Lawsplainer: The Remarkable Anthony Weiner Guilty Plea

Oh Ken . . . .

What.

I have . . . . [giggles uncontrollably]

Oh Lord save me.

I have a question about WEINERS.

Is there any hope I can get a foil who's not twelve?

Don't be an old grouch. Can you explain Anthony Weiner's guilty plea?

Ugh. Why? It's tawdry.

People are saying inaccurate things about federal criminal procedure online in the course of discussing it.

. . . .

You are unable to resist. Face it.

Goddammit.

Just do it.

Fine. FINE.

So today, in the United States District Court for the Southern District of New York, Anthony Weiner pled guilty to an information charging him with one count of transferring obscene material to a minor.

Wait. What's an information?

An information is a charge asserted by the U.S. Attorney's office. It's like an indictment, only not issued by a grand jury. When you agree to plead guilty before the government indicts you — like Weiner did here — you generally waive your right to indictment and agree to plead to an information. It's quicker and more informal and saves the government resources. You can see the information charging Weiner here. You only see the feds charging someone in an information when they've agreed to plead guilty or when it's an offense that doesn't require grand jury indictment (like a misdemeanor carrying a sentence of less than six months).

Ok. So what kind of deal did Weiner make?

Weiner entered into a fairly standard (at least in some ways) pre-indictment plea agreement with the U.S. Attorney's office. He agreed to plead guilty to one count of transmitting obscene material to a minor in interstate commerce in violation of Title 18, United States Code, section 1470:

Whoever, using the mail or any facility or means of interstate or foreign commerce, knowingly transfers obscene matter to another individual who has not attained the age of 16 years, knowing that such other individual has not attained the age of 16 years, or attempts to do so, shall be fined under this title, imprisoned not more than 10 years, or both.

Weiner and the government also agreed to the Sentencing Guideline calculations that would apply.

What does that mean?

Federal sentences are guided by an intricate set of rules that yields a range of months of imprisonment based on numerous factors about the defendant and the crime. Under modern law, that range is only a recommendation to the judge, and is not binding — the judge can go higher or lower. But sentences are frequently within or close to the range.

In the plea agreement, Weiner and the government agree in advance to the complex guidelines calculations that should apply in his case. The result is a suggested guideline range of 135 to 168 months. Since that's above the ten-year maximum for the crime, the most the judge could impose would be 10 years.

So Weiner is facing ten years?

He's facing the possibility of ten years. But here's the unusual part. The government has agreed to recommend a sentencing range of 21-27 months. The government's recommendation is always very powerful; the judge might not follow it, but the government recommending a sentence far below the guideline range makes it dramatically more likely, as opposed to very highly unlikely.

Wait. So the guidelines should be 10 years in federal prison, but because it's Anthony Weiner he's only going to get about 2? Isn't that extremely suspicious? Is this preferential treatment for a connected Democrat?

Well, it's got a very unfortunate appearance, I think.

Here's what may be going on.

Fist, Weiner got struck by lightning, in a way. It's quite rare for the feds to prosecute someone for sexting a teen like this. It's vastly more common for the state to handle it, and generally the consequences would be much less severe if the state prosecuted. Weiner got caught up in this because of his prominence and connection to high-profile people and high-profile investigations. If he were Tony Weynor, married to a hairdresser in Brooklyn, he almost certainly wouldn't get federally investigated or prosecuted for this. His social, political, and media prominence, combined with his idiocy and recklessness, made his actions the equivalent of doing something right in front of the cop — the cop feels duty-bound to arrest you. The U.S. Attorney's office may have thought that he was facing unfairly disproportionate consequences — ten years instead of perhaps probation or a minor sentence stateside — because of who he was, and might have thought some leniency was appropriate.

Second, the Federal Sentencing Guidelines are arcane. It's a thicket of "use this guideline, but wait, cross-reference to that guideline if factor X is present." Here, the base guideline applying to the offense dictates a far more lenient result — one in the 21-27 month range the government is going to recommend. But because Weiner apparently encouraged a minor to send him explicit pictures, the guideline cross-references to a far, far harsher guideline designed for "sex trafficking." I suspect that the U.S. Attorney's Office thought that the Sentencing Commission didn't contemplate such a harsh guideline being applied to a sexting-a-minor offense that normally would not be prosecuted in federal court.

So are you saying he's getting a sweet deal, or not?

He's getting a terrible deal by being prosecuted federally for conduct that only very rarely would attract federal prosecution. But he's getting an extraordinarily lenient, compassionate, humane deal within that context. I have only very rarely seen a recommendation for a sentence so dramatically below the guideline range when the defendant wasn't cooperating in an important case.

Look, the system strikes some people with lightning. Those people normally get ground up mercilessly. Anthony Weiner's getting struck by lightning but then treated with very unusual mercy. I don't disagree with the arguments that the guideline sentence is too high, or that nobody intended for the sex trafficking guideline and its harsh results to be applied to sexting with a teen. But I'm troubled by who gets that consideration and who doesn't. Federal court dishes out brutal mandatory minimum sentences and guideline sentences to people all the time. People like Anthony Weiner get sympathy and special consideration; people think about whether the law is fair as applied to them. People generally don't ask that about most defendants.

Is it because he's a Democratic bigwig with ties to Hillary Clinton?

I think it's more that he's a rich white guy with good lawyers. But politics might have some bearing on it.

Is the deal unusual in other ways?

Not really. The U.S. Attorney's office agrees not to prosecute a different teen-sexting allegation in exchange for the plea. But that's common; plea agreements regularly allow a plea to one change to wrap up a bunch of charges. Weiner waives his appeal so long as the Court sentences him within the agreed-upon 21-27 months range. He could appeal a higher sentence, but that would be a very weak appeal and very hard to win, given that a sentence within the guidelines is generally treated as reasonable and lawful.

So what happens now?

Weiner is free on bond pending sentencing. The U.S. Probation Office — an arm of the federal court — will interview Weiner and create a confidential report about him, his background, the crime, and the sentencing guideline calculations. The government and Weiner will submit briefs to the judge arguing what sentence he should get. The judge will review all of that and come to her own conclusion and impose sentence. It could be higher — even a lot higher, up to ten years — than the 21-27 months recommended by the government. It could be lower — though that's a lot less likely when the government is already recommending a dramatic departure from the applicable guideline. The judge is going to be under brutal scrutiny. I don't envy her the task.

Where are the juicy bits? What did Weiner admit to doing?

From the dry language of the plea agreement we know he admitted to sending sexually explicit material to a girl under 16 and soliciting her to send sexually explicit pictures of herself to him. To plead guilty he necessarily had to admit to that, under oath, in open court. In the courts where I practice there's a written statement of facts that the defendant signs, but apparently not in SDNY.

What's your bottom line?

Weiner got screwed by being prosecuted in federal court, but treated remarkably leniently once he was there.

Copyright 2016 by the named Popehat author.