I think the able Judge will reduce this, and as “CagingMartens” points out, his “fraud offenses” max out at 240 months, under federal law…. see at right and above.
HOWEVER, his post-convictions threats to a former First Lady and Secretary of State… are the wild card.
Mr. Brafman admits that the Probation Dept. calculation of a “41” is the current default standard the judge will start with.
By next week, we will see how the AUSAs interpret it, but that would come in at 324 months to 405 months — which is between 27 and 34 years. [Lesson: don’t EVER threaten even FORMER federal heads of state, or their families….]
Even I think that would be… a miscarriage of justice. [Too long.]
But in my opinion, Mr. Brafman’s “12 to 18 months” — as a serious position — only sets Marty up for a nervous breakdown, when Judge Matsumoto likely says (based on all the above) it is about 13 years, and he has to serve 10 years.
[Process Note: I wanted to wait, until we had the AUSAs’ position on file, and I asked a few MSM people to hold, late last night, here — but as expected, several have written (as is their job, after all) on “what a great guy” Mr. Brafman paints him to be…] So… “what’s good sauce for the goose — is good sauce, for the gander, too” here.
If the Judge accepts this suggestion, from Probation, en todo, Marty will be in his early 60s or… a senior citizen, if he has to do… all the time (or under existing federal truth in sentencing laws, 85 per cent of it).
EQUAL TIME DEPARTMENT @ 9 PM EST: Here is last night’s defense 93 page filing, proper — and here is over 200 pages worth of exhibits to it (a 21 MB PDF file — don’t try on dial up!) of all the letters, already delivered — and other stuff.
Namaste. And onward… warm and foggy here… smiling.
Martin Shkreli: Transitioning... To A Free Man. 
This was on another episode of American Greed: Prosecutor said, if you mislead people to start out with some small misrepresentations and they invest, people might be sort of forgiving. But when you later start falsifying financial reports and show assets you don’t have, that takes it to another level … where people aren’t so forgiving. In Martin’s case, the evidence shows he was falsifying financial reports, correct? That’s a big no-no. Don’t think the Judge will be too forgiving!
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He created “brokerage statements” out of whole cloth. Yup — that’s next level “ish”.
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So … if one gets good character credit for spending time messaging online with people he doesn’t know and has never met … anyone posting on Condor’s blog should always qualify for parole!
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Indeed!
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Good lord, that probation department recommendation is a veritable sledge hammer. Does anyone know how judges usually treat these, or is it entirely judge specific? As you say, condor, it may just be a starting point, at which the judge tries to determine how much is reasonable to shave off. (But geez-oh-pete, 30 years?!?)
FWIW, I think the fan letters for leniency are worthless. And, as some have implied, they may backfire by evoking Shkreli’s entirely reckless and foolish online behavior.
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I’ve already voiced my skepticism about the “role in offense” enhancement given this was only a two person conspiracy, but I’m also growing a little skeptical of the “victim enhancement” given there were 8 MSMB investors and it applies with 10+ victims. I suppose the govt is counting RTRX as #9 and MSMB itself as #10? Might be a bit of creative math on their part without further explanation! The “sophisticated means” enhancement is probably solid (Martin admitted as much in an old video when he read the USSG) and the “investment advisor” one certainly is on the third circuit, albeit not *quite* as clear on the second circuit. I’d also love to see a bit more info on what exactly the obstruction enhancement is based off of, but knowing Martin I’ll take it at face value for now!
Upon further reflection, it strikes me a bit like so many enhancements have been lumped on so the judge can depart downwards a bit from the statutory max in the hopes of deterring him from appealing and possibly getting a worse outcome. An interesting tactical decision if that’s the case!
I do wonder what all the redacted gory details of his psychiatric history are!
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HIPAA will keep any of us from ever lawfully knowing, as to the health info.
I do expect the AUSAs to adopt Probation’s “41” — and articulate some of the details you’re looking for, come March 5. We shall see.
But to be sure, there were more investors than those who testified — so I expect the victim enhancement will stand.
Namaste!
