Oklahoma Criminal Defense Blog

Bernard Madoff swindled billions of dollars from his investors for years, but once caught, he promptly pled guilty to the criminal complaint filed against him in federal court.  He did not plea bargain with the government.  He just took his medicine.  Well, maybe.  That way, just pleading to the Complaint as Madoff did, he did not have to give an interview with the prosecution and answer all those detailed questions about where the money went and to whom.

Madoff admitted his guilt to the 11 counts filed against him, including counts alleging fraud, money laundering, and perjury.  Madoff then returned 3 months later, on June 29, 2009, to the courtroom to find out what sentence he would receive.  Considerable motions and memoranda were filed in preparation for the sentencing hearing.  Madoff’s criminal defense lawyers had asked United States District Judge Denny Chin for a 12-year sentence.  The presentence report from the probation department recommended a 50-year sentence, and the United States Attorney asked for a 150-year sentence, the maximum sentence under the advisory guidelines, achievable only by running the maximum sentence for every count consecutive to the other counts.

As the judge pondered an appropriate sentence, a just sentence, he considered what the judge described as the unprecedented scale of Madoff’s crime, its duration over 2 decades, and the thousands of victims it harmed.   Originally, it was believed that Madoff had caused losses in the neighborhood of $65 billion, but the court-appointed received after investigation estimated investors’ losses at about $10 billion.  The judge reflected also that none of the counts to which Madoff carried a life sentence, but any sentence that totaled over 15 or so years would probably be an effective life sentence in light of Madoff’s age.

Of course, Madoff’s lawyers urged the lower sentence in order to give Madoff some sliver of hope he might get out before he died.  They also argued Madoff should be given credit for pleading guilty without bargaining with the government, but, as noted above, Madoff could have had his own selfish motive for taking that path.

Madoff personally addressed the court in his allocution, expressed regret and apologized to the public, the court and the victims of his Ponzi scheme, some of whom were present in person.   The judge had already read a number of letters from victims of Madoff’s scheme.   He found many had lost their life savings, many had lost their trust in the financial system, faith in humanity, suffered loss of dignity.

The judged was struck by one man who had invested his life savings with Madoff and died 2 weeks later.  The man’s widow then met Madoff, who told her not to worry and that her money was safe.  Trusting Madoff, the widow then invested her own 401(k) with him.   That is the kind of damning story that might have gotten lost in the numbers.  But it wasn’t, to Madoff’s detriment.  And, midst all the letters written by these victims of Madoff, the judge received not one letter written on behalf of Madoff.

Judge Chin sentenced Madoff to 150 years in prison.   He explained that Madoff did not deserve a lower sentence, that the punishment should be in proportion to the blameworthiness, and Madoff’s conduct was  “extraordinarily evil.”  The judge thought the 150 year was, among other things, symbolic, and that it should be symbolic given the enormity of Madoff’s crimes.  The judge also doubted Madoff was genuinely remorseful, although that probably would not have changed the sentence rendered.

Speculation continues about why Madoff did it.  He had to know he would get caught.  All Ponzi schemers know they will get caught.  Was it just for the fun of it?   Psychopaths lie, manipulate, and deceive in sometimes similar ways.  People always wonder why someone would do something like this, but there is never a good answer.

The federal Bureau of Prisons projects Madoff’s release date for the year 2039, but it is considered academic given Madoff’s age.   He is serving his time at the medium security Federal Correctional Facility at Butner, North Carolina.  Medium security is not a country club. Meanwhile, Judge Chin was nominated to the U.S. Court of Appeals for the Second Circuit, where he now serves.

A total twenty present or former New Orleans police officers have been charged last year with civil rights violations arising out of police misconduct during the aftermath of Hurricane Katrina.  Federal court in New Orleans saw the jury bring verdicts against the first five to go trial last December.  Of those, three were convicted while two were acquitted in the death of a man in September, 2005.  .

Henry Glover was shot to death outside a strip mall.  Charged with manslaughter, former officer David Warren was convicted and Lt. Dwayne Scheuermann was acquitted.  Officer Gregory McRae was convicted of burning Glover’s body in a car.  The jury also convicted Lt. Travis McCabe of writing a false report on the shooting event, while former Lt. Robert Italiano was acquitted of that charge.

Thousands of people were trapped in New Orleans during this chaotic, dangerous time after the flooding of the city.  Bodies rotted in the streets because there was nowhere to take them.  Looting was everywhere.  People were desperate.  All five defendants testified in the trial and described the horrific conditions.

