Pleading Guilty To Something That Is Not A Crime: Is Donald Trump Right?

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As predicted in my last blog, Michael Cohen pleaded guilty this week. This was not a shock. What did come as a shock was that he pleaded guilty violating campaign finance laws and even claimed that he did so at the direction of then-candidate Donald Trump. For those anti-Trumpers out there, this was a watershed moment; finally, someone in Trump’s inner circle had confirmed that Trump "stole" the election. It may not be Russia, but it is at least something. The Trump defenders took the opposite approach. They simply said that Cohen is lying to save his own skin. In either case, as I wrote last month, Cohen is going to be labeled a government snitch and that stigma will make life unpleasant in prison.

The President took another approach. As usual he took to Twitter and wrote:

"Michael Cohen plead guilty to two counts of campaign finance violations that are not a crime."

Well that is certainly confusing! How could someone plead guilty to something that is not a crime? How could a prosecutor allow someone to plead guilty if what he did was not a crime? How could a judge allow someone to plead guilty to something that is not a crime? On the surface, the President seemed to be tweeting total nonsense!

Or was he? There is a belief that most trials come down to facts. It is a test of he said-she said. Did he commit murder, or did he not commit murder? Did he commit rape or was the sex consensual? The prosecution presents evidence to prove their case and the defense tries to poke holes in the story to establish reasonable doubt. Ultimately, the case comes down to who the jury believes. If they believe the prosecutor's version, then a guilty verdict is handed down. If they believe the defense, then a not guilty verdict is handed down.

White collar issues are not always so cut and dry. Sure, there can be a question if a bribe took place. Yes, there can be a question of who was involved and who was not involved in a fraud. However, very often, in white collar cases the facts are not up for debate. It is conceivable that the prosecution and the defense agree on 100% of the facts surrounding the case. They all agree a payment was made. They all agree a wire transfer took place. In that case, how is it that there can even be a trial?

White collar crimes are ambiguous. Many of the laws were written long ago before many of the advents of modern finance leaving the courts or prosecutors to interpret their application. Very often, the prosecutors apply the law to areas never intended and it can be up to the Supreme Court to be tasked with interpreting the law. In these types of situations, the trial centers around not what happened but whether if a specific action was illegal. How we can expect a jury to be tasked with interpreting a law, when even the lawyers cannot agree, is in and of itself a systematic flaw in our criminal justice system. Sure, a defendant can opt for a waiver of a jury trial and ask that the judge determine guilt or innocence but that can only be done with the permission of the prosecutor. That also adds an additional daunting prospect of having the person who actually found a defendant guilty also deciding on a sentence. 

During these trials, the prosecution presents its case and tries to show that not only were the actions committed by the defendant illegal, he also had intent to commit a crime which is necessary to be found guilty. The defense attempts to show that the actions committed were not criminal actions. The defense may even make the case that while distasteful or unethical, they were not illegal. The recent trials of Sheldon Silver, Dean Skelos and Senator Menendez were all cases where for the most part the facts were agreed on, but it was left to a jury to decide if the actions were illegal.

When it comes to Michael Cohen, there is no disputing the facts. The entire country knows that he paid off Stephanie Clifford to not speak about an affair she claims to have has with the President. There is also no disputing that he arranged a payment from the National Enquirer to a Playboy model to buy her story about an affair she claims to have had with the President. The only questions are 1. Were these payments illegal? and 2. Did Donald Trump know about these payments before they were made? Rudy Giuliani, on Fox News stated back in May that even if the President knew about it and even if he would have made the payments himself, this would not have violated campaign finance laws as no campaign funds were used for these payments. A representative of FERC even stated that these payments were not illegal irrespective of whether Donald Trump had knowledge. People have paid off women to be quiet with a lot less on the line. On the other hand, the prosecutors took the position that any payment made to attempt to influence an election is a violation of campaign finance laws. 

Michael Cohen took a plea. He did so for one reason and for one reason only: to avoid the risk of a longer sentence had he been found guilty at trial. That is the reason, aside from financial, anyone would take a plea. As a result of his plea, the prosecutors have agreed to recommend a sentence of 3-5 years, although the judge can give him significantly more. As part of that plea he had to concede that the payments made were, in-fact, in violation of US law, even if that law is ambiguous and he does not believe they were. In order to show that there was clear intent to influence an election, he had to state that these payments were made at the direction of "A candidate for federal office".  Those were the conditions of the plea. He did not have to admit to an action he did not do, as is the case in many other types of plea deals; rather, he has to concede that an action he did commit was in violation of US law. Incidentally, should that law change or be overturned, he can attempt to have his conviction vacated.