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Ah, wasn’t too clear on the number of MSMB investors beyond those who had already been referenced. March 5 will be interesting for sure!
Martin was always very evasive talking about his own medical issues beyond depression and that weird elbow cyst. I suspect somewhere in there is a reference to him being on the spectrum, however. Several of the letters hint at it discussing his social ineptness.
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There is also a suggestion of a physically abusive father… abusive to both Martin and his siblings and mother… so now we wait.
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Actually HIPAA privacy rules refer to HIPAA-covered entities–hospitals, doctors, insurers. Meaning that these entities can’t reveal or discuss a patient’s private information and/or medical record outside of the immediate healthcare system without the patient’s permission. However, Shkreli is free to reveal his medical or psychiatric issues to anyone. So I’m not sure why the redaction in his plea for leniency–but it’s not on the basis of HIPAA.
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Actually, not to quibble, but I have assumed Martin declared (as is his right) that all he told the psychologists, and MDs who evaluated him for pre-sentencing (i.e., government providers) that he wanted it kept private (thus HIPAA applies)…
And Mr. Brafman is doing his level best to preserve that, giving only the able Judge (and the AUSAs) access to it, while knowing he cannot seal the entire filing, under applicable law.
In the end it won’t change the outcome much — that’s my bet.
Namaste — and thanks, Doc!
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I wonder if Brafman ever considered the “insanity defense”. Sure it’d be a long shot with the M’Naghten test, but his argument ended up being that Martin felt the right thing to do was lie to his investors about the loss and try to pay them back, which is essentially stating he couldn’t appreciate the criminality and conform his conduct to the law.
I felt like the whole ” Rain Man” thing was subtly hinting at it without ever bringing it up.
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I think Condor should go ahead and give us the 300-pager … if we wait on the Gov’t reply, we won’t have time to read it all!
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Wanted to set the frame with… reality first.
Posting it now — look at the main post here above in two minutes… namaste!
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I split it into the Brafman memo (93 pages), and then over 200 pages of exhibits… but both are up and linked now. G’night!
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What I want to know is how the Judge and the attorneys are able to crank out such long documents so fast … I feel like such a bum. It takes me awhile to get off a two-line post!
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I don’t know how i could say it any clearer. But martin is the perfect candidate for an extended sentence. Tone is everything in a defense, if it looks like you are wasting court’s time & you don’t have any respect for what they do, what do you think is going to happen?WHY should anyone give YOU any breaks?
Some people may cry out “that isn’t fair! his crimes are insignificant” It isn’t fair that Jeff Buckley only left us with one album, it isn’t fair that I didn’t get to meet Einstein in person.
It isn’t fair that Martin was given so many chances & some people in prison only got one chance. We can always apply this whining question to the situation at hand. Trust me, you don’t want that Marty supporters. It will end badly for you in this debate. 🙂
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It is a little troubling that the USSG provides no reduction at all for returning funds even after the fraud has been detected. It can create perverse incentives. Future fraudsters might look at the Shkreli case and decide it’s better to take the money and run after their fraud has been detected. I think some reduction would be more fair, perhaps allowing up to 50% credits against loss or something along those lines.
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Your post lacks wisdom and your ignorance is profound. You fail to consider any of the facts that should, in theory, negate his sentencing level. You fail to consider the efficacy of the punishment prescribed or the motive of the hand that administers it. Most importantly, you fail to understand basic concepts of the rule of law and all of the ramifications that adhering to them or neglecting them will manifest.
Virtues are dangerous. Everyone is imperfect and this country is based on concepts that allot the maximum amount of liberty to each individual without infringing on the rights of others. Being a brash jerk is immoral and offensive, but it isn’t a crime. Draconian punishment for social media antics, political beliefs, and questioning authority is a very dangerous precedent to set.
