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.

Jew Haters Be Gone!

I try not to get angry. There are a few reasons for this but I have come to realize than getting angry produces few if any tangible results. However, I am not perfect (shocking, I know) and when I see blatant hatred stemming from ignorance and self righteousness I do get angry. I am not naive. I know anti-semitism exists and have come to accept it. I no longer get angry when I see other races making the most ridiculous and incorrect statements about Jews. I just do not care. However, what does anger me to no end is when I see the same type of anti-Jewish rhetoric coming from within the Jewish community. I am well aware this is completely off topic when compared to my other entries, but I do think that as I write it, a message that transcends religion and the underlying theme of anti semitism will emerge.

Last week I wrote about the release of Rabbi Sholom Rubashkin. I spoke about how happy I was to see him reunited with his family and how in many ways he was a true hero. That is my opinion and I am sticking to it. I even made reference to an article in a  Jewish publication about how he is not a hero. Obviously, I disagreed with the tone of the article, but everyone is free to have an opinion. What I did not like, and took offense to was the many Facebook posts by Orthodox Jews that I came across ridiculing the hero's welcome that Rubashkin received. They felt that while his sentence may have been disproportionate, the fact remains that he was convicted of a crime and therefore is not "deserving" of such an extravagant reception. And that was the kindest of the comments.

My first response to all you haters, is a question: Why do you care? Why does it bother you that people are rejoicing that his sentence was commuted? Do you think that you are so important that it is a reflection on you? Well guess what, you are not that important. Do you think that your opinions are so important that you are entitled to offer them even if they are based on ignorance? Guess what, they aren't. Are you so principled that when you perceive people acting in a manner that you do not agree with, you just cannot help yourself and must raise your voice to combat the injustice? To that I make the following observation: anyone who has ever made the argument that it is "the principle" is really using that as an excuse to cover up another motive. It never is the principle. For whatever reason, and I am talking primarily to the Modern Orthodox community with which I identify, you are threatened by how Rubashkin looks and the lifestyle he epitomizes. You feel the need to compensate for your own religious insecurities by spending your days pointing out problems within the branches of more traditional brands of Orthodoxy. Pointing out that they are glorifying a "criminal" makes you feel that your brand of Orthodoxy is more correct and that "they" are a bunch of hypocrites. Obviously, there is no one who committed a crime in the Modern Orthodox community. Oh that's right, they look like you and me so it's OK.

As to the argument that he is a criminal and criminals should not be glorified, I say this. Firstly, for purposes of this discussion I will entertain the possibility that this is a valid reason for you to be upset that others are celebrating. I will give you that Rubashkin was convicted of a crime. I am not going to point out all of the problems with the trial but yes it is true that he was convicted. I say it again, Rubashkin is a convicted felon. Does that mean he committed the crime for which he was convicted? Well I do not know the answer to that an neither do you. You believe what you read. Have you looked at all of the evidence? I sure haven't! Have you actually been through the criminal justice system? I should hope not, but I have been through it. What most of people do not know even though I have written about it, is that the system is on its best day biased. Prosecutors can twist evidence in any way they want without any repercussions. In general juries tend tp believe prosecutors. I have sat in discussions with prosecutors where they come up with something that is so far from the truth and they twist the evidence to conform to their version of the truth. When you challenge them, do you know what they say? And I quote: "Who do you think the jury will believe us or you?" They can set any narrative they want. Oh and by the way, they spend the months leading up to the trial poisoning the jury pool by leaking their version of events to the press.  Obviously no defendant is going to lay out his defense in the press, so the press only gets one side. Do you think anyone in Postville, Iowa had not heard about the case as well as the narrative spun by the prosecutors by the time it went to trial?  The point is a conviction does not necessarily mean a crime was actually committed.

To the principled objector I say the following: Are you so perfect? Have you never committed any crime. If the government were to take a hard look at you and spend even a year investigating every aspect of your life, do you think for a second that you will come up squeaky clean? Have you never made a mistake on your taxes? I have some news for you, if you made a mistake on your taxes or even if your accountant was overly aggressive which resulted in a lower payment, the IRS can very well decide that this was not a "mistake", and  that this was not "aggressive". No they can decide that you deliberately evaded taxes. According to the IRS website that can get you up to five years in prison. Here is another example for those of you who pay extra taxes just to make sure that doesn't happen to you. I am sure most of you drive on a regular basis. Have you seen those black and white signs on the street? Those signs post speed limits. By law you are not allowed to go above the speed limit. I challenge anyone in this country to show me that they abide by the speed limit 100% of the time. Most of the time we do not get caught and even if we do usually we get a fine or our lawyer handles it for us. Now imagine you your wife was late picking the kids up and was going 45 MPH in a 30 zone.  Now imagine that as she was rushing, a 4 year old kid ran into the street and before your wife can see the child, she hits it and the child dies. Suddenly your wife just became a murderer and can be charged with reckless driving and even involuntary manslaughter. She will probably go to jail. The fact that we do not get caught for many of the crimes we commit every day does not make us any less criminals. Unfortunately we are judged on the results of our actions and not on the actions themselves. Two people may both lie on their mortgage applications. Meanwhile one person strikes it rich while the other loses his job and cannot pay his mortgage. The bank looks into to person who is in default and discovers the lie. He gets charged with bank fraud and goes to prison while the other person, who committed the exact same crime faces no consequences.


Getting back to the wife example. Let's now assume she had to go to prison. Now, she gets out earlier than expected. You, her loving husband are so happy to have her home. The kids are ecstatic that they no longer have to exclusively eat take out for dinner. You decide you are going to make a celebration in honor of her return. It may be a dinner or it may be a party. How would you like it if someone said, how dare you throw a celebratory dinner, the woman is a murderer! She was even convicted of it. Now you know your wife to be anything but a murderer. You are happy she is home. She is your family. With regard to Rubashkin, many people felt like his family. Be it members of Chabad, Satmar or other parts of traditional orthodoxy, they simply felt as though he is a family member. Incidentally, I have found that most members of Chabad tend to be related. Well the family came out to celebrate! Why would you want to get involved and protest a familial celebration. It is none of your business anyway! No one is forcing you to actually, heaven forbid, celebrate the release of another Jew from prison. That would just be crazy. But do everyone a favor and keep your moth shut; no one needs to hear your negativity. Just leave well enough alone.

Now, again to my Modern Orthodox brethren I have another matter for you to consider. We all believe in repentance. Maimonides states that so important is repentance that when done correctly the sin is eradicated and is as if it has never happened. We are not even allowed to remind a person of his prior indiscretions! We are obligated to treat this person as though he never did anything wrong. Sadly, the US criminal justice system does not subscribe to this philosophy as we ex felons never have our rights fully restored, but Jewish law and I think most religious doctrine is clear; once a person has been punished it is as though the sin never took place. I am sure that even in the Modern Orthodox community we read Maimonides. I can tell you first hand, that while we may read it, sadly, we do not practice it; the traditional groups are much better at this. Now before you jump down my throat, I am not saying that people who are serious threats to the community such a child abusers, etc are to be welcomed as clearly we need to protect our children, but by in large we embrace the idea of repentance. What I am saying is that even if Rubashkin did commit the crimes that he was convicted of, he has certainly paid the price and certainly would have repented by now. To begrudge him celebrations based on actions that may or may not have been committed 10 years ago is contradictory to Jewish law. As far as I can tell, Modern Orthodoxy still embraces Jewish Law.