President Trump, upon seeing this took the defense position. His position, as backed up by his lawyers is that Michael Cohen pleaded guilty to something that is not a crime; the very position maintained by Cohen until he decided to accept a plea. Michael Cohen had no choice. If he wanted to avoid a trial, he had to cave to the demands of the prosecutors and even implicate ad flip on a sitting president. Often referred to as extortion, this is the justice system at its absolute worst.

So, who is right? Well since there was no trial and no jury to weigh in on the matter, they both are. Michael Cohen has simply "embraced" the prosecution's application of the law. In contrast, The President refuses to accept that the campaign finance laws can be so liberally applied. But as far as the President is concerned Cohen pleaded guilty to something that is not a crime. And guess what. Cohen is not the first and certainly not the last. Sadly, this happens every single day.

Note: I am not a lawyer, and nothing here should be considered legal advice.

Michael Cohen Is Going to Jail. And It Will Be Very Bad For Him.

Michael Cohen is going to prison. No he has not been indicted. No he has not been charged in any complaint so far. But the one thing that is for certain is that he is going to prison and probably for more that a year.

How do I know this? No, I do not have any inside information. Nor am I privy to any details of the Mueller investigation. I am just seeing the facts as they come out and it seems to me he is doing everything in his power to cut the best deal possible because Michael Cohen committed more than a few illegal acts. Let us examine the facts:

1. He taped a conversation with his client who at the time was the Republican candidate for President of the United States. Aside from the fact that no lawyer should be allowed to tape a conversation with his client, he clearly did so with the intent to use the recording at a later date when he was caught. Why else would he decide to tape his client? If my lawyers did that without my knowledge, you can be sure that my first phone call would be to the Bar. I would then try to recoup all of the fees paid to him. The only motivation for this tape would be to either gain favor with a prosecutor or to (illegally) blackmail the President. At the very least either one of these will lead to his losing his license to practice law.

2. Michael Cohen has not asserted that the tapes fall under attorney-client privilege. Now clearly the President won't do so as it will make it look like he is trying to cover something up. But for Cohen, by not asserting the privilege, we can only conclude that he is all too happy to use the tape as a bargaining chip.

3. Michael Cohen's lawyers are now saying that President Trump knew about the meeting with the Russians. Now he offers no proof at all but he is saying that not only was the campaign involved in collusion, the President himself was well aware of it. It is quite obvious that if there is proof that Donald Trump colluded with the Russians, then he is in big trouble. Again, however, imparting this would seem to violate the attorney-client privilege. To be sure, I seem to remember that privilege can be broken when illegal acts are committed, but it is the prosecution that needs to prove that. It is not for the lawyer to decide.

Why is Michael Cohen doing this? I suppose one could argue that he is offended that the President has not reached out to him since the raid on his office. But if Michael Cohen was so sure that he did nothing wrong, then why start cooperating and making allegations about the President without any proof? The answer is simple. Michael Cohen is in the process of or has already worked out a deal to plead guilty to some offense and go to prison.

Can we blame him? I have said multiple times that the most important part when it comes to evaluating whether to take a plea is the family. It could be as simple as Michael Cohen preferring to go away for five years instead of 20.

There is something else worth considering however. While it is understandable for an innocent person to plead guilty, snitching is another matter. The decision to snitch, and when I say snitch, I mean give over information that had the prosecutors not had it, another person would not be indicted, is a hairy issue even when all of the facts are true and there is evidence to back it up. Even then it is viewed as selfish. Indeed, many people spend additional years in prison so that they do not implicate other people. I know many people like this. It takes a pretty low person to attempt to sacrifice another person to lessen his time, especially when that person is someone who basically made you what you are and did nothing to you. By bringing someone else down a defendant is taking another man away from his family. This is unconscionable.

The life of a snitch is also not so pleasant in prison. While it is clearly worse if someone has to go to a higher security facility, even in camps he is branded as a snitch. Other prisoners will avoid him. His reputation is sullied as soon as people find out, and in prison, everyone find out. Michael Cohen is going to go to prison as a snitch who attempted to bring down a President by divulging information that may not be true and by recording his client. How do you think that is going to go for him?  I can tell you one thing, it will not go well. So Mr. Cohen, I hope it was worth it because prison, which on its best day is unpleasant is going to be especially miserable for you. And you deserve it!

