Oh Ken . . . .
What.
I have . . . . [giggles uncontrollably]
Oh Lord save me.
I have a question about WEINERS.
Is there any hope I can get a foil who's not twelve?
Don't be an old grouch. Can you explain Anthony Weiner's guilty plea?
Ugh. Why? It's tawdry.
People are saying inaccurate things about federal criminal procedure online in the course of discussing it.
. . . .
You are unable to resist. Face it.
Goddammit.
Just do it.
Fine. FINE.
So today, in the United States District Court for the Southern District of New York, Anthony Weiner pled guilty to an information charging him with one count of transferring obscene material to a minor.
Wait. What's an information?
An information is a charge asserted by the U.S. Attorney's office. It's like an indictment, only not issued by a grand jury. When you agree to plead guilty before the government indicts you — like Weiner did here — you generally waive your right to indictment and agree to plead to an information. It's quicker and more informal and saves the government resources. You can see the information charging Weiner here. You only see the feds charging someone in an information when they've agreed to plead guilty or when it's an offense that doesn't require grand jury indictment (like a misdemeanor carrying a sentence of less than six months).
Ok. So what kind of deal did Weiner make?
Weiner entered into a fairly standard (at least in some ways) pre-indictment plea agreement with the U.S. Attorney's office. He agreed to plead guilty to one count of transmitting obscene material to a minor in interstate commerce in violation of Title 18, United States Code, section 1470:
Whoever, using the mail or any facility or means of interstate or foreign commerce, knowingly transfers obscene matter to another individual who has not attained the age of 16 years, knowing that such other individual has not attained the age of 16 years, or attempts to do so, shall be fined under this title, imprisoned not more than 10 years, or both.
Weiner and the government also agreed to the Sentencing Guideline calculations that would apply.
What does that mean?
Federal sentences are guided by an intricate set of rules that yields a range of months of imprisonment based on numerous factors about the defendant and the crime. Under modern law, that range is only a recommendation to the judge, and is not binding — the judge can go higher or lower. But sentences are frequently within or close to the range.
In the plea agreement, Weiner and the government agree in advance to the complex guidelines calculations that should apply in his case. The result is a suggested guideline range of 135 to 168 months. Since that's above the ten-year maximum for the crime, the most the judge could impose would be 10 years.
So Weiner is facing ten years?
He's facing the possibility of ten years. But here's the unusual part. The government has agreed to recommend a sentencing range of 21-27 months. The government's recommendation is always very powerful; the judge might not follow it, but the government recommending a sentence far below the guideline range makes it dramatically more likely, as opposed to very highly unlikely.
Wait. So the guidelines should be 10 years in federal prison, but because it's Anthony Weiner he's only going to get about 2? Isn't that extremely suspicious? Is this preferential treatment for a connected Democrat?
Well, it's got a very unfortunate appearance, I think.
Here's what may be going on.
Fist, Weiner got struck by lightning, in a way. It's quite rare for the feds to prosecute someone for sexting a teen like this. It's vastly more common for the state to handle it, and generally the consequences would be much less severe if the state prosecuted. Weiner got caught up in this because of his prominence and connection to high-profile people and high-profile investigations. If he were Tony Weynor, married to a hairdresser in Brooklyn, he almost certainly wouldn't get federally investigated or prosecuted for this. His social, political, and media prominence, combined with his idiocy and recklessness, made his actions the equivalent of doing something right in front of the cop — the cop feels duty-bound to arrest you. The U.S. Attorney's office may have thought that he was facing unfairly disproportionate consequences — ten years instead of perhaps probation or a minor sentence stateside — because of who he was, and might have thought some leniency was appropriate.
Second, the Federal Sentencing Guidelines are arcane. It's a thicket of "use this guideline, but wait, cross-reference to that guideline if factor X is present." Here, the base guideline applying to the offense dictates a far more lenient result — one in the 21-27 month range the government is going to recommend. But because Weiner apparently encouraged a minor to send him explicit pictures, the guideline cross-references to a far, far harsher guideline designed for "sex trafficking." I suspect that the U.S. Attorney's Office thought that the Sentencing Commission didn't contemplate such a harsh guideline being applied to a sexting-a-minor offense that normally would not be prosecuted in federal court.
