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Rigas CA2 Amicus Brief Case: 19-20157 Document: 00515183611 Page: 1 Date Filed: 11/01/2019 NO. 19-20157 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DANIELA GOZES-WAGNER, ALSO KNOWN AS DANIELA WAGNER, ALSO KNOWN AS DANIELA MAYER GOZES, ALSO KNOWN AS DANIELA GOZES, Defendant-Appellant. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION No. 4:14-cr-637 BRIEF OF THE ALEPH INSTITUTE AND MORE THAN 130 FORMER LEGAL OFFICIALS AND LEGAL SCHOLARS AS AMICI CURIAE IN SUPPORT OF DEFENDANT-APPELLANT COUNSEL FOR AMICI: HANNA LIEBMAN DERSHOWITZ The Aleph Institute STEVEN J. LIEBERMAN 543 Maple Street, Suite 1 Federal Id No. 11337 Brooklyn, NY 11225 Texas Bar No. 12334020 (347) 436-7518 712 Main Street, Suite 2400 [email protected] Houston, Texas 77002 (713) 228-8500 PROFESSOR DOUGLAS A. BERMAN [email protected] 55 West 12th Avenue Columbus, Ohio 43210 [email protected] Case: 19-20157 Document: 00515183611 Page: 2 Date Filed: 11/01/2019 TABLE OF CONTENTS STATEMENT OF INTEREST .................................................................................. 4 SUMMARY OF THE ARGUMENT ......................................................................14 ARGUMENT ...........................................................................................................19 I. THE DISTRICT COURT’S APPROACH TO SENTENCING WAS PROCEDURALLY DEFECTIVE IN ITS APPROACH TO VARIOUS SENTENCING FACTORS ...........................................................................19 II. THE DISTRICT COURT’S 20-YEAR SENTENCE FOR A LESS- CULPABLE FIRST OFFENDER DESPITE MANY MITIGATING FACTS WAS SUBSTANTIVELY UNREASONABLE ............................................25 CONCLUSION ........................................................................................................32 2 Case: 19-20157 Document: 00515183611 Page: 3 Date Filed: 11/01/2019 TABLE OF AUTHORITIES CASES Gall v. United States, 552 U.S. 38, 50 (2007) .................................................. 16 Kimbrough v. United States, 552 U.S. 85 (2007). ............................................ 17 Nelson v. United States, 555 U.S. 350, 352 (2009) .......................................... 15 United States v. Adelson, 441 F. Supp. 2d 506 (S.D.N.Y. 2006) ..................... 23 United States v. Booker, 543 U.S. 220 (2005) .................................................. 13 United States v. Chandler, 732 F.3d 434 (5th Cir. 2013) ................................. 17 United States v. Forbes, 790 F.3d 403, 405 (2d Cir. 2015) .............................. 29 United States v. Kumar, 617 F.3d 612, 616, 626 (2d Cir. 2010) ...................... 29 United States v. Olis, No. H-03-217-01, 2006 U.S. Dist. LEXIS 68281, at *33, *45 (S.D. Tex. Sep. 22, 2006) ................................................................. 30 United States v. Parris, 573 F. Supp. 2d 744 (S.D.N.Y. 2008) ........................ 23 United States v. Rigas, 583 F.3d 108, 113 (2d Cir. 2009) ................................ 30 United States v. Skilling, No. 4:04-cr-00025, ECF No. 1337, at 4 (S.D. Tex. June 24, 2013) ............................................................................... 30 United States v. Watt, 707 F. Supp. 2d 149 (D. Mass. 2010) ........................... 23 STATUTES Sentencing Reform Act, 18 U.S.C. § 3553(a) .................................................. 5 OTHER AUTHORITIES Andrew Weissmann & Joshua A. Block, White-Collar Defendants and White- Collar Crimes, 116 Yale L.J. Pocket Part 286, 286 (2007) ........................... 13 Frank Bowman, Sacrificial Felon, AMERICAN LAWYER 63 (January 2007) .... 13 3 Case: 19-20157 Document: 00515183611 Page: 4 Date Filed: 11/01/2019 STATEMENT OF INTEREST Amici curiae are the Aleph Institute; numerous former legal officials, including six U.S. Attorneys General, an FBI director, two U.S. Solicitors General, two state Governors, a Member of Congress, several Deputy, Associate, and Assistant Attorneys General, scores of U.S. Attorneys, more than three dozen Judges and Justices, and many more senior state and federal officials, whose careers collectively span more than half a century of public service; as well as professors who teach and conduct research in the fields of criminal law and sentencing at law schools in the United States. The Aleph Institute is a national nonprofit educational, humanitarian, and advocacy organization. It was founded in 1981 at the direction of The Lubavitcher Rebbe. Aleph provides spiritual and emotional support, as well as rehabilitation and family counseling, to thousands of individuals of all faiths and their families who are enmeshed in the criminal justice and penal systems. In many cases, Aleph also provides advocacy for defendants at their sentencing