SUICIDE

I have just finished watching season 2 of 13 Reasons Why. For those who are not familiar with this program on Netflix, it deals with a troubled high school student who takes her life. She dealt with various challenges such as bullying in school to the point that she saw no way out and ultimately committed suicide. The show got me thinking about adult suicide and the pressures we as adults face every day.

While adults generally do not have to face issues such as bullying, we are faced with our own sorts of challenges every single day. The pressures can range from financial, to personal to health to just an overall feeling of depression. Adults sadly can feel they have nowhere to turn and often view suicide as a plausible way out. Earlier this week, fashion icon Kate Spade took her own life leaving behind a 13 year old daughter. Just today, celebrity chef Anthony Bourdain was found dead in an apparent suicide. What could have possibly been so bad in either of their lives that all of their friends and all of their wealth could not have solved? What drove them to it?


To put this in context, imagine the following scenario. A person has one dream and that dream is to simply have an orange grove. It is not a lofty dream but it his dream nonetheless. Over time he purchases land and plants orange trees. He then adds more land and plant more trees. Finally, after 20 years of hard work and of putting every spare time into his life's long dream he has thousands of acres of orange trees. His life's work is finally complete. Then, just as everything is completed, a small fire breaks out on one end of the grove. Slowly, it spreads and within 30 minutes, the entire grove is engulfed in flames. He watches helplessly as tree by tree, his beloved orange grove burns to the ground. Finally, when the fire is put out, he looks out at his land and the charred remains of his life's work. Just like that, everything he worked for is gone. His life has seemingly been for nothing.

A white collar defendant faces many of the same challenges. I am going to work off the assumption that most if not all white collar defendants have worked to establish themselves in their chosen field. I know I did. We spend time building a reputation as successful members of our chosen fields. We work hard to build ourselves up so that we have successful businesses. This does not happen overnight. This takes years and years of hard work and, if we are lucky, the hard work pays off in the form of personal and financial success. As a result of our successes, our personal reputations are enhanced and we take on leadership positions in our communities and social circles. This is the American dream at its best.

Then one day everything changes. One day, we wake up and it is all gone. Business? Gone. Reputation? Gone. Leadership positions? Gone. Instead of waking up every morning and focusing on a career, every day is filled with conference calls with lawyers to handle a criminal investigation and indictment. Not only has an income been severely negatively impacted, legal fees are quickly adding up and even surpass months and years' worth of incomes. The pressure keeps getting greater and greater and we see no way out. It dawns on us that we are worth more dead than alive. To make matters worse, if we have families, they will be facing the prospect, through no fault of their own, of coming along for the ride of a trial and the realistic prospect of having the main income producer go to prison for what may be a very long time. Maybe, they are better off without us. Maybe we should just end it all and spare them the pain. Maybe suicide is the best option because then the pressure is gone and the family can just move on.

What I have  just described is not a hypothetical situation, nor is it fiction. It is a very real thought process that enters the mind of virtually every white collar defendant who, like myself, had his life change overnight. I am not here to glorify suicide. Quite the contrary, I believe suicide is the coward's way out. Someone who commits suicide, assuming he is of sound mind, is a selfish fool who would rather have other people clean up his mess rather than deal with it himself. However, when a person is faced with such enormous pressure, he is not necessarily thinking clearly. He just wants it all to go away; even if that means he has to take his own life. Sadly, we have seen many cases where financial or legal pressures have led to individuals committing suicide. On one level we saw it in 1929 when the stock market crashed, but in recent years, especially in the Madoff case, quite a few people have chosen to take their lives rather than deal with the storm they were facing.

So how am I alive? I can tell you that these thoughts never crossed my mind. I can tell you that I have amazing coping mechanisms that allowed me to deal with not only my life changing over the course of a weekend but allowed me to deal with seven years of pressure that I would not wish on anybody. I can tell you that I was prepared so none of it came as a surprise. And if I said any of those things I would be lying.  Did I ever seriously consider it? No, but as they do with almost every person whose world suddenly comes crashing down, there were those dark days when the thoughts did enter my mind. There were those days when just for a second, I believed that my family, my community, my friends and the world would be better off without me. In hindsight, it is amazing to me that the criminal lawyers do not send their clients straight to suicide prevention from their offices because everyone deals with these thoughts on some level.

