White-collar criminals may use age in sentencing

Elderly people convicted of financial fraud and other federal crimes will be more likely to invoke their age in seeking lower prison terms due to a change in U.S. sentencing guidelines set to go into effect Nov. 1, a white-collar crime expert said.

The amendment states that age may be relevant in calculating sentencing ranges. The current language says age is “not ordinarily relevant.” Some high-profile defendants such as Adelphia Communications Corp.'s John Rigas and former Illinois Governor George Ryan were in their 70s and 80s when sentenced.

“These sentences can turn into death sentences for individuals who are older,” Jeff Ifrah, co-author of “Federal Sentencing for Business Crimes,” said in a phone interview. “You'll start seeing defendants” ask for lower departures from the normal guideline “based on age in the appropriate circumstances.”

White-collar defendants tend to be older than those convicted of other federal crimes. Almost half of all defendants sentenced last year for tax offenses and 28.3 percent for money laundering were older than 50, the most of any age category in statistics compiled by the U.S. Sentencing Commission.

Defendants in 22 percent of larceny cases and 19.8 percent of fraud cases were older than 50, according to the commission, a Washington-based agency that advises the president and Congress on crime policy.

Last year, only 2.6 percent of defendants got a downward departure from the guideline range due to age, according to the commission.

The amendment changes the guidelines to say that “age (including youth) may be relevant” if age is a factor “to an unusual degree.”

A defendant's youth would probably be considered in drug cases, said Ifrah, founding partner of Washington-based law firm Ifrah PLLC.

Laura Sweeney, a spokeswoman for the U.S. Justice Department, didn't return a call seeking comment on the guideline change.

“We were supportive of this particular amendment,” Mark P. Rankin, co-chairman of the sentencing committee at the National Association of Criminal Defense Lawyers, said in a phone interview. “Anything that broadens the scope of the district judge's discretion is good for the sentencing process.” Rankin is a partner at Shutts & Bowen LLP in Tampa, Florida.

The lawyer for Mauricio Cohen Assor, convicted on Oct. 7 at age 77 of hiding a $33 million hotel sale from U.S. tax authorities, said he will cite Cohen's age at his Dec. 17 sentencing by U.S. District Judge William Zloch in Fort Lauderdale, Florida.

Cohen, who was convicted with his son, Leon Cohen Levy, faces as long as 11 years in prison. The Cohens built hotels under the “Flatotel” brand.

“For sure at the sentencing set in December, one of the issues that we will put to Judge Zloch is that consideration of age as a grounds of variance from the advisory-guidelines calculation,” Michael S. Pasano, the Cohens' lawyer at Carlton Fields in Miami, said in a phone interview.

In the past, appeals courts have overturned sentences when judges took a defendant's advanced age into account. A federal appeals panel in 1996 overturned a one-year sentence, when the guidelines called for from 27 to 33 months, because the judge said a 60-year-old former Texas official broke the law under duress, in part due to his age.

The appeals court said fear of career loss was not the kind of duress contemplated by the guidelines.

“If you had someone with great age or a health issue, you'd argue for a downward departure and courts would often say no and were upheld on appeal,” Pasano said.

While the federal sentencing guidelines, in effect since 1987, have been advisory rather than mandatory since a 2005 U.S. Supreme Court ruling, statistics show that courts continue to adhere to them.

Last year, 56.8 percent of defendants were sentenced within the guideline range and another 25.3 percent were sentenced below it at the government's request, according to the sentencing commission.

A lawyer for Ryan, the former Illinois governor, asked for his client to have a “few years with his family before he dies” when he was sentenced, at age 72, to 6 1/2 years in prison in 2006 after being convicted of public corruption.

Dan Webb, Ryan's lawyer, asked for the sentence to be capped at 2 1/2 years, noting Ryan suffered from diabetes and Crohn's disease. The ex-governor probably had less than 10 years to live, Webb said at the time. Ryan, now 76, is in federal prison in Terre Haute, Indiana.

In June 2005, Rigas, the founder of Greenwood Village, Colorado-based cable-television operator Adelphia, was sentenced to 15 years after being convicted for looting the company and lying about its finances, in a fraud prosecutors estimated at almost $2 billion.

At the time of his sentencing, Rigas was 80 and had cancer and a heart condition. U.S. District Judge Leonard Sand in Manhattan said that after Rigas served two years, the Bureau of Prisons could ask for a reduction of his sentence if it concludes he has less than three months to live.

“One shrinks from, no matter how horrendous the crime, the prospect of someone dying in a prison hospital,” Sand said.

Rigas's term was later reduced to 12 years after an appeals court threw out one count. He is now 85 and in federal prison in Butner, North Carolina, with a projected release date of Jan. 23, 2018, according to the Bureau of Prison's Web site.