Is Scott Bloch going to jail for a month? Bloch's sentencing is on hold in Washington federal district court as a magistrate judge tries to determine whether lying to Congress carries a one-month minimum mandatory jail term.
For more than two hours Wednesday afternoon, Bloch's lawyer and a federal prosecutor in Washington argued that Magistrate Judge Deborah Robinson has discretion to sentence Bloch to probation for the misdemeanor charge of contempt of Congress. Prosecutors are not seeking a jail term for Bloch.
Bloch, the former head of the Office of Special Counsel pleaded guilty earlier this year as part of a plea deal with the government. Both Bloch and the government claim the deal was based on a sentence involving probation, a fine and community service—not jail time. Bloch’s lawyer, Winston & Strawn’s William Sullivan said today there was no discussion about the charge carrying a one-month minimum term.
At issue is the language of the statute, criminal contempt of Congress (2 U.S.C. Section 192), which says a person “shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.”
Sullivan said in court the word “shall” refers to the finding of guilt and does not apply to mandatory jail. He argued the judge has discretion. The word “punishable,” Sullivan argued, means “able to be punished.” Robinson, citing a 2003 U.S. Supreme Court case, Price v. United States, said “punishable” appears synonymous with “shall be punished by.” Sullivan called the language in the opinion dicta.
Assistant U.S. Attorney Glenn Leon of the Fraud and Public Corruption Section said if Robinson decided to sentence Bloch to jail, she could order a term of no less than a month and no more than a year. Judges are not bound by the terms of a plea deal.
Last year, baseball star Miguel Tejada was sentenced to probation under the same statute that is under close examination in the case against Bloch, Leon noted in court papers and during today's hearing.
In the Tejada case, there was no discussion in court about whether the statute carried a one-month minimum mandatory sentence. The federal probation office said in a report that the offense was probation eligible, according to Sullivan and Leon. Magistrate Judge Alan Kay sentenced Tejada.
Sullivan said the probation office has made an about face in the Bloch case in reporting in a pre-sentence investigation that contempt of Congress carries a mandatory minimum month in prison.
Robinson seemed inclined to rule that the statute at issue does require a one-month prison sentence. She has asked the lawyers to file additional court papers later this month. Robinson said she will issue a written finding.
If Robinson rules there is a one-month mandatory minimum jail sentence, Bloch could move to withdraw his plea agreement before he is sentenced. There’s no guarantee that Robinson would allow it. The issue then could be whether Bloch was on notice of the potential sentence of a month in jail.