There is an old adage that states that misery loves company. There is great truth to that. Most people, if they are poor do not mind it as long as everyone else they know is just as poor. In fact, everyone is quite happy with their station in life.  Now what happens if everyone in the town strikes it rich except for one person. Well suddenly, he is miserable. Has his life changed? No, but looking at everyone else he feels as though he is lacking. What if that person would suddenly strike it rich? Certainly, he would be happy. What happens if while he is rich he makes a bad investment and is reduced to the same station in life prior to his becoming wealthy. Suddenly he is unhappy! But why should this be? If he was happy before he became wealthy, then he should still be happy once he ceases to be wealthy.

Human nature is such that we focus on what everyone else has and not on what we have. Similarly, we tend to focus on what we have lost and not on what remains. In the first example, the person was focused on everyone else even though nothing changed in his life. In the second, he was unhappy because he is upset over what he lost, not on what he has. For someone whose life was just upended, both of these enter his mind simultaneously. Firstly, he sees that he is alone in his plight. Everyone else's life is continuing but suddenly he does not have the same prestige or wealth. Similarly, it is natural for someone to mourn the loss of his career, wealth or status. While handling one of these challenges is difficult in its own right, dealing with both simultaneously can lead one to well, suicide.

When this happens, there is only one way to escape these dark thoughts. A person needs to take a step back and focus on something good in his life. In other words, he needs to focus not what he has lost but on what he has. For some it may be difficult, but the key is to focus on something. But step one is to take a step back from the situation and look at the good things that are left.

There was a good amount of time from 2010-2012 where I could not sleep without the use of Ambien. I just had too much on my mind and there was too much uncertainty. I used to roam the house would look in on my kids as they slept.  At the time were ranging between the ages of 1 month to 10 years. They were all normal healthy, smart happy kids. I focused on that. I thought about what it would mean for them if they had to grow up without a father. I thought about the total mess that they and my wife would be forced to clean up if I decided to give up. I thought about the notion of not being there for all of their milestones in life. In other words I took stock of my life. I had a (mostly) happy marriage and three great kids. If only Kate Spade had done the same thing.

At the other end of the spectrum, there is nothing like something bad happening that forces a defendant to realize that there are a lot of worse things than going to prison. I imagine that most people would rather face prison than the worst form of cancer. I imagine as parents most of us would rather face prison then have harm come to our children. I got my own reality check somewhere in 2012. It was a Saturday afternoon we had some friends over for the Shabbat afternoon meal. I still remember was I watched in horror as my two year old fell 10 feet off a staircase and landed on her head on our marble floor. Panic ensued. We were yelling at her to keep her eyes open. Finally,  after what felt like an eternity, the cops and the ambulance arrived. They told us that they needed to airlift her to the trauma center. My wife went in the helicopter and I drove to the hospital by myself well aware that based on how much I drank that day, I was in no position to be driving. When you are by yourself driving to a hospital with a child simultaneously being airlifted, you suddenly realize that everything, and I mean everything that you think is wrong in your life is suddenly not that important. Suddenly, prison did not seem so bad. As I was driving I said "G-d, do what you want to me, send me to prison for as long as you want, take whatever else you want, but just make sure this kid is OK." Thankfully, and likely miraculously, she was fine and we brought her home that night. Even a hematoma that appeared on the initial x-ray, miraculously disappeared the following day. That day changed me, If I was going to go to prison, I was fine with it because my child was once again healthy. I had made a deal with G-d and was all to happy for Him to collect. Over one weekend, prison got a lot less scary, all because I learned what real fear was.

I am going to say it again. Suicide is a coward's way out. Kate Spade left her 13 year old daughter without a mother rather than deal with whatever issues she was battling. Is that responsible? No, I think it is inconsiderate and cowardly. For a defendant, and for anyone battling various issues in his life, the key is simply to shift the focus. Continually lamenting on one's plight is not helpful and will likely lead to dark and disturbing places. By focusing on the good and not on the bad, on what we have and not what we are lacking, on what we have to live for and not on what we can't live with, these thoughts will vanish, and you will get through it. I Promise.

You Only Live Once

This past weekend my family and I celebrated my son's Bar Mitzva. For those who are not familiar with what a Bar Mitzvah is, it is when a boy turns 13 and "becomes a man." It is a time for celebration and is the most important milestone in a young man's life. In other words, it is kind of a big deal.

