Prosecutors are recommending that a little-known defendant in the Abramoff lobbying scandal get 17 to 22 years in prison for treating government officials to meals and event tickets _ a sentence that would exceed the time served by all 20 other defendants in the conspiracy combined.
The reason for the discrepancy? Ex-lobbyist Kevin Ring refused to admit his guilt and unsuccessfully fought charges at trial.
"That's a pretty big penalty for exercising a constitutional right," U.S. District Judge Ellen Segal Huvelle remarked during a hearing Tuesday over Ring's sentencing recommendation.
Justice Department attorney Nathaniel Edmonds responded that a stiff sentence would not be a punishment for going to trial. He said that cooperating defendants are rewarded with leniency, a distinction repeatedly upheld by the Supreme Court and frequently used in prosecutions.
"It's not retaliation," Edmonds insisted over grumbling from Ring's supporters in the courtroom's public benches.
The government's recommendation for Ring would dwarf the sentences of even the leading figures in the influence-peddling conspiracy that shook up Washington.
The ringleader, Jack Abramoff, was sentenced to six years in prison. Michael Scanlon, Abramoff's partner in a kickback scam bilking clients out of tens of millions of dollars, was sentenced to 20 months. Bob Ney, a six-term Ohio Republican congressman and the only lawmaker convicted in the scheme of trading gifts for favors, got 30 months.
Ring, an Abramoff deputy from Kensington, Md., was convicted after two trials of five felony counts including conspiracy, payment of a gratuity and honest services wire fraud. The first jury couldn't agree on his guilt so he had a second trial that led to his conviction in November. He was accused of bribing public officials with meals at fancy restaurants and tickets to sporting events and concerts, but he tried to argue he was only doing a lobbyist's work of building relationships with government figures.
Other lobbyists who worked for Abramoff and were accused of similar conduct usually got off with probation, fines or time in a halfway house. None of the public officials _ two Capitol Hill aides and a special assistant for legislative affairs in the Bush administration's Justice Department _ who accepted nights out with Ring and admitted doing favors for him in exchange were given any time in jail.
But those defendants all reached plea deals with prosecutors in which they admitted their guilt in exchange for a negotiated charge. "He is the only lobbyist who went to trial and chose not to plead guilty and cooperate with the United States," Edmonds said.
Prosecutors justified their recommendation by using a different calculation for Ring than any other defendant in the case under federal sentencing guidelines. The guidelines, created in the 1980s to alleviate widespread disparities in sentencing, used several factors to calculate a recommendation for punishment. Under a 2005 Supreme Court decision, the guidelines are no longer binding but judges still are required to calculate them as an advisory in determining felony sentences.
Only in Ring's case prosecutors are arguing he should get an enhanced sentence under the guidelines because of the grants and appropriations he and his co-conspirators were able to get for his clients at the Abramoff firm in exchange for his corrupt relationships with public officials. They put that value at more than $14 million, including $7.3 million in increased funding for a jail for an Indian tribe client.
Ring attorney Timothy O'Toole argued that the sentencing guidelines are supposed to provide consistency in punishment for similar conduct. "If the guidelines can be manipulated like that, they are meaningless," he said.
Huvelle questioned whether prosecutors should be able to use a different calculation for Ring. She pointed out that the sentencing guidelines already consider a defendant's level of cooperation to compensate for his refusal to plead guilty.
"It does undercut the whole idea of the guidelines, you must admit," Huvelle said to Edmonds. He responded that it's a legitimate tool to encourage cooperation and avoid the high taxpayer cost of a trial.
Huvelle is taking the issue under consideration before sentencing Ring on Oct. 26. She can give him a sentence that is less than the guideline range if she deems it appropriate.