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A judge’s asking of “prosecutorial” questions at a sentencing hearing, though not serious enough to overturn the sentence, was sufficiently grave to prompt an admonition from a federal appeals court. Chief Judge Edward Becker of the 3rd U.S. Circuit Court of Appeals called the sentencing colloquy “troubling” and suggested that it might have flouted the Fifth Amendment had not the defendant waived the privilege. “Nonetheless, we are concerned about the prosecutorial tone of this sentencing colloquy and trust that the District Court will avoid it in the future,” Becker wrote in United States v. Lyons, 02-1364. As U.S. District Judge Faith Hochberg of the District of New Jersey was sentencing Lawrence Lyons for attempting to defraud a federally insured bank, she elicited Lyons to name his co-conspirator in the fraud scheme by suggesting she would take it into account in fashioning his sentence. Lyons had applied for a loan at Summit Bank using the birth date and Social Security number of another person. He was arrested when a bank employee became suspicious that he was not who he claimed to be. He admitted that another person gave him a counterfeit driver’s license, Social Security card, Internal Revenue Service W-2 forms and other materials used on the loan application, but he refused to name the other person. Hochberg, a former U.S. Attorney for the District of New Jersey, began her grilling by addressing Lyons’ lawyer, public defender Lorraine Gauli-Rufo. Hochberg: “I too have a question, Miss Gauli-Rufo, for your client. I would like to know who provided him with the fake New Jersey driver’s license, Social Security card, W-2 forms, pay stubs, business cards … . Because it seems to me that that is something we should know and should get to the bottom of.” Gauli-Rufo replied: “Your Honor, I have to object to that for a number of reasons, and I’ll explain my position here. And this also relates to Mr. Kwon’s [the prosecutor] memorandum, which basically tries to use my client’s constitutional rights basically to — to up his sentence, shall we say. I think it’s totally inappropriate.” Hochberg: “No, he’s not — I understand your objection, but I had that question when I read the PSR. It wasn’t Mr. Kwon’s letter … . That, it seems to me that this is something that — since he’s already pled guilty and his sentence can’t be increased, that I would deem relevant to know if he’s really turning his life around or not. We see a lot of years of a lot of crimes, some significant, some relatively minor, but if he knows who it is, so that no one else faces the prospect of being victimized, I would feel better about people in the State of New Jersey not having this happen to them.” Gauli-Rufo: “Your Honor, I would have to again object to him disclosing that, for whatever reason he did have for not disclosing. There could be many many reasons for not disclosing who provided him, or who was an accomplice, or who was an accessory, or who it was involved in this crime with him. For the purposes of his sentencing today, for the purposes of pleading guilty, he has acknowledged that he committed this crime, he has acknowledged his involvement in the crime.” Hochberg: “I guess what I’m musing about is how, he can only not answer that question if he’s telling me that it will incriminate him. But given that he has already pled, and there is, you know, his guideline range is what it is, and it’s a very narrow guideline range, I don’t see a self-incrimination, I can’t theorize that there could be any self-incrimination basis for not answering the question, so that others in the state will have a better shot of not being a victim of identity fraud.” Gauli-Rufo: “I don’t know right now that my client would not answer that if I posed that to him, but I would just like to stress for the record that if he chose to cooperate, as Mr. Kwon has said, early on, or if he chose to give that information, or if he didn’t … choose to give it, it could be that it could incriminate him, it could be other reasons as well, your Honor.” Hochberg: “It could, although he could certainly very easily, I suppose he can’t be immunized and be asked the question. I don’t see it as likely a self-incrimination issue.” After conferring with Gauli-Rufo, Lyons disclosed his co-conspirator’s first name but said he did not know the surname or address. Becker called fatal Gauli-Rufo’s failure to peg her objection to the Fifth Amendment. He noted that even the prosecutor, Assistant U.S. Attorney Phillip Kwon, suggested that the Fifth Amendment privilege was at issue. “What is most notable about the foregoing discussion, however, is that the one person who never mentioned the Fifth Amendment was defense counsel,” Becker wrote, joined by 3rd Circuit Judges Jane Roth and D. Brooks Smith. “It would have been in order for her to have clearly invoked the privilege for her client, but she failed to do so. This failure deprived the court of the opportunity to inquire precisely how the privilege was implicated.” Hochberg sentenced Lyons to nine months in federal prison. The permitted range is six to 12 months. The government asked for the highest, Gauli-Rufo the lowest. Lyons also was sentenced to three months in a community corrections center and five years of supervised release.

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