Now I am not saying that my son's bar mitzvah was more of a big deal than another child's. However, my time in prison gave me a little more appreciation for the day than those who are lucky enough to not have to deal with it. It was not always a forgone conclusion that I would be there and it was certainly not a certainty that even if I was there that I would be able to fully enjoy the experience. When I was indicted in 2015,  my son was almost 10; three years shy of his bar mitzvah. My initial indictment had multiple counts with each one carrying a maximum sentence of 20 years. On paper at least, I was facing a potential prison term of over 100 years. Now obviously, many other factors come into play when a sentence is handed down but 20 years was certainly not out of the question if I would have been found guilty on all of the counts in the indictment. My lawyers estimated that in actuality if I were to go to trial and lose I was looking at a very realistic possibility of receiving a 10 year sentence. 10 years.

And that is when, as they say, the shit gets real. 10 years. At the time, an acceptable plea was not yet on the table so I had to contemplate what 10 years was going to feel like. Allow me to explain what goes through a person's brain when contemplating 10 years in federal prison. I looked at my 12 year old daughter and realized I would basically be missing her life in high school and college as she would be 22 when I got out. I looked at my 5 year old daughter and thought of her growing up without he knowing her father and me without really knowing her either. I looked at my 10 year old son and realized that 10 years in prison meant that there was a pretty good chance that he would not have his father around when he became a bar mitzva. Finally I looked at my wife and wondered how any marriage can survive when one member has to spend a decade in prison. And even if it could survive, should it? I think on some level I knew at that moment that no matter how innocent I felt I was, no matter how unjust my prosecution appeared to be, I was not going to go to trial. I was not going to risk missing out on the bar mitzva or any other important event for that matter.

Now I did find out that 10 years, 120 months is not really 10 years. Factoring good time, I was looking at around eight and a half years. I would probably get a year off for the alcohol program which would take me down to seven and a half years and I probably could have worked out to spend the last year split between  half way house and home confinement. In other words, 10 years would probably "only" been six and a half to seven  years in actual prison. Well it is not as bad as 10 years but six and a half years is still a very long time to be away. Assuming that I would have gone to trial in 2016 and lost, I would still have over four years left as of this past weekend when the bar mitzvah took place. My ability to attend would certainly have not been certain.

So what is my point? Well the first point is that there are events in life that once they pass are gone forever. Most of us take it for granted that these events will come to pass and we will be there for them, be it a high school graduation, a sweet 16, the marriage of a child or even a bar or bat mitzvah. We do not believe and certainly cannot conceive a scenario where we will not be there. We assume that we will remain in good health and we assume that there will not be other impediments to our being present at these important events. Unfortunately, things very rarely go according to plan. Only once faced with the prospect of not being there for an important day or event does the magnitude of its importance come to the surface. So yes, having faced this possibility of not being there and having actually spent time in prison, I do think that I experienced a joy that most parents cannot appreciate. On the other hand, at every special event such as this one, everyone should experience that same joy because circumstances can change in the blink of an eye. Maybe the problem is that we do take things for granted and once in a while we need a good kick in the ass to remind us what is important.

On a more practical level for a defendant facing trial, these issues must come in to play when considering a plea. As I have stated many times, when considering a plea, issues of guilt or innocence need to be completely discarded. Unfortunately, the system is such that if a defendant goest to trial, and loses, he gets a much worse sentence than the government was content with had he avoided a trial and pled guilty.  We are now playing the game of Risk. And make no mistake about it, to the prosecutor this is one big game where the government has a tremendous advantage. How much risk is someone willing to take to try and avoid prison? How many events is he willing to risk avoid missing? Is he willing to risk having his children grow up without a parent? Yes, these are hard questions. And yes the plea has to be evaluated when compared to the worst possible outcome at trial. But nevertheless, the question has to be asked.

I elected to take the plea. I was not willing to risk it. Could I have won at trial or had a guilty verdict overturned on appeal? Maybe. But then again, based on my plea, I was looking at a year in actual prison. One year on a plea or six and a half best case scenario if I went to trial and lost. For me, the choice was simple. I was going to the bar mitzvah and I was not going to take any risk and miss it! After all, you only live once!

I'VE BEEN SCROOGLED (SCREWED BY GOOGLE)

I hate Google. I mean I really hate Google.

What do you do when you meet someone? You google him. There was a time when looking into the background of every person you met was considered borderline stalking. Now, it is almost an obligation to google any and every person you meet anywhere. Yes, I am guilty as well. Within two minutes of googling someone, I can see their Facebook profile, LinkedIn profile, and any article both good and bad that has been written about him. I also get to see who hates him so much that they decided to write about him on a message board to say how bad of a boyfriend he was in college.
This is the new normal.

