Fraud Guidelines and the Risk of Death or Bodily Injury
United States v. Adam Babul, No. 05-4538 (february 9, 2007): Mr. Babul aided applicants for truck driving licenses. In order to take advantage of the easier licensing procedures in Wisconsin, he helped his applicants create false claims of residency in Wisconsin. In doing so, he submitted false statements to banks in Wisconsin. The banks lost no money, but the district court turned to the provision in the fraud guideline that sets the offense level at a minimum of 14 if the offense involved "the conscious or reckless risk of death or serious bodily injury."
In upholding this application of the guidelines, the Court ignored the most basic question: should there be some proximate cause type of limitation? One might be able to trace a chain of factual causation between telling a lie to a bank, which results in evidence of Wisconsin residency, which results in obtaining a driver’s license that could not be otherwise obtained, which results in a driver’s being on the road, which results in the driver’s being in a collision, and which injures someone. But can anyone seriously believe that the drafters of the guidelines had this sort of Rube Goldberg scenario in mind? Moreover, if the guideline is meant to cover this type of situation, it also covers all sorts of other situations, so numerous that the greatest collection of experts could envision only a tiny fraction of them. Why would all these freakish events call for a level of at least 14, and how is one to gauge when to go higher?
After ignoring these considerations, the Court asked a legitimate question (legitimate only if one believes that this game is worth the candle). Does being unlicensed really create any greater risk to the public? It chided both sides for not marshaling data that would bear on this issue. But, never mind. "Judges are entitled to approach many empirical issues with a set of prior beliefs based on experience, and when the record is silent they may make decisions based on those priors [sic]."
In upholding this application of the guidelines, the Court ignored the most basic question: should there be some proximate cause type of limitation? One might be able to trace a chain of factual causation between telling a lie to a bank, which results in evidence of Wisconsin residency, which results in obtaining a driver’s license that could not be otherwise obtained, which results in a driver’s being on the road, which results in the driver’s being in a collision, and which injures someone. But can anyone seriously believe that the drafters of the guidelines had this sort of Rube Goldberg scenario in mind? Moreover, if the guideline is meant to cover this type of situation, it also covers all sorts of other situations, so numerous that the greatest collection of experts could envision only a tiny fraction of them. Why would all these freakish events call for a level of at least 14, and how is one to gauge when to go higher?
After ignoring these considerations, the Court asked a legitimate question (legitimate only if one believes that this game is worth the candle). Does being unlicensed really create any greater risk to the public? It chided both sides for not marshaling data that would bear on this issue. But, never mind. "Judges are entitled to approach many empirical issues with a set of prior beliefs based on experience, and when the record is silent they may make decisions based on those priors [sic]."
posted by Bill Theis at 2/12/2007 01:48:00 PM
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