DNP Sentence

[Rick Collins]

This from today's Newsday

Husband Takes Max to Help Wife

By Robert E. Kessler
Staff Writer

June 28, 2003

A California man agreed to the maximum sentence of 5 years in prison for mail fraud Friday in order to stop prosecutors from charging his wife as well.

Sean Zhang, 26, of Yorba Linda, Calif., had pleaded guilty last year in U.S. District Court in Central Islip to mail fraud for selling the toxic weight-loss chemical DNP, which prosecutors said killed a Baldwin man, Eric Perrin, two years ago.

But until Friday Zhang had been fighting a motion by federal prosecutor Wayne Baker who, in a rare departure for the government, has been asking for a stiffer sentence than called for in sentencing guidelines. Baker had argued the usual mail fraud sentence of 18 to 24 months in prison was insufficient to punish someone who knowingly sold a toxic chemical that caused death.

Dinitrophenol has been banned since the 1930s.

Zhang's case was believed to be the first prosecution involving the sale of DNP. Under Food and Drug Administration regulations, it is a crime to sell a banned chemical or a drug for an unapproved use.

After Zhang withdrew his opposition to the increased sentence as part of an agreement to avoid the indictment of his wife, U.S. District Judge Arthur Spatt in Central Islip sentenced Zhang to the maximum 5 years allowed under the fraud statute.

Zhang's attorney, Stuart Grossman, of Forest Hills, argued that other factors may have contributed to Perrin's death, including his ingesting other drugs.

Testifying for her husband last week, Tracey Zhang said neither she nor he had ever been involved in the sale of chemicals other than DNP.

But Baker confronted her with postal receipts in 2001 from the couple's then-apartment in Bloomington, Ind. Baker said the receipts showed that Tracey Zhang been involved in the sale and shipment of steroids and asked her if she knew the meaning of perjury.

At that point Spatt stopped her testimony and told her to get her own attorney, who subsequently advised her to take the Fifth Amendment in future questioning.

Grossman, of Forest Hills, declined to comment, as did Tracey Zhang's lawyer, federal public defender Tracey Gaffey.

http://www.newsday.com/news/local/longisland/ny-lidnp0628,0,1946656.story?coll=ny-linews-headlines

 

[white boy]

so he plead guilty to mail fraud thinking that he would recieve the standard range of 18 to 24 mos and is now being sentenced to 60m mos.
Thats BS, he probaly would never had plead guilty in the first place if he knew he was looking at 5 yrs.

 

[bbkingpin]

so he plead guilty to mail fraud thinking that he would recieve the standard range of 18 to 24 mos and is now being sentenced to 60m mos.
Thats BS, he probaly would never had plead guilty in the first place if he knew he was looking at 5 yrs.

After Zhang withdrew his opposition to the increased sentence as part of an agreement to avoid the indictment of his wife, U.S. District Judge Arthur Spatt in Central Islip sentenced Zhang to the maximum 5 years allowed under the fraud statute

Reading comprehension!

 

[ROID WARRIOR]

This guy must be blinded by love. If he thinks she's still going to be waiting around for him in three to five years, he's learned very little in his 26 years.

RW

 

[white boy]

Reading comprehension!

What I am saying is when he plead guilty to mail fraud he thought he was lookin at 18-24 mo's standard sentence and maybe the court would agree to 6-12 mo's additional time because of agravated circumstances(Perin's death).
He agreed to the maximum sentence because they used his wife as leverage otherwise he would have been able to apeal the exceptional sentence

That's what I am calling BS
Comprendae amigo!

 

[bbkingpin]

What I am saying is when he plead guilty to mail fraud he thought he was lookin at 18-24 mo's standard sentence and maybe the court would agree to 6-12 mo's additional time because of agravated circumstances(Perin's death).
He agreed to the maximum sentence because they used his wife as leverage otherwise he would have been able to apeal the exceptional sentence

That's what I am calling BS
Comprendae amigo!

Si. Lo siento.

 

[bbkingpin]

This guy must be blinded by love. If he thinks she's still going to be waiting around for him in three to five years, he's learned very little in his 26 years.

