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The 2nd 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 willing to “rubber stamp” any sentence recommended by prosecutors. The ruling was the second time that the court had reversed Eastern District Judge Thomas C. Platt over a sentencing skirmish with federal 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 the judge’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 over its policy. The court also said that if the judge continues to feel that he cannot sentence defendants without recommendations from prosecutors, he should recuse himself from cases that involve cooperating witnesses. 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, saying: “When I was a prosecutor 40 years ago, 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 2nd Circuit reversed the judge in U.S. v Campo, 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. This week, in U.S. v. John Doe, 02-1362, the 2nd 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 Platt exercised his informed discretion in imposing that sentence.” Despite not recommending a specific sentence, prosecutors agreed that the defendant, known as John Doe, who had been convicted on drug charges, should receive a downward departure in exchange for his cooperation. They also sent the judge a single-spaced, four-page letter describing the defendant’s cooperation with the government over seven years that resulted in subsequent arrests and guilty pleas. Platt sentenced the man to 10 years in prison — less than half of what was prescribed by federal guidelines, but more, the appeals court said, than the probationary sentence the judge had implied he would support with the consent of prosecutors. In a written opinion rejecting the man’s motion for reconsideration, Platt called the prosecution’s letter a “customary non-helpful ‘cooperation letter,’” and added: “If the government had wanted the Court to impose a non-custodial or some other sentence it had full opportunity to do so both before and at the time of sentence and indeed it repeatedly refuses to do so.” The judge also rejected the defendant’s claim that he should receive the same probationary sentence as other co-defendants who pleaded to the same charge but were sentenced by Eastern District Judge Sterling Johnson. Platt added: “There is certainly no law, of which this Court is aware, that says the government may not ask for what it wants.” “These gratuitous comments suggest that the refusal of the United States Attorney to recommend a specific sentence may have caused Judge Platt to mete out a higher sentence than he would have otherwise imposed,” the 2nd Circuit wrote. “Perhaps equally disturbing, when read in context of the Campo sentencing proceeding, is that these words also suggest that Judge Platt would have rubber-stamped any specific recommendation offered by the United States Attorney.” The appeals court defended the policy of the U.S. Attorney’s Office, saying, “If the United States Attorney were to begin making specific sentencing recommendations that were routinely followed, it would naturally invite defense counsel to argue that cooperating witnesses were now being furnished with an even greater incentive to say whatever they believed necessary to obtain the most lenient recommendation.” The circuit court added that the prosecution’s cooperation letter was not, as Platt had said, “of little or no use.” “While we appreciate the desire of Judge Platt for a specific recommendation, if he feels that he is unable to make an informed judgment on sentences for cooperating defendants without a specific recommendation, then we believe the proper course is to recuse himself from such cases,” the court wrote. Chief Judge John M. Walker and Judge Guido Calabresi of the 2nd Circuit, and Chief Judge Edward R. Korman of the Eastern District, who was sitting by designation, concurred on the ruling. The panel stressed that it had no opinion on the reasonableness of sentence, which will now be determined by a new judge. Avrom Robin, who represented the defendant, said he was pleased with the ruling. “The disparity here was so gross, so excessive that it called out for review,” he said. Assistant U.S. Attorney Burton T. Ryan prosecuted the appeal. A spokesman for Eastern District Attorney Roslyn Mauskopf declined to comment.

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