By Sara Kropf
The Department of Justice’s “supplemental and amended” sentencing memorandum in the Roger Stone criminal case is nothing short of extraordinary. You can find a copy of the updated Stone memo here.
Lots of commentators have hit the high points about this bizarre filing: First, four DOJ career attorneys withdrew from the case in its wake. Second, the Department of Justice doesn’t – just doesn’t – file updated sentencing memoranda that ask for lower sentences. Third, there are the obvious political ramifications here since it appears to be a naked play by Attorney General William Barr to help an ally of President Trump.
I’ll stay away from the politics side of things.
I’ll also point out that the original recommendation by DOJ of 7 to 9 years in prison was extremely high, given the offenses to which Stone was found guilty. From a defense lawyer perspective, a lesser sentence is definitely more appropriate.
I was more intrigued by how my fellow defense attorneys could use the memo to our own advantage in future cases.
Maybe by using the doctrine of judicial estoppel? (Spoiler: this probably won’t work.)
DOJ’s Novel Positions in the Stone Memo
DOJ took two specific positions in the Stone memo that would be pretty darn helpful in other white-collar cases.
First, DOJ says that even though certain Sentencing Guidelines enhancements are “perhaps technically applicable,” they shouldn’t be applied here because they would “disproportionately escalate the defendant’s sentencing exposure” to a much higher level.
Here’s the thing: DOJ relies on “technically applicable” sentencing enhancements to drastically increase a defendant’s offense level all the time. They cite the number of victims, the identity of the victims, the sophistication of the supposed scheme, and a whole bunch of other factors to recommend that the court enhance the sentence.
Taking the position that enhancements that are only “technically applicable” shouldn’t increase a sentence too much—well, that’s the kind of argument that defense lawyers usually make.
Second, DOJ takes the position that “the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the defendant’s obstructive conduct actually prejudiced the government at trial.”
Section 3C1.1 reads:
If (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense, increase the offense level by 2 levels.
The language allows for a 2-level enhancement if the defendant “attempted to obstruct or impede” justice. I’ve never seen DOJ agree that they must show that the obstruction actually affected the investigation. Rather, an unsuccessful attempt is enough to ask for this enhancement.
But, hey, if the standard going forward is that the government must show actual prejudice to ask for this enhancement—GREAT.
Does Judicial Estoppel Apply?
Judicial estoppel prevents a party from taking one position in a case and then switching positions later. The idea would be that if DOJ is taking these positions in the Stone case, then it should be estopped from taking a different position in another case.
Here’s how the Supreme Court described judicial estoppel:
[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.
Davis v. Wakelee, 156 U.S. 680, 689 (1895). (It’s an old case; ergo it’s a “well-established doctrine.”)
The purpose of this equitable doctrine is to “to protect the integrity of the judicial process.” New Hampshire v. Maine, 532 U.S. 742, 749–51 (2001). Letting a party switch sides and benefit from the change in positions is highly problematic. It’s like the schoolyard complaint of “that’s not fair.”
The problem is that judicial estoppel is generally understood only to apply to positions taken by a party in the same case, not in different cases. It has been applied to statements made during different proceedings in the same (i.e., you can’t take one position at trial and a different position at sentencing), but that’s different than applying it across cases. In fact, one of the elements of the doctrine from New Hampshire v. Maine is that “whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.”
Since the doctrine looks to the unfair effect on the “opposing party,” a court would likely reject the argument that DOJ switching position between different cases is unfair to the defendant in the later case.
Also, courts have been somewhat circumspect in applying estoppel principles generally to the government. That creates another potential legal challenge.
Can We Still Use the Positions in the Memo?
All of his doesn’t mean these DOJ statements aren’t potentially useful in a sentencing memo, particularly as long as the current Attorney General heads the Department.
I can imagine a sentencing memo that reads, “Even if the strict principles of judicial estoppel may not bind the government to its positions in the Stone sentencing memo, the Court should take into account the fact that even DOJ admits that technical sentencing enhancements may result in an inherently unfair sentencing range. That is the situation here.” (No copyrights here, cut and paste away.)
Some judges who are skeptical of the long sentences recommended by DOJ in white-collar criminal cases may use DOJ’s positions in the Stone memo to reject those recommendations, or may note that DOJ may not one defendant differently than Roger Stone is unfair.
In the end, DOJ likely not bound by these statements. It’s too easy for DOJ to avoid that outcome, since each sentencing is unique and very fact-based. Nonetheless, on the defense side we need to use every finger hold we can find, no matter how narrow.