All Men Are Created Equal But Scooter Libby Is Just More Equal That Victor Rita

A lot of people, including Rudy Giuliani, have argued that that Judge Walton is a mean son of a bitch. His 30 month sentence was just too harsh. Others, like Tony Snow, have argued that the President was justified in his commutation because the sentence was excessive.

Gather around boys and girls and let me tell you about the case of Rita v. United States (No. 06-5754) decided by the United Supreme Court on June 21, 2007. The facts are taken from Justice Breyer's opinion. I have removed the exhibit reference and transcript page numbers.

The basic crime in this case concerns two false statements which Victor Rita, the petitioner, made under oath to a federal grand jury. The jury was investigating a gun company called InterOrdnance. Prosecutors believed that buyers of an InterOrdnance kit, called a “PPSH 41 machinegun ‘parts kit,’ ” could assemble a machinegun from the kit, that those kits consequently amounted to machineguns, and that InterOrdnance had not secured proper registrations for the importation of the guns.

Rita had bought a PPSH 41 machinegun parts kit. Rita, when contacted by the Bureau of Alcohol, Tobacco,and Firearms and Explosives (ATF), agreed to let a federal agent inspect the kit. . . .But before meeting with the agent, Rita called InterOrdnance and then sent back the kit. He subsequently turned over to ATF a different kit that apparently did not amount to a machinegun. . . .The investigating prosecutor brought Rita before the grand jury, placed him under oath, and asked him about these matters. Rita denied that the Government agent had asked him for the PPSH kit, and also denied that he had spoken soon thereafter about the PPSH kit to someone at InterOrdnance. The Government claimed these statements were false, charged Rita with perjury, making false statements, and obstructing justice, and, after a jury trial, obtained convictions on all counts.

You will notice that just like Scooter Libby, Victor Rita was charged with perjury, false statements and obstruction of justice. You will also notice that Rita was not really central to the underlying crime. If he had simply told the truth it is likely that little would have happened to him except he would have lost his machine gun "kit." His vendor was the real target. When it came time for sentencing the trial court followed the same procedure Judge Walton followed in sentencing Scooter Libby. The presentencing report assigned points on the basis of Rita being an accessory after the fact. The presentencing report gave him no criminal history points.

The report goes on to describe other “Offender Characteristics.” The description includes Rita’s personal and family data, Rita’s physical condition (including a detailed description of ailments), Rita’s mental and emotional health, the lack of any history of substance abuse, Rita’s vocational and nonvocational education, and Rita’s employment record. It states that he served in the Armed Forces for over 25 years, on active duty and in the Reserve. During that time he received 35 commendations, awards, or medals of different kinds. The report analyzes Rita’s financial condition.

In short, his history was pretty darn close to Libby's. A well respected man with a long and distinguished history who was caught covering up the activities of someone else. One distinction is that Rita had served in military law enforcement, a fact later argued by the DoJ. The Guidelines recommended a sentence of 33 to 41 months.

The Court gave the Defendant an opportunity to argue for a departure from the guidelines. Rita decided to argue on

“[j]ust . . . three” special circumstances, “[p]hysical condition, vulnerability in prison and the military service.” Rita presented evidence and argument related to these three factors. The Government, while not asking for a sentence higher than the report’s recommended Guidelines range, said that Rita’s perjury had interfered with the Government’s potential “obstruction of justice” claim against InterOrdnance and that Rita, as a former Government criminal justice employee, should have known better than to commit perjury

Considering all the factors the District Court sentenced Mr. Rita to 33 months. That decision was upheld by the United States Supreme Court just 11 days before the President commuted Scooter Libby's sentence. The next time Tony Snow tries to argue Judge Walton's sentence was excessive, you might want to remember that Joe Biden and Professor Berman over at the blog Sentencing Law and Policy, who has looked very hard at this matter, think Walton's sentence was right on the money.