The defendants testified they did not have time to investigate any but the most serious crimes and writing reports was the least important of their duties.  Assistant United States Attorney Tracey Knight, prosecuting the case, urged in opening statement that the conditions prevalent may have made the defendants believe they could get away with their actions because no one was watching.

Several of the officers who testified as government witnesses admitted they had lied to the F.B.I. or the grand jury before they agreed to “cooperate.”   As any criminal defense attorney will tell you, the government makes every case it can from cooperating witnesses.

David Warren was guarding a police substation at a mall when Glover and his friend, Bernard Calloway arrived.  Warren testified that they arrived in what he thought was a stolen truck.  He claimed they ran toward a gate and ignored his commands to stop. He claimed he thought he saw a gun in Glover’s hand and then shot at Glover.

Warren’s partner at the time, officer Linda Howard, testified to the contrary that neither Glover nor Calloway was armed and posed no threat.  Glover’s friend, Calloway, testified that he saw Glover leaning against the truck lighting a cigarette just before he was shot.   And Warren had fired his rifle earlier day, having shot a warning shot at a man on a bicycle because, Warrent testified, the man kept circling and looking up at him on the second-story balcony.

A passing motorist named William Tanner, stopped, picked up and drove the wounded Glover, his brother Edward King, and Calloway to a school.  Tanner and Calloway testified they were ordered out of car at gunpoint, handcuffed and beaten by police while they begged the police to help Glover.

Defendants Scheuermann and McRae beat two of the men according to the testimony of policed Sgt. Sandoz, testifying for the government with a promise of immunity.  Sandoz testified that he lied to the F.B.I. and the grand jury about what happened.

Scheuermann and McRae denied beating the men, of course, but McRae did admit he drove Glover’s car to a levee on the Mississippi River and torched it with Glovers’ body inside.  He said he was just tired of seeing dead bodies rot in the street and didn’t want to add to the corpse count.  McRae said it was his idea alone to burn the body.  Scheuermann testified he was surprised and shocked to see McRae toss a flare into the car.  Lt. Joseph Meisch testified he was nearby and that McRae was laughing after setting the fire.

The government’s theory of the case was that Italiano and Mcabe of trying to cover up the shooting and charged them both with lying to the F.B.I. and of submitting a false, misleading report.  As well, McCabe was charged with perjury in his grand jury testimony.  Sss

Sgt Purnella Simmons who arrived at the mall after the shooting told Italiano that Warren’s partner, officer Linda Howard, did not believe the shooting was justified.  Simmons later lied to the grand jury and adopted a report that covered up the shooting, even though that report contradicted her findings.  But she then returned to testify again to tell the grand jury the truth, she testified.  McCabe testified he helped Simmons interview witnesses and write the report that covered up the shooting, but he blamed Simmons for any omissions in the report.

Italiano signed that report and testified he did nothing to write a false report or cover up the shooting.  He testified he did not even know until years later that the shooting at the mall was connected to Glover’s burned body in the car because Simmons did not give him that information.

Jon Burge, former Commander in the Chicago Police Department, is on trial in Chicago federal court, prosecuted for perjury by the U.S. Justice Department.  The charge is perjury, but the bulk of the evidence pertains to Burge’s torturing suspects, the prosecution attempting to prove Burge lied to cover up his tortures.

Prosecution witness Gregory Banks served more than seven years in prison before he was released when his conviction was overturned because his confession was coerced.  He described how Burge and two other detectives obtained that confession.  First, they left him alone in a room, handcuffed to a wall.   Burge came in with Sgt. John Byrne and detectives Peter Dignan and Charles Grunhard.  Byrne put the barrel of a handgun in Banks’ mouth and demanded a confession. When Banks refused, Byrne hit him with a flashlight, knocking him down, and the police beat and kicked Banks, still handcuffed behind his back.  Then Dignan put a bag over Banks’ head for a couple of minutes.  When they took the bag off, Banks offered to say anything.  But after Banks confessed orally, an assistant states’s attorney was called in to take his statement.  When Banks refused to give the statement, a detective took him to another room and threatened to repeat the torture if he refused to give a statement.  Banks gave the statement.

On cross-examination, Banks admitted being convicted of burglary and of being a member of the Black Gangster Disciple street gang for 20 years and of being addicted to heroin until four years ago.  Burge’s criminal defense lawyer, William Gamboney made predictable hay with Banks’ statement, challenging it item by item, to which Banks responded either that he did not remember or that statement was a lie.  Gamboney closed his cross-examination with the sarcastic proposition, of course, Banks was framed.