How do you think other branches of Judaism or even those from other religions are looking at you if they actually are reading the hateful words that you are writing? Do you think they are saying that you are "enlightened" for speaking out against the celebrations or do you think you look like a traitor to your own people. Like it or not, we are all one family. To air our dirty laundry in public is a disgrace. As the saying goes, if you have nothing nice to say, then say nothing. By publicly coming out against your own people you come across as someone so ashamed of his heritage that he needs to ingratiate himself in the eyes of others. In other words you are a self hater. You are no better than some members of other races who begrudge their heritage with the goal of gaining favor with others. It is disgusting.

So maybe I did get some important points across at least for those dealing with former felons. To assume that just because someone was convicted he is guilty is incorrect. It is also important to embrace those who have paid for their crimes and help them rejoin society. However, if you cannot help someone, then at the very least stay our of the way and let others rejoice his return to his family without your negativity. Then again, haters gonna hate hate hate.

RUBASHKIN

People are connected. I am not talking about personal relationships with friends and family. Often times we are connected to people we do not even know.  This can be through any sort of medium such a race, religion, professional affiliation of political affiliation. Even though we do not know each other, we are "connected".  As a Jew, I feel connected and sympathize with the plight of another Jew in distress even if I do not know him. The African American community came together to protest what they viewed as widespread discrimination by law enforcement even though 99.9% of those protesting had never even met or heard of the perceived victim.

Life experiences also bond people. There is a bond that exists between those of us who have had the unfortunate experience of going to prison. It is a bond that transcends race and religion. When we can we help one another both inside and outside and always hope for our friends to be released and be successful upon their release from prison. It is not a connection that anyone can understand; you have to have been to prison to really understand.

Yesterday, Sholom Rubashkin was granted clemency by President Donald Trump. I have never met Rabbi Rubashkin, and yet, I feel intimately  connected to him; firstly as a Jew and in many ways even more so as a former inmate. The criminal justice system is at its best skewed against even a guilty defendant and at its worst a system where prosecutors can persecute even the most innocent to further a personal agenda or their own careers.  Rubashkin, in my opinion represented one of the greatest white collar  miscarriages of justice in US history both in terms of how he was convicted and in terms of the outrageously disproportionate sentence of 28 years that he received. I am not going to go into the prosecutorial misconduct that was so pervasive both in terms of his indictment, but there can me no argument made that even if he was guilty, a 28 year sentence was completely out of line. It showed the criminal justice system at its absolute worst.

 The joy I felt when I read the news yesterday afternoon, and when I watched the thousands who came out to celebrate with him through the night was unlike anything I have felt since my own release 15 months ago. While Jews across the world of all stripes celebrated his release, because of their religious connection to him, I had an additional sense of joy and happiness for someone who was the victim of a system that functioned at its worst when he was sentenced. Finally, his prayers were answered and he walked out of the prison where, as he said yesterday "they thought they would bury me." It took eight years but President Trump granted him a reprieve that was long delayed.

Rubashkin is an inspiration to us all. I cannot even fathom the idea of facing 28 years in prison. To say it is daunting is an understatement. It would leave me depressed and probably even contemplating suicide. I was apprehensive about my relatively short sentence! I think that had I even faced the possibility of 28 years I would have fallen into a deep depression even prior to heading to prison.   How someone can keep his sanity when facing the prospect of being away from his friends and family for 28 years is beyond me. And yet, I have spoken to many who visited him in prison and they have said that he was always happy and kept his faith in G-d. Not only that he served as a counselor to other inmates who felt hopeless while incarcerated.

Rubashkin received a hero's welcome. But is he a hero? A few articles written in the liberal Jewish press have taken the position that he is not a hero. The articles written were so scathing and harsh that had they been written in the New York Times, we would all be pointing out the obvious Anti Semitic tones. While I have an extreme dislike for those who have written them, I assure you Rabbi Rubashkin does not. He has a personality that from what I am told leads him to have a feeling of love toward every human being.  How Rubashkin kept his faith during this horrible struggle for him and his family while facing such a bleak future is mystifying. So yes, Rubashkin is a hero; if not because he was quite possibly wrongly convicted by a biased process then for the fact that he was able to withstand everything that was thrown at him and managed to come out smiling on the other side. Justice delayed is still justice achieved.

So my message to Rubashkin is simply Mazal Tov. Mazal Tov to you and to your family who had to suffer for way to long. I admire you for the strength you have shown and for the inspiration you have provided to others who unfortunately find themselves in a similar position. It is my most sincerest hope that because of this horrible experience you reach to greatest of heights befitting a man of your unique special character and of the hero you are. Mazal Tov Mazal Tov!

The Truth, The Whole Truth, and Nothing But The Truth-King Solomon in Our Days

King Solomon at the end of of Ecclesiastes states that in the end, everything is heard. While there have been many Jewish and Christian interpretations to this verse of the past thousands of years, taken at face value, it simply means that nothing stays hidden forever and in the end everything comes out. One has to look any further than the present day to realize that while secrets may remain hidden and while sins may be dormant, ultimately everything comes into view for everyone to see. King Solomon is as right today as he was thousands of years ago when these words were written.

Entertainment, political and athletic icons are falling every day. From Bill Cosby to Charlie Rose, to Al Franken to Matt Lauer to Marshall Faulk, we have seen scions of various sectors go down in blazes of glory in a way not witnessed since in modern history. Sins that have been perpetrated for decades are finally being brought to light. The dirtiest of secrets are being revealed for all to see. Individuals have been living collective lies by maintaining  public personas embodying values and integrity while living private lives bereft of any moral code. Some have gotten away with it for decades and some for only years. However the day of reckoning is upon us and all the sins are finally being revealed.

Now I don't mean to vent about the disgusting behavior of more than a few individuals. No, I mean to relate this to the person who is justifiably in unjustifiably who is caught in the cross hairs of the criminal justice system. The first is just practical advice. Never lie. If a defendant has decided to accept a plea so as to avoid the risks of trial, he needs to get everything out in the open when speaking with the prosecutors. As a practical matter, they have so many resources at their disposal that if a defendant decides to hide something or be less than truthful they will in all likelihood discover the misrepresentation. The negative consequences of these untruths being discovered are real. The prosecutors can revoke a plea or give less favorable terms. If a defendant is hoping for a cooperation reduction in his sentencing that can be taken away as well. Lying to a federal officer is in and of itself a crime. Lastly, once a plea has been agreed upon, for the most part, although check with a lawyer first, anything else revealed will not open a person up to new charges. By way of example, there are many levels of securities fraud. If the defendant is guilty of a worse crime than his plea deal incorporates, the prosecutors generally know about it. They are offering the plea for the same reason the defendant is willing to take it. So when the plea is agreed upon, and the prosecutor asks for the full story, truth is of the essence. 

For someone who is simply being interviewed by the authorities, it is better so say nothing than lie to them. As US citizens we all have the right to remain silent, and that is certainly better than lying and risk being brought up on charges of lying to a federal agent. Lying is also difficult. As I was told during my case, always tell the truth because the truth is light. Once a lie comes out your mouth, you are constantly trying to remember the story and then make up new lies to cover the old lies. This never ends well. Considering the truth will come out eventually, it's better to shut your mouth than try to explain everything away with a lie.

The second point that needs to be made will be of some solace and consolation to anyone who has either been indicted or even ended up going to prison. I maintain that for every person who has been indicted for a crime there are another 100 who can be indicted for a similar crime. Why the government decides to prosecute one person over another is anyone's guess. Sometimes it is political, sometimes it comes down to the evidence, and sometimes it is a matter of laziness. Prosecutors have tremendous leeway when choosing who to prosecute. The Supreme Court set a very high standard and ruled that just because two people commit the same crime does not mean that prosecutors have to charge both of them. The exception would obviously be if the decision to prosecute or not prosecute is based on race, etc. In other words two traders can both obtain insider information and, all things being equal, the prosecution can decide to indict one of them but not the other. 

