Frank A. Rubino, ESQ.

FEDERAL AND INTERNATIONAL CRIMINAL DEFENSE

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Federal Sentencing in the News, Part 3: Judge's Discretion

While federal criminal defendants are entitled to jury trials regarding whether they are guilty, the judge ultimately decides what penalty is appropriate. In the third post of our four-part series on federal sentencing, we will look at another recent high-profile case in which the judge dramatically overshot the prosecutor's recommendation.

Like the case of a famous former professional athlete, this prosecution attracted a lot of media attention. That scrutiny may have affected this judge's decision to exercise his discretion. If so, the consequences for this defendant seem unfair: the judge nearly doubled the prosecutor's requested sentence from six years to ten.

Illustrating one big risk in federal criminal cases, the judge ignored the prosecutor's request even though it represented part of a plea deal with the defendant.

This defendant faced charges for hacking into celebrities' email accounts to steal information and images. Some of the images depicted famous actresses in the nude - the defendant allegedly posted those photos online for other people to see. In total, federal prosecutors charged the defendant with 26 counts.

After the defendant accepted a plea deal with the prosecutor, the judge heard testimony from a number of the victims. Some of the actresses gave emotional statements explaining the impact that the defendant's conduct had on their private lives.

A few factors could be at work in this decision to ignore the prosecutor's deal. Like the Lockhart sentence, the judge might have wanted to send a message in a highly publicized and media-friendly case. While this would not necessarily have broken any laws, it does seem like an unfair outcome for this defendant. The court might also have simply put more emphasis on the victims' statements.

Regardless of what exactly motivated this judge, the hefty sentence serves as a reminder that the court ultimately chooses an appropriate penalty - effective defense strategies must plan every angle of a case accordingly.

Source: ABC News, "Hollywood Hacker Sentenced to 10 Years in Prison," Anthony McCartney, Dec. 17, 2012; CNN, "Nude Scarlett Johansson pic, hacking celebs' e-mail gets man 10 years in prison," Alan Duke, Dec. 17, 2012

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Coral Gables Office

Frank A. Rubino, Esq.
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