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Can a prosecutor appeal a sentence of probation in federal court?

Answer:

Yes a prosecutor can appeal a sentence of probation in federal court. As a Jacksonville criminal attorney, I can say it doesn't often happen, but the case of U.S. v. Hayes, decided by the 11th. Circuit Court of Appeals, on August 12, 2014, is an example of when it can happen and why. Mr. Hayes is a 67 year old businessman who- over a period of four years- doled out over $600,000. in bribes to a state official in order to ensure that his company would continue to receive government contracts. Hayes' company reaped over five million dollars in profits as a result of the corrupt payments. Hayes ran a computer software company. He bribed Roy Johnson, the chancellor of the education department, to have school contracts awarded to Hayes' company for computer software services.

Government investigators started looking into the awarding of the school software contracts and subpoenaed Hayes' bank records. Hayes immediately got a lawyer (a smart move) and began cooperating with the government (a questionable move). Hayes became an informant and personally tape recorded several targets of the investigation. Hayes was eventually charged with bribery and money laundering. He also consented to a criminal forfeiture of all his ill gotten gains.

According to the Sentencing Guidelines (which are now advisory, not mandatory) Hayes was facing a range of 135 to 168 months imprisonment. However, because Hayes cooperated with the government, he got a 5K1 letter, which allows the court to depart downward .(see my blog post titled "Should I cooperate with the government and inform on my co-defendants...", dated June 21, 2014). The government recommended a reduced range of 57 to 71 months, with a recommendation of 60 months. The court next considered the 3553(a) factors. Hayes lawyer requested a further downward variance to a sentence of probation based on a number of 3553(a) factors including his culpability, his otherwise law abiding life, his age and deteriorating physical health and his not posing a risk to society. The government held fast that 60 months imprisonment was appropriate because Hayes' crimes were serious and involved the corruption of high-ranking public officials, obstructive behavior and significant amounts of state funds. The government also argued that others needed to be deterred from engaging in similar conduct. The district court was swayed by Hayes' arguments and sentenced him to three years' probation, $628,454.28 in restitution and forfeiture of his $5 million profit.

The government appealed the sentence and the higher court, in this instance, agreed with the government prosecutors that the sentence meted out to Hayes was too light. It noted "that white-collar offenses need to be deterred, and that prison sentences are probably the best deterrent for those who might think about engaging in similar conduct". After all, the court noted that Johnson, the school chancellor, also cooperated with the government, but ended up with a 78 month prison term, not probation. Now, Mr. Hayes will have to return to federal court where he will be sentenced to some term of imprisonment.

Lesson Learned:

Hayes' lawyer did a great job in getting Hayes initially sentenced to probation. While appellate courts usually don't overturn or upset sentences, they did here because the appeals court found that the sentence given Hayes was unreasonable. Most white collar criminals cooperate with the government and expect better treatment than those charged with violent crimes. Those days are over. Lately, the courts have been treating white-collar criminals much more harshly. What with the mortgage and loan scandal that required Government bailouts and caused the collapse of Bear Stearns and Lehman Brothers, insider trading cases and other massive frauds, white-collar criminals should not expect to be able to buy their way out jail, which is surely what the higher court thought had happened here.

And as I have written before, cooperating with government prosecutors is not all it's cracked up to be. After all, Hayes informed on his co-defendants, helped make cases against them, paid a big fine and agreed to forfeit millions of dollars. The government still wasn't satisfied and appealed, demanding Hayes serve jail time, which he now will. In retrospect, if Hayes, Johnson and the others stood tough and forced the government to trial, they may have gotten a better outcome. In the words of statesman Benjamin Franklin "We must all hang together or assuredly, we shall all hang separately".

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