I have mentioned that there are very few crimes where only one person is involved, even if none of those involved realized that crimes were being committed. Fair or not, not everyone is going to be prosecuted. For the person that ultimately does time in prison, a level of resentment will develop. He will feel that if everyone essentially committed the same act, why is he sitting in prison away from his family when some of his former partners seem to have escaped any threat of prosecution. He will resent it even more if during his time being prosecuted, his former partners decide to engage in a form of revisionist history and decide they were in no way involved. Obviously they need to tell themselves that, but the fact remains that two people were committing an act together that they may or may not know to be illegal and yet, one is sitting in prison and the others are not only avoiding prosecution but are denying that they were ever even associated with him. To make things worse because of the defendants legal situation they will even try to cast themselves off as victims. Of course, he would never try to get them similarly incarcerated, but the resentment remains. 

The reality, however, even if they do not go to prison, they will not be able to hide from their past forever. Eventually, things have a way of coming out and while they may have been able to have their involvement concealed for a time, ultimately it will all be displayed for the public to see. Sometimes this can come in the form of an overzealous reporter and sometimes it can come in the way of an unrelated legal situation. 

My case itself is no different. While not getting into the details of my plea, what I can say for certain was that there were multiple people connected to me that committed the same exact overt acts that I committed and I don't know that any of us thought we were violating the law. There are people who considered themselves victims when in truth, they were anything but. When I was the object of public scrutiny, they did everything in their power to distance themselves from me. Some of these were friends and some of these were merely colleagues. Do I blame them? We I don't know if I blame them but I certainly would not have conducted myself the same way. I still remember someone who called in a drunken state  me on November 1, 2009 and threatened me, claiming I stole his money and yet if anyone deserved to serve time it was him. Yet, he managed to pretend he was a victim. Sure, there were a few who stayed by my side and those are the true friends, but those were clearly the minority.

As it turns out, even these individuals will not be able to hide forever. Many of them were identified in other avenues of the case and were brought into the pubic spotlight then. But when that does not work, a former defendant can simply write a book, which of course what I am doing. Now I am not here to push my book; that will sell itself. What I am here to do is point out that this book will be a tell all. All of these people, those who pretended to be victims while they were not, those who were very happy to be my partners and committed the same acts when things were good but denied any involvement when things went bad will be exposed. Am I being petty? Maybe. The way I look at it, I could have done a lot more damage in 2010. I took the the bulk of the heat and declined to implicate anyone in the civil or criminal avenues. Had I done it then, while it may not have altered the course of the prosecution, more than a couple of careers would have been destroyed. Doing it now will have little if any financial impact. Much of what I will reveal has not been reported anywhere and those individuals have had virtually no public exposure. Until now.

The truth is a funny thing. It never stays hidden forever. There is no one who would want everything about their life revealed; we all have too many secrets. And that is OK. The problem arises when we run from the truth or try to bury it. It is then that the truth, because it is so aggressively suppressed reveals itself with a vengeance. In the end, everything is known.

Never Let Others Define You

Last week President Trump made an announcement that sent shock waves throughout the Middle East. By announcing the the United States was recognizing Jerusalem as the capital of the State of Israel and would move the US embassy there, he was, in his own words acknowledging the reality that is already on the ground. The fact that this came as a surprise is itself surprising since this is essentially what he had said he would do throughout his campaign. Whether one likes Trump or hates him the one thing that is clear  is that for better or for worse, he has tried to do follow through on his campaign pledges.

The reaction to the announcement was swift. Trump's supporters, many of which are right of center Jews and Evangelical Christians cheered the announcement while muslims across the Middle East issued statements of strong condemnation and even engaged in engaged in violent protests. The leader of Hamas even called for another Intifada, ignoring the obvious truth that previous intifadas have accomplished nothing. In Jerusalem itself, ironically, the reaction was relatively muted. So whereas right of center Jews in the US were jumping for joy, the Jews in Jerusalem did not really pay attention. Whether the US or anyone else considers Jerusalem to be the capital is of little concern to them as they have already accepted that truth since either 1948 or 1967, depending on where in Jerusalem one happens to live. In other words, it did not affect them at all. The view of the Israeli is admirable as it shows a lack of concern for how others view them; what matters is how they view themselves.

Someone who is caught of in a criminal investigation will be subject to may different labels assigned to him by either the prosecutors, the media, the judge,  and even the prison system. Prior to being indicted or arrested, he will be called a Suspect or a Target. Following an indictment he will be called a Defendant. If convicted, he will be called a Felon. Once incarcerated he will become an Inmate. Finally, once released, he becomes and Ex-Felon. Obviously, none of these labels is remotely flattering, and the longer a case drags one the more demoralizing these labels become. Unfortunately, it does not end there. Prosecutors, and the press can and will resort to name calling and plenty of former friends will do so as well. The prosecutors themselves called me a terrible, immoral person to my face and the press was equally harsh. Of course, the labels ascribed by friends and former friends are even worse simply because we expect our friends to know us better and, while the prosecutors and the press have the courtesy to insult you to your face, members of a social circle will try to do so only behind your back.

The key to mentally surviving the ordeal is not let any of these labels matter. While someone is defendant in a case, he should not allow him to fall into the trap that this label defines him. Even someone is a felon who did commit crimes, the felon label is based on person who existed in the past, it does not define who he is now. In prison, it becomes even more difficult because to the prison guards, everyone is simply an Inmate. Individuality gets checked at the gate once a person enters the prison walls. It is all to easy, when surrounded by other prisoners, many of whom have either been in prison for a long time or who really are bad people for a person to think that all he is is a prisoner. But like all the other terms, a prisoner is not who you are or even who you were; rather, it is simply statement of circumstance. Once a prisoner thinks of himself a just a prisoner, he enters the long road to despair that will encapsulate him even following release.

It is important to realize, at any stage of the criminal justice process that while there are many things the government can take from a defendant, namely freedom, there are many things they cannot take, unless you let them. They cannot take your intellect, they cannot take your sanity and most importantly, they can never take away who you are, if you do not let them do so. They will try to define you, demoralize you and make you feel as though you are nothing more than a low life felon who has no rights. They will use every ploy, and too often they are successful. However, if you make up the mind, that it is not the government, nor the press, not your friends who define you, but it is only you who can do so, you will maintain your mental health both inside as well as outside the prison walls.

ANYTHING YOU HAVE WRITTEN CAN AND WILL BE USED AGAINST YOU

Email is a wonderful tool. It makes business more efficient and allows us to communicate with our friends and family faster. I often marvel that there was a time, not that long ago, that business functioned without the use of email. Once upon a time if a document needed to be executed, it had to be sent via overnight mail to the recipient, and then sent back for a total of two working days. And that was if the recipient actually got it and opened it the day it was received. Now, that entire operation takes all of five minutes. We also communicate via email to iron out business transactions instead of sitting on the phone for hours ironing out those very details. Often times email is simply used to follow up on what was previously discussed on a phone.

One pitfall of our reliance on email is the sheer number of emails contained in our mailbox. In just one of my email accounts, I have 26,946 emails and most of them are from within the last eight years. Keep in mind that I delete a lot of my emails and for a period of 11 months I was not able to send an email. To be sure, most of them can probably be deleted but our email accounts have become our de facto memory books. Doesn't everybody need to remember who they went to the movies with in 2012?