Banks was followed by fellow torture victims Melvin Jones and Anthony Holmes, who detailed their own experiences at the hands of Burge and his detectives.  The prosecution presented five victims of torture at the hands of Borge or the detectives under him at Area Two police headquarters during the 1970’s and 1980s.  The testimony of one of the victims, Andrew Wilson, was read to the jury in lieu of his live testimony, taking up much of two days.  Wilson died in prison in 2007, serving a life sentence for killing two Chicago police officers.  All five witnesses were gang members or convicted felons.  All but one confessed to mainly murder charges, claiming they were in fear of death or continued torture if they did not confess.

Burge rose to the rank of Commander before he was fired by the Chicago Police Department in 1993.  He is on trial for perjury in his testimony in a civil trial brought by one of the torture victims, in which Burge denied torturing and knowing about the torture of the victims.

Shadeed Mu’min was the last major prosecution witness to testify.  He described how he was interrogated 25 years ago by then-Lt. Jon Burge about an armed robbery, for which Mu’min was under arrest.  Burge pulled out a .44 Magnum pistol and emptied all but one round.  He then pointed it at the middle of Mu’min’s forehead.  After Burge carefully pulled the trigger three times, Mu’min still refused to talk, so Burge tried to put a plastic cover over Burge’s head.  When Mu’min passed out, Burge revived him and smothered Mu’min’s again, causing him to lose consciousness again.  On Burge’s third try, Mu’min offered to tell him what ever he wanted to hear.

On cross-examination, Mu’min admitted that weeks after his arrest he called Burge for help in getting his impounded car.  He also admitted he waited a year before he told his own lawyer about this alleged torture.  Mu’min admitted committing the armed robbery for which he was arrested and that his confession was true.  He admitted he discussed his claims of torture with other inmates in the Cook County Jail, where the other alleged victims of Burge’s torture were housed.  But Mu’min refused to meet with an investigator from the Office of Professional Standards, which investigated complaints against police, to identify a police officer who laughed at him when he was being tortured.  He said he wanted to put the past behind him.

Dana Panos, a family lawyer, was called to the witness stand by the government. She testified about a conversation she had with the defendant, Jon Burge, in the late 1980s.  She was a law student at the time and was introduced to Burge by a date in a South Side Chicago bar.  They talked for about 45 minutes, during which time Burge ridiculed her belief that criminals had any rights and admitted he had beaten an accused cop killer to get a confession.  Burge told her he was involved in the Wilson investigation.  She claimed Burge told her that if a suspect confessed to a crime which he did not commit, it was not an injustice because it would balance out; since the subject had probably committed some other crime for which he was not convicted but should have been convicted.  He told her criminal defense lawyers were useless and they interfered with the administration of justice.  Obviously that would mean a system in which the police act as judge, jury and executioner-so simple that way.  That way police get to inflict their own personal beliefs which some of them believe are more important than anyone else’s.

Before and during the prosecution’s case, the defense lawyers complained to U.S. District Judge Joan Lefkow that a number of witnesses the defense wanted to call were clamming up.  The defense claimed that the government’s case was having a chilling effect on Burge’s former colleagues, that they were afraid their testifying positively for Burge might buy them federal charges of their own. Ultimately, the judge ruled eight potential defense witnesses would be allowed to take the Fifth Amendment if called to the witness stand by the defense.

A much anticipated government witness proved to be letdown for the prosecution.  A 30-year veteran of the Chicago Police Department, former detective Michael McDermott testified under a grant of immunity.  In his testimony before the grand jury two years ago, he had incriminated Burge, but most of his testimony before the trial jury (the petit jury)- after he had “more time to reflect” – consisted of backpedaling, qualifying and denying his grand jury testimony.  He witnessed the interrogation of Shadeed Mu’min, he admitted.  When the prosecutor confronted McDermott with the grand jury transcript of his testimony, McDermott had to admit Burge put a plastic bag over Mu’min’s head.  McDermitt told the grand jury he saw Burge point a gun at Mu’min and was abusive, but at trial he wasn’t sure Burge held a gun and said his behavior was not abusive but only “inappropriate.”  McDermitt testified under immunity, but Burge’s defense attorney painted McDermitt as inclined to give the government what they wanted in fear of losing his police pension or his salary from the Cook County state attorney’s office as an investigator, where he is now employed.