RW

Well, it appears that she was testifying during a hearing on the motion by the prosecutors to sentence him to the max five years.

Rick: Is that how it works?

Anyway, isn't there a spousal privelege in criminal cases whereby the wife cannot be forced to testify against the husband? Does this mean that she voluntarily took the stand to try to testify in support of his opposition to the prosecutor's motion? If so, it sounds to me like the husband's attorney made a blunder if he knew there was evidence that could be used against her. Obviously, they are going to impeach her in any way they can.

Either way, it is doubtful the opposition to the prosecutor's motion would have compelled the judge not to give him the maximum sentence. After all, a guy is dead. I remember Dan Duchaine mentioned DNP in a MM2K column and he had a picture of the bottle. From what I remember, there was a skull and cross-bones on the bottle like you see on bottles to indicate poison. And this guy was soliciting customers for the stuff on bb'ing web sites. Sounds like a pretty unscrupulous scum bag.

 

[bbkingpin]

Si. Lo siento.

Before I go getting too accomodating ... the guy didn't plead guilty thinking he would receive the standard 18-24 months. The max is stated as 5 years and there obviously was no plea agreement with the prosecutor, as far as sentencing. After all, it is the prosecutor who filed the motion to give him the max. He could've done no worse going to trial! Why did he plead guilty??? The only thing I can think of is they dropped some other charges. So, there!

 

[white boy]

Before I go getting too accomodating ... the guy didn't plead guilty thinking he would receive the standard 18-24 months. The max is stated as 5 years and there obviously was no plea agreement with the prosecutor, as far as sentencing. After all, it is the prosecutor who filed the motion to give him the max. He could've done no worse going to trial! Why did he plead guilty??? The only thing I can think of is they dropped some other charges. So, there!

yeah thats true, but either way he obviously did not think he was going to get 5 yrs and obviously the prosecutor had some doubts about whether that sentence would stick or he would not have went to the trouble of charging the girl only to drop the charges when he agreed to accept the sentence

 

[white boy]

Well, it appears that she was testifying during a hearing on the motion by the prosecutors to sentence him to the max five years.

I think she was testifying at the pre-sentencing investigation hearing on behalf of her husband

 

[bbkingpin]

yeah thats true, but either way he obviously did not think he was going to get 5 yrs and obviously the prosecutor had some doubts about whether that sentence would stick or he would not have went to the trouble of charging the girl only to drop the charges when he agreed to accept the sentence

Not to nitpick but she was never charged. She subjected herself to criminal prosecution by taking the stand. The husband's attorney made a BIG misstep. It was only then that there was any threat of criminal prosecution of her. At least that is what I got from the article. Friggin' news reporters don't know all the particulars of criminal procedure. Come to think of it, neither do I.

I am waiting for Rick Collins' opinion on this one. I never practiced criminal law, only when I was a law clerk. By the way, is it "Collins' " or "Collins's"? I think from 8th grade english it is Collins's when written (not spoken). But I digress. (Sorry guys. I pay very close attention to writing detail.)

 

[Rick Collins]

The wife's testimony was halted and the Fifth invoked when AUSA Baker threatened her with perjury. But the alleged evidence of her substantive offenses (mail fraud by DNP/steroid trafficking) pre-dated her testimony. My assumption is that Wayne Baker had enough for a mail fraud case against her regardless of her testimony.

 

[bbkingpin]

The wife's testimony was halted and the Fifth invoked when AUSA Baker threatened her with perjury. But the alleged evidence of her substantive offenses (mail fraud by DNP/steroid trafficking) pre-dated her testimony. My assumption is that Wayne Baker had enough for a mail fraud case against her regardless of her testimony.

So why did she testify? The threat of perjury was always there since he was questioning her on matters that related to those substantive offenses. Is it because the evidence implicating her was never produced to the Husband's attorney because it wasn't necessary to prosecution's case as to the husband? And therefore she was unaware of any evidence against her? Is this gamesmanship on the part of the prosecutor? There must not have been any threat of prosecution -- i.e., expressed intent to prosecute -- of the wife prior to her testimony. It just seems so stupid for her to take the stand. "The defense offers the husband's co-conspirator's testimony in his sentencing hearing."

