Madoff to Plead to 11 Counts, No Sentence Concession
Details of Bernard Madoff's expected guilty plea emerged today when he appeared in court for a hearing to waive any conflict of interest his lawyer might have from past representation of other clients.
Madoff will plead straight-up -- no plea agreement-- to 11 charges in the Criminal Information.
“There is no plea agreement,” Assistant U.S. Attorney Marc Litt said at the hearing, meaning Madoff must plead guilty to 11 counts that he now faces in a criminal information filed today.
Madoff is charged with securities fraud, investment adviser fraud, mail fraud, wire fraud, three counts of money laundering, false statements, perjury, false filings with the U.S. Securities and Exchange Commission and theft from an employee benefit plan, Litt said.
The Government filed a letter with the Court today outlining its sentencing guideline calculations. (Available on PACER) [More....]
- Count 1: Securities Fraud, 20 years max
- Count 2: Investor Relations Fraud, 5 years max
- Count 3: Mail Fraud, 20 years max
- Count 4: Wire Fraud, 20 years max
- Count 5: International Money Laundering (to promote fraud in the sale of securities, mail fraud, wire fraud, and theft from an employee benefit plan), 20 years max
- Count 6: International Money Laundering (to conceal the proceeds of fraud in the sale of securities, mail fraud, wire fraud, and theft from an employee benefit plan), 20 years max
- Count 7: Money Laundering, 10 years max
- Count 8: Making a False Statement, 5 years max
- Count 9: Perjury, 5 years max
- Count 10: Making a False Filing with the SEC, 20 years max
- Count 11: Theft From an Employee Benefit Plan, 5 years max.
Total maximum penalties: 150 years. There are also two forfeiture allegations, and a request that if the assets to be forfeited have been sold or no longer exist, that substitute assets be forfeited in their place.
By the Government's calculations, the combined offense level under the U.S. Sentencing Guidelines is a whopping 54 -- even after giving Madoff his 3 level reduction for acceptance of responsibility and timely notice of his intent to plead. With a criminal history category of I (no prior convictions), Madoff's guideline range is life in prison.
Because the defendant is not charged with any offense that carries a maximum term of life imprisonment, the Guideline sentence is computed by adding the applicable statutory maximum sentences on all counts of conviction, which results in a Guideline sentence of 150 years' imprisonment. See U.S.S.G. § 5G1.2.
There is no parole in the federal system. A life sentence means exactly that, Madoff would leave prison when he dies.
The Government will seek criminal forfeiture of more than $170 billion as property or proceeds traceable to the SUA offenses and $799 million involved in the money laundering offenses.
Madoff's lawyers also filed a letter (available on PACER). In it, they say they disagree with the Government's monetary calculations:
[I]t is important for us to inform the Court at this early stage that it disagrees with the government's theory as to what constitutes the "proceeds" of the specified unlawful activity in this case.
The government has informed us that the purported $177,000,000,000 of "proceeds traceable to the commission of SUA offenses" represents the total amount of money deposited in the Bernard L. Madoff Investment Securities, LLC ("BLMIS") bank account related solely to Mr. Madoff s investment advisory business.
Even assuming the accuracy of that number, however, the government's theory of the proceeds of SUA - in this case securities fraud, mail fraud, wire fraud and theft from an employee benefit plan - fails to account for or offset the substantial amounts of money that Mr. Madoff paid from the aforementioned account to investors in the form of redemptions, a number likely in the billions.
Madoff's lawyers are seeking a lot of documents in discovery for sentencing. That indicates sentencing could be several months away. Which brings us to another issue to be decided Thursday: Will Madoff be allowed to remain free on bond pending sentencing? Bloomberg reports:
U.S. District Judge Denny Chin said at today’s proceeding that there will be only two issues at the March 12 hearing -- whether he will accept the guilty plea and whether Madoff will be sent to jail that day.
As to whether victims will be heard on Thursday, the answer is "no."
Chin said victims who wish to speak about the jail term Madoff receives will have to wait until sentencing.
Good call by the Judge. There's no plea agreement, no sentence concessions and Madoff is pleading guilty to every charge against him. All victims will have a chance to weigh in on his sentence before it is imposed, even if by letter. Flogging Madoff verbally at the plea hearing serves no purpose other than perhaps emotional satisfaction -- which is not the function of a court proceeding.
My prediction: Madoff will go to jail Thursday, never to be released again. And, no matter how much money the government forfeits, not every victim will be made whole.
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