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Nagin Hammered in the Big Easy

Follow Me on Twitter     Message Barry Sussman

On July 9, 2014, former New Orleans mayor Ray Nagin was sentenced to 10 years in federal prison. While not as lengthy a term as many had expected, it was nonetheless a significant sentence. Nagin, 58, had been found guilty earlier this year of accepting bribes from city contractors while in office. He was convicted by a federal jury on 20 of 21 criminal counts, including bribery, conspiracy and wire fraud. He was acquitted on one count of bribery.

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Former New Orleans mayor Ray Nagin received a 10 year sentence in federal prison, meaning he will serve at least 8.5 years before being eligible for release

Unfortunately for Nagin, rampant prosecutorial overreach and misconduct are fixtures in Louisiana. Nagin sought to have the charges dismissed in October after another federal judge blasted what he called "grotesque" prosecutorial misconduct in the trial of New Orleans police officers convicted of the post-Katrina shootings of unarmed civilians at the Danziger Bridge. The judge tossed out the convictions of the five officers after ruling that members of the U.S. attorney's office tainted the 2011 trial by anonymously posting "egregious and inflammatory" comments on online news sites.

The result surprised many observers as prosecutors are typically afforded wide latitude by federal judges who often act as collaborators with government prosecutors. The fact that the defendants benefitting from this judicial largess were law enforcement officers likely played a significant role in the unusual result.

Nagin argued that he was the target of the same underground effort, citing "a continuum of pejorative statements and demeaning racial epithets" aimed at him. The U.S. attorney's office responded by claiming that none of the prosecutors involved in the Danziger Bridge case played a role in the Nagin investigation.

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Prosecutorial misconduct from the same U.S. attorney's office resulted in charges surrounding murders by New Orleans police officers on the Danziger Bridge being thrown out

The "underground effort" cited by Nagin is in reality just a part of what is business as usual for federal prosecutors. Supposedly independent news sources and the journalists they employ routinely report on federal court matters exactly as prosecutors direct. Accordingly, the accused are cast in as negative a light as possible while the efforts of prosecutors are proclaimed to be nothing short of heroic. What passes for journalism are usually government press releases, often regurgitated verbatim.

Despite Nagin's showing of exactly how he was similarly targeted and prejudiced at trial, the court declined to dismiss his conviction and the matter proceeded to the sentencing phase.

Ironically, it appears that Nagin's public service was likely the proximate cause of his financial problems. Nagin explained to jurors during his trial, "When I ran for office I was a very successful businessman. I took a 300 percent cut in salary. I went from having a seven figure net worth to when I left office not having much of that left."

Records show Nagin earned about $400,000 a year as chief executive of the New Orleans Cox cable television franchise before seeking elected office. Among other ventures, he was part owner of a sports team, minor league hockey's New Orleans Brass. His salary was reduced to $130,000 when he became mayor.

As Nagin further testified, "I had enough cushion and I was prepared to go the distance to serve the city for at least eight years. I had already paid off my home. I had all of that equity there. I had savings. I had a 401(k). I was prepared to do what it takes."

Nagin may have underestimated exactly how much of a financial toll public service would take on his family. Filings in his wife Seletha's bankruptcy case show the Nagin family went from "a seven figure net worth" to a current $204,810 in assets, surpassed by liabilities of $223,256.

Court documents list Ray Nagin as unemployed. They indicate Seletha Nagin works as a sales clerk at a Bath and Body Works store in Texas, making about $490 a month. They also reflect her collecting $312 monthly in food stamps and receiving $400 from one of their two sons, bringing their average monthly income to about $1,202.

Other documents suggest the Nagins have primarily supported themselves by drawing money from a retirement account. It discloses a $180,000 withdrawal from a Ray Nagin 401(k) account in 2012 as well as $25,350 taken in 2013. It also shows financial help from family and friends totaling $15,526 in 2013 and $15,300 in 2014.

Another financial blow came this past May when USDJ Ginger Berrigan ordered Nagin to forfeit $501,200 that prosecutors totaled as the alleged gains he received in the bribery schemes for which he was convicted. The figure reflects travel paid by city vendors, cell phone service, money meant to appear as investments in his son's company, Stone Age, ill-gotten business for Stone Age and free granite provided to the company.

All of this suggests that Nagin's tenure as mayor was hardly the financial windfall the government asserts. While it would appear that he did accept improper gifts during his tenure, there was never a systematic scheme to shake down city contractors and whether it was quid pro quo remains questionable.

