Scrivener's Error

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Scrivener's Error	Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

03 June 2005

18:38 [GMT-6]

Sentence Fragments

Hopefully, my message this morning was cryptic enough to keep you interested. The indictment is now public (slurped off of PACER, in fact), so I can discuss it.

Since the early to mid 1990s, Martha Ivery, aka Kelly O'Donnell, dba Press-TIGE Publishing, O'Donnell Literary Agency, Writers Information USAgency, etc., has been extracting money (and dreams) from authors. On Wednesday, 01 June 2005, she was indicted on seventeen counts of fraud and related deceptive conduct in Albany (US District Court for the Northern District of New York). U.S. v. Ivery, No. 05–CR–251 (FSJ) (N.D.N.Y.) (pending). As an exercise in both education and futility, let's try to figure out what her potential sentence might be, shall we?

First, we need to be mindful of the statutory maximums. She was charged principally (pun intended) under 18 U.S.C. § 1341 (mail fraud) and 18 U.S.C. § 152 (false statement in a bankruptcy proceeding), which respectively have 20- and five-year statutory maximum sentences. I don't think we're going to run into that problem.

Next, we need to go to the (now advisory) U.S. Sentencing Guidelines and figure out the "recommended" sentence based on what we know.

Mail fraud is covered in § 2F1.1. The offense level based on the indictment alone is:
- 6 for the base offense, plus
- 5 for an indicted loss level of between $40,000 and $70,000, plus
- 2 for a scheme to defraud more than one victim, plus
- 2 for a scheme implemented through mass marketing, plus
- 2 for a misrepresentation during the course of a bankruptcy proceeding, plus
- 2 for a "sophisticated scheme"
for a total of 19 offense levels.
The false statement in a bankruptcy proceeding could be covered in several places, but is most similar to § 2J1.3. The offense level based on the indictment alone is:
- 12 for the base offense, plus
- 3 for substantial interference with the administration of justice
for a total of 15 offense levels.
Each of these threads is also adjusted by other factors. Total adjustments, again based only on the indictment, should include:
- 4 levels upward as the organizer of an extensive criminal activity (§ 3B1.1(a)), plus
- 2 levels upward for obstruction of justice, including witness intimidation (§ 3C1.1)
for a total of 6 levels of upward adjustments. This leaves us with two threads, bearing offense levels of 26 and 21 respectively.

I'm afraid the fun is just starting. We know about the offense; what about the offender? Chapter Four uses a separate point system based on prior convictions and misconduct while on probation. Without going into details here, we should assume that this particular offender has from 9 to 14 points (depending upon how three incidents are categorized), putting her in criminal history category IV, V, or VI. The Guidelines then cross-reference the two figures—offense level and criminal history category—to create a "guideline range." For this particular indictment, and including the effect of the statutory maximum of five years on the perjury count, that looks like this:

Criminal History —>	IV	V	VI
Fraud (26)	92–115	110–137	120–150
Perjury (21)	57–60	60	60

The numbers in the middle are the guideline months of imprisonment. And I'm afraid that's just the beginning… because the indictment seriously understates the loss attributable to, and number of victims of, this particular scheme. Under recent Supreme Court precedent, that will need to be proven at trial. Based on the documentation I've examined, I'm reasonably confident that an actual loss range of from $500,000 to $800,000 could be proven, adding a net five additional offense levels to the fraud count… and counselling throwing away the key. The worst case then would be a guidelines range of 188–235 months, or awfully close to that 20-year statutory maximum! And, too, the ordinary recommendation is that perjury sentences run consecutively with other conduct, not concurrent with them.

This is a rather roundabout way of saying that the "guidelines range"—without allowing for possible downward adjustments—seems to point at a seven-year-plus sentence. The real aggravating factor is Ms. Ivery's criminal history; the most-readily-comparable case, US v. Deering, resulted in a 47-month sentence for the principal… but her criminal history category was only a level I for an operation of roughly the same size.

Note that I was able to talk about criminal conduct in the publishing industry without talking about royalty statements until this very last paragraph…

Ritual disclaimer: This blog contains legal commentary, but it is only general commentary. It does not constitute legal advice for your situation. It does not create an attorney-client relationship or any other expectation of confidentiality, nor is it an offer of representation.

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Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Links of Interest

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Writer Beware and the Writer Beware Blog provide essential knowledge for writers who don't want to be ripped off
Writing-World.com published by the former managing editor of the now-defunct Inklings
Agent Research & Evaluation provides both free and paid analyses of literary agents
US Copyright Office, including both registration forms and records and quite a bit of other helpful information
Trademark Electronic Search System (TESS) allows searches of granted, pending, and some rejected trademark registrations
US Supreme Court Opinions from the current and past couple of terms
Law Library of Congress includes statutes for free
The Public Library of Law can help you find the law... but not use it in court, as many of its resources are not in proper form and do not provide all of the citation information needed in court papers
Legal, free e-books are available through Online Books (University of Pennsylvania) and Shakespeare (MIT)
Legal, free music is available through
- ClassicCat.net (what kind of music do you think you'll find here?)
- Music.Download.com (long-awaited successor to MP3.com)
- Janis Ian (artist)
- John McCutcheon (artist)

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

A blawg is sort of like a blog on legal issues, but usually has a lot more links to outside resources (other than other blogs) than does a typical blog. Scrivener's Error is a blawg, not just a blog. You can find other blawgs at < ? law blogs # >.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the Supreme Court, don't forget SCOTUSBlog.
Some academics' blawgs with a variety of political (and doctrinal) viewpoints:
- Professor Anthony Arend (Georgetown Law)
- Professor Stephen Bainbridge (UCLA Law) (aka "The Perfesser")
- Professor Jack Balkin (Yale Law)
- Professor Dennis Crouch (Missouri Law) (better known as Patently-O)
- Professor Michael Froomkin (University of Miami Law)
- Professor Eric Goldman (Santa Clara University Law)
- Professor Rick Hasen (Loyola-LA Law)
- Professor Brian Leiter (U of Chicago Law/Philosophy)
- Professor Lawrence Lessig (Stanford Law)
- Professor Michael Madison (Pitt Law)
- Professor Larry Ribstein (University of Illinois Law)
- Professor Lawrence Solum (University of Illinois Law)
- Professor Rebecca Tushnet (Georgetown Law)
- Professor Tom Ulen (University of Illinois Law)
BoingBoing, by speculative fiction writer (and 'net activist) Cory Doctorow, is quite hostile to copyright enforcement efforts, particularly regarding file-sharing
The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance
Cyberlaw (Stanford) has its agenda grounded firmly in the so-called "digital commons," which might make a bit more sense if any of the advocates of that viewpoint understood diddly-squat about population ecology
The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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