The Penultimate Draft of the Stanley Cohen Amicus Sentencing Brief

Jay Leiderman
By: Jay Leiderman
December 13 2014

The below brief had to be re-worked to suit the attorneys that were actually submitting it.  I am listed as co-author of the brief.  Here is the one that I wanted filed:

 

APPLICATION TO FILE AN AMICUS CURIAE  BRIEF

 

What is presented here is a motion brought in the nature of an amicus curiae application submitted by letter rather than by formal motion on behalf of a group of national and international lawyers who are concerned that the proposed resolution in this case is unduly harsh and would constitute an injustice.

We respectfully request that the court grant leave for this amicus application to be filed and that it be considered by both the Court and the government. Moreover, and most importantly, we request that the Court and the government read the in-depth biography attached as exhibit 1 with the “65 notable cases” that Stanley has handled throughout his career and the few dozen letters, attached hereto as exhibit 2, that really fill out the substance and character of Stanley L. Cohen.   Only then can a true and just sentence be imposed in this case.

 

Accordingly, the defense hereby respectfully submits this letter to the Court and to the government, to request that either or both exercise their considerable discretion to impose or suggest a sentence less harsh than that outlined in the Rule 11 (c)(1)(C) plea agreement, such that the sentence meted out in this case does not result in an injustice, and is not greater than necessary to achieve the objectives of sentencing.

 

THE COURT AND GOVERNMENT INDEPENDANTLY OR JOINTLY

HAVE THE POWER TO ACCEPT THE PLEA BUT

NONETHELESS REDUCE THE PENALTY IMPOSED

 

Normally, the basis of sentencing is the judge’s consideration of the Guidelines applicable to the offense, along with their examination of the §3553 factors. Peugh v. United States, 133 S.Ct. 2072 (2013). Rule 11(c)(1)(C) encumbers the judge’s substantial discretion by “[permitting] the defendant and the prosecutor to agree that a specific sentence is appropriate,” and to then submit their joint proposal to the court. Freeman v. United States, 131 S.Ct. 2684 (2011).  It would appear beyond cavil that the purpose of Rule 11(c)(1)(C) is to permit the government and the defendant not only to “allocate risk [and] obtain benefits,” but equally, to “achieve finality and save resources.” United States v. Quinones, 511 F.3d 289, 323 (2d Cir. 2007). Nevertheless, it remains the province and duty of the judge “in every case … to impose an appropriate sentence. Freeman, at 2692.

 

To be sure, a sentencing judge retains discretion to accept or reject any plea agreement made pursuant to Rule 11(c)(1)(C). That the parties may, under Rule 11, fashion an agreement as to the appropriate sentence does not “discharge the district court’s independent obligation to exercise its discretion,” and indeed, a judge is forbidden from accepting an agreement “without first evaluating the recommended sentence in light of the defendant’s applicable sentencing range.” Id. The court “retains absolute discretion whether to accept a plea agreement, but once it does it is bound at sentencing to give effect to the parties agreement as to the appropriate term of imprisonment.” Id., at 2696, Sotomayor concurring in the judgment.

 

There are rare exceptions to this rule, such as when a judge accepts a (c)(1)(C) agreement on the basis of sentencing guidelines that are later amended to suggest a lower sentence, Freeman, supra, or where a judge must exercise his equitable discretion in order to remedy a constitutional violation. United States v. White, 429 Fed.Appx. 43 (W.D.N.Y. 2011). Moreover, the undersigned believe that in instances such as the one at bar, circumstances may be presented that are so compelling, overwhelming, and long-standing, that a court may leave room for additional consideration.

 

 

 

As mentioned, the court maintains discretion to determine whether a sentence is appropriate prior to accepting a plea agreement. The Court at that time must evaluate the proposed sentence in light of the guidelines, as well as the §3553 factors. Peugh v. United States, 133 S.Ct. 2072 (2013), citing Gall v. United States, 552 U.S. 38, 49.  During that time, the judge may comment on or suggest alternative dispositions more amenable to his evaluation of the §3553 factors and the guidelines. See, e.g. United States v. Figueroa, 2012 WL 2923288 (W.D.N.Y 2012), regarding transcript evidence of the judge’s pre-sentence explanation of the process of accepting a plea.

 

The undersigned urge this Court to consider the proposed sentence under the §3553 factors as unduly harsh. However, the Court in so rejecting the instant (c)(1)(C) deal as excessive and disproportionately punitive, might suggest to the government a less severe, but equally effective resolution. For example, a sentence constituted of some combination of house arrest, community service, and a significantly reduced prison term of no more than a year and a day (or its equivalent with good time) would be at least as consistent with the purposes of the Guidelines and §3553.

