Today Anthony Mangone, a Westchester County lawyer convicted of corruption charges who helped the government convict three dirty New York state senators, a chief of staff to one of the senators, a lawyer, a Yonkers councilwoman and the chairman of the Yonkers Republican party, and who was described by prosecutors as one of the most important “cooperators in recent memory” appeals his 18 month sentence handed down last December by SDNY Judge Colleen McMahon in Manhattan due to numerous errors which occurred at sentencing.
Significant Errors Require Remand
This federal case centered around the selling of votes by Yonkers Councilwoman Sandy Annabi for cash and gifts in exchange for dropping her opposition to two Yonkers developments, including the $630 million Ridge Hill shopping center, the largest development project in the history of Yonkers.
Judge McMahon’s errors at Mr. Mangone’s sentencing included her erroneous multiple declarations of Mangone’s Sentencing Guidelines range as 37-46 months instead of the 30-37 months the Probation Department determined and she had previously accepted; the judge’s repeated accusation that Mangone’s attorney and the prosecutors conspired to “tie her hands” at sentencing by violating a government policy requiring all cooperating defendants to plead guilty to all federal crimes they admit to – a policy which doesn’t exist and, regardless, Mangone pleaded guilty to all federal crimes he had committed; and the judge’s claim that Mangone lied during his testimony in the trial of Sandy Annabi, the former Yonkers Councilwoman, and her political mentor, former Yonkers Republican Chairman Zehy Jereis – despite previously crediting his testimony as truthful.
This case should be sent back for resentencing even though the court imposed a non-Guidelines sentence because an incorrect calculation is the “starting point and the initial benchmark” for any sentencing (United States v. Gall, 552 U.S. 38, 49 (2007)) and may infect the entire proceeding that follows. United States v. Fagans, 406 F.3d 138, 141 (2d Cir. 2005) (“incorrect calculation of the applicable Guidelines range will taint not only a Guidelines sentence … but also a non-Guidelines sentence, which may have been explicitly selected with what was thought to be the applicable Guidelines range as a frame of reference”). In addition, Judge McMahon’s sentencing decision relied on her mistaken belief that a phantom government policy was breached to force her into a low sentence. Such a mistake deprived Mr. Mangone of due process at his sentencing. United States v. Pugliese, 805 F.2d 1117, 1123-24 (2d Cir. 1986).
Because of Judge McMahon’s Inflammatory Comments The Case Should Be Reassigned To a Different Judge
We also believe that the case should be reassigned to a different judge upon remand in order to “maintain the appearance of fairness and impartiality” due to Judge McMahon’s seeming anger that the government and defense counsel conspired to artificially lower his Sentencing Guidelines. United States v. Woltmann, 610 F.3d 37, 43-44 (2d Cir. 2010). This scorn was evident throughout the sentencing: Judge McMahon’s claim that Mr. Mangone was the “worst” among Annabi and Jereis was unsupported by both the record of the trial over which she presided and the government’s evidence; she bizarrely compared Mr. Mangone’s conduct to be “as bad as” if not “worse” than “drug dealers” and “people who watch child pornography;” and that Mr. Mangone’s actions made her “physically ill” because he was an attorney: “I take it very personally when a lawyer commits crimes, especially when he uses his position as a lawyer to commit crimes.” After Judge McMahon noted that her father, brother and most of her best friends were attorneys, she claimed “for that reason, I hold lawyers to a high standard ….”
The court’s view on attorney-defendants – holding them to a higher standard – is precisely the type of “personal” “position,” which requires a remand to a new district judge to preserve “the appearance of impartiality.” United States v. Campo, 140 F.3d 415, 420 (2d Cir. 1998). Interestingly, the Campo decision, the seminal Second Circuit case on reassignment due to the inflammatory comments of the district court judge below, was won by Jeffrey Lichtman in 1998.
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