For the recently released felon, this is a major impediment to resuming some sense of normalcy. My name is Michael Szafranski. Yes, it is spelled S Z A F R A N S K I. Yes, the Z is silent. No, I do not know why it is there. Yes, I know in Polish SZ is actually SH, but I make it silent. No, I did not think of changing it to make it easier for OTHER people to spell. This has been my life ever since I can remember. Oh, of course there of those times when I am on the phone with India giving over my information where I get to assign a word to each letter. S as in Sam, Z as in Zebra, and ending with I as in India (I used to say Indian but that apparently is taboo these days).

Surprisingly enough, Michael Szafranski is not as uncommon as one would think. Michael Szafranski from Tampa once called me demanding to be reimbursed because he paid my speeding ticket that I got in Seattle. It seems the State of Washington ignored the address on my license and sent him the bill when I forgot to pay the ticket. He paid it even though he had not been in Seattle since 1977. Hey, no one said all Michael Szafranskis were smart! Another Michael Szafranski was a colonel in the US air-force. Another one is a mildly famous skateboarder. And there is one especially unlucky Michael Szafranki who had a financial services company in Fort Lauderdale in 2009. And then there is me.
So while the name is unusual, it is not as unusual as one may think. Of course, when that name suddenly becomes attached to the most notorious financial fraud in South Florida history, that name becomes toxic.

I first became aware of my plight back in 2011 when I applied to become an AAMCO franchisee; clearly from a reputation standpoint I was finished in the money management business. They sat me down and showed me some articles that were about me. Obviously I had seen these articles when they came out.  Keep in mind that they paid an external company to do this. I simply told them that these were merely allegations and that I had no idea how this would turn out. Well this was enough for them. The fact that I was able to pay the franchise fee was also a mitigating factor. As I continued along my eight year odyssey I simply dealt with those sorts of situations. I figured that when I was finally cleared of all charges, it would not matter. Even if I did go to prison, when it was over, it would not matter. Yes, as was normally the case, I was delusional.

Well now here I am post release, and simply trying to move on. Yet, that damn google just will not let me. Two weeks ago a received a call from someone with whom I was trying to establish a business relationship. We had been in regular contact for about two weeks. He calls me on a Friday and says "Are you Michael Szafranski who was involved in that Rothstein thing?" Of course, I said yes. He then tells me that that must have been incredible and "How will you ever come back from that?" So as I stood there on my driveway with my middle finger at the phone, I basically told him that I am fortunate to have supportive friends and family and I someone does not want to do business with me well then frankly they can go to hell. Of course  he realized that I was not caught off guard by this question and told me that since my name is just so unusual he felt need to google me. I countered with "Don't you think that if I was trying to hide this, I would simply just change my name on my email? Clearly, I am not trying to hide anything!" I am not sure if this person was astute enough to realize that I was telling him to go to hell but I ended the call by saying that I have more pressing matters to focus on than people who have nothing better to do google people they have never met.

Today, literally an hour ago something similar happened. Without getting too much into detail I was working as an intermediary to put something together. Suddenly, yesterday, everyone one one side stopped calling me back. Then today I got a call from the side that I am still talking to that the side that won't call me back called them directly. They looked into my background and decided they would rather deal with the other side directly instead of with me as the intermediary. While I was assured by the one side who has no issue with me that I would not suffer in any way because of it, it was nevertheless demoralizing. What is even more galling is that they would not confront me directly.

So how do I now deal with this? How does any ex felon deal with this. Should I change my name just for "professional reasons"? Well the problem with that is that when the truth does come out, and it will, it looks as though I was trying to hide my past. This does not exactly reflect well on someone who has spent time behind bars. Do I change it legally? It may take longer, but again, it will likely come out at some point? Do I invest in one of the reputation repair companies that specialize in somehow moving the negative articles to page 2 of the google search? Let's get real, that will never work for me. Or do I silently take a screw you approach? You don't want to be in business with me?Well that's your loss. Do I make the decision to hold my head up high, not hide from anything, with the knowledge that what goes around does come around? With that I am showing people that I hide from nothing! No, it is all out there. You like it? Great. If you don't well that's on you. But at least I have the chutzpa to actually be true to who I am which is more than I can say for the people who sit at home googling everyone they meet.

The Farmer in the Hell: State Senator Gary Farmer

Why do the good suffer while the evil prosper?  Is it random or is it all part of a master plan?  From our simplistic point of view, we cannot ascertain the reasons for apparent randomness and attempting to understand the complexities of the universe will likely drive a person insane.

