Shepard Fairey is hoping he can change a judge's mind about his recommended sentence for destroying evidence in a lawsuit over his 2008 Barack Obama campaign poster.
In a letter sent to U.S. magistrate judge Frank Maas in New York on Wednesday, the artist's attorney argues against the Justice Department's recommendation that Fairey be imprisoned and slapped with a fine of up to $3.2 million, attacking the government's sentencing memo on a number of fronts.
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"A sentence without any term of imprisonment sends a terrible message to those who might commit the same sort of criminal conduct,” prosecutor Daniel Levy wrote in a Sept. 2 memo to Maas. “Encouraging parties to game the civil litigation system … creates terrible incentives and subverts the truth-finding function of civil litigation.”
(Though Levy did not specify a specific prison sentence, the charge against Fairey would cap the time at six months.)
But Fairey's attorney, Daniel M. Gitner, countered to Maas in his own letter that the government's argument is flawed on a variety of levels.
Gitner says the government incorrectly argues that Fairey did not suffer a penalty or sanction in his civil case with the Associated Press, because his eventual settlement with the AP included sanctions.
"In the end, the government argues that because Judge Hellerstein [who heard the initial case] did not formally impose sanctions, this court should fill the void by sentencing Shepard to a term of incarceration," Gitner posits. "This argument defies logic. The government's speculative theory is not reason for a prison term, given that the terms of the settlement agreement include sanctions."
Gitner further argues that the AP had not sought further punishment than that set out in the settlement, and that "the AP stipulated in a document presented to Judge Hellerstein that it did not see a need to seek further punishment."
As for the suggested fines, Gitner cites a Supreme Court decision that a "substantial" fine cannot be imposed without a jury trial to determine the extent of loss, and a section of the U.S. Code stipulating that an individual cannot be made to pay a fine in excess of $1,000 to the United States.
The legal saga between the AP and Fairey, which began when Fairey sued the Associated Press, centered around the photo that Fairey based his iconic poster on. Fairey and the AP settled in early 2011. However, in January 2012, Fairey pleaded guilty in Manhattan Federal Court to one count of criminal contempt for destroying documents, manufacturing evidence "and other misconduct."
Fairey had claimed that he had based his poster on a 2006 photo of then-Senator Obama with actor George Clooney at a national press club event. However, he actually used a different, more tightly cropped image, as the basis for his work. Fairey attempted to conceal his falsehood by creating numerous fraudulent documents and tried to delete multiple electronic documents that would have damaged his claim, U.S. Attorney Preet Bharara said.
Pamela Chelin contributed to this report.