Dr. John Raba was a prosecution witness who testified to his findings after examining Andrew Wilson after Wilson’s police interrogation.  It was Wilson, who died in 2007, whose testimony was read to the jury describing his torture at the hands of Burge, including pressing his chest, face and right leg against a radiator.  Raba was the medical director of the Cook County jail in 1982, when he saw Wilson’s wounds after his encounter with defendant Burge.  Dr. Raba was so shocked by his observations that he wrote a letter to Chicago Police Superintendent Richard Bizcezek, telling him Wilson had been beaten and electrocuted by Area Two detectives, noting Wilson had blistered burns on his chest, face and right leg, open wounds on his forehead, a split lip and gash in the back of the head that required stitches.  Bizcezek never answered the letter.

But there was a response.  Dr. Raba got a telephone call from Cook County Board President George Dunne, a powerful politician.  Dunne asked why Raba was getting involved in such matters.  Raba’s testimony furthered the government’s theory that many people knew or suspected that torture was being used by Burge and detectives under his command.  Although Burge’s lawyers claimed Wilson’s injuries did not match his descriptions of torture, Raba testified that after meeting twice with Wilson, he concluded the injuries he found on Wilson did match Wilson’s description of his torture.  Raba said the injuries were extremely unlikely to have been self-inflicted, as Burge’s lawyers suggested.

After the prosecution rested its case of about two weeks of evidence, Jon Burge took the witness stand in his own defense.  He denied torturing Anthony Holmes and denied he backhanded Melvin Jones in the face, shocked his genitals, struck him with a stapler or pointed a gun at him.  Burge admitted only going into the interview room and telling Jones, who was accused of murdering a state’s witness, how little Burge thought of him. Burge said he assigned two detectives to question Wilson and never saw half a dozen police in the room, as Wilson had claimed, nor did he hear any unusual screams.  Of course he denied pressing Wilson against a radiator.  Burge also denied telling Holmes’ attorney, a government witness, Sandra Watson, that a black box in detective Area Two “leaves no marks,” referring to a device to shock suspects.

The trial continues, and the result, as always with a jury, is uncertain.  One thing that is certain is that Jon Burge does not believe criminal defense lawyers are useless in the criminal justice system, as he puts his life in their hands every day he goes to court.

Bernard Kerik was on top of the world.  He had served gloriously as police commissioner of New York City for Mayor Rudolph Giuliani.  Bernie was famous in his own right, often on television screens, sporting his trademark mustache and shaved head.  He was sent by President George Bush to reorganize the police force in Iraq.  Finally, he was nominated to head the Department of Homeland Security.   After that, things went downhill.

Kerik was indicted in federal court with corruption for allegedly accepting unreported gifts of construction work on his home.   Kerik failed to report as income more than $200,000 in rent paid on his behalf to use a luxury apartment where he lived with his family when he left his city post, paid for by Steve Witkoff, a commercial real estate developer. Also, a construction company with alleged mob ties paid for the $165,000 in renovations on Kerik’s home in Riverdale, the Bronx, apparently in hopes of obtaining a city license. In 2006, Kerik plead guilty in the Bronx to state misdemeanor charges stemming from those renovations.

In 2004, after nomination by Rudy Giuliani, President George W. Bush nominated Kerik to head the Department of Homeland Security.  Seven days later, Kerik withdrew his name from consideration.  Then fell the avalanche of questions about Kerik.

Had Kerik inappropriately lobbied New York City on behalf of Interstate Industrial, a construction company with alleged links to organized crime?  At first, Giuliani denied he knew about Kerik’s ties to Interstate Industrial when he appointed Kerik as police commissioner. Then in 2006, Guiliani acknowledged that city investigations commissioner, Edward Kuriansky, said Kuriansky has stated he told Giuliani in at least one briefing about Kerik’s problems, but Giuliani said he did not remember any such briefing.

Kuriansky’s diaries confirm that one of those briefings did take place.  Additionally, Kuriansky stated, based on his recollections and his diaries, he also briefed Dennison Young, Jr., one of Mayor Giuliani’s closest aides, about Kerik’s ties to the construction company only days before Mayor Giuliani appointed Kerik police commissioner.  Giuliani is well-known for the premium he places on loyalty and his own loyalty to others.  Giuliani Partners, his consulting firm did employ Kerik and continues to employ Alan Placa, a high school friend, in spite of allegations he molested young men years ago.

By the time Giuliani recommended Kerik for the Homeland Security job, his administration knew Kerik had acted on behalf of Interstate Industrial and knew about other criticisms of Kerik, including sending detectives to look for his lover’s cell phone and using police officers to research his autobiography.

In 2000, more than half the mayor’s cabinet opposed Bernie Kerik’s appointment to police commissioner.  They had concerns that included the fact that Kerik did not have a college degree, a police department requirement at the time for captains and above.