Despite appearing to be a relatively small public corruption case, prosecutors relentlessly hounded Nagin during his trial. AUSA Matthew Coman called Nagin a mayor "on the take." Coman continued on this theme in a sentencing memo to the court, writing that "Nagin's widespread and corrosive breach of the public trust -- lasting through much of his tenure in office -- equals even the worst of these state and local corruption cases." Coman, enjoying a high wave of publicity from the matter, was seeking a 20 year sentence for Nagin.

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AUSA Matthew Coman repeatedly mischaracterized Nagin's acts in a futile attempt to secure a decades long sentence

Nagin's defense attorney, Robert Jenkins, petitioned the court for a lighter sentence. He pointed out that his client is a first-time offender with no criminal record. Jenkins also argued that the allegations and evidence presented during the trial showed behavior inconsistent with Nagin's otherwise exemplary life as a businessman, family member and citizen.

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Defense counsel Robert Jenkins, left, succeeded in securing a sentence that was about half of what the government sought

"Mr. Nagin has been a devoted father, husband and supportive child to his parents, and greatly cares for the well-being of his family, and is their caretaker," Jenkins wrote. He further advised the Court that a 20-year term of imprisonment would amount to a "virtual life sentence."

Jenkins also noted that former governor Edwin Edwards received a 10-year sentence in a public corruption scheme that netted about $5 million in ill-gotten gain, significantly more than the amount attributed to Nagin.

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Former Louisiana governor Edwin Edwards received the same sentence as Nagin for a crime involving a much greater financial gain

The court received several letters of support for Nagin. His wife, Seletha, asked that he remain out of prison until allegations of prosecutorial misconduct could be fully investigated.

"I am asking that you delay these sentencing proceedings until we are allowed to see all the reports that have thus far only been summarized but clearly show a pattern of prosecutorial misconduct," Seletha Nagin wrote.

Her letter also detailed the family's financial ruin and personal anguish resulting from the proceedings.

"We are mentally and financially drained," she wrote in the four-page letter dated July 1. "We have exhausted our savings, borrowed from family, gone on public assistance (for the first time ever) and even had to file bankruptcy to avoid being homeless. We have even sold much of our furniture and all of our jewelry with the exception of our wedding rings."

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Seletha Nagin, left, advised the Court that the Nagin family has been left in a state of penury as a result of the federal charges

Before announcing the sentence, Berrigan indicated she would "downwardly depart from guidelines" and that "sentencing imposed should reflect Nagin's ability to harm the public again." She explained, "I must impose a sentence that I feel is sufficient, but not greater than necessary."

Once the term of imprisonment was announced, prosecutors immediately objected to the sentence, which was well below the 15 to 20 years called for by the federal Sentencing Guidelines. A decision on whether the sentence will be formally appealed by the government will be made by Solicitor General Donald Verrilli.

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USDJ Ginger Berrigan refused to go along with the government's draconian sentencing recommendation

Conan conducted the typical post-sentencing, victory lap press conference outside the courthouse. Despite his objection on the record to the judge's sentence, once in front of the media he claimed that it was "a very strong, strong sentence, strong message." As he gave thanks to the court for its hard work, protestors heckled him, which stirred Coman to raise his voice in describing what the government characterized as Nagin's betrayal of the public's trust.

"What Ray Nagin did was sell his office, over and over and over again," Coman said. "We as a community need not and should not accept this public corruption."

The hecklers appeared to be having none of Coman's self-serving assertions. Rev. Marie Galatas Ortiz, shouted at Coman that the prosecution "fell flat on their face."

Ortiz explained afterward that she is a friend of the Nagin family and said the prosecution failed because it did not win a sentence of 20 years or longer. She said she thinks Nagin may have unawarely "made some mistakes."

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Rev. Marie Galatas Ortiz was among those who heckled prosecutors and voiced dissatisfaction with the government's zealous efforts to over prosecute Nagin

"He did not willingly make them," Ortiz claimed. She said he deserved some punishment, but less, perhaps a five-year sentence.

Ortiz is not alone in her assessment of what might constitute an adequate sentence. But what defendants like Nagin must contend with are federal prosecutors who measure success in years imposed, regardless of what punishment is deserved or appropriate. Using every opportunity to mischaracterize the acts of the accused and cast them in as negative a light as possible, they shamelessly use their position to advance their own career, often creating a greater harm than those they prosecute.

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Barry Scott Sussman- Born and raised in New Jersey. Graduated from Rutgers University with a BA in Sociology. Graduated with a JD from the Benjamin Cardozo School of Law specializing in Federal Criminal Procedure and Federal Prosecutorial (more...)

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