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John Rigas and his son Timothy, who were convicted of the same corporate fraud charges a week ago, both face the possibility of 30 years in prison under federal sentencing guidelines. But downward departures in other courts suggest that the elder Rigas, who is 79 and has bladder cancer, can reasonably hope for a significantly shorter sentence because of his age and poor health. It is conceivable that he will be freed in a relatively few years and that Timothy, 47, will be imprisoned till he is nearly as old as his father is now. The sentencing guidelines meanwhile have been thrown into doubt by an unrelated U.S. Supreme Court decision, Blakely v. Washington. But under either the guidelines or the previous system, Southern District Judge Leonard Sand could exercise leniency toward the elder Rigas, the founder of now bankrupt Adelphia Communications. The Rigases were convicted of 18 counts of bank and securities fraud and conspiracy charges. Their lawyers will not discuss their plans for motions to the court on sentencing, but attorneys consider it a foregone conclusion that they will request downward departures from the guideline range. The U.S. Supreme Court’s June decision in Blakely has thrown the applicability of the sentencing guidelines into disarray. The decision prohibited judges in Washington State from considering facts not presented to jurors when setting prison terms in excess of the state’s sentencing guidelines. This brought the federal sentencing guidelines into question. The uncertainty prompted the 2nd U.S. Circuit Court of Appeals this week to ask the Supreme Court to say whether and to what degree Blakely affects federal guidelines. Even if the guidelines are declared unconstitutional, Rigas’ age and physical disability can be taken into account, said William Cunningham, a former federal prosecutor who now practices as a white-collar criminal defense lawyer at Pryor Cashman Sherman & Flynn. Judges looked at these factors before the implementation of the guidelines in 1987, he said. The guidelines instruct judges not to consider a defendant’s age or health unless there are extraordinary circumstances. Age “may be a reason to impose a sentence below the applicable guideline range when the defendant is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration.” Another section says that “an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range.” The guidelines allow judges to sentence “seriously infirm” defendants to home detention as an inexpensive alternative to prison. A catch-all provision permits departures for factors “not adequately taken into consideration by the Sentencing Commission in formulating guidelines.” James Walden, a former federal prosecutor now at O’Melveny & Myers, said, “Normally, physical impairments and diseases and the like are not supposed to play a role” in sentencing. But judges may consider them at their discretion, he said, and case law in the circuit gives great deference to their decisions. FACTORS TO CONSIDER The Rigases will be sentenced on a date to be determined, at least three months from now. A sentencing conference is scheduled for September. The burden is on the defendant to press for a downward departure. Presumably, John Rigas’ lawyer, Peter Fleming Jr. of Curtis, Mallet-Prevost, Colt & Mosle, will do so. The team of prosecutors led by Richard Owens, co-chief of the fraud section of the U.S. Attorney’s Office for the Southern District of New York, can oppose the move. The process includes arguments by both sides and a pre-sentence investigation by the probation office. Judge Sand can order a hearing to listen to physicians and other experts on any unresolved evidentiary issues. It is not uncommon for defense attorneys to begin laying the groundwork for arguments for leniency from the beginning, said Walden. Fleming has spoken of his client’s bladder cancer during every stage of the trial. Rigas was absent several times from the courtroom to be treated at the Mayo Clinic, Walden noted. The judge will have to consider the seriousness of Rigas’ illness and whether the Bureau of Prisons can effectively treat his cancer in a cost-efficient manner. In U.S. v. Barbato, Southern District Judge Shirley Kram reduced a sentence in 2002 for an 81-year-old defendant suffering from a host of medical problems including severe hypertension and artery disease. The defendant, Alphonsos Barbato, pleaded guilty to using extortionate means to collect debts. A Bureau of Prisons witness testified that its facilities could effectively treat him. The bureau runs a facility in Springfield, Mo., for treating prisoners with health problems, Cunningham said. Judge Kram found that the “combination of Barbato’s medical condition and his advanced age” justified a downward departure. She reduced his sentence from the original range of 24 to 30 months to 6 to 12 months and then sentenced him to a year of home confinement and 2 years of supervised release. In a drug conspiracy case in 2002, Judge Deborah Batts, also of the Southern District, reduced the sentence of Frank Spadaro from 135 to 168 months to 60 months after finding that the combination of factors surrounding the 71-year-old defendant with late-stage colon cancer justified a downward departure. Poor health and old age “can have an incredible effect on the sentencing range,” said Walden, discussing the Spadaro case. But in a drug-dealing case, Southern District Judge Loretta Preska rejected a downward departure for a defendant suffering from severe arthritis and cystic growths in his heels and ankles. Prison officials argued that they could adequately treat the ailments. Being old “significantly influenced the likelihood of receiving a downward departure” in the 2nd Circuit, according to a 2003 study of age- and health-related downward departures in several federal circuits. Conducted by criminology professors John Burrow and Barbara Koons-Witt of the University of South Carolina, the study was published in the Elder Law Journal. It said that old-age combined with a serious illness increased the likelihood of a downward departure dramatically, as reflected in the Barbato and Spadaro trials. John Rigas’ lawyers are likely to base their position under both grounds, said observers.

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