Giuliani met Kerik in 1990 at a fund raiser in New Jersey honoring a slain new York City police officer. Kerik was a decorated undercover detective with a ponytail and earrings, big biceps. Kerik cultivated political connections, such as the sheriff of Passaic County, N.J., who had made Kerik five years earlier the youngest jail chief in the county’s history.   When Giuliani ran for mayor in 1993, Kerik organized Giuliani’s security detail of off-duty officers to reserve the weekend shift for Kerik himself.

A year after Giuliani became mayor, he appointed Kerik first deputy correction commissioner to include supervision of Riker’s Island.   One year after that, Kerik was appointed  correction commissioner, where he showed up for spot inspections at 2:00 a.m.  When violence in the jails dropped, public praise climbed.  Now reported are some of his questionable activities then, such as his dating a woman who was a correction officer and his getting close to the department’s inspector general, whose responsibilities required him to avoid such closeness with other city personnel.  Later, one of his top deputies was convicted of taking $142,000 from a Correction Department that Kerik headed.  Another deputy was convicted of forcing staff members to do political campaign work and dispatching officers to renovate his home.

Lawrence Ray was a friend of Kerik and served as best man at Kerik’s wedding.  Ray even paid for much of the wedding, and Kerik in turn recommended Ray for a $100,000 job at Interstate Industrials, a New Jersey construction company with tens of million dollars in contracts with New York City.

Interstate Industrials hoped that Lawrence Ray could change relations with the City because, two years before, city investigators had found the company employed mob figures and denied the company an operating license. After hiring Ray, Interstate hired Kerik’s brother, and from then on, the then-correction commissioner began lobbying unofficially for Interstate. Kerik defended Interstate to the chief of enforcement for the city commission, a cousin of Giuliani who was reviewing Interstate’s license application.  Kerik telephoned an assistant commissioner at the Department of Investigation to say Interstate’s owners were clean of mob ties, so far as he knew.  He even had city detectives who were investigating Interstate meet Lawrence Ray in Kerik’s own city office, sending a strong signal to the detectives.  But the lobbying stopped in March, 2000, when Lawrence Ray and Edward Garafola, a mob soldier associated with Interstate, were indicted on a federal stock scheme not related to Interstate’s business.  New York City suspended Interstate’s $85 million in city contracts.

Three weeks later, Bernie Kerik interviewed for two hours with the Department of Investigation and talked about his relationship with Lawrence Ray, Interstate and its owners and his brother.  However, Kerik never mentioned that Interstate was paying for $165,000 worth of renovations on his new apartment in the Bronx.

That is when the police commissioner job came open.  Bernie Kerik was one of the candidates with his eight years experience as a police officer.  Edward Kuriansky, the city investigations commissioner, was assigned to oversee background investigations of Kerik and the other candidate, Joseph Dunne.    Kuriansky’s agency was supposed to be semi-independent, but Kerik had coopted it to some extent, appointing friends like Kuriansky to the commission and having them attend his morning meetings.  Kuriansky was a former prosecutor, and he knew Kerik had intervened on behalf of the company suspected of mob ties and that Kerik’s best friend and brother worked for that company.  Kuriansky, however, did not know Interstate was renovating Kerik’s apartment.

Giuliani selected Kurik as his police commissioner, and he served in that capacity for 16 months.  Crime fell, and Kerik enjoyed not only public approval during his tenure but celebrity.   Bernie Kerik adopted the persona of a steady figure after the World Trade Center attack on 911.  He continued to receive good press.  Three years later, after he had withdrawn his nomination as head of Homeland Security, it came to light that Kerik had used an apartment dedicated for weary rescue workers at ground zero for an extramarital affair with his book publisher, Judith Regan.

After Kerik’s three months in Iraq, he spoke at the Republican National Convention. But his candidacy to head Homeland Security lasted only a week.  He withdrew himself, saying he discovered his nanny was in the country illegally and he had not paid taxes on her.

Kerik couldn’t even stay out of trouble after he was indicted in federal court.  U.S. District Judge Stephen Robinson revoked Kerik’s bail when the judge found Bernie had, in apparent hopes of generating sympathy in his trial, leaked information the judge had ordered sealed.  Kerik ultimately pled guilty to eight counts in hopes of receiving a  two or three years sentence, as indicated by the Sentencing Guidelines and the expectations of the prosecutors.      Whoops. The judge gave him four years and said Kerik had violated the public trust immeasurably.   While waiting for his sentencing, Kerik complained that he had not heard from Rudy Giuliani.  Small wonder why.  The wonder is that he overlooked Kerik’s fleas so long.