added).

"The court also stated that Hunt's 'background would not lead one to believe that he would jeopardize his medical license by knowingly committing a fraud from which he made very little money.'"

Judge Rogers continued:

"These statements, in the context of the general tenor of the district court's remarks ... certainly permit - if they do not require - the conclusion that in sentencing the district court relied in part on the absence of fraudulent intent on the part of the defendant. It is true that the district court also relied on a number of factors that were either proper or arguably proper, such as how little money the defendant made off the scheme, the allegedly limited amount of harm to patients, the personal circumstances of the defendant, the effect on the defendant of losing his license, and how valuable the defendant was to the community. But such arguably proper reliance does not cure actual reliance on the perceived innocence of the defendant, any more than in the horoscope example above."

Dems file ethics complaint against MSC Chief Justice Taylor

Michigan Democratic Party Chair Mark Brewer has a problem.

He's vowed to do "everything necessary" to unseat Michigan Supreme Court Chief Justice Clifford Taylor in the November election.

An obvious starting point is to field a viable candidate, but so far, Brewer and his troops have come up empty-handed.

Without a candidate of his own to talk up, Brewer's had to make do by talking down Taylor.

Here's the latest gambit. Yesterday, the Michigan Democratic State Central Committee announced that Brewer filed a complaint with the Judicial Tenure Commission, claiming that a fundraising letter written on Taylor's behalf by former Governor John Engler violated Canon 7(B) of the Michigan Code of Judicial Conduct.

"Michigan Supreme Court Chief Justice Cliff Taylor has again pursued unethical fundraising tactics to protect his endangered reelection to the Michigan Supreme Court," asserts the Democrats' press release.

Under the Canon, a committee soliciting judicial campaign contributions can't ask a lawyer for more than $100. If a fundraising letter is not directed exclusively to lawyers, larger contributions may be sought but the letter must include this disclaimer:

"Canon 7 of the Michigan Code of Judicial Conduct prohibits a judicial campaign committee from soliciting more than $100 per lawyer. If you are a lawyer, please regard this as informative and not a solicitation for more than $100."

According to a report in yesterday's Michigan Information & Research Service newsletter, Engler's letter asked for contributions of $250, $500 or $1,000 without the required disclaimer.

But MIRS had this to say, as well:

"Taylor campaign coordinator Colleen Pero provided MIRS with the 'response letter' that was mailed with the Engler letter, which included the disclaimer. The response letter needed to be completed and mailed in with a contributor's check.
"'We clearly followed every rule,' Pero said. 'The person who provided this to the Democrats didn't bother bringing the rest of the package along.'"

It remains to be seen whether the JTC will find merit in Brewer's complaint.

Also remaining to be seen is when Brewer will back off from the bombast. Creating illusions is an unfortunate element of the dark art of politics. But an assertion that Taylor's re-election is "endangered" is simply untenable when no practical alternative has been presented.

Not exactly what Kilpatrick is looking for

Ralph Sherman is a clever mischief maker.

When the St. Clair Shores resident heard that embattled Detroit Mayor Kwame Kilpatrick was starting a legal defense fund and intended to call it the "Detroit Justice Fund," Sherman filed the appropriate papers with the state, paid a $20 registration fee and grabbed the name for himself.

He's already received two donations intended for the mayor: one for $100,000 in play money, and another containing a Chuck E. Cheese coupon and a suggestion that Kilpatrick's mother, U.S. Rep. Carolyn Cheeks Kilpatrick, take her son out for a meal.

The Detroit Free Press has the story.