The other pitfall is that emails never disappear and can be taken out of context. When documents related to a business are subpoenaed by the government or even by a lawyer on the opposite side of a lawsuit, the courts have generally ruled that emails are not protected under the 5th amendment's right no not incriminate oneself. Just turn on the TV and we can see how many of the Trump campaign members are being forced to hand over emails to the special prosecutor. During the financial crisis, emails were used to indict and in some cases convict Wall Street bankers for financial fraud. Could this have even been an issue 30 years ago? Of course not. That's not to say any evidence of illegal activity is contained in these emails but the fact that they are being handed over to an adversarial party puts the author of the email at risk.

The real problem with anything written and in particularly as it relates to emails is the ability to take any email out of context. Imagine a phone call where a colleague agrees to advocate for you at a company meeting. Following the phone call you send him an email that says "love you man you are the best." Or imagine you take a client to dinner and the next day he sends you an email thats says "last night was fun, lets do it again!" Obviously to both the author and the recipient the email was in response to a phone call or a business dinner. Now imagine that the author of those emails is going through a nasty divorce. The attorney on the other side can easily take those emails and allege infidelity. True this may seem extreme but as someone who has had his emails dissected by prosecutors, opposing lawyers and even the press, I can tell you that this is precisely what takes place.

The sad truth is that any email can be taken out of context by an unscrupulous lawyer furthering an agenda as well as by a prosecutor trying to prove a crime. Obviously only a fool is going to document his crimes in an email (although I am amazed how many seemingly intelligent people seem to do so). However even the typical business owner or employee using email in the normal course of business has to be increasingly careful that anything he writes cannot be interpreted incorrectly out of context. This becomes increasingly difficult as even emails are increasingly informal and are written in a manner more akin to casual conversation.

I will give a personal example of an email that was taken out of context by multiple parties between the year on 2009 and 2015. As the perpetrator of the crime was hiding we in Miami were all panicking as we had investors to whom we were accountable. On Friday, October 30, 2009 was coming to a close,  I sent an email asking for some clarification immediately because "otherwise we are all done". Those five words were used over and over against me as "proof" that  knew I was involved in a major fraud and knew I would be going to prison. The problem was that everyone who read that email either decided to deliberately use it out of context for their own agenda or simply would not look at the 50 emails that led up to that email. Does ""done" mean prison or does "done" mean out of business. Well anyone who can read would have gone through my emails and concluded that this was an email sent in a state of sheer panic because I simply had no idea what was going on. And yet, over and over again it was used as "irrefutable proof" that a was a knowing and active participant in a fraud.

Here is another example. Scott Rothstein, narcissist that he was liked to be told that he was loved. He would insist that anyone that sent him an email closed with some variation of "love u!" Well, when all of my emails got into the hands of other lawyers, I was asked if Scott and I were in a sexual relationship. Now if someone is gay, that's their business, but personally, guys don't do it for me. The very notion that I would be involved in a homosexual affair was so ludicrous that I actually started laughing when I was asked. And yet, to the unknowing reader and taken way out of context, it was a plausible question. I can go on with so may examples where my emails were taken way out of context but the point has been made.

Being careful with what is put in an email is practical advice for everyone. Even if emails are not forced to be handed over in the legal context, there is the constant fear that email accounts can be hacked. Once an email has been sent, it can and will be used against you in a court of law or at the very least the court of public opinion.

The Defendant Is Hereby Remanded To Custody- My First Day In Prison

The marshals will escort the defendant. Scarier words had never been spoke to me.
October 26, 2015. Exactly two years ago today I was sentenced to 30 months (later reduced to 20) in prison. As luck would have it, I was blessed with a judge who does not believe in voluntary surrender. In other words instead of arriving at a prison camp like 90% of those who plead guilty to a white collar felony, I was escorted by the US Marshals service from the courtroom in front of family and friends who had come to support me. Not exactly my finest moment.

In many ways it is a day that I will never forget yet, paradoxically, my memory of that day is more dream like as though I was watching a Broadway show as a member of the audience when in reality I was the star. Even now, two years later it seems as though my sentencing hearing was yesterday and not so long ago. Ultimately, I spent under 11 months in actual custody, 4 months in a halfway house and two months under home confinement. Obviously, in hindsight, the process of being remanded represented the finality of my case and the fear was clearly unjustified. However, I can unequivocally state, that at that moment I was more scared for myself than I had ever been in my life. Perhaps it was because I was initially heading off to a detention center with all types of felons or perhaps it was simply a fear of the unknown. Regardless of the genesis of my fear, as I lsaid goodbye to my family and left the courtroom I also experienced a sense of relief that after so much time, judgement day was finally in the past.

For any white collar defendant and really for any defendant, there are certain dates that hold special meaning. In chronological order they are:
1. Indictment
2. Arrest/Surrender
3. Change of plea/being found guilty
4. Sentancing
5. Remanded/Surrender to custody
6. Release from custody to the halfway house
7. End of sentence

Not everyone has all of the dates, and for many the dates are the same for multiple events. For example I  was sentenced and remanded on the same day. As far as which dates hold most significance, it depends on who is asked. However, the date a defendant reports to prison is definitely a pivotal date as long as the right attitude in maintained.

Now that I am out I get asked questions constantly  about what prison was like. Like I wrote earlier, there is no hiding from it so I do not shy away with these questions and I allow myself to be quite approachable. The truth of the matter is no matter how cushy of a camp is, no matter how much time is spent working out and no matter what steps someone takes to better himself while a guest of the federal government, prison still sucks. Again it is not, at least in a camp, the actual prison that sucks, it is the aspect of being removed from society that is most painful. I was lucky that I only spent 11 months in actual prison. If I went top trial and lost I would not be writing this today. For that I have to thank my lawyers.

On the other hand it is important, when starting a prison term, to understand what it represents. The wheels of justice in the US move very  slowly in the United States. For some defendants that is a blessing but for some it is merely a torturous crawl to the finish line. As it took six years from retaining my lawyers to get to  my incarceration date, I obviously fell into the later camp. In that scenario what the prison sentence represents is the realization that after so much time the ordeal is finally over. Yes, prison is hard and yes it is even harder on the family. However, once prison starts, planning can commence for when prison ends. That planning cannot begin until the element of uncertainty is removed. For that reason the day one reports to prison is closely linked to the day he leaves the prison. Yes, it was hard being incarcerated. It was very hard. However, the feeling of relief when the burden of uncertainty is lifted is also indescribable to anyone who has not had the misfortune of being caught of in a criminal case.

As I sit here two years later, I laugh at how the rest of the day went after I was removed from the courtroom. After  I removed my tie and belt and left them with my wife, I was taken out of the front of the courtroom. There I was cuffed and shackled and led up to the holding cell above the Broward Count Federal Courthouse. Most inmates (I was now an inmate) get stuck in the county jail which is a horrible place for a couple of days before moving to the less horrible Federal Detention Center (FDC) in Miami. I was lucky to have had anticipated this and was able to have others advocate for me to be transported to  FDC that day. When the officer who was fastening my shackles said to me another that I was not being booked into Broward, he turns to me and said "How did you manage that? What do you know the judge?" Of course, having nothing to lose I answered "If I knew the judge do you really think I would be standing here watching you cuff me?"

They then took me upstairs to wait for transport and were nice enough to remove the restraints. Once in the prison cell I decided to start working out in my clothes. It wasn't like I had anything else to do and I certainly was not going to need the suit pants any time soon! An hour later I was re-cuffed and shackled and taken down to a garage where two US marshals were going to drive me to Miami. I turned to them and said, "Do you want me to drive?" I guess these guys were caught off guard because they just started cracking up! Of course they said no and I was placed in the back seat. Once driving down 95 I asked where we were going for lunch!