 

Your honor is certainly unconstrained with respect to the exercise of discretion precedent to the acceptance or rejection of the proposed (c)(1)(C). Notwithstanding the values of finality and efficiency embodied by Rule 11(c)(1)(C), a fair result is, no doubt, of greater value both to this defendant, and to the integrity of the judicial system writ large.

 

Additionally, the government may itself propose to alter the terms of the agreement; may include in an agreement a clause allowing either party to move for an upward or downward adjustment at or even after sentencing; or may at any time move the court to impose a lesser sentence than that originally proposed. See, e.g.: United States v. King, 543 Fed.Appx. 99 (E.D.N.Y. 2013), reciting that sentence was imposed pursuant to the Rule 11(c)(1)(C) agreement as well as “the government’s requests … that the court depart downward”; United States v. Adams, 2014 WL 4745936 (S.D.N.Y. 2014), indicating that by the terms of the Rule 11 agreement, “either party could, directly or indirectly, seek a sentence outside the stipulated range based on §3553(a) factors.”; United States v. Marks, 890 F. Supp2d 248 (W.D.N.Y. 2012), distinguishing the government’s (c)(1)(C) offer from one whose terms might “contain an ability for [defendant] to seek a reduction…”.

 

The above cases clearly indicate that it is within the power of the court to reject the agreement while proposing an acceptable alternative. The case law also demonstrates that it is within the power of the government to refine the agreement as to its terms, allowing defendant more latitude to seek a departure, as well as to suggest to the court a reduction in sentence.

 

Stanley Cohen; unmitigated champion of the underdog, the oppressed and the reviled – a hero to all that truly know him.

 

THE 3553 FACTORS COMPEL A SENTENCE SIGNIFICANTLY

REDUCED FROM THE AGREED UPON 18 MONTHS;

18 MONTHS IS GREATER THAN NECESSARY

TO MEET THE SENTENCING OBJECTIVES

 

This is that rare case in which every factor under §3553 militates against the imposition of the sentence articulated in the (c)(1)(C) plea.

 

Looking at the 3553 factors, it is clear that each and every one militate toward a lesser sentence than the 18 months contemplated by the 11(c)(1)(C) plea.

 

(a) Factors To Be Considered in Imposing a Sentence.— The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

 

It is, of course, well-settled that under the advisory Guidelines regime, “a sentencing judge has very wide latitude to decide the proper degree of punishment for an individual offender and a particular crime.” See, e.g. United States v. Cavera, 550 F.3d 180, 188 (2d Cir. 2008)

 

“Prior to Booker the §3553(a) requirement that the sentencing judge consider all of the factors enumerated in that section had uncertain import…  Now, with the mandatory duty to apply the Guidelines excised, the duty imposed by §3553(a) to “consider” numerous factors acquires renewed significance.”  United States v. Crosby, 397 F.3d 103, 111.

 

An 18 month sentence is greater than necessary in this case.  The court is well aware of the facts of the offense, and now, via the biography (exhibit 1), letters (Exhibit 2) and petition (Exhibit 3) appended, is now familiar with the history and characteristics of the defendant.

 

The sentences proposed herein are more than sufficient to reflect the seriousness of the offense.  In terms of promoting respect for the law, the letters make clear that Mr. Cohen has the highest respect for the law and our justice system.  Moreover he has accepted responsibility for this aberrant behavior.

 

Nor is deterrence, specific or general, a factor.  “[T]he aim of general deterrence, the effort to discourage similar wrongdoing by others through a reminder that the law’s warnings are real and that the grim consequence of imprisonment is likely to follow from crimes of deception for gain like those defendant has admitted.” United States v. Bergman, 416 F.Supp. 496, 499 (SD NY 1976)

 

Like in Bergman, the facts of this case are well known, as they have been the subject of copious media attention both in New York City and around the world.  There is a profound humiliation to stand where Mr. Cohen stands, as a convicted felon. The mere fact of his conviction has brought light to the public about the underlying behavior.  The conviction, coupled with the prominence of the defendant and the media attention this case received has served as general deterrence, as will a one year and one day sentence.  That letters have poured in from all corners of the globe shows that the message to not engage in this conduct has resonated far and wide.  Moreover, they show a man who is contrite and who had grown from this experience such that he will never do this again.

