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INDICTED!

On February 5, 2015 I was indicted. I have mentioned before that for every defendant, or former prisoner there are those personal dates that hold a, shall we say, ever lasting significance. Indictment day is certainly one of them. I really never had the chance to reflect back on that day since my case moved so quickly. Then again, who really wants to reflect on the bad days anyway? But sitting here, three years later and post incarceration, I realize that while indictment does certainly change a person's status from "Citizen" to "Defendant", for myself and I imagine most white collar defendants, it is really the most uneventful and unimportant legal event as it is really more procedure than anything else.

To be fair, I had known it was coming for a few weeks. On some level I probably knew it was coming for over five years.  For at least the prior nine months my lawyers and I had been in regular communication with the prosecutors. They had even tried to get me to take a deal by using the fear tactic of "if you go to trial and lose you will never live in the same house as your children again." I, stubborn and I am, did not bite, maintained my innocence, and basically told them to go to hell, see you in court because the deal offered was way more than what I called my "threshold for pain".

A few things need to be pointed out for education purposes. A plea deal can be reached either before or after an indictment. When a plea deal is reached before an indictment, a defendant is charged by Information. The indictment is basically a defendant agreeing to the charges and indicative of a plea deal having been reached. When a plea is not reached before an indictment, as in my situation, a defendant gets indicted by a grand jury who supposedly hears all of the one sided evidence from the government and rubber stamps the charges. In either case however, when the indictment or information is handed down, the defendant is formally arrested. Oddly enough, in either case, even if a plea agreement has been reached prior to indictment, albeit not disclosed, the defendant pleads not guilty that day and when he is arraigned. Of course the risk of waiting until after an indictment to be handed down before reaching a deal on lesser charges is that the judge gets to see the original indictment with all of the horrible charges that are magically missing from the plea deal.

I was indicted as I had not yet reached a deal. Why had I not yet reached a deal? Good question. For one thing, I did not know then what I do know today. I still believed that I would be able to prove my innocence in court. I did not believe that I was guilty and I certainly did not think that I had the constitution to mentally survive incarceration. I had told my lawyers that I was willing to accept a deal where I would be in prison for less than one year, but in truth, I probably would not have accepted that before I was indicted.  I also was not yet aware of how much more it was going to cost me to go to trial. In other words, I was in denial.  When the prosecution, in their minds, came "down" to a plea offer of 60 months or five years, I told my lawyers very clearly "Not five years, not five months, not even five minutes." If the prosecutors wanted to see me go to prison, they would have to prove it at trial, which would be impossible since i was so obviously innocent! I really felt that this was a game of poker or that they would suddenly have an epiphany and realize they were going after an innocent man! Like I said, I was in denial. The prosecutors, and even my lawyers tried to convince me that 60 months was "not that bad" because I would get off a third for my cooperation against the last remaining defendant so that would be 40 months. Then I would get a good time credit which everyone gets of 15% or 6 months to bring me to 34 months. Then I would get a year off the the drug and alcohol program which they would recommend and bring me down to 22 months. From there I would be virtually assured of 6 months of halfway house time which would take me to 16 months. I told them no deal. Just as a side point, I ended up spending 11 months in prison on a 20 month sentence with no time off for the drug program  and  had a little more than six months of halfway house/home confinement. Had I known it was possible to get 10 months halfway house I probably would have taken the deal. Unfortunately, I didn't know that information until I was actually inside prison. It certainly would have spared myself and family the eight stressful months between indictment and incarceration.

In late January I received a call that I was to surrender on February 5 at the Broward County Federal Courthouse. The truth is, that I was allowed to surrender was itself a credit to my lawyers. The feds, initially took the position saying that they simply issue the indictment, but they cannot control what the FBI does. In other words, since I was going to make them go through the hassle of of actually indicting me without a deal in place, I would be on the receiving end of an early morning FBI raid where they would send a bunch of agents guns drawn to my house and haul me off to prison. Obviously, as a parent of three kids under the age of 13, I did not really want my kids to be woken up to that. I actually came up with an idea and told my lawyers that if the FBI was so insistent on going through with the full dog and pony show, my lawyers could advise the FBI that going forward I would be at the FBI every morning at 6 AM if they felt the need to arrest me. Luckily, logic prevailed and  the feds that if I wanted to run, I could have done so at any point over the previous five years. I was directed to surrender at the Broward Federal Courthouse at 8 AM.