Finally we made it down to Miami where I was once again put in a cell where I once again decided to to 100 sit ups simply because I had nothing better to do. I was then moved from the US Marshal Service cell to the BOP cell. Basically that means they walk you across an underground tunnel and hand you over from one government agency to another. You see the Marshals service is in charge of taking you to prison but the BOP is in charge of keeping you in prison. So now I was in my third jail cell for the day. Now these are real cells with actual bars. So as I sat in this new cell with my new friend Carlos, I decided to get back to my workout. Finally we were taken to what I refer to as check-in. We were brought to a room that looks like a hotel check in area and given a green jumpsuit and told to change....of course only after we were strip searched. Once I got out of my suit and put on my government issued clothing, I cam across my reflection and realized that I bore a strong resemblance to Gumby. Unfortunately I did not have my horse Pokey to ride out of this hell hole.

Finally the "bell hop" escorted me to my floor and as I got off the elevator I walked into a large room and saw around 100 faces staring at me. As I could tell, I was the only one on that floor who was not a shade of brown. In a bowl of chocolate and mocha ice cream, I was the lone vanilla chip. And as I stood there I was getting even paler! I turned to the guard and said, well this isn't so bad, we are here at night but during the day we get to move around the building right? He turns and me and gives me an evil smile that only a BOP officer can replicate and says, nope, this is it, there is no roaming around the building! Uh oh! He then tells me to go grab a mattress. I turn to him and say "by myself?" Clearly he was not going to be of assistance as I went into the mattress room and got myself a thin mattress that had an exterior of plastic and who knows how many venereal diseases. Visibly irritated, the officer told me to hurry up and was not happy when i asked him to hold on a second because I was looking for a good one! He then escorted me to my suite which was at the end of the hall. My room had a bunk bed, a toilet, a sink, a desk and two trunk like lockers. I was told to take the top bunk.

After he left me I decided to walk around the floor a little bit. Finally, a rather large African American approaches me and says in a rather loud voice "Hey" to which I responded as any other neanderthal would with "Hey!" He looks at me and says your my celly? I look at him and say "your what?" He says you know, My celly! I looked at him and as innocently as I could said "Um what's a celly?" Finally exasperated, he asks if I was staying in the room at the end of the hall. Once I told him yes, he told me that he was my celly. So lesson one for prison, a roommate is a celly.

That night he told me that he feels that the white man should agree to be enslaved for one week to the black man. He felt this is a reasonable request since the white man ensalved the balck man for 400 years in this country and he was only asking for a week. When I corrected him and told him that the US was only formed in 1776 and that slavery was abolished everywhere around 100 years later so his claim of 400 years was incorrect, he told me my numbers were wrong. Welcome to prison. Amazingly enough, I slept like a baby that night.

The point I am trying to make is that once the process of getting to prison is over, your mind can focus on other things. Even a hard day like the first day of prison can be laced with levity if the right attitude is maintained. In many ways freedom begins on the first day of prison.

Current Events: Weiner and Rothstein

Over the course of the past year or so, I have given some opinions based on my unique experience going through the complexities of the criminal justice system. Periodically, events in the press present themselves and accentuate points that I have made in various blogs. During the last week, two completely disconnected events have been directly on point on two topics I have written about at length in the previous year.

The first event was the sentencing of the now infamous from US representative, Anthony Weiner. Weiner was sentenced to 21 months in prison for sexting with a minor. He also must register as a sex offender which will affect him for the rest of his life.  I think everyone will agree that this a truly depraved individual who got off relatively easy in light of the fact that he is essentially a predator who has spent the better part of the last 10 years preying on underage girls.

As discussed in http://www.whitecollarguru.com/2017/03/the-plight-of-white-collar-that-is.html , The Plight of the White, I discuss how the criminal justice system is unnecessarily harsh toward white collar felons. I discuss how the bulk of the commutations issued by Obama were for non violent drug offenders. I discussed that often times the reason is political; wall street type guys tend to be demonized by the media. I make the argument that even  post release, the white collar felon is treated disproportionately harsh compared to non white collar crimes. This also touches on reasons to take a plea as discussed in http://www.whitecollarguru.com/2016/12/to-plea-or-not-to-plea-that-is-question.html and http://www.whitecollarguru.com/2016/12/to-plea-or-not-to-plea-part-2.html

And then we have Anthony Weiner. Is there no greater example of the dysfunction that prevails when it comes to sentencing guidelines. Who is more of a threat to society, a sexual predator or someone who made $100 thousand based on insider trading. Who is more dangerous, a politician who accepted a bribe or someone with a history of sending explicit pictures to underage girls and asking them to strip for him? In short, who is more of a threat to society, Jeff Skilling, Rod Blogojevich or Anthony Weiner. As a parent, the answer is clear; Anthony Weiner given the opportunity will do this again and is a serious threat to society. I'm not sure the other two could commit the same crime even if they tried.

One would assume that Weiner, because of his propensity to re-offend and because he preyed on children would have received the most severe sentence. However, consider that while Weiner received a 21 month sentence, Skilling received a sentence of 24 years (it was later reduced to 14) and Blagojevich got 14 years. Yes, the Skilling and Blago went to trial while Weiner took a plea, but does that justify such a disparity. True, Blago and Skilling will serve the bulk of their time at a camp while Weiner will not be eligible to go to a camp, but I'm pretty sure those two would give up the camp to knock 12 years off their sentences. Clearly, something is wrong here. Any system that punishes a Skilling to close to 10 times what a reprehensible animal such as Weiner gets is truly biased against the white collar felon.

The second event hits a little close to home. I have generally avoided speaking about the specifics of my case or the people involved, including the main perpetrator because I felt it detracts from the mission of the blog. However yesterday, some news did come out that relates to my discussion on cooperating with the government  http://www.whitecollarguru.com/2017/05/is-it-ok-to-snitch.html . I go through the pros and cons on cooperating in the interest of reducing time spent in prison.

Yesterday, it was revealed that Scott Rothstein, the mastermind of the scheme that sent over 30 people, including myself to prison will not receive a reduction from his 50 year sentence. I'm not going to go into details here whether I was a victim, co-conspirator or somewhere in between. For that you have to wait for the book to come out. Of course you can read a bit of it at https://www.wattpad.com/myworks/97336462-life-in-the-super-fast-lane. In any event, I am not embarrassed to state that knowing that this low life will not be a free man until he is 90 gave me no small amount of joy. In all likelihood he will die in prison, hopefully only after years of being somebody's girlfriend and very close to the end of the sentence.

But I digress. A little background is necessary. Rothstein did not go to trial. There was no point. He plead guilty and hoped for a lenient sentence in the 20 year range. No such luck. While the feds asked for 40 years, the judge gave him 50. Whoops! However, even before he took a plea Rothstein began cooperating. He managed to get a mafia figure on tape conspiring to commit a crime resulting in the figure going to prison. For this Rothstein was understandably put in the witness protection program while in prison. Even now, his name does not come up in the Bureau of Prisons database. While Rothstein continued to talk, the prosecutors filed a Rule 35 saying that they would ad some point in the future recommend a reduction in his sentence as a reward for his cooperation. At the time they said they were leaving it open ended as while the rules require that sentence reduction recommendations be submitted within a year of sentencing, Rothstein was not done talking. As such, they submitted and aid they would issue the recommendation at a later date.

