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Special prosecutor: 'no specific recommendation' on Donziger sentence

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Attorney Steven Donziger at the Manhattan Federal Courthouse in the Manhattan borough of New York City, New York, U.S. May 10, 2021. REUTERS/Brendan McDermid

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(Reuters) - Special prosecutor Rita Glavin has told a Manhattan federal judge that she deferred to the court on the appropriate sentence to impose on lawyer Steven Donziger, who she said faces a maximum of six months imprisonment or a $5,000 fine.

Glavin told Senior U.S. District Judge Loretta Preska in a Tuesday filing that the court in sentencing Donziger on Oct. 1 should take into account that "he has expressed no remorse" over the conduct that led to his conviction of criminal contempt, and suggested that while Preska "may consider" his time in home detention, about two years, as a sentencing factor Donziger has been outside daily.

Donziger's lawyer Ronald Kuby said that Chevron Corp, whose underlying civil case against Donziger led to a ruling of fraud against him from which the criminal contempt case springs, "cannot be pleased that the handpicked special private prosecutor did not recommend a jail sentence."

Chevron did not immediately respond to a request for comment.

Another Donziger lawyer, Martin Garbus of Offit Kurman, called Glavin's filing "irrelevant."

"The judge will give him (a) maximum sentence," he said.

Glavin wrote that the court may consider, as a sentencing factor, time Donziger spent in home detention, but cast the condition as affording some level of freedom.

Citing Donziger's pretrial service officer, she said Donziger has been "outside daily."

The New York City resident has walked his son to school and basketball practice every day, has regularly gone to the park with his son, attended sporting events such as professional baseball games also with his son, gone to the grocery store, and attended legal meetings several times a week, the filing says.

Kuby said Donziger is permitted to leave his home with permission of his probation officer, at specified times and for specific purposes.

Glavin also noted that Donziger's criminal history puts him in the least serious of six categories. She added that the six counts of which Preska found Donziger guilty last month "should be grouped because they involve substantially the same harm."

Donziger was charged in August 2019 with criminal contempt for, among other things, failing to turn over his computer, phones and other electronic devices.

His criminal case springs from post-judgment orders in a civil case in which a Manhattan judge in 2014 barred enforcement in the United States of a $9.5 billion judgment against Chevron that Donziger had won in an Ecuadorian court. The judge found the ruling had been obtained through fraud.

While Donziger has been in home detention since August 2019 to address concerns of flight risk, Glavin said that such conditions do not constitute "official detention."

Sentencing for criminal contempt cases has varied significantly in the 2nd U.S. Circuit Court of Appeals, the filing added before providing examples.

One such example is the criminal contempt case of attorney Bruce Cutler, who was sentenced in the 1990s to 90 days of house arrest and three years of probation, as well as an 180-day legal practice suspension and community service for speaking to the media about the merits of the government's case against his client, New York mob figure John Gotti.

Donziger was tried in May. Preska on Monday denied his motion for a new trial.

The case is United States v. Donziger, U.S. District Court for the Southern District of New York, No. 1:19-cr-00561.

For United States: Rita Glavin of Glavin PLLC and Brian Maloney of Seward & Kissel

For Donziger: Martin Garbus of Offit Kurman and Ronald Kuby

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Sebastien Malo reports on environmental, climate and energy litigation. Reach him at sebastien.malo@thomsonreuters.com

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