Tuesday, July 18, 2017

CONVICT ME ONCE, SHAME ON YOU; CONVICT ME TWICE, SHAME ON ME-A CASE STUDY

A few months back, I detailed the many factors that need to be considered when contemplating a plea deal and even went into explaining why the system is inherently unfair. For those who missed it, here are the links to those entries.
http://www.whitecollarguru.com/2016/12/to-plea-or-not-to-plea-that-is-question.html
http://www.whitecollarguru.com/2016/12/to-plea-or-not-to-plea-part-2.html
http://www.whitecollarguru.com/2017/02/no-one-ever-said-it-was-going-to-be-fair.html
This is important considering the following story that just happened to someone who I spent time with at the Miami camp.

The original case goes back to 2010. There were a few clubs in Miami Beach that were owned by individuals of Russian descent. Essentially, they arranged for girls to come from Russia, flirt with potential targets and get them drunk. These "bar girls" would then bring the targets back to the Russian owned clubs where they would order more drinks and would be so incapacitated that they did not even know what they were ordering, and did not know what they were paying for the drinks and were too incoherent to even realize that they were signing the receipt. The story was featured on American Greed last year and can be seen at http://www.cnbc.com/video/2016/05/13/american-greed-the-bar-girls-trap.html or https://www.youtube.com/watch?v=3PgQ6XBykok
Without going into detail, they are all went to trial, were convicted and were sentenced to anywhere for 3 years to 12 years in prison. I was in prison with two of these defendants.
This blog is not dedicated to explaining crimes or going into the deciphering if what they did was illegal. That is what the lawyers are for.

As is the case with most defendants these individuals were offered plea deals. One of them was offered two years in prison if he plead guilty and the other was offered time served as he was held in the Federal Detention Center in Miami while he was awaiting trial. Yes, he was offered a deal whereby he could go home and do no additional time than what he had done while awaiting trial. Yet both these individuals elected to go to trial because they were, you guessed it, "Not Guilty". Maybe it is the innate stubbornness of the Russian psyche but neither of them was able to say they were guilty when each one believed he was not guilty. To this day I cannot imagine what goes through a person's head when he elects to go through the uncertainty of a trial, when he had the opportunity to go home.

As luck would have it, both were convicted. Shocking, I know. Now remember, when a defendant goes to trial, the charges he face are much more severe than the charges in any plea deal. The defendant who was offered two years received 12, which of course meant he would not be immediately eligible for a camp. The defendant who was offered time served received 100 months,. Both of them received more than what the prosecutors recommended and even received a perjury enhancement for lying on the witness stand. Incidentally, most defense lawyers do not allow their clients to take the stand for this very reason! I cannot even begin to fathom what goes through a person's mind when he receives 8 years in prison when he had the opportunity to avoid a trial and additional prison time altogether. I honestly do not know how a person can  live with himself! I had the chance to get to know both of these individuals during my time as a guest of the Federal government and while the first defendant did regret going to trial, the second, the one who turned down time served, did not regret his decision and would even do it again! Is it any wonder the Russians lost the cold war??!! I did not believe him but, sadly, he got such an opportunity.

Virtually every defendant appeals his conviction after being found guilty at trial. While the numbers vary depending on the judicial circuit, it seems that 10% of convictions are overturned. The reasons that a conviction is overturned vary from poor representation, to a technicality, to changes in the law. As I have not had the misfortune of having gone through that process, I am hardly an authority on the appeal process. When a defendant is lucky enough to be one of the 10% that has his conviction overturned, that does not mean he is found innocent; no, it usually simply means he wins the right to another trial.

As luck would have it, after four years or so, this case was overturned on appeal. Incidentally, even without facing a new trial, they were still incarcerated longer than if they had simply plead guilty. The basis was improper jury instructions but a win is a win. In other words, the judge messed up.  I was there when they found out, and to say they were ecstatic would be an understatement. The prosecution made it clear that they were going to retry the case, however. At the same time, they came ready to deal. Their initial deal was for all of them to plead guilty to a lesser charge and go home. The only caveat being, that all of them had to agree, or so I was told. Of course, there was one hold out. Yes, the one who got 8 years instead of time served refused to sign the plea deal because, as he said all day "I'm not guilty!". The definition of insanity is doing the same thing over and over again and expecting a different result. By that measure, he would have had a plausible insanity defense. In any event, the other Russian in the camp was not allowed to go home because his co-defendant refused to sign the deal. How he did not physically strangle him is beyond me! If there was someone preventing me from seeing my family I doubt I would be so understanding.

In the interim, these guys were stuck inside the camp while the legal system chugged along. Eventually, they were moved from the camp to the Detention Center and were granted a bail hearing where bail was given so that they can prepare for trial once again. Two of the defendants (the one that got 12 years and the one who was not in the camp) took plea deals shortly thereafter and received time served. The crazy one, the one who could have avoided this whole ordeal altogether decided to once again go to trial. Well guess what? In April,he went to trial with the original judge. Again. He was found guilty. Again. He was not granted bail and had to sit in the detention center while he awaited sentencing which took place on July 14, 2017. Instead of sleeping at home he was sleeping in a 6*8 cell with violent criminals.