So are you saying he's getting a sweet deal, or not?
He's getting a terrible deal by being prosecuted federally for conduct that only very rarely would attract federal prosecution. But he's getting an extraordinarily lenient, compassionate, humane deal within that context. I have only very rarely seen a recommendation for a sentence so dramatically below the guideline range when the defendant wasn't cooperating in an important case.
Look, the system strikes some people with lightning. Those people normally get ground up mercilessly. Anthony Weiner's getting struck by lightning but then treated with very unusual mercy. I don't disagree with the arguments that the guideline sentence is too high, or that nobody intended for the sex trafficking guideline and its harsh results to be applied to sexting with a teen. But I'm troubled by who gets that consideration and who doesn't. Federal court dishes out brutal mandatory minimum sentences and guideline sentences to people all the time. People like Anthony Weiner get sympathy and special consideration; people think about whether the law is fair as applied to them. People generally don't ask that about most defendants.
Is it because he's a Democratic bigwig with ties to Hillary Clinton?
I think it's more that he's a rich white guy with good lawyers. But politics might have some bearing on it.
Is the deal unusual in other ways?
Not really. The U.S. Attorney's office agrees not to prosecute a different teen-sexting allegation in exchange for the plea. But that's common; plea agreements regularly allow a plea to one change to wrap up a bunch of charges. Weiner waives his appeal so long as the Court sentences him within the agreed-upon 21-27 months range. He could appeal a higher sentence, but that would be a very weak appeal and very hard to win, given that a sentence within the guidelines is generally treated as reasonable and lawful.
So what happens now?
Weiner is free on bond pending sentencing. The U.S. Probation Office — an arm of the federal court — will interview Weiner and create a confidential report about him, his background, the crime, and the sentencing guideline calculations. The government and Weiner will submit briefs to the judge arguing what sentence he should get. The judge will review all of that and come to her own conclusion and impose sentence. It could be higher — even a lot higher, up to ten years — than the 21-27 months recommended by the government. It could be lower — though that's a lot less likely when the government is already recommending a dramatic departure from the applicable guideline. The judge is going to be under brutal scrutiny. I don't envy her the task.
Where are the juicy bits? What did Weiner admit to doing?
From the dry language of the plea agreement we know he admitted to sending sexually explicit material to a girl under 16 and soliciting her to send sexually explicit pictures of herself to him. To plead guilty he necessarily had to admit to that, under oath, in open court. In the courts where I practice there's a written statement of facts that the defendant signs, but apparently not in SDNY.
What's your bottom line?
Weiner got screwed by being prosecuted in federal court, but treated remarkably leniently once he was there.
Last 5 posts by Ken White
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Apparently Lee Robert Moore, will be doing 20 years for basically the same crime. Even though Mr. Moore had a lot of White House contacts. Chuckle.
http://www.nbcnews.com/news/us-news/ex-secret-service-officer-gets-20-years-sexting-teens-white-n761891
I know it's common, but what's the justification for someone being out on bail post-verdict/plea but pre-sentencing? If we know someone is going to face 20-24 months, why not start the clock now?
What would be the usual/expected sentence for someone charged with the same kind of sexting as a state offense in NY?
Time to get your affairs in order? Seems too considerate of our "justice" system but it seems reasonable.
Ken, do you foresee any negative fallout on the SDNY given AG Sessions May 12 memo on charging and sentencing?
Is there a way we can know if Weiner is getting this advised leniency in return for some level of agreement to testify; or for providing evidence in other cases? (Like his supposed laptop with a folder called 'Life Insurance.')
I have asked on your twitter.. sorry I didn't see this post first!
So, it begs many questions.
Who paid his bail? He is far from a "rich white man"
Who is paying his " good lawyers".
It's been reported that Tony and Huma live in a borrowed multi million apt in NY. lent to them by a big Hillary donor.
It was reported that his parents took a mortgage to pay his rehab fees, and there wasn't enough to cover a full stay..he had to leave early?
Not to get too tinfoil hatted here, but these seem like interesting questions.. at least to me they do?
