Federal District Court Judge: How Mandatory Minimums Forced Me to Send More Than 1,000 Nonviolent Drug Offenders to Federal Prison

October 26, 2012

The Nation on October 24, 2012 released the following:

Judge Mark W. Bennett

“Reuters/Joshua Lott

Growing up in blue collar Circle Pines, Minnesota, in the 1950s, raised by parents from the “Greatest Generation,” I dreamed only of becoming a civil rights lawyer. My passion for justice was hard-wired into my DNA. Never could I have imagined that by the end of my 50s, after nineteen years as one of 678 federal district court judges in the nation, I would have sent 1,092 of my fellow citizens to federal prison for mandatory minimum sentences ranging from sixty months to life without the possibility of release. The majority of these women, men and young adults are nonviolent drug addicts. Methamphetamine is their drug of choice. Crack cocaine is a distant second. Drug kingpins? Oh yes, I’ve sentenced them, too. But I can count them on one hand. While I’m extremely proud of my father’s service in World War II, I am greatly conflicted about my role in the “war on drugs.”

You might think the Northern District of Iowa—a bucolic area home to just one city with a population above 100,000—is a sleepy place with few federal crimes. You would be wrong. Of the ninety-four district courts across the United States, we have the sixth-heaviest criminal caseload per judge. Here in the heartland, I sentence more drug offenders in a single year than the average federal district court judge in New York City, Washington, Chicago, Minneapolis and San Francisco—combined. While drug cases nationally make up 29 percent of federal judges’ criminal dockets, according to the US Sentencing Commission, they make up more than 56 percent of mine. More startling, while meth cases make up 18 percent of a judge’s drug docket nationally, they account for 78 percent of mine. Add crack cocaine and together they account for 87 percent.

Crack defendants are almost always poor African-Americans. Meth defendants are generally lower-income whites. More than 80 percent of the 4,546 meth defendants sentenced in federal courts in 2010 received a mandatory minimum sentence. These small-time addicts are apprehended not through high-tech wiretaps or sophisticated undercover stings but by common traffic stops for things like nonfunctioning taillights. Or they’re caught in a search of the logs at a local Walmart to see who is buying unusually large amounts of nonprescription cold medicine. They are the low-hanging fruit of the drug war. Other than their crippling meth addiction, they are very much like the folks I grew up with. Virtually all are charged with federal drug trafficking conspiracies—which sounds ominous but is based on something as simple as two people agreeing to purchase pseudoephedrine and cook it into meth. They don’t even have to succeed.

I recently sentenced a group of more than twenty defendants on meth trafficking conspiracy charges. All of them pled guilty. Eighteen were “pill smurfers,” as federal prosecutors put it, meaning their role amounted to regularly buying and delivering cold medicine to meth cookers in exchange for very small, low-grade quantities to feed their severe addictions. Most were unemployed or underemployed. Several were single mothers. They did not sell or directly distribute meth; there were no hoards of cash, guns or countersurveillance equipment. Yet all of them faced mandatory minimum sentences of sixty or 120 months. One meth-addicted mother faced a 240-month sentence because a prior meth conviction in county court doubled her mandatory minimum. She will likely serve all twenty years; in the federal system, there is no parole, and one serves an entire sentence minus a maximum of a 15 percent reduction rewarded for “good time.”

Several years ago, I started visiting inmates I had sentenced in prison. It is deeply inspiring to see the positive changes most have made. Some definitely needed the wake-up call of a prison cell, but very few need more than two or three years behind bars. These men and women need intensive drug treatment, and most of the inmates I visit are working hard to turn their lives around. They are shocked—and glad—to see me, and it’s important to them that people outside prison care about their progress. For far too many, I am their only visitor.

If lengthy mandatory minimum sentences for nonviolent drug addicts actually worked, one might be able to rationalize them. But there is no evidence that they do. I have seen how they leave hundreds of thousands of young children parentless and thousands of aging, infirm and dying parents childless. They destroy families and mightily fuel the cycle of poverty and addiction. In fact, I have been at this so long, I am now sentencing the grown children of people I long ago sent to prison.

For years I have debriefed jurors after their verdicts. Northwest Iowa is one of the most conservative regions in the country, and these are people who, for the most part, think judges are too soft on crime. Yet, for all the times I’ve asked jurors after a drug conviction what they think a fair sentence would be, never has one given a figure even close to the mandatory minimum. It is always far lower. Like people who dislike Congress but like their Congress member, these jurors think the criminal justice system coddles criminals in the abstract—but when confronted by a real live defendant, even a “drug trafficker,” they never find a mandatory minimum sentence to be a just sentence.

Many people across the political spectrum have spoken out against the insanity of mandatory minimums. These include our past three presidents, as well as Supreme Court Justices William Rehnquist, whom nobody could dismiss as “soft on crime,” and Anthony Kennedy, who told the American Bar Association in 2003, “I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences.” In 2005, four former attorneys general, a former FBI director and dozens of former federal prosecutors, judges and Justice Department officials filed an amicus brief in the Supreme Court opposing the use of mandatory minimums in a case involving a marijuana defendant facing a fifty-five-year sentence. In 2008, The Christian Science Monitor reported that 60 percent of Americans opposed mandatory minimums for nonviolent offenders. And in a 2010 survey of federal district court judges, 62 percent said mandatory minimums were too harsh.