The criminal justice system is not very different. In many ways it is a microcosm on the universe itself in that it seems that prosecutions are handed down at random. As was pointed out in an op-ed in the Wall Street Journal this week, if we are to become over zealous in prosecuting politicians, we will find that almost every American has violated some law at some point.

However, I am not even referring to that sort of randomness. No, what I am referring to is even within an individual case, it often seems as though prosecutors draw lots to determine who they are going to target and who they will leave alone. Indeed, I myself have asked myself why I was targeted when many individuals engaged in the same exact activity that landed me in prison.  True, at the time we all believed we were doing nothing wrong, but at the end of the day, I  agreed to plead guilty to something done my plenty of others alongside me. Yet they were not prosecuted. Is it fair? No. Sometimes you just have to accept your fate. I was completely past it. At least I thought I was.

I am going to try to keep this brief as much of this will be eventually be covered in a book. As with any Ponzi scheme, the perpetrator cannot work alone; he needs co-conspirators. Since Scott Rothstein was in the structured settlement business, he needed lawyers to vouch for what he was doing. Without going into detail, during the summer of 2009, many of the settlements were class action type lawsuits. Now Rothstein, was a labor and employment  lawyer and class action law was clearly, by his own admission outside his area of expertise. Well, it is a good thing he was head of a law firm  with a class action division! It is even better that the head of that division was none other than Gary Farmer. Yes Gary Farmer who is now State Senator Gary Farmer from Broward County.

So who was Gary Farmer? Well by all accounts, Gary Farmer was a very good lawyer. Scott touted his as his "qui tam and class action" guy. Indeed, Gary Farmer was involved in one of the largest whistle blower cases in history whereby Eli Lilly entered into a $1.42 billion settlement for unlawful marketing of a drug called Zyprexa. Bob Norman, who has done his share of inaccurate hit jobs on me does a pretty nice hob summing it up. http://www.browardpalmbeach.com/news/inside-the-rothstein-swindle-part-ii-6449360 It also seems that Gary Farmer settled two other cases against Eli Lilly at his firm set up with RRA alumni Seth Lehrman and Brad Edwards. (We will get to Edwards another time)

Now obviously, when Rothstein started marketing class action cases, we were curious how he migrated from run of the mill Stormy Daniels type settlements to cases involving companies that were doing billions in revenues every year. Scott told me that all questions regarding these cases should simply be directed to Gary Farmer. Gary, he told me, "sees things in cases and is able to find class action cases from one plaintiff". I decided that I was going to google Gary Farmer to see if he really was involved in a billion dollar settlement and sure enough, it checked out. So when Scott suggested that I speak to Farmer, that is exactly what I did.

Multiple times, in the office and at the bar downstairs I spoke with Gary Farmer about the "confidential class action cases" against Pratt and Whitney and Dole Foods. Gary confirmed that these were his cases and that he was involved in the qui tam case itself. He and Scott, he told me, were waiting for the right time to present this to the federal government. I now had confirmation. Gary and I spoke a few times over the next few months, but then after the collapse I basically forgot about him. Make no mistake about it, now-Senator Gary Farmer made it clear that these settlements were real and that he was involved in the cases.

One thing that inmates do in prison is watch TV. It really is our only way of knowing what is going on in the world. Imagine my surprise one day when watching one of the local channels, I see that Gary Farmer was running for State Senator from Broward County. I even remarked to someone that there us no way this guy can win. Someone,  I thought, would dig up all of the Rothstein dirt. Surprisingly, it never happenned. On election night, while the rest of the country was shocked to see that Trump had won the presidency, I was more shocked to see that Gary Farmer was victorious in his race as well. How could this be?  But again I forgot about it. Then three weeks ago, I watched as Senator Gary Farmer stood on the podium with the survivors of the Stoneman Douglas school shooting and again I was amazed that this man, aside from not having been prosecuted is now holding elective office and holding himself out a savior for these victims. Unbelievable!!!!

Now this is not meant to be an expose on Gary Farmer. The fact remains, however, that had Gary Farmer simply told the truth, Rothstein would have imploded a lot earlier on. Hundreds of millions of dollars would not have been invested in these supposed class action cases. Based on what I ultimately did plea to, I  in all likelihood would not t been indicted or gone to prison. But Gary Farmer was probably making more at RRA than at his previous job and did exactly what his boss told him to do. And for that, many people paid the price.