For those that don’t understand what the rule of law is, there are several different definitions, interpretations, and concepts associated with the phrase. To keep it simple, Thomas Paine made some fundamental truths on the rule of law when he uttered his famous maxim: ‘That in America the law is king. For in an absolute government, the King is the law, so in free countries, the law out to be king; and there ought to be no other. Yes, Paine’s truths sound simple and catchy, but they have held true since ancient times. Draconian punishment is tyranny, plain and simple. It’s even more damaging when administered unfairly.
Here’s an ancient society’s interpretation of the rule of law and it is remarkably similar to issues we face today. This fresco is an absolute masterpiece.
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You are quite obtuse with your response, Altd440. But you’ve always been clumsy and inept with your rebuttals particularly in this comment section.
You go on a incoherent tangent about history of the world (not the good kind, a la Mel Brooks) in a legal context, like you are this astute scholar. Stick to the case, we can find many examples where trial system was corrupt. You are nothing more than just tossing a rock in a different direction & labeling everyone else as “misguided”
I’m not saying Martin doesn’t have certain rights, he violated constantly his pretrial conditions. What do you say to that? He was recording live streams calling people on skype & badgering family members about trolls messing with him. Are you sure you just want to stand by your flimsy excuse, ” being a brash jerk is immoral & offensive but it isn’t against the law” ? He told no one he was recording their calls for youtube archives, you can’t do that in the state of NYC. GO LOOK THAT UP since you are so goddamn passionate about “Rule of Law” That’s just the introduction to what martin did while he was in pretrial.
But as usual, Altd440. You don’t pay attention, you are in your decrepit libertarian H.G. Wells Time Machine looking for Democratic morlocks & Thomas Paine.
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“You go on a incoherent tangent about history of the world (not the good kind, a la Mel Brooks) in a legal context, like you are this astute scholar. Stick to the case, we can find many examples where trial system was corrupt. You are nothing more than just tossing a rock in a different direction & labeling everyone else as “misguided”
I’m sorry basic principles of governance are too hard for you to grasp. …Many examples where trial system is corrupt? Do you mean the judicial branch? At this point, I can’t find many examples where financial regulation isn’t captured, and I can assure you that it is a much bigger problem. Fixating on the only cockroach out in the open right now is a big mistake.
“He told no one he was recording their calls for youtube archives, you can’t do that in the state of NYC. GO LOOK THAT UP since you are so goddamn passionate about “Rule of Law” That’s just the introduction to what martin did while he was in pretrial.”
Hey, I DID LOOK IT UP and you’re wrong. Nice try! Please provide more examples of Martin’s transgressions that warrant a draconian sentence. Can you honestly say that all of his stints are worth a sentence over 5 years? Unfair sentencing breeds contempt and distrust of the system.
In New York State, it is not a criminal offense for a party to a telephone conversation to record that conversation without the other party’s consent, because the recording party is “a sender or receiver” of the telephonic communication. N.Y. Penal Law § 250.00(1). People v. Lasher, 447 N.E.2d. 70, 71 (N.Y. 1983).
The federal Electronic Communication Privacy Act applies even to activity which is “wholly intrastate,” such a telephone conversation in which both of the participants are located in New York State. Spetalieri v. NAACP, 35 F. Supp.2d 92, 115-116 (N.D.N.Y. 1998).
Except as otherwise provided in the ECPA, the ECPA renders it a felony to “intentionally intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.” 18 U.S.C. § 2511(1), 2511(1)(a); see 18 U.S.C. § 2511(2)(d). However, the ECPA specifically allows a private individual “to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State.” 18 U.S.C. § 2511(2)(d).
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[Subsequent note: Since I took the time to bang this out, I’ll likely repost it, above — as a new post. Forgive me, but it is an easy way to deliver new content.] Just a lil’ “thread detangler“, here, boys:
While I do think 34 years would be too long, and a miscarriage of justice — Aldt440 would be wise to consider (re his “no more than five years” comment) that the impartial Probation Dept. scored Marty at a 41. On the 5th we will learn the details, but that top line chart is part of Mr. Brafman’s defense filing as of Monday night.
