Tuesday, January 13, 2015


Charles Ponzi in 1920.
Counsel for David Boden asked the sentencing judge for a 90-delay in his sentencing. His detailed motion revealed that his client was not going to get a 5k1.1 filing from the US Attorney's office, which would have allowed the Court to depart below the Guidelines sentence; apparently he still has to testify at two more criminal trials, and they were still pending. Thus his counsel sought an extended delay.

What was more interesting was the large number of grounds that Boden's counsel has advanced for the proposition that incarceration is definitely not necessary, regarding his client, who had a key, and not minor, role in the Ponzi scheme.You may find some puzzling, but I assure you that he has done his homework as an advocate; much of the material tracks the language of the US Sentencing Guidelines:

(1) Boden's crime represents aberrant behavior (the Guidelines allow downward departure for this).
(2) The loss overstates the seriousness of the offense (the high dollar amount of the Ponzi scheme increases his Guidelines computation, when he pled to a relatively minor offense).
(3) He has demonstrated post-offense rehabilitation, during the past five years (again angling for favorable consideration)
(4) Incarceration will work a hardship upon the employees at his new company (this is a stretch).
(5) Incarceration is not necessary, as demonstrated by the length of time that has passed since the offense.  (this could be argued in good faith, either way).
(6) His incarceration is not necessary to protect the public, or to provide just punishment, or to reflect the seriousness of the offense ( Perhaps the only valid point in the motion).
(7) He has already been punished enough; conviction of a felony, loss of law license, his home, and his reputation in the community (is this enough punishment to deter others ? I doubt it).

The defendant, as in-house counsel at the Rothstein law firm, was an integral component in a massive Ponzi scheme; to let him walk away without any prison time whatsoever sends the wrong message to the business community. A final note: the Court only delayed the case until the end of the month, not the ninety days requested.


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