Alicia Rodriguez pled guilty to a Federal Medicare fraud conspiracy involving 19 million dollars in bogus Medicare claims. In exchange for her cooperation, the prosecutor filed a motion pursuant to §5K1.1 of the Federal Sentencing Guidelines. It is the prosecutor’s discretion to file this motion if and when the prosecutor decides the defendant has provided “substantial assistance” in the investigation or prosecution of another case. Here the prosecutor recommended a 40% sentence reduction from the guidelines while the defendant’s attorney requested a 60% reduction.
The court followed the government’s 40% recommendation but expressed its disapproval with the defendant before imposing sentence. “This is really a disturbing case. She comes to this country as a Cuban refugee seeking freedom from the Communist rule and the first thing she does is she rips off the Government for $19 million on a program that’s designed to help people who have physical disabilities, and to me that’s shocking. That’s shocking.” On appeal, the defendant claimed the court showed biased against her Cuban nationality when he mentioned her nationality in imposing sentence. No objection was raised to this comment at sentencing so the court reviewed it on the basis of plain error. To overcome the plain error review hurdle, the defendant cited two Second Circuit opinions that excuse the failure to make a contemporaneous objection at sentencing to perceived judicial bias because a defendant is understandably reluctant to accuse a judge, who is about to impose sentence, of bias.
The Eleventh Circuit panel rejected the Second Circuit’s plain error review exception when there is no contemporaneous objection to bias at sentencing. Applying the plain error standard, to be reversible the error “must be clear from the plain meaning of a statute or constitutional provision, or from a holding of the Supreme Court or this Court.” It found that the appearance of bias, without any actual bias, is not a constitutional violation. The Court found no actual bias and concluded there was no plain error. The court rejected outright the argument that a defendant should not be required to object for fear of retribution from the judge. In view of the lawyer’s obligation to represent a client zealously, a judge should not be offended by an attorney’s objection that the court is biased against his or her client.
Ken Swartz of The Swartz Law Firm is a specialist in criminal trial law with over 28 years of experience in Federal criminal practice including Medicare fraud. If you are in need of immediate assistance, contact an attorney who specializes in criminal defense.