So why wasn't Gary Farmer prosecuted? Why was he not even disbarred? How is he now holding public office? Maybe the prosecutors felt there simply was not enough on him. Maybe he was just not important enough. Or maybe, just maybe it really is all random. One thing is for certain; the people of Broward could do much better.

Of course it also helps when your father was a chief judge on the 4th District Court of Appeals! http://www.4dca.org/judges/farmer.shtml

The Aleph Institute-Advocates For Prisoners Everywhere

I have not really talked about what happens once you are actually in prison. I am referring to what life is like once a prisoner is finally settled into his new residence. Unfortunately, a prisoner has to adjust to a whole host of new realities. One of the harshest realities that is learned rather quickly is that, quite simply, you do not matter and for all practical purposes you have no rights. Are you sick? No one cares. Did a guard discriminate you based on race or religion? No one cares. Religious rights? Well I was once told to go pray in the bathroom, because "G-d doesn't matter in here". Is it supposed to be this way? No, but it is. And why you ask? Well really who cares about prisoners? Realistically, the rights of prisoners is not a cause that resonates with most citizens.  Even for those for whom the cause does resonate it certainly is not a priority. The reality is that for the most part, those running the prison can get away with just about anything they want with no consequences whatsoever. Even if a complaint is made, it will be years before it is addressed. Imagine how inefficient and bureaucratic the government is on a good day. Now multiply that inefficiency by about a thousand. The message is clear: YOU DO NOT MATTER!

Enter the Aleph Institute. Aleph is an organization that advocates for the rights of Jewish prisoners nationwide and Jewish Soldiers worldwide. Obviously, prison is a trying experience and for someone with religious needs it can be all the more difficult. Thanks to Aleph, systematic changes have been made withing the prison system. Kosher food is now a right in federal prisons as well as many state prisons. Jewish prisoners do not have to work on holidays. There are regular services. Moreover, if any one of our religious rights are violated, Aleph is there to use the correct channels to correct the injustice.This was no simple matter. In many cases Aleph had to actually sue prions systems to secure the rights of Jewish prisoners. Members of all faiths have been the beneficiaries of Aleph's relentless advocacy for the religious rights of inmates. Aleph has also been leading the effort in advocating for prison reform as well as for the restoration of rights for those, such as myself, who have been released. 

Aleph also does a lot to make the prison experience a little less unpleasant. In honor of many of the holidays, Aleph sends people to any prison in the country where there is a need for someone to conduct services or just to make sure there is a minyan. In many prisons, volunteers visit prisoners two or even three times per month. For a prisoner this is a reminder that even while incarcerated there is still a community outside of the prison walls that cares about him. Aleph also has programs to help the families of incarcerated inmates. They even provide toys for children of inmates on Chanukah so that the children can feel some sense of joy even when a parent is missing. Any and every Jew is helped; from the most religious the the most secular. 

Aleph's advocacy even goes beyond fighting for religious rights. When I hurt my arm and was waiting weeks for an MRI, I decided to contact Aleph. Remember prisons have budgets and every test eats into this shrinking budget. Who really cares if a prisoner has permanent damage to a limb?  I had been told that it would be at least another month before the MRI truck came to the camp. Well within 24 hours of contacting Aleph I was approved to leave the camp to have an MRI done. It became quickly established in the prison that if you wanted anything to get done, you had to call Alpeh. I even had other inmates offer to pay me (in tuna of course) if I could get Aleph to advocate for them.

Aleph is concerned for the family unit. If there is a family celebration such as a child's bar mitzva or wedding or G-d forbid a funeral, Aleph will spare no effort to make sure that a furlough is granted so an inmate can be with his family during that time. Aleph also expends many resources to make sure that inmates get the maximum allowable time in a halfway house. For me that meant a total of six months on a 20 month sentence, or roughly double the norm. In short, from the time a prisoner starts his sentence until the time he walks out of prison, Aleph is intimately involved in improving his life behind bars as well as the lives of his family members waiting for him outside.

None of this is cheap. Aleph has but one major fundraiser a year to cover the cost of all of these programs as well as the programs for Jews in the US Military. The  fundraiser is the Aleph Auction and it is taking place this Monday night, February 19th. Tickets can be purchased at http://aleph.auction/. While winners need not be present, this year, those who do attend will be addressed by none other than Sholom Rubashkin. I attended this auction for many years as a donor, never imagining that I would one day be a recipient of the amazing work they do. So I appeal to those of you who read this to open your hearts (and your wallets) and give generously to this worthy cause. And you never know, you just may win something! 

You can learn more about Aleph at http://aleph-institute.org

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.