For an event that was supposed to be so daunting, it was really anti climactic.  Obviously, I had told my close friends and family what was happening. My children had been prepared for the fact that their father was going to be indicted as well. That morning, I simply parked my car in the parking lot, paid for around six hours of parking and walked up to the courthouse. Obviously, there is no standard protocol for how to conduct yourself during a solo surrender. I simply walked into the courthouse and they asked me if they can help me. I said "sure, I'm here to surrender, do you know where I am supposed to go?" The odd part was that they were not even sure. However a couple of minutes later I heard one of them get someone over his walkie talky and say, "we have a surrender coming up. " Obviously, I was not a perceived threat. It took me a few minutes but I found the elevator and went upstairs. I knocked on a door and a very angry looking woman (I guess this is not a job that attracts happy people) asked "what can I do for you?"  Now while the armed guards downstairs didn't scare me, this short plump woman actually did. However, ever the charmer I said "Hi I'm Mike, I'm here to surrender!". By her expression I was able to see that my charms had no powers this pleasant individual.

Well after she figured out who I was, she had me sit down, took my passport and told me I have been indicted, as if I did not know that yet. I looked at her innocently and said "OK do you mind telling me what the charges are?" She was nice enough to tell me that I was charged with multiple counts of wire fraud and was potentially facing 50 years in prison. And good morning to you too! She then had me put my hands out, handcuffed me, stood me up, shackled my ankles together and then chained my handcuffs to my shackles. I turned to her and asked if this was really necessary as I had driven to the court house, and walked in on my free will. If I was going to try to run I would have done it an hour ago. She smiled and told me that everyone gets locked up like this. I looked at her and said "locked up?" At which point she pointed at a jail cell, and motioned for me to go sit inside while I waited for my lawyer to show up. Clearly, my assumption that I would be sitting in an office waiting room was incorrect. That was the moment when I realized the gravity of my situation. When you are sitting cuffed and shackled on a cold metal bench with a urinal in the corner, it is hard not to feel that you have hit rock bottom.

I was by myself in there for a while.  That is until a guy was brought in by a bounty hunter kicking and screaming and thrown into my cell. For some reason he felt the need to talk to me and told me about his crime, of course I wasn't listening. This was not exactly a networking event where we were supposed to exchange business cards.  He asked me what I did wrong. I looked right at him, with the coldest eyes I could muster, made my voice scratchy and deep and said "Double homicide". Well he shut up pretty quickly! Hey, you need to have a little fun in these situations to keep yourself sane!

I hung out there for a couple of hours actually going over the Book of Esther in my mind. Purim was coming up and since I usually read it for the congregation, I figured that I might as well use my time productively. Of course, ultimately my temple took the privilege away from me but that is a discussion for another day. Finally, my lawyer did arrive and I was brought into a room that is not much different from where they interrogate terror suspects. The room was floor to ceiling cinder blocks with a cold metal chair. On the other side was my lawyer who told me what I was charged with and let me know who the presiding judge was. I did not appreciate at that moment how important that information was, but for those who missed it I wrote about it last year. http://www.whitecollarguru.com/2017/03/judges-matter.html

After that somebody from probation walked in and asked some general background questions which took about 15 minutes and then asked about my drinking habits. When she was done, she got up and left and told officer happy to come back and get me. As the officer opened the door, my lawyer told her to wait and call the person from probation back because I had not, in his opinion be forthcoming enough about my drinking habits. Remember, it is critical that this is portrayed in the worst possible light to make sure that if a defendant does ultimately go to prison, he is viewed at eligible for the drug program. So the officer left and the probation person came back and I was, shall we say, more forthcoming amount the amount I had been drinking over the past year. Then they both got up and left and my lawyer told me he would see me when I was brought downstairs in front of the magistrate judge.

