Will Phil Hamilton Be Punished for Asserting His Constitutional Rights?
By Ken Falkenstein | Thursday, May 12th, 2011 | Catch-All, VirginiaThe following is a guest column by Paul D. Merullo, a litigation attorney in Virginia Beach:
As an attorney who sometimes represents criminal defendants in federal court, I want to point out a couple of things about Phil Hamilton’s possible sentence. The federal court sentencing system provides huge-disincentives of going to trial. Once found guilty, either by way of a guilty plea or a trial, advisory sentencing guidelines are calculated based on a point system. Defendants who plead guilty instead of going to trial are credited for “acceptance of responsibility.” So, those who take their case to trial run a risk of getting a longer prison sentence in the event that they are found guilty. This creates a disincentive toward going to trial, or an incentive to just plead guilty. In addition to the disincentive toward going to trial, the federal sentencing guidelines also punish defendants who take the stand and testify on their own behalf but who end up being found guilty. The federal sentencing guidelines refer to this as a “sentencing enhancement for obstruction of justice.” The rationale is that if the jury’s finding is inconsistent with the defendant’s testimony, then the defendant must have lied and therefore should be punished more harshly for “obstruction.” This is a double-whammy disincentive that any defendant in federal criminal court who might wishes to defend himself and take the stand on his own behalf.
News stories I have read have reported that Phil Hamilton faces “up to 30 years” in prison. This is probably the maximum possible sentence, but most likely he will be sentenced within a guideline range which will be calculated like this:
Basic offense level for bribery by a public official: 14
If the offense involved an elected official, add 4 points
If the value of the bribe was greater than $70,000 but less than $120,000 add 8 points
If the defendant testified on his behalf and the jury verdict was inconsistent with his testimony, add 2-points for “obstruction”
Subtract 0 points for “acceptance of responsibility”
Total offense level = 28
The other count for which Hamilton was convicted, extortion, has a lower base offense level of only 9 as compared to the bribery charge which as stated above has a higher offense level of 14. So, for purposes of calculating sentencing guidelines, I am pretty sure these two charges would be grouped together and the higher-level offense as stated above would be used.
Assuming no prior criminal record, the federal sentencing guidelines for the above-described offense level is 78 to 97 months, or about 6 to 8 years. The interesting point is that under the federal sentencing guidelines, if Del. Hamilton had simply pled guilty, he would have been given 3 points of credit for “acceptance of responsibility” and would not suffer the 2-point enhancement for “obstruction.” His adjusted offense level would have been 23 instead of 28 and his recommended sentencing guidelines would be 46 to 57 months, or about 3.8 to just shy of five years. So, because he chose to go to trial and testify on his own behalf, he faces about two to three additional years of prison time.
As I followed this prosecution in the news, I thought it was a close-case as far as guilt or innocence was concerned. It seemed to me that Phil Hamilton was within reason to plead not guilty and to testify on his own behalf. It’s too bad that the decision to defend himself (if the sentencing judge follows guideline recommendations) will likely cost him a significant amount of prison time.
I don’t know if Phil would remember me. I knew him a little bit when I worked as a House of Delegates legislative aide in the 1990s. I wish him the best and hope any possible confinement for him goes as smoothly as possible and that he can get his life back on track when it is all over.
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About the author
Ken Falkenstein has been a staffer in the United States Senate and the Virginia House of Delegates. He has managed political campaigns. He was a military intelligence analyst in the U.S. Army in West Germany during the Cold War. He is currently the Vice President of the Down Syndrome Association of Hampton Roads and practices as a civil litigation attorney with the law firm of Poole Mahoney PC in Virginia Beach. His concern for his kids' future is what most informs his writing.
Comments
7 Responses to "Will Phil Hamilton Be Punished for Asserting His Constitutional Rights?"
Phil was a great leader for Hampton Roads and Newport News.
He didnt do anything wrong.
He might be a “nice guy” but he is a convicted federal criminal…
I’d settle for six years in prison just to send a message to other polticians.
Being from Hampton Roads I have been following this and it is terribly sad on all levels. I don’t know his family but their suffering from the consequences from all of this must be beyond words. Prayers for you.
Did Hamilton represent himself in court? No attorney?
I believe the Judge will take a huge downward departure from the guidlines based on the fact that during his ruling on a motion he indicated that it was a close call. If Hamilton’s testimony did not take issue with the facts of the case, then it would not be the same as a robbery where someone said “I didn’t do it.” Here, Hamilton admitted to doing it and actually appologized during the trial, but he took exception of his intent. As for as the issue of guilt or innocence, it appears the jury gave him nothing and simply convicted based on the indictment. A bench trial would have been better, but this is with the hindsight of knowing the verdict.
Another example of why sentencing guidelines are crap.
Looks like there was no downward departure, though I am sure this judge knew
that Hamilton did not do all that he was accused and found guilty of. Judge
Hudson instead remained true to his image as tough on crime and despite
this being a close call, Hamilton will need the soap on a rope. This matter
really started as a democratic ploy to steal back a house seat and gain one
vote in the house of delegates. Despite this allegation, the democrats were
barely able to steal the seat and then felt bad about it, with all the dems
saying that they did not think Hamilton should go to prison. There is a big
delta here between not going to prison and getting almost ten years.
Instead of just stealing the seat, these democrats cast one of their
colleagues down with the sodomites for almost ten years to be kept in a cage
like a monkey. I am sure they feel bad about it now, but they will not cry
as they did with Don Siegleman, who did much worse and got less. Tafficant
is another example of a democrat who did much worse and received less.
The case here remains questionable. Not one ODU official has been charged
with offering the bribe and Hamilton was at the start of a $40K part-time
job, not a cash payout one often seems with bribery. Instead, this is more
like a violation of a post-employment restriction we often see that
restricts federal officials from accepting a job from certain companies when
the official has taken an official act in a matter involving over $10M. In
this case, we are talking about a $500K appropriation (that passed the
house, senate, and was signed by the Governor) and a $40K part-time job,
though it remains seen whether Hamilton was suppose to do the job. The
strange thing about this is that the job arrangement is a concept invented
by the democrats and now they are shocked to see someone go to jail over it,
even if it is a Republican. There are democrats who have done much worse
and remain with their reputation because the system, media and high society
allows it. Some names are in order – Hunter Andrews, Glen Crowshaw, Sam
Glasscock, and Billy Robinson. That is just to name a few. Some would say
that these men were pillars of integrity, but their take is far more than
Hamilton. These men would agree that Hamilton should spend the rest of his
life in prison, but not for how much was involved, but rather for getting
caught and going to prison and taking so little. These other men look down
at Hamilton and wonder how he needed a $40K per year part-time job when this
would not even cover their club memberships. They pity Hamilton for the
fact that he got caught and for how little money he actually walked away
with.
It is sad, but Hamilton will probably die in prison and never see the light
of freedom again, while the democrats from the times of old will continue to
draw on the annuity of their ill gotten games from those days before the
internet when they were once in control of the House of Delegates. Don’t
expect to see the Republicans coming to help either. Had he resigned
quietly, they may have helped, but at this point they see him as poison and
are staying away. Not much anyone could do anyway. If it makes them feel
better, my suggestion for all of Hamilton’s former democrat and Republican
colleagues is to hold a mock funeral with a mock eulogy, everyone can cry a
few minutes, and then everyone can leave and feel better that Hamilton is
being buried and forgotten.
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