Last week he finally got his sentencing. The prosecutors recommended he receive 46-57 months. His lawyers obviously recommended less. Now remember the sentencing judge is the same judge that sentenced him the first time. This is the same judge that the appeal alleged ad appeals court agreed  gave improper instructions to the jury resulting in this new trial. It is unlikely this judge is going to look kindly on this defendant. Predictably, the judge handed down a sentence of 100 months. This defendant could have been home six years ago but instead decided to have not one but two trials when there was nothing to be gained from either of them.

Pride is the biggest enemy facing a defendant; aside from the Federal government, that is. Are there innocent people sitting in prison? Most definitely. Is this person innocent? Maybe. Does it really matter? No. What matters is that he is sitting in prison and has no one to blame but himself. All for that dirty word pride. It is insanity to the max. I wish I could feel sorry for him, I really do. But I do not. How could I feel bad for someone who literally brought a prison sentence upon himself. I can only conclude that he is either totally insane or simply enjoys prison! The lesson is clear. When looking at his options and scenarios, a defendant has to be pragmatic. And never ever ever go to trial if there is nothing to be gained! Shame on you!

Thursday, July 6, 2017

LAKEWOOD TAKEWOOD

Many of you have seen the many recent arrests in Lakewood which has, inclusive of today resulted in over 25  arrests. A brief synopsis of the allegations can be found here http://www.nj.com/ocean/index.ssf/2017/07/12_more_lakewood_residents_charged_in_massive_welf.html Now for those who do not know, Lakewood is a primarily Jewish Ultra Orthodox town in Northern New Jersey. Many of the residents do not work and do depend on government assistance, Unfortunately, Lakewood has also been home to some serious financial frauds and even a large Ponzi Scheme. As I Jew, and yes one who has been to prison, I am disturbed by these allegations.

Let me be very clear. These are merely allegations and conjecture at this time. I state first hand the 90% of what is written in the papers in not true, and that is being generous. I am not saying this is "Fake News", but as in most cases, the journalists tend embellish. After all, scandals sell papers, and the more scandalous, the better. Now I know very little about the allegations, am not a lawyer (thankfully) and have only glanced the initial charging documents. Again, it is worth keeping in mind that the only source of information contained in articles or documents comes from the prosecution. I am not saying they are not guilty, nor am I saying they are. I am just saying that as in many cases,  do nor believe everything you read.  At the same time, there is truth the the axiom of "where there is smoke there is fire".

Essentially, these individuals are being accused of understating or hiding income so that they can collect welfare, food stamps, etc. The fact that these individuals are said to be "ultra-religious" makes the alleged crime all the more heinous. I put "ultra-religious" in quotes simply because if these allegations are true, then in fact these are not religious people. Just because someone has a long beard and keeps certain commandments does not excuse violating to prohibition of "Thou shat not steal", even if the theft is from the government. It is not an excuse the claim that this is permitted because it is so rampant. Yes I am reasonably sure that even a run of the mill drug dealer can put in a claim for government assistance since his entire financial well being is illegal anyway. It is not as if he pays taxes of cocaine dealing income. Nevertheless, it is not an excuse. My motto is if you are going to dress the part, you better damn well act is as well. Otherwise, not only are you fooling yourself, but you are putting your entire community and religion in a negative light, which incidentally is another biblical prohibition! Sadly, we have seen anti Semitic signs being posted in lakewood in the past week.

The question is, assuming they are guilty, what is a fair punishment. Now, my belief is that whether they are innocent or guilty, they are all going to plead out. My money is 5-7 years for the men and 1-2 for the women. But really, what is a fair punishment. Do these people deserve to go to prison or is there an alternative remedy that will spare their families and not cost the taxpayer more than necessary. In short, will prison serve a purpose?

Referring back to my inaugural blog, http://www.whitecollarguru.com/2016/12/does-prison-serve-purpose-and-for-whom.html, you will see that one of the stated purposes of incarceration is that it serves as a deterrent for others who would think to commit a similar crime. I state, that in many cases this argument is flawed as either the defendant took a calculated risk and lost, or was unaware what he was doing was a crime to begin with, or simply took a plea to avoid the risk of trial. The argument that prison can serve a a deterrent for others is inherently flawed. Society does not need to be protected from these people either. Essentially, in this case the punishment is going to be punitive.

Or is it? The sad reality is that if these people did commit these crimes, I do not believe they viewed it as a calculated risk. If they committed these crimes, I so believe that they at the very least did know what they were doing was not exactly "glatt kosher". I also believe that these types of crimes are rampant. Now to take it a step further, when someone steals from the government, he is essentially stealing from every tax payer and from someone who legitimately qualifies for government assistance. Theft from the government on a grand scale amounts to theft from every tax paying american. Maybe, society does need to be protected from this person. Is he really that different than someone who steals a wallet when no one is looking?

It pains me to say so,  but yes, if these charges are proven these people belong in prison. The deterrent factor is there since no one who commits welfare fraud believes he will get caught and he certainly would not risk prison to commit such fraud. How much time is another matter. I do think that five years is a fair number with obvious restrictions with regard to government benefits going forward. I do believe that to the extent that there were married couples arrested together, that they will serve their times consecutively so as to lessen the blow for the children, who did nothing wrong and as is often the case are the real victims.

Now again, I am not passing judgment, and mark my words this will plead out, but if true, yes prison here will serve a purpose.

SECRETS OF THE PRISON CAMP ECONOMY

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