Here’s a defense theory you never want to assert: Your honor, the district court erred in applying an enhancement to my client’s sentence for committing a crime while released because he only conspired to commit a crime.
We hope you avoid this argument for two reasons:
- It's embarrassing when your client commits a crime while out on bail.
- The Second Circuit Court of Appeals recently ruled that conspiracy qualifies for a sentence enhancement.
Emil Scheringer orchestrated a "years-long financial fraud," which resulted in tens of millions of dollars in losses over the course of a decade. Delmer Gowing learned of the scheme while representing Scheringer in a fraud suit. (Yes, Gowing was an attorney.) He eventually helped solicit funds from victims, even though he knew the scheme was fraudulent.
Scheringer was arrested in 2005 and later released pending trial. Gowing was indicted in 2006, and was arrested and released on bail. During government-recorded calls in 2008 and 2009, Scheringer and Gowing spoke about obtaining more money from victims and efforts to further the fraud. Both were convicted on charges stemming from the scheme.
Engaging in criminal conduct while on pretrial release is a bad idea because 18 U.S.C. §3147 allows a court to slap an offender with a 10-year sentence enhancement, on top of the underlying offense sentence.
Gowing was awarded bonus time in jail for his pretrial hijinks. He challenged the sentence enhancement in the Second Circuit Court of Appeals, arguing that the district court misapplied §3147. According to Gowing, there's a distinction between committing a crime while released, and conspiring to commit a crime while released. Gowing said he merely conspired.
According to the Second Circuit Court of Appeals, §3147 does not make such a distinction.
The Second Circuit ruled that §3147 does apply to enhance the sentence of a person who continues to commit, while on release, the same crime for which he is awaiting trial.
When you finish arranging a client's pretrial release, remind him that it's a bad idea to engage in criminal conduct -- or conspiracy for ongoing criminal conduct -- while waiting for his day in court.
- U.S. v. Delmer Gowing (FindLaw's CaseLaw)
- Florida Attorney Sentenced in Manhattan Federal Court to 22 Years in Prison for Role in $20 Million Advance-Fee Scheme (Justice Department)
- Circuit Says Gun Warrants Physical Restraint Sentence Enhancement (FindLaw's Fourth Circuit Blog)