Again, thank you, Ken, for the information provided. I have been asking these questions all danged day!
You make me want to quit HR, after 10 years no less, and go into law.
Now if only i could afford it :)
The sad thing is, Weiner is an excellent manager, a terrific politician and a decent person- except that he's a reckless pervert.
Never mind whether Mr Weiner is rich, poor, black, white, or parti-coloured. The man got two years for sending a dongle picture across state lines to a minor? A Secret Service agent got twenty for the same offence?
Dear lord but those sentences represent a massive over-reaction.
Compare the British judge's decision not to send Lavinia Woodward to jail for pelting her boyfriend with whatever came to hand then attempting to stab him (with a butterknife, forsooth).
Of course being a brilliant medical student had something to do with her lenient treatment. Doesn't matter. Every common-law jurisdiction has provision for some sort of discharge without conviction, as happened with Ms Woodward, and for centuries that was held to be a good thing.
Not only would jail have been breaking a butterfly on a wheel (medieval torture device), but ultimately the nation would have been deprived of a tremendous asset of a kind the populace can ill afford to lose. And yes, that matters. Whether it matters as much as the real inequality of application is another matter – a skeptic would be right to observe that many fewer blacks benefit from lenience than whites.
Racism aside, the Common Law was never about vindicating the rights of individuals. It was about rendering justice, and not just in the narrow sense of retribution – compare wergeld. A state has no interest in doing itself a pointless injury by locking up an important human asset for actions which amount to no significant harm done; and the longer the US fails to account for this, the poorer the people as a whole become.
Also, prison for pelting your significant other with jam jars or other kitchenware is just nuts. So is prison for sending a penis picture to a teen who probably just went Eeeewww. The parent would have been more shocked, I'd bet.
The takeaway as I see it? Keep doing this and half your nation will be in jail, with the other half the jailors.
I HAVE IT. Here's what's behind this. Anthony had his cell phone hacked by Putin, complete w/sexting Golden Shower (Steele!) to get Comey to bite on reopening the Clinton emails issue.
Ken, you can thank me later.
Mr. Smart, your commentary on common law seems based upon the premise that the individual is somehow the property of the state; therefore the state has an interest in judging the relative value of one life against another. If that's the case, I must wholeheartedly disagree. Justice must be blind; or the whole system is biased and corrupt and should be thrown down.
By and large, sexual age of consent laws have little to no wiggle room for a good reason… A minor cannot lawfully consent to sexual activity in the US outside very specific exceptions. This is a good thing, IMO.
Richard Smart says May 19, 2017 at 3:55 pm:
Which is precisely the purpose of significant numbers of political partisans on either side of any political issue. For each of them, the political opposition is not just wrong, mistaken, ill-informed or misled; the opposition is pure evil incarnate.
And each of them, of course, is on the side of the angels; their political goals, if accomplished, will bring heaven on earth, and lions will lie down with lambs.
Not quite. The Secret Service agent was also charged with "enticement of a minor to engage in sexual activity." According to the NBC article linked above by Gbear — and we know how accurate the media is about potential sentences — the maximum sentence for that is life. And NBC says the prosecutors asked for a life sentence in that case, but Moore "only" got 20 years. (In my opinion, either is absurdly high. Less prison plus forced psychiatric treatment would make more sense.)
I don't know enough about the facts here to know if Weiner could have realistically been charged with enticement of a minor as well, or if he just got off on dirty photos but didn't try to have sex with them. (The minors, not the photos.) If there was evidence of enticement, then the prosecutors showed an awful lot of discretion for the connected white guy.
Dear TheSiegeTech, et al:
This was not a consent issue. One cannot consent to seeing an unexpected image. And if sexual activity is defined to include posting a schlong image then I must respectfully disagree with the definition.
Furthermore, people demonstrably are property of their corresponding states in certain senses. This goes to the business of "the individual is somehow the property of the state", which you so despise. Perhaps rightly; you certainly can declare it ought to be otherwise morally speaking. Even so, such ownership is not a matter of morals but of law, and in particular the US constitution is no bar to certain kinds of proprietary interest in your person. Which is why the Feds can jail you.
