tampabay.com

LaBrake prison term unclear

A complex set of sentencing guidelines could have lawyers debating at length. A Supreme Court ruling may change that.

By GRAHAM BRINK
Published December 2, 2004


TAMPA - The city's former housing chief Steve LaBrake faces the prospect of prison time after his conviction Tuesday on public corruption charges.

But how long that sentence could be is difficult to determine. The answer lies in the Byzantine federal sentencing guidelines.

What role did LaBrake play in the conspiracy? How many victims were there? How much money did the victims lose? How much did LaBrake gain?

Lawyers could battle for days over such questions. And complicating the analysis: the U.S. Supreme Court might throw out the federal sentencing guidelines in the next few weeks.

"It's a real quagmire," said Tampa lawyer Steve Crawford, a former federal prosecutor. "At this point, it's nearly impossible to know for sure what the sentence will be."

A federal jury convicted LaBrake, his wife, Lynne, and Chester Luney, the former head of the non-profit Tampa-Hillsborough Action Plan, of conspiracy, wire fraud and multiple bribery charges.

The LaBrakes were accused of taking a series of bribes and gratuities from Luney and others. In turn, LaBrake steered millions of dollars in U.S. Housing and Urban Development contracts to THAP and Ryan Construction Co., which helped build a luxury home for the LaBrakes at a cut rate.

Under current sentencing guidelines, the judge, with help from a presentencing investigation, will have to determine the dollar amount of the loss in the case and how much the defendants gained. The larger the dollar amount, the longer the potential prison sentence.

And it's not just the actual loss, but the intended loss as well.

Take, for instance, a bank robbery. On the way out of the bank, the robber drops the bag containing $50,000 and gets caught a day later. At his sentencing, he's still held accountable for the $50,000, if not more, since that's what he intended to steal.

The example can go a step further. A crew of robbers plans to rob a bank vault that contains $1-million. The day the crew shows up, they find that the bank has gone out of business. Even though it was impossible to steal the money, since the bank was no longer operating, the intended loss could still be calculated as $1-million.

The loss tally from public corruption cases can be much tougher to calculate. In the LaBrake case, allegations included 14 housing contracts inflated by $3,000 each and a $30,000 payment for no apparent work.

But the scandal disrupted many of the city's low-income home building projects, as well. After LaBrake left under a cloud more than three years ago, the city was forced to reorganize the department, repay millions to the federal government and revamp procedures.

The U.S. Department of Housing and Urban Development has required the city to pay back more than $1.4-million because of poor accounting practices under LaBrake. The city also froze the sale of about 200 city lots, which were intended for low-income housing, because it had to fix financial problems created under LaBrake.

"The housing department spent a lot of time cleaning up audits from the LaBrake years," Mayor Pam Iorio said Wednesday.

Other factors can also rachet up a sentence. The "role" a defendant played in the crime, for instance. Steve LaBrake might be considered the leader of the conspiracy. If so, the prosecutor could ask for a sentence enhancement. If the conspiracy included more than five people, indicted or not, the enhancement could increase.

And the more victims, the longer the possible sentence. In this case, the defense lawyers could argue that the city of Tampa, which backed the loans to buy the homes, was the only victim, not each individual home owner who paid the additional $3,000.

Since LaBrake testified in his own defense, but was convicted anyway, the prosecutor could ask for an enhancement for obstructing justice.

"You can have days of hearings on just these types of issues," Crawford said.

A looming U.S. Supreme Court case could render much of the discussion moot.

The court, in a case dubbed Blakely vs. Washington, ruled that state's sentencing scheme unconstitutional earlier this year because judges could increase defendants' sentences based on facts that the jury never heard. The Court is now considering whether the federal sentencing guidelines raise the same constitutional questions.

"The decision will be absolutely huge for the legal profession," said Tampa attorney John Fitzgibbons. "It could come any day now."

In one scenario, the court could throw out the federal sentencing guidelines altogether. Such a move would give much of the discretion in sentencing back to federal judges, the way it was before the guidelines, which were put into place 17 years ago.

In a case like this, the old rules, for the most part, allowed judges to sentence defendants to up to the statutory maximum sentence. Wire fraud, for instance, comes with a 20 year maximum; conspiracy yields a five-year maximum and the bribery charges could bring 15 years.

In another of many possible scenarios, the Supreme Court could keep the guidelines but rule that a jury must make all factual determinations that effect defendants' sentences. If that is the case, the judge in the LaBrake case might be forced to empanel a new jury to decide the amount of loss in the case, along with other factors that could effect the length of the sentences. Such a move would not effect the guilty verdicts, just the sentences.

"At this point, it's very tricky to predict how the sentencing will be conducted," Fitzgibbons said. "The possible scenarios are endless."

Times staff writer David Karp contributed to this report. Graham Brink can be reached at 813 226-3365 or brink@sptimes.com