When cooperating, there is one critical component; you need to tell the truth. If the prosecutors think a defendant is lying, he can say goodbye to the reduction. Unfortunately for Rothstein, he is either incapable of telling the truth or does not know the difference between truth and lie or has convinced himself the lies are true. To this day, I am not sure which of the three applies to him. Regardless, the prosecutors, it seems figured out early on that Rothstein was lying. They did not even want to call him as a witness at the one trial that actually took place. He was called as a defense witness. During his deposition, I was the target of many of his lies.  In any event, Rothstein did not keep his end of the bargain. Why didn't he just tell the truth? That is a question you need to ask him, if you can find him that is. The result of course was that yesterday the prosecutors filed a motion with the court that because Rothstein lied, he will not be getting his sentence reduction. And my message to Scott? Happy New Year! Oh, and be nice to Bubba!

THIS TOO SHALL PASS (both the bad and the good)

This too shall pass. If I had a dollar for every time someone said that to me during my seven year odyssey through all the  facets of the criminal justice system, it would have covered my settlement with the bankruptcy trustee! Well not quite but close. Whenever anyone wanted to offer words of support and consolation to me  he would remind that "This too shall pass." In other words, there will be a time when this chapter of your life will finally be over. Of course, none of them know when that will be, but that is another matter. The message is look forward, better times they are a'comin.

Indeed, the most common use of this saying is to remember that these bad times are merely temporary. At least that is what I used to think. One day, as my bunkmate at the camp was changing his shirt, and no I do not make it a habit to ogle other other men as they change (not there's anything wrong with that) I noticed he had a tattoo on his arm with that very saying. Up to that point I really thought this was a translation of a Jewish saying, yet this person  was not jewish; he did however, have a Jewish last name. In any event, I asked him if he got it when his criminal case started so that he can focus on the future. After I reassured him that he was not bunking with a homosexual who had a  crush on him, he told me that this was in-fact not the case at all. He told me that he got the tattoo when his daughter was born to remind him to treasure every moment with her as she grows up.  Kids, he reminded me, often grow up way to fast. That brief conversation altered by entire way of thinking and offers a poignant lesson for anyone in the midst of a prolonged criminal investigation or any challenge for that matter.

They key challenge for any defendant is balancing the need to be a responsible parent and enjoying life while at the same time being able to focus on the case. To sacrifice family time can be as damaging if not more damaging than not focusing on the case. Irreparable damage can be done by being an irresponsible parent, and there are no do-overs. On the other hand if one does not focus on his case, it may or may not have a meaningful influence on its outcome, but at least he will have strong family support when the legal troubles come to an end

When my case broke, my eldest had just started 1st grade, my second child was in pre-k and my youngest was not to be born for another three months. When my prison term concluded, my eldest was graduating 8th grade, my second was finishing 6th grade and my youngest was finishing 1st grade. Taken another way, my youngest, who was not yet born when my trials and tribulations began, was older than my oldest was at that time! My oldest's entire elementary and junior high school time could have been defined by by protracted battle with the federal government. The same can be said for my middle child's elementary school years.  Now factor in that I spent (only) 11 months in actual prison out of this seven and a half year struggle.

I would never have been able to forgive myself if I would have not enjoyed those years with my children as my case ebbed and flowed. Those are years that a parent can never get back. Even now, as my oldest child starts her high school career, I wonder where the time has gone. It seems like just yesterday she was learning how to crawl, and in the blink of an eye she is all grown up. There are no time machines and there are no do overs. We get one chance and once chance only to raise each child and if we miss it thats it. While it is tragic to be an absent parent if someone is incarcerated, it is infinitely worse to be a physically present but emotionally absent parent. A child can forgive a parent for being in prison and he perceives it as a circumstance beyond control but an emotionally absent parent will never be able to repair that relationship; never to be able to make up for the lost time. While I put forth a great deal of effort not to have the joy of watching my children grow up be negatively impacted by my legal issues, I nevertheless have regrets that I did not enjoy the experience as much as I could have. And those are times I can never get back.

Criminal cases are time consuming and they are emotionally draining. While it may be difficult, someone who unfortunately finds himself in such a situation needs to compartmentalize so that his legal troubles don't infiltrate the rest of his life. While a mistake that leads to incarcerations can be left in the past, the mistake made by not enjoying all of life's blessings such as a wife and such as children is a mistake that will last forever. Be it life's blessings or life's challenges, the same truism applies: This Too Shall Pass.

GOD BLESS THE USA!

Is it OK for a citizen of the United States of America to hate the United States of America? Does it matter if the basis of your hatred is that you do not like the President? Does it matter if your hatred is based on a belief that it is unfairly difficult some people to realize the "American Dream" while others have a perceived advantage. And finally, is it OK to hate the USA because of a belief that you are being targeted by the justice system? Does it matter if you are guilty or innocent?

Anyone who has been through the justice system, whether or not he has been incarcerated, has certainly wrestled with this question. There are times, when one feels unfairly targeted that there is nothing but blind hatred for a system that is at best biased The potential for hatred is only amplified, when faced with the reality that "innocent until proven guilty" has little application in the reality that is the current justice system. (http://www.whitecollarguru.com/2017/01/innocent-until-proven-guilty-or-guilty.html)

The potential for hatred, is even greater for someone who is forced to spend time incarcerated, especially upon realizing that prison rates in the USA are the world's highest at 724 per 100,000. Even Russia has a lower rate at 581 per 100,00 and the average is around 145 per 100,000. For an inmate at a prison it is very easy to develop a hatred for this country especially when he feels he has been unjustifiably incarcerated or received a sentence that is unnecessarily harsh compared to the crime committed. Even for the recently released, the obstacles can seem unfairly insurmountable. The stigma of being an ex felon never goes away and some rights are never restored.  Yes, it would seem that the justification for hatred exists.

Or does it? I remember, shortly before my release, I watched Colin Kaepernick register his protest of police brutality by refusing to stand for the the national anthem. I remember how many players, including some member of my beloved Miami Dolphins followed his example. I also remember how disgusted I was by this ridiculous display of protest. Colin Kaepernick earned a salary of over $14 million for the 2016 season. If there is anyone who should be grateful to this country it is him; and yet he kneels for the anthem? Where else in the world would he be able to reach such heights. Yes, he was protesting police brutality and support for Black Lives Matter, but one flaw, even if it is systematic does not negate all that his country has done for him. When Kapernick visited Miami last year he wore a t-shirt glorifying Fidel Castro; exemplifying hypocrisy at its best by supporting one of the greatest oppressors of freedom of our time. The examples are numerous. Dennis Rodman goes to visit North Korea. Alec Balwin is regularly threatening to leave the country. They seem to hate their country don't they? By the way, have any of them left?

When reading and watching current events, a realization comes into focus: the world is a very turbulent place. Venezuela has essentially dropped any pretense of being a democracy. The Middle East is in perpetual chaos. North Korea regularly sends prisoners to work in labor camps. In Russia, dissentis often met with an untimely accidental death. Our ally, Saudi Arabia regularly executes citizens for actions that we consider completely normal. Mexico's economy is so bad that its citizens try to come here, illegally nonetheless, for the chance to take a job below our minimum wage! We regularly hear about acts of terror in France. In Syria, Assad has killed hundreds of thousands of his own people.

Now lets look to  the USA, the object of our anger. Whether someone likes the president or hates the president the fact remains that who the president actually is has little bearing on the daily lives on the average US citizen. People hate trump, people hated Obama and people hated Bush. As history has shown regardless of who is president, the life of the average american remains largely unchanged. Our democracy is so resilient that it even allows for an athlete to disrespect the anthem of the country that give him the right for that very disrespect. Try sitting for the national anthem in China and see how that goes. Try publicly vilifying Putin in Russia and see if you are sleeping in your own bed that night. When foreigners are looking for a safe place to park their money,  nine times out of 10, they come here. Emigration is not a problem; immigration is.