hearings. Aleph’s overarching mission is to bring about criminal justice outcomes that are beneficial to the sentenced individuals, their families and communities, and society as a whole. Other amici are David B. Anders, Assistant United States Attorney, Southern District of New York, 1998-2006; John Ashscroft, Attorney General of 4 Case: 19-20157 Document: 00515183611 Page: 5 Date Filed: 11/01/2019 the United States, 2001-2005; Bob Barr, Member of Congress, 1995-2003, United States Attorney, Northern District of Georgia, 1986-1990; William G. Bassler, United States District Judge, District of New Jersey, 1991-2006; Mark W. Bennett, United States District Judge, Northern District of Iowa, 1994- 2015; James S. Brady, United States Attorney, Western District of Michigan, 1977-1981; Michael Bromwich, Inspector General of the United States Department of Justice, 1994-1999; J.R. Brooks, United States Attorney, Northern District of Alabama, 1977-1981; B. Mahlon Brown, United States Attorney, District of Nevada, 1977-1981; Mary Beth Buchanan, United States Attorney, Western District of Pennsylvania, 2001-2009; Ben Burgess, United States Attorney, District of Kansas, 1984-1990; A. Bates Butler III, United States Attorney, District of Arizona, 1980-1981; Mark W. Buyck, United States Attorney, District of South Carolina, 1975-1977; Edward N. Cahn, United States District Judge, Eastern District of Pennsylvania, 1974-1998; J.A. Canales, United States Attorney, Southern District of Texas, 1977-1980; Bruce L. Castor Jr., Pennsylvania Solicitor General and acting Attorney General, 2016, Montgomery County, PA Commissioner, 2008-2016, Montgomery County, PA District Attorney, 2000-2008; James Cissell, United States Attorney, Southern District of Ohio, 1978-1982; Ramsey Clark, Attorney General of the United States, 1967- 1969; Robert J. Cleary, United States Attorney, District of New Jersey, 1999- 5 Case: 19-20157 Document: 00515183611 Page: 6 Date Filed: 11/01/2019 2002, United States Attorney, Southern District of Illinois, 2002; David H. Coar, United States District Judge, Northern District of Illinois, 1994-2010; W.J. Michael Cody, United States Attorney for the Western District of Tennessee, 1977-1981, Attorney General of Tennessee, 1984-1988; Kendall Coffey, United States Attorney, Southern District of Florida, 1993-1996; Paul Coggins, United States Attorney, Northern District of Texas, 1993-2001; Thomas W. Corbett, Jr., United States Attorney, Western District of Pennsylvania 1989-1993, Attorney General of Pennsylvania 1995-1997 and 2005-2010; Governor of Pennsylvania 2011-2015; Duquesne School of Law Distinguished Executive in residence 2015 to present; Michael W. Cotter, United States Attorney, District of Montana, 2009- 2017; Richard Cullen, United States Attorney, Eastern District of Virginia, 1991- 1993, Attorney General of Virginia, 1997-1998; Bud Cummins, United States Attorney, Eastern District of Arkansas, 2001-2006; William B. Cummings, United States Attorney, Eastern District of Virginia, 1975- 1979; Deirdre M. Daly, United States Attorney, District of Connecticut, 2013- 2017; Deborah J. Daniels, Assistant Attorney General, 2001-2004, United States Attorney, Southern District of Indiana, 1988-1993; Leonard Davis, United States District Judge, Eastern District of Texas, 2002-2015; James R. (Russ) Dedrick, United States Attorney, Eastern District of Tennessee, 2005-2010, United States Attorney, Eastern District of North Carolina, 1991-1992; Alan M. Dershowitz, 6 Case: 19-20157 Document: 00515183611 Page: 7 Date Filed: 11/01/2019 retired law professor; Michael Dettmer, United States Attorney, Western District of Michigan, 1994-2001; William Thomas Dillard, United States Magistrate, Eastern District of Tennessee, 1976-1978, United States Attorney, Eastern District of Tennessee, 1981, United States Attorney, Northern District of Florida, 1983- 1986; Carol E. Dinkins, Deputy Attorney General, 1984-1985, Assistant Attorney General, 1981-1983; Edward L. Dowd Jr., United States Attorney, Eastern District of Missouri, 1993-1999; Joshua Dressler, Distinguished University Professor Emeritus, Michael E. Moritz College of Law, The Ohio State University; Donald A. Dripps, Warren Distinguished Professor, University of San Diego School of Law; Steven A. Drizin, Co-Director, Center on Wrongful Convictions, Northwestern University School of Law; Steven Duke, Professor of Law, Yale Law School; Christine M. Durham, Justice, Supreme Court of Utah, 1982-2017; Fernand N. Dutile, Professor of Law Emeritus, Notre Dame Law School; Ronald F. Ederer, United States Attorney, Western District of Texas, 1989-1993; Anne Emanuel, Professor Emerita, Georgia State University College of Law; Edgar Ennis,
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