Rajat Gupta Sentencing – Admissibility of Angry Letters from the Public

By Hayes Hunt and Thomas O’Rourke

On Wednesday, Rajat Gupta, former director of Goldman Sachs, will be sentenced for conspiracy and securities fraud in connection with insider trading.  Gupta is requesting a non-custodial sentence, based on his lifetime of good work and humanitarian efforts.  The prosecution is seeking 8-10 years of incarceration.  Over 200 character letters have been submitted to the sentencing judge, Jed S. Rakoff, on Gupta’s behalf. 

When the Wall Street Journal reported this outpouring of support for Gupta, people sent letters to the Court in response, seeking stiff punishment.  According to the WSJ Law Blog, Kenneth Lehrer, a former adjunct professor of finance at the University of Houston, wrote on “behalf of his former students” and to inform Judge Rakoff that “granting Mr. Gupta a very light or reduced sentence for his despicable actions would not truly balance the scales.”  Another letter came from Brian D. Walker, the founder of an executive search firm, demanding punishment and noting that “whether or not Gupta is a ‘Good Man’ is irrelevant.”

What should Judge Rakoff do with these letters?

First, the letters appear to be unreliable and irrelevant.  Although the Federal Rules of Evidence do not apply to sentencing, “[i]n resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information . . ., provided that the information has sufficient indicia of reliability to support its probable accuracy.”  U.S.S.G. § 6A1.3 (emphasis added).  It is difficult to imagine how these letters are reliable, considering they come from concerned citizens, rather than people with personal knowledge about the case.  Even if reliable or accurate, what bearing do they have on Gupta’s sentence?  When imposing a sentence, the court must consider the factors under 18 U.S.C.§ 3553(a), which, as a general matter, concern: (1) the specifics of the crime; (2) the background of the defendant; and (3) the goals of punishment.  A letter from a member of the public that knows a defendant could be relevant to the defendant’s character or good works.  On the other hand, letters from the public on the appropriate sentence are not relevant to any sentencing factor.

Second, Federal Rule of Criminal Procedure 32(i), which governs sentencing hearings, does not set aside room for angry letters from agitated citizens.  This Rule discusses the presentence report and evidence introduced by the parties.  In addition, the Rule describes who has an “opportunity to speak” at sentencing hearings.  Along with the attorneys and the defendant, the court “must address any victim of the crime who is present at sentencing and must permit the victim to be reasonably heard.”  Under the guidelines, a “crime victim” is anyone directly or proximately harmed by the offense.  U.S.S.G. § 6A1.5 (citing 18 U.S.C. § 3771(e)). Public sentiment about the need for justice, as a general principle, has no place in a federal sentencing hearing, and it shouldn’t. 

Sentencing in a high profile case, just like any other, should not be influenced by public sentiment. Upset citizens, without any legal standing in a criminal case, should write to Congress not the Courts.

Thomas M. O’Rourke joined the firm in September 2012 as an associate in the Commercial Litigation Group. Prior to joining the firm, Thomas completed two clerkships, serving as a law clerk to U.S. District Court Judge Mitchell S. Goldberg of the Eastern District of Pennsylvania from 2010-2012 and U.S. Magistrate Judge David R. Strawbridge of the Eastern District of Pennsylvania from 2009-2010.