No, the USA is not perfect and there are many aspects, especially when looking at the criminal justice system, that need to be fixed. And yes, an individual, or the family of an individual that is under indictment or even incarcerated will certainly resent or even hate this country. However, when the dust clears, he will realize that even if he was a victim of an unjust and arbitrary justice system there never has been, nor will there ever be a county as great as the United States of America. GOD BLESS THE USA!!!

Trump and Sessions Got It Wrong

Disclaimer: I am a registered Republican (although I can no longer vote) and would have supported President Trump in the last election.

In my inaugural blog, http://www.whitecollarguru.com/2016/12/does-prison-serve-purpose-and-for-whom.html I spoke about the underlying purposes for prison and how for many white collar crimes, prison does not always serve a purpose. Most of my comments thus far have been focused on the issues facing white collar defendants. I have mentioned on more than one occasion that someone who has never been through the justice system or the prison system can not properly opine on how to fix the system. I am going to digress for today and focus on non violent drug crimes as it has been in the news of late. 

Drugs are dangerous. There is no debating that Cocaine, Heroin, Fentanyl, need to be kept off the streets and that those who distribute them need to be punished under the theory that society does need to be protected from such individuals. Yes, they belong in prison.  In the 1980s the drug hysteria, gave rise to the (ongoing) war on drugs and with it mandatory minimum sentences. Unlike most cases where judges have discretion to go below sentencing guidelines, if the case involves a mandatory minimum, the judge does not. As seen from the chart http://famm.org/wp-content/uploads/2013/08/Chart-All-Fed-MMs-NW.pdf some of the minimums are quite harsh. It is quite probable that someone in his 20s will get 30 years in prison for a relatively small amount of drugs simply because it is his second offense. While no one will argue that prison time is an important remedy for drug trafficking offenses, 30 years is quite excessive. I have met quite a few individuals who are well into their 60s and have gotten such sentences. Having spent time with them, I assure you that there is no reason whatsoever for them to be incarcerated for such extended periods. They are by and large decent people who yes, made mistakes, but are not the "evil drug dealers" so often portrayed in the media. They are unable to return to drug dealing even if they would want to and they certainly do not represent a threat to society. What's worse is even when they are released, they are utterly unprepared to reintegrate into society. Their best and most productive years have been spent in prison. There are those who will argue that a 20 year sentence deters such crimes. This is argument is refuted that drug use is more prolific than ever. We have lost the war on drugs. According to the Center for Disease Control, fatal drug overdoses were the highest on record in 2014. Does anyone think for a second that mandatory minimums and all the money thrown at the war on drugs has even made a dent? The deterrent argument as a basis for mandatory minimums has been utterly refuted.

President Obama, recognized the insanity of these sentenced and commuted more sentenced than any of his predecessors. Almost all of his commutations were reserved for non violent drug offenses. The problem with Obama's approach was that he did not focus at all on many of the white collar inmates who were also serving disproportionately long sentences. Remember, one count of wire can carry a sentence of 20 years. Obama was interested in reducing the prison population and directed US Attorneys across the nation to adjust charges so as to avoid the mandatory minimums, According to a 2013 directive by then Attorney General Eric Holder, prosecutors were told not to specify the amount of drugs involved in cases of low level or non violent drug offenders thereby enabling judges to issue sentences below the mandatory minimums. Sadly, the the Trump administration through the new Attorney General Jeff Sessions, has withdrawn this memo and has directed prosecutors that "It is a core principle that prosecutors should charge and pursue the most serious, readily provable offense," http://www.politico.com/f/?id=0000015b-fbf5-de0a-a15f-fffdeb680000

The reasons for for this directive are quite curious. Is the Trump administration trying to establish itself as tough on crime? Are they trying to play into the fears of every parent by, in the face of evidence to the contrary, asserting that a policy of mandatory minimums will keep their children safe? Is Jeff Sessions motivated by racial prejudices since this is a policy that is likely to disproportionately affect minorities? Did the private prison companies such as Correction Corp of America  heavily donate to the Trump campaign? Is Russia building private prisons in Siberia so that they can be paid to house non violent drug offenders thereby replacing lost oil revenue? 

Whatever the reason for the decision, the directive is flawed and illogical. As Brett Tolman, a former US Attorney under George W Bush correctly observed, "Decades of experience shows we cannot arrest and incarcerate our way out of America’s drug problem. Instead, we must direct resources to treatment and to specifically combating violent crime. This will help law enforcement do our jobs better.” The approach of using excessive incarceration unnecessarily destroys lives, breaks up families and unnecessarily costs the government billion of dollars every year; money that can be better used forming a new and actually effective war on drugs. Mr. Sessions has it wrong.

Is It OK To Snitch??????

A typical white collar criminal case will have multiple defendants as even the most sophisticated crimes rely on at least the complacency of more than one individual. Sometimes everyone is charged in one indictment covering multiple defendants, sometimes each defendant is indicted in a separate case, and sometimes certain individuals are charged while others are not even though their conduct was essentially the same. Understanding why some cases are separated while some are joined is a question for prosecutors. On the question of who is charged and who is not, I have taken a cynical view on it and come to believe that those decisions are dictated on the basis on who they can get and who they do not think they can get. I also have come to believe that the more publicity a potential defendant has in a case, the more likely he is to be charged. Public perception can be a motivating factor and given two potential defendants who committed the same alleged act, the one with the greater public exposure is more likely to get charged. Does anyone really think Martha Stewart would have been indicted in a case that only prevented $45,000 in losses if she would not have been such a public figure? 

As previously discussed, most cases are settled not by going to trial but by pleading guilty to a lesser charge than what would be decided at trial. The goal of every person in that situation is to get as short of a sentence as possible. Prosecutors, will often dangle incentives to "help" shorten the sentence. Almost always this entails testifying against another defendant or giving them information to help them build a case against another defendant or even giving them information that they can use to induce another defendant to accept a plea. These mechanisms are known by rule 35 or 5k1 letters and have to be submitted by the prosecution. Essentially, they both ask the judge to reduce a sentence based on cooperation. In the interest of full disclosure, I did receive a rule 35 for what the prosecution says was my assistance in helping them extract a plea out of another defendant. I will tell you that for the most part, people who receive such reductions are not looked upon kindly in prison especially if their testimony resulted in someone going to prison who otherwise would not have and who really did nothing wrong. 

I take a somewhat unconventional view on the matter as you will see. Obviously, someone facing prison has to do whatever he can to minimize the impact on his family and therefore has to do whatever he can to make sure he gets out as soon as possible. On the other hand, is it really fair to do so at the expense of another family by helping to send someone to prison who never wronged you and who would otherwise not be sentenced? Is it fair to send someone who did wrong you but without you testimony would not go to prison? Is there a justification to lie to get someone else sent to prison if it means you will serve less time? Is it fair to aid the prosecutors if the person is going to prison but did not wrong you but you do have damaging information? Finally, is it alright to tell the prosecution to go after someone else whose actions were similar to yours but for some reason was not charged? These are such ethical dilemmas that most defendants confront when the prospect of incarceration move from possibility to probability. 

While the need for revenge is often innate, it is also a terrible characteristic. Someone who is vengeful is unable to focus on moving forward as he is always trying to avenge what happened in the past. He does not have peace of mind. If someone was complicit and wronged you was not charged, the odds are that he will get caught up in something else anyway. Similarly, someone who sends someone off to prison even if it is to lower his time is simply a selfish individual. There is nothing worse than a liar. The reality is that if a defendant is giving untruthful testimony, it will be discovered at trial anyway thereby eliminating any chance for a sentence reduction.

