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New York�The 2d U.S. Circuit Court of Appeals has vacated the sentencing order of a federal judge and removed him from a case, saying he was reluctant to use his discretion and apparently was willing to “rubber stamp” any sentence recommended by prosecutors. It was the second time that the court had reversed Eastern District of New York Judge Thomas C. Platt over a sentencing skirmish with prosecutors, who, as a policy, do not endorse a specific sentence when they recommend that a defendant receive a reduced penalty for cooperating with the government. The unanimous court said it was concerned that Platt’s decision to sentence the defendant to 10 years in prison was improperly affected by his “annoyance” with the U.S. attorney’s office for the Eastern District of New York. If Platt feels that he cannot sentence defendants without recommendations from prosecutors, he should recuse himself from cases that involve cooperating witnesses, the appeals court said. In an earlier case, U.S. v. Campo, Platt sentenced another cooperating witness to six years in prison because federal prosecutors refused to recommend a specific sentence. At one point during a series of related prosecutions, the judge expounded upon the “unfair position” of prosecutors. “When I was a prosecutor 40 years ago,” he said, “we stood up before a judge and said this man deserves this because he’s done thus and so. Or this man has done nothing and he deserves that. There is not a man or woman in the prosecutor’s office who has the guts to do it today.” The 2d Circuit reversed the judge in U.S. v. Campo, 140 F.3d 415 (1998), saying he had refused to exercise his discretion simply because of the prosecution’s policy, even though he had sentenced two related co-defendants to probationary sentences. In those instances, prosecutors said they would not object to the sentence under pressure from the judge. Last week, in U.S. v. John Doe, No. 02-1362, a drug case, the 2d Circuit said that, although Platt had granted a downward departure in his most recent case, “the record leaves us with a sense of unease as to whether Judge Platt exercised his informed discretion in imposing that sentence.”

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