 

[ROID WARRIOR]

"Either way, it is doubtful the opposition to the prosecutor's motion would have compelled the judge not to give him the maximum sentence."


This is just speculation, and as they say, hindsight is 20/20. Spatt is a liberal. Baker had to have some doubts. Otherwise he would not have threatened to indictment the wife in order to get the husband to withdraw his opposition. If the 5 years was a slam dunk against the husband, then Baker would have replied to the opp and indicted the wife also. After all, a guy is dead.

RW

 

[beanball]

Just a sidebar on the issue of sentencing guidelines, and I apologize if this has been covered elsewhere . . .

On April 30, 2003, President Bush signed into law the Feeney Amendment, which was approved after only mere hours of debate in both houses of the U.S. Congress. Although the Feeney Amendment was originally designed to bolster federal punishment of sexual predators, the amendment ended up significantly altering federal sentencing guidelines and their application. The actual law being amended by the Feeney Amendment was the Amber Alert law. Think about that as you read the following . . . .

The Federal Sentencing Guidelines themselves are basically a chart with the level of severity of the crime (offense level - numerically assigned) on one axis and the punishments (basically length of term of incarceration in months) on the other.

When considering the guidelines, bear in mind that a disproportionately large number of Federal Apellate Court judges are conservative - very conservative, and consider the likely outcome:

1. Appellate review of a trial Court's adjusting a sentence in favor of the defendant is now reviewed de novo. In other words, if a trial court judge lowers the punishment from the offense level to which it was assigned, the state can appeal it and the appellate court can decide as if the trial court had never lowered the sentence.

2. Elimination of an automatic benefit for giving the government complete information about the crime or entering a guilty plea early in the process. This is now discretionary.

3. Speaking of that discretion . . . There is now a department of justice "reporting system" that gives the department of justice a complete record of all judges who lessen punishments from the sentencing guidelines. (wonder if the judges will unionize lol) Basically, the DOJ now can tell which judge will refuse to give defendants breaks for certain meritious things - these judges will be sought after to hear criminal prosecutions. Moreover, it will also give the DOJ ammunition to use against more lenient judges when they are nominated for apellate positions, further strengthening the conservative hold on the appellate bench.

4. Eliminates arguments defendants can use for lessening the sentence in child related offenses and sex offenses (prostitution, solicitation, and other adult sex offenses included). Specifically, these defendants cannot ask for mercy because of family abuse as a kid, certain addictions, low IQ (diminished capacity), etc.

5. Prohibits any alteration to the sentencing guidelines for two years. In other words, it's semi amendment-proof for at least two years.

6. Language in the amendment specifically directs the sentencing commission to only amend the guidelines in the future in such a manner as to "ensure that the incidence of downward departures (lessening the punishment prescribed by the guidelines) are substantially reduced"

7. Although previously there were seven judges, I believe on the Sentencing Commission, the amendment limits it to three judges. Bet your ass they won't be liberal judges either.

8. Assume a person gets a break from the trial judge, but the prosecutor appeals it. Previously, if newly discovered stuff surfaced showing the sentence should be lowered, it could be presented to the Court. With the Feeney amendment, you're stuck with the evidence that you gave the first time around, irrespective of what later comes to light.


In short, it seems that the Amber Alert is more of an alert that Ashcroft really wants there to be more people incarcerated than not by the end of the decade. at least that's my opinion. If you have spare time, you might call your representative or senatory and ask them what they contributed to the debate on this amendment, and if they even know what in the hell they voted in to the Amber Alert law.

 

[bbkingpin]

"Either way, it is doubtful the opposition to the prosecutor's motion would have compelled the judge not to give him the maximum sentence."


This is just speculation, and as they say, hindsight is 20/20. Spatt is a liberal. Baker had to have some doubts. Otherwise he would not have threatened to indictment the wife in order to get the husband to withdraw his opposition. If the 5 years was a slam dunk against the husband, then Baker would have replied to the opp and indicted the wife also. After all, a guy is dead.

RW

No kidding. "doubtful" does not mean definite or no way possible. The point is he could've sought an indictment of the wife from the get-go but he did not. Why did the "guilty" wife take the stand?