I strongly suspect the “41” is due to Marty’s POST-CONVICTION conduct — any three time felon cannot make public “written and broadcast” threats against the former first family member, to over 94,000 followers (that’s a wider readership than most mid-sized city newspapers!) — many of whom appear… more than slightly-unhinged. Marty lost most of his First Amendment protections upon his felony convictions, and his lawyers told him so, over and over — I am sure. [I also bet that Marty insisted on the 12 to 18 months “ask”, over Mr. Brafman’s strong objections — especially after Brafman had read the 93 page opinion published by Judge Matsumoto Monday morning — on ACTUAL losses. But Marty probably insisted — he always thinks he is the smartest guy in the room. Ring any bells? Cough…]
It might be instructive to note that — for making a threat (without actually firing a shot) IN A PUBLIC PLACE, in downtown Sacramento California — against then President Gerald Ford, Squeaky Fromme got life in prison, but was paroled after… 34 years.
We are going to read that the US criminal and sentencing laws (properly) place the burden of proving a lack of dangerousness upon the felon.
Marty has no presumption of innocence or lawful intent, post his felony convictions.
So… a “41” — or max of 34 years, before parole eligibility — strikes me as in line with Squeaky Fromme.
And we can quibble about the differences — Squeaky v. Marty — but this case (at the sentencing phase)… no longer has much to do with securities fraud (in my opinion, and apparently in the view of the Probation Dept.)… and more to do with locking up nut-jobs that threaten even former high federal officials.
Do you really think (if Marty were cut loose by Judge Matsumoto in under five years), and then the able Judge later read (in her NYT) that due to a Marty FB post, someone (anyone!) was assaulted, shot or killed — she would want that on her conscience — when the Guidelines clearly spell out long sentences for threats of harm, by convicted felons?
I KNOW how she will come out, on that score — and you do too, Altd440. Let it go — denial ain’t just a river in Egypt… The die are already cast. It is a decade minimum — and perhaps two of them.
Three would be beyond the pale. But not impossible — and as R. West and CagingMartens both point out — going over two decades likely provides a fairly high chance of being overruled, and reduced on appeal… to around 10 years. So it goes.
Tee this all up on the evening of the 5th, when the AUSAs have their say — in their sentencing memo — and then again on the 9th, proper.
One. More. Week.
Then I am free — of this burden.
Namaste… to all of good will.
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“Ring any bells? Cough…]” Water shot out my nose on that one! Bravo Condor!
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And, almost as an afterthought, we learned this afternoon that some more of Marty’s followers want to submit letters. Here is the minute order, from Judge’s chambers, this afternoon, in full:
…Minute Entry for proceedings held before Judge Kiyo A. Matsumoto:Telephone Conference as to Martin Shkreli held on 2/28/2018.
Appearances: for the government, Jacquelyn M. Kasulis, Esq., and Alixandra E. Smith, Esq.; for defendant, Benjamin Brafman, Esq., Jacob Kaplan, Esq., and Teny R. Geragos, Esq. Mr. Brafman waived Mr. Shkreli’s appearance.
The court held a telephonic conference regarding letters it has received from individuals who wish to be heard regarding Mr. Shkreli’s sentencing. The court will make the letters available to the parties, who will review the letters, confer, and, if possible, jointly recommend: (1) which, if any, of the letters the court should consider in making its sentencing determination, and (2) whether the court should keep part or all of the letters under seal. The parties’ joint, or if necessary separate, submissions shall be due by 12:00 p.m., Tuesday March 6, 2018. The parties shall support any request to keep information under seal with legal authority….
Now you know — always a wrinkle, with this guy…
Namaste!
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Letters from third parties are pretty standard … Raj Rajaratnam got about 200 letters. They probably don’t move the needle unless they point to something that really begs for mercy … e.g., orphan at birth, alcoholic parents, broken home, etc. Martin doesn’t have anything like that, so letters are pretty much a waste of time. Autism thing might help a little … something along those lines.
Keep in mind a big following showing support could backfire … the more he is a celebrity, the better to make an example out of him! Everything indicates that the #1 brilliant defense attorneys might be going down here in defeat … like Tom Brady!
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