To take but one other example, such "ownership" is why every nation, including America, is able to draft its people into battle.
More generally, a nation's people is a resource which it is not merely permitted but obliged to exploit. That is also why a nation feels a sense of ownership in the achievements of its subjects, such as Olympic teams.
For completeness I should note the flip side of that coin; nations can be held responsible for malign acts of individuals among its people. Just ask any individual German.
transmitting obscene material to a minor in interstate commerce in violation
AW is pretty sleazy, but I think that this counting as interstate commerce is a greater obscenity.
Juris — first, they were physically in separate states; makes it federal. Second, anything done on a cell phone is federal, essentially, even if within one state.
Previous newspaper I was with, guy was arrested for trying to extort school superintendent. He used a cell phone. Charge was federal.
Can anybody tell me what Ken meant by this? What's worse/better about one court system for criminal prosecution vs. the other?
Can anybody tell me what Ken meant by this? What's worse/better about one court system for criminal prosecution vs. the other?
From the article:
"Keep doing this and half your nation will be in jail, with the other half the jailors"
We've already got the highest incarceration rate in the First World and our new Attorney General owns stock in private prisons. Just give us a two or three more years
"Fist, Weiner got struck by lightning,"
I think you mean "First" there.
Bill Eccles,
For various reasons, federal crimes tend to be punished much more severely than similar state offenses. In this case, Weiner got caught up in a federal rule aimed at sex-trafficking in children, rather than a sort of "lewd conduct" offense that this sort of thing would be usually be treated with under state law.
What is up with this guy, I can't figure it out. He had everything, seat in Congress, goodlooking, well-positioned wife and he just couldn't help himself, over and over. Did Huma hitch her wagon to the wrong star or what? I almost feel sorry for her, almost. His actions also helped elect Trump.
Internet is choke-full of dick pictures. Why should making a sending one be anything more than a misdemeanor?
As a result of the guilty plea, will he be required to register as a sex offender?
I'm guessing here, Ken would know better, but I believe it's in order to allow them to get their affairs in order given they are being monitored and not a flight risk.
The same thing happened with Deric Lostutter, but he ended up in prison sooner than his target date because he couldn't follow probation terms and STFU online. Actually his inability to STFU (talking to feds w/o an attorney present) and lying to the feds about his exploits is what ultimately got him prison time.
In NY, there are a few different statutes depending on circumstances.
Disseminating indecent materials to minors – 2nd degree, if the information is sent to a minor (less than 17) and 1st degree if sent to invite/elicit/induce said minor to engage in sexual conduct/performance for the sender's benefit. 1st degree is a D felony punishable by maximum of two and a third to seven years in prison, minimum all the way down to unconditional discharge. The 2nd degree (E felony) max is one and a third to four years.
NY has indeterminate sentencing on most non-violent felonies – so a sentence is "one to three years."
Promoting an obscene sexual performance by a child (knowingly produces, promotes, or directs any obscene sexual conduct by a child less than 17) – class D felony – same sentencing as disseminating 1st.
Convictions on any of the above make the defendant subject to registration as a sex offender.
However: if the defendant is convicted of a sexually motivated felony (commits the offense "for the purpose, in whole or substantial part, of his or her own direct sexual gratification") – the sentence must be determinate, with (on the D felonies) a minimum of tow years in prison and a max of 7 years, plus post release supervision, for between three and 10 years.
Source: NYS Penal Law. And watching too many of these cases in court.
@OrderoftheQuaff:
This is why I have to believe that Weiner is suffering from some kind of compulsive disorder – he literally cannot stop himself from doing this shit, and it appears to be getting worse over time.
He does need to be put someplace where his actions can't harm anyone. I'd rather it be a psychiatric hospital than federal prison, but he can't be left out on the street.
He's no precious national asset, there are millions of hustling bullsh!t artist fixers. I'd trade a room full of him for a random EMT.
I hadn't heard before there were actual explicit pictures. Is that established? The most famous picture was a softcore crotch shot of Wiener wearing jockey shorts, showing a bulge but no directly nekked private parts. I don't think that would have counted as explicit. They show stuff like that on TV all the time. So if there was more, that's new info.