There was only one problem, while they both did get up and leave no one bother to tell any of the guards that I was still inside the little cinder block room. Now I did not mind this since it was infinitely more pleasant than the prison cell I had spent the previous hour so I just sat there and waited. And waited and waited and waited. I also did not have to deal with my cellmate who was obviously also relieved that a homicidal maniac had been removed from his cell.  Still no one came and I just sat there. Finally, the plump officer realized that a prisoner was missing and it dawned on her that she never let me out of my the private room. She opened the door and asked me why I didn't tell anyone that I was still in there. As if there was an intercom or a cell phone for me to use.

Back in my cell my cell mate got someone else to talk to and no doubt they were discussing the innocent looking murderer sitting at the opposite end of the cell. Finally what felt like hours later they made us all stand. Unfortunately, I had forgotten that I was still shackled and one of the leg cuffs managed to get twisted around my ankle. As I stood up, I tripped over myself and went straight down. Finally, I got myself up and stood at the door of the cell.  Now I was in the first cell which meant all of the other cells were emptied and lined up first. As a result, I got to see who my co-prisoners were and who I would be going to court with in the elevator. The last guy on the line before they let us out was a 6"6 African American male in a too small orange jumpsuit with the words "Maximum Security Inmate" written on the back. My cell mates tried to be courteous and let me out first. Of course, that would have put me behind the scary man in the orange jump suit, so I told them it was OK and that they can go first. I would simply bring up the rear. They then chained us together as we all embarked on our journey to the courtroom.

The ride down was not pleasant. The person tasked with escorting the prisoners had the look of someone who had been beaten up his entire life and his only whiff of power in the world is when he gets to escort prisoners up and down elevators. Needless to say, he was not very sympathetic to the plight of a virgin prisoner who had still not figured out how to walk with leg shackles. All I remember as I hazily walked down to the courtroom was him yelling for us to stay close to the wall. Finally, we got down there and they sat all of us in the jury box. Ironic that the first place a defendant sits is in the same box that where others will sit if he decides to go to trial. As I sat down  I saw my wife and my lawyer in the gallery and I think my wife and I had to hold back our laughter at the ridiculous scene of my being cuffed and chained to a bunch of other prisoners all the while wearing a dress shirt and khakis. The scene really was comical. Finally, they got to me. Now again the magistrate judge is simply the judge who presides over the reading of the indictment, which we waived and decides if bail is going to be granted. Of course this was all arranged between my lawyers and the prosecutors before we all got to the judge. After a whole five minutes, my bail was granted, but I was told not to "abuse alcohol", whatever that means. A few minutes later I was back upstairs, relieved of the federally administered jewelry, and was told to go to the probation office.

The rest of the day really was administrative. I had to spend some time at probation and had them explain that I had to report regularly, get permission to travel, and subject myself to random drug testing. They went over the terms of my bail, but in reality they were minor inconveniences. Of course, I was also told that I would likely have to seek counseling for my drinking problem. It is a hard concept to wrap your head around, but the reality was that the worse the drinking problem the more likely I was to spend less time in prison-if I was found guilty, so I obviously  said I was "eager to battle my addiction". 

Finally I got to go home. That was when all sorts of other action started. My case's importance had obviously been less important in 2015 than when the craziness started in 2009, but I was still newsworthy enough that my indictment was picked up by the local newspapers as well as some of the local television stations. Obviously any potential effects on the children needed to be considered as well. However, looking back at it three years later, the day I was indicted was nothing more than a necessary step in the process that I had to go through as does every defendant. It is a big day in the sense that if forces defendants to actually deal with the case instead of hoping it goes away. However, like just most of the issues that I defendant will face, it typifies just another case of the fear of the unknown being much worse than the actual circumstance.

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