Federal judges have a longstanding culture of not speaking out on issues of public concern. I am breaking with this tradition not because I am eager to but because the daily grist of what I do compels me to. In 1999, Judge Robert Pratt of the Southern District of Iowa, a courageous jurist whose brilliant opinion in Gall v. United States led to one of the most important Supreme Court sentencing opinions in my professional life, wrote a guest editorial in The Des Moines Register criticizing federal sentencing guidelines and mandatory minimums. He ended by asking, “If we don’t speak up, who will?” I hope more of my colleagues will speak up, regardless of their position on the fairness of mandatory minimum sentences for nonviolent drug offenders. This is an issue of grave national consequence. Might there be a problem when the United States of America incarcerates a higher percentage of its population than any nation in the world?”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

Federal Crimes – Detention Hearing

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To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Peregrine’s Wasendorf Signed Plea Deal, FBI Agent Says

September 12, 2012

Bloomberg Businessweek on September 11, 2012 released the following:

“By Andrew Harris and Tom Witosky

Russell Wasendorf Sr., the indicted founder of Peregrine Financial Group Inc., has signed a plea agreement with prosecutors in which he admits to crimes including mail fraud, an FBI agent testified.

William Langdon, the U.S. Federal Bureau of Investigation agent whose affidavit supported the original criminal complaint against Wasendorf in July, disclosed the agreement today at a detention hearing in Cedar Rapids, Iowa, federal court.

Wasendorf, who has been in custody since his arrest on July 13, was indicted last month on 31 counts of lying to U.S. regulators about how much client money his now-bankrupt commodities firm had on deposit.

He entered a plea of not guilty on Aug. 17 and hasn’t changed that plea since then. Langdon didn’t say if or when the plea agreement would be brought before the court.

U.S. Magistrate Judge Jon Scoles is presiding over today’s hearing, which he scheduled at Wasendorf’s request, according to a Sept. 7 order posted in the court’s electronic docket.

Wasendorf was arrested four days after trying to asphyxiate himself in his car outside Peregrine’s Cedar Falls, Iowa, headquarters. Langdon, in his July affidavit, said the firm’s founder had in his possession at the time of the suicide attempt a written confession that said he stole from the firm for almost 20 years.

At least $190 million in client funds is unaccounted for, Peregrine bankruptcy trustee, Ira Bodenstein, told creditors at a meeting yesterday in federal court in Chicago, where the company filed for liquidation on July 10.

The criminal case is U.S. v. Wasendorf, 12-cr-2021, U.S. District Court for the Northern District of Iowa (Cedar Rapids).”

Federal Mail Fraud Crimes – 18 U.S.C. § 1341

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

Federal Crimes – Detention Hearing

Federal Mail Fraud Crimes

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To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Federal Indictment Alleges That Peregrine CEO, Russell Wasendorf Sr., Lied To Regulators Every Month Since Jan 2010

August 14, 2012
Russell Wasendorf Sr.
“Prosecutors say Wasendorf lied to regulators about the value of customer funds on a monthly basis in reports from January 2010 through May 2012.”

Forbes on August 14, 2012 released the following:

By: Halah Touryalai, Forbes Staff

“Russell Wasendorf Sr., the CEO of the now bankrupt Peregrine Financial Group, has been formally charged by a federal grand jury on 31 counts of misleading regulators.

Wasendorf lied to the U.S. Commodity Futures Trading Commission 31 times about the value of customer funds the firm held. Wasendorf, who’s been held in custody since being arrested in July, faces 155 years in prison and a fine of $7.75 million if convicted on all counts.

According to the indictment Wasendorf submitted false information for his U.S. futures and currency brokerage firm in its 2010 and 2011 financial statements.

Wasendorf “overstated the value of PFG’s customer segregated funds by at least tens of millions of dollars, well knowing and believing the actual value of PFG’s customer segregate funds was at least tens of millions of dollars less than stated in the financial documents,” the indictment says. []

The CEO’s false statements didn’t stop there, according to prosecutors in the U.S. Attorney’s Office for the Northern District of Iowa. Wasendorf lied to regulators about the value of customer funds on a monthly basis in reports from January 2010 through May 2012, prosecutors says.

Last month Wasendorf was arrested after regulators accused PFG of fraud, misusing of client money, violating customer fund segregation laws and making false statements about its finances. Peregrine file for bankruptcy and roughly $215 million in client assets are missing amid the mess.

Wasendorf’s arrest came just days after he attempted to take his own life outside his Iowa-based office building. According to police reports, the CEO attempted suicide and left a note stating that he had been stealing from the firm.

According to reports, the CEO attempted the suicide after a regulator pushed him to allow its auditors to electronically verify customer balances actually exist at its custodian bank–in this case, U.S. Bank.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

Federal Crimes – Detention Hearing

————————————————————–

To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.