 

Specific deterrence is likewise not necessary.  As stated in United States v. Bergman, 416 F.Supp. 496, 499 (SD NY 1976) “Equally clearly, this defendant should not be confined to incapacitate him.  He is not dangerous.  It is most improbable that he will commit similar, or any, offenses in the future.  There is no need for “specific deterrence.”

 

There is no need to protect the public from this crime by this defendant.  This ordeal has ensured that this conduct will not recur.  The crime is not violent.  Though the citizens that rely upon tax dollars are the victims herein, an order that Mr. Cohen pay restitution allows redress for this transgression.  Along these lines, no fine should be imposed above the minimums required for this crime.  All monies paid by Mr. Cohen should go to restitution.

 

Subdivision (a)(2)(D) is least apposite.  As a long-time lawyer, Mr. Cohen needs no additional career training, nor does he need any of the other items contemplated in that subdivision.

 

But the factors as we’ve just discussed them show a lack of facundity when placed next to the grandiloquence of the biography and letters attached hereto, along with the thunderous sound the massive petition makes when one views all those signatures.  The combination of the biography – the sum of Stanley’s life’s work – coupled with that work and the man behind the work reflected upon in the letters attached hereto present the most compelling argument that could possibly be presented in such a unique and important sentencing.  Nothing can be said herein that could possibly be more compelling than the exhibits in this case.

 

Perhaps most salient, the letters correspond with the biography.  They show the honesty in the words of the biography.  Real people have been positively effected in real ways because of Stanley’s generosity.

 

From the three year PayPal 14 case this court now possesses letters from the bulk of the attorneys.  All describe how Stanley took the lead and worked tirelessly to ensure that a just resolution was had by all.  All this was not only done across the country in San Jose, but it was done on his own dime.  But that wasn’t enough.  When his client ran out of money and was struggling, he hired her as a paralegal.

 

Only Mona Eltahawy wrote about her own case, and she wrote about it modestly at that.  Ms. Eltahawy is a renowned and award-winning journalist.  She noticed that all around New York City there were posters put up by an Israeli support group that stated that Palestinians were savages.  In an act of protest, Ms. Eltahawy took out a small canister of pink spray paint and sprayed a poster in a subway station.  Stanley, without even knowing Ms. Eltahawy, appeared at her arraignment by request of others who thought he was the right attorney for the job.  They were right.  The Manhattan DA had subpoenaed Ms. Eltahawy’s Twitter direct (private) messages.  In other words, they were going after journalistic sources that Ms. Eltahawy suffered greatly in Egypt to develop.  Stanley convinced the DA to drop the subpoena.  All for a woman he didn’t know, but was in dire need of help.

 

Said El-Said’s letter that is one of the many examples of the gratitude that Palestinians feel toward Stanley for his pro bono work in favor of their cause.  Reading between the lines of his letter, he seems hopeful that Stanley and the others involved in the struggle for Palestinian Liberation will one day allow him to return to his homeland.

 

Perhaps Rocco Iannacchino presents the most common “Stanley scenario.”  Stanley has never met Mr. Iannacchino in person, yet Stanley freely gave his valuable time to Mr. Iannacchino, never passing judgment on him, to help him through the labyrinthine 18 USC 1983 procedures.

 

Nor should Stanley’s compassion for animals, well documented throughout the letters, be forgotten.  Indeed, it is yet another example of the depths of his compassion.  That he gave money to save a pet in the PayPal 14 case to a defendant he was not representing, in a case he was doing pro bono anyway, speaks volumes.

 

CONCLUSION AND PRAYER FOR RELIEF

 

In the light of the law presented and for the reasons in the exhibits we would suggest that the court either indicate to the parties its concerns that the proposed sentence is under the facts and circumstances of this case excessive and not one it believes is called for and permit the parties additional time in which to agree upon a resolution that the court finds meets the ends of justice or, in the alternative, that the government consider a unilateral proposal that the resolution be reduced accordingly.

 

The undersigned therefore prevail upon the government to move to enforce the (c)(1)(C), while also urging the Court to impose a disposition below that agreed upon by the parties.

 

For the foregoing reasons, it is urged that such a departure, by the Court, or the government, or both, is precisely what is called for in the case at bar, and that a sentence more commensurate with the factors, such as those herein, be issued instead.

 

We pray that this court allows this amicus curiae submission and that the Court and government consider this amicus curiae submission, the argument herein, and materials that are appended to this letter brief.

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