We are therefore left with the dilemma of cooperating against someone who is likely to go to prison anyway. Does it make a difference if he wronged you or is it fair to reason that since he is going to prison anyway, there is nothing inherently wrong about giving the prosecution some additional information? I can only base my opinion on my experience. If someone did wrong a defendant during the case, for example if he made misrepresentations to him and he is going to go to prison, in all likelihood anyway, I do not see any reason not to share any information with the prosecution if it means you will lessen your time. Yes, you are taking revenge to a degree, but your testimony is not necessarily the reason this person is going to prison; the prosecution had other information anyway. Furthermore, in many ways you are going to prison because of this other person. As far as giving information when there is no malice toward the other person, I am somewhat conflicted. I was not given such an opportunity so I cannot say for certain what I would have done, but I probably would not have gone out of my way to share that information. At the same time, I do not begrudge someone who would do so. The person who I did cooperate against was someone who was going to prison anyway and had certainly wronged me as well.

Karma is a bitch. I mentioned before that offering someone up who otherwise would not have been prosecuted, is selfish and vengeful. The universe tends to catch up with these types of people. These are people who manged to do something that resulted in your indictment which resulted in your taking a plea. Just because they escaped an indictment this time does not mean they will next time. I had such people in my case. Without going into detail, there were a few individuals who caused me to end up in my case and could have, if they wanted to taken steps that would have prevented my getting indicted. I certainly had information that may have resulted in these individuals being indicted, but I did not snitch.  Imagine, my surprise when over seven years later I was sitting in the prison camp, reading the Wall Street Journal and came across an article where the leader of the group that got me into this jam was indicted in a massive kickback scheme and was actually being snitched on by someone who helped him carry it out. He was being indicted on charges that he bribed the head of a union to invest funds into he fledgling hedge fund. While I am not proud of it, I felt no small measure of glee when I read this article. The point is, he did it to himself, and I did not have to employ the repugnant mechanism of revenge to make it happen. Incidentally, over the next six months the fund filed bankruptcy and more individuals were indicted.

The opposing goals of minimizing prison time but also no becoming a government witness is one of the hardest balancing acts a defendant has to perform. The fact that the government uses this as a tool can often be seen as unethical. Someone who wronged him will eventually get caught up in something else. Leave it to G-d to handle that! What a person has to realize is  that while the prison term will end, decisions he makes will remain with him for the rest of his life.

WHAT TO SAY AND WHAT NOT TO SAY TO CHILDREN

Being a parent is quite possibly the greatest responsibility  any individual will take upon himself or herself. There is no greater challenge than to be a parent. A person is literally responsible for both the physical and mental health for another human being. This responsibility is in no way abrogated when facing criminal charges, facing prison or even when serving time in prison. If anything a parent in these situations has to take extra steps to make sure that the legal issues he faces does cause him to become derelict in his responsibilities as a parent. Of course, since children will be affected by the trial and/or prison sentence and may be exposed to any potential media coverage of the parent under investigation it is important to understand how to talk yo you children and how how much to tell them. Regardless of how much is said, a child is being asked to grow up a little too fast when a parent is facing criminal charges. The key is to keep a constant balance by telling them enough too keep them prepared but not too much so as to create undue anxiety.

A lot depends on the age of your children. If the children are very young and nothing in the way of a trial or plea is imminent, there really is no reason to tell them very much if anything at all. They will most likely not understand and children are scared by nature. Nothing good will come from telling a child under the age of 10 or so information that he  won'y find out on his own anyway. With children that age, it is best to remember that they need to be insulated as much as possible and the legal troubles outside the home must never impact the ability to be a parent inside the home.

If the children are older, the approach is not as simple. Obviously, if there are articles written about the parent and if their friends in school will know it is important to let them know what is going on. Children need to be told that just because something is written in the newspaper or online does not mean it is true. Unfortunately, the reality is that 90% of the "facts" printed in the newspaper are at best inaccurate and the percentage is even higher for what is posted online. Children even when they are older tend to be scared of the unknown. The need to be reminded that their parents love them and that hopefully everything will work out for the best. It is important to convey to the children that you understand they may have questions and that they can ask them as well.

As the case progresses, kids need to be somewhat included in the developments. For example, if a child finds out on 24 hours notice that his father is going to prison he will be very scared, upset and will not have the time necessary to mentally prepare for what is going to be a cataclysmic change in his life. This does not bode well for trust between a parent and child post-incarceration. By the same token, if an indictment may or may not come or may not come for a couple of years, there is really no point in inserting needless anxiety into a child's life. My wife and I wrestled with how much to tell our children and when, all the while knowing that in the age of Google, they will most likely at some point of their lives research the case on their own anyway.

Once and indictment is imminent, and assuming the children are old enough to understand certain complexities, it is critical to let them know what is going on. Again, less is more. They do need to be told something, just not everything. The only thing worse than their children finding on the 5 o'clock news or from a friend that their parent has been indicted or arrested is the child realizing that the parents knew that this was happening and did not let them know. There obviously needs to be a careful balance here as it is important for children to hold their parents in high regard yet there is a need for honesty. Telling a child that nothing is going to happen, and the parent is not going to have to go away for a while is not advisable since it may not be true. If the parent does have to serve some time, in the eyes of the child he is not only a criminal but a liar as well. A better approach is to tell them that hopefully everything will be fine and just because someone is arrested does not necessarily mean that prison is in the future. It is obviously important to remind the children that you love them unconditionally and that no matter what happens that will not change.

Things get a little more complicated when a plea has been agreed upon. A child's reaction, especially a child who has already learned the basic legal concept of innocent until proven guilty, will be so confused as to why a plea is being taken instead of going to trial where the government will have to prove guilt "beyond a reasonable doubt". As I have discussed in previous blogs, when contemplating a plea, issues such a guilt or innocence are essentially irrelevant. This is the approach a parent has to keep in mind when explaining why a plea is being taken. If the child is old enough, he has had time to mentally adjust to the new reality and has at least contemplated the notion of a parent being gone for some time. Rather, than focus on the issue of guilt and innocence, it is better to reorient the conversation by focusing on what is best for the family. A child needs to understand, that this is what is best because in the even the parent does go to trial, there is a chance he will be found guilty and will have to spend more time in prison that he will by taking a plea. My taking a plea, a parent is doing what is best for the family because while he will be absent for some time in the near future, this is a temporary situation. Essentially, a parent is telling the child that "I want to make sure I am there to watch you grow up, and I am not going to risk missing that for anything even if it means I have to leave the family for a little while".  This approach accomplishes three goal. Firstly, it avoids exposing the children to the anxiety of a trial, secondly it provides a measure of closure for the children, and lastly and quite possibly most critically, it shows the children that you love them and that your decisions are being made because you care about them.

When a parent contemplates the types of conversations he will have with children of his lifetime, issues surrounding incarceration probably do not make the list. What makes it even more complicated is that a parent has to ensure his children are not neglected. At the same time, once the children do know what is going on, that they feel comfortable enough to talk to the parents with any fears they may have. Every child is different and there really is no magic formula. For some children, the knowledge that their parents are willing to listen to their concerns at any time, is comfort enough. For others, there may be a need to enlist an outside professional. My wife and I did not seek outside professional help and looking back, I think that was the right decision. Once I was indicted, we kept the children appraised of the major developments with the oldest knowing a lot while the youngest knew relatively nothing. As with any other issues a parent faces when raising children, what is said is just as important as what is not said.