Sentencing Memos Filed in Bernie Kerik Case

Former NY Police Commissioner Bernie Kerik is scheduled to be sentenced in a few weeks on his guilty plea to various tax offenses and false statement charges. Both sides filed lengthy sentencing statements yesterday.

Both parties have agreed to a guideline sentence in the range of 27 to 33 months. The Government is clearly hoping for the max of 33 months. Bernie is asking for 27 months.

Having read through the Government's 61 page sentencing memo and Bernie's (234 pages, including many letters), I have to wonder why the Government is making such a big fuss over 6 months. By pleading guilty, he saved the Government an enormous expense of time and resources that would have been required for a trial that would have lasted many months.

The case is largely based on the same conduct to which he pleaded guilty in the Bronx, and received no jail time. [More..]

What did he do that was so terrible? He didn't declare the value of the renovations on an apartment on his tax returns; he made false statements about them; he didn't declare the value of a BMW he received from a company he was working for; and he spoke for free at organizations and deducted his nomal speaking fee on his return as a charitable contribution. Total: About $300,000. He didn't tell the White House he had a full-time nanny whom he hadn't paid social security and medicare taxes for. (He's since paid them.) And he didn't warn the White House during the vetting process for Homeland Security Chief that his ties to Larry Ray and the Di Tommasso brothers could be portrayed negatively.

The Government makes a point of acknowledging that there is no evidence Kerik was involved in organized crime or had improper dealings with them. It says that because Kerik's brother and his former best man Larry Ray worked for the di Tomasso's company, he improperly asserted himself into an investigation of Interstate's activities. In other words, he meddled.

The defense , obviously, paints a far different picture of Bernie.

The only person the extra 6 months is going to make a difference to is Bernie...and the taxpayers who have to foot the bill for his incarceration.

The Government is also opposing Bernie's request for a voluntary surrender. That strikes me as mean-spirited. Most white collar offenders are allowed to voluntarily surrender to avoid sitting in a county jail for a month while BOP decides where they are going to be placed. In Bernie's case, because of his law enforcement background, he'll end up in segregation. That's just punitive and unnecessary, considering he's not a flight risk. He's been home with his wife and family since the Judge revoked and then reinstated his bail last fall, without any violations.

Why can't the Government be satisfied with a just sentence rather than have to go for the extra pound of flesh to make the sentence as miserable as possible for the defendant?

How is this related to his crimes?

“The defendant’s egotism and hubris were the tragic flaws that led him to commit the considerable number of crimes to which he ultimately pleaded guilty.... Mr. Kerik “became a wealthy man by shamelessly exploiting the most horrific civilian tragedy in this nation’s history.”

I also don't like that they disqualified two of his lawyers during his case, including my pal Joe Tacopina, pictured above with Bernie.

Bernie will also have a heavy restitution bill to pay, that will follow him around when he gets out from prison.

I may not share Kerik's politics, but I have no problem looking at the facts of his case and wondering what the big fuss is all about. And, at least doing so doesn't require me to agree with Rudy Giuliani, who couldn't even be bothered to write a sentencing letter for his former right-hand man -- the person he recommended George W. Bush appoint as Homeland Security Chief.

The federal case against Bernie was filed in 2007. He battled the state for a few years before that. Five years of fighting the Government takes a huge emotional and physical toll.

The Government ends its brief with the sentence: "Those who are charged with enforcing the law must first obey it themselves." That's true, but it should also be taken into consideration whether the defendants' unlawful acts were personal in nature, i.e., were not made with the intent to corrupt police business, and those, like Bernie, whose actions were personal ones, committed outside his law enforcement duties, intended solely to bring personal gain.

I'm not the judge but having read all of the pleadings of both sides since the case began, my view is Bernie should get the bottom of the guideline range, 27 months, and be allowed to voluntarily surrender and get to his designated facility as soon as possible. His sentence won't be over the day he gets out. He'll then have to deal with the difficult task of rebuilding his life and finding a way to support his family and pay his restitution.

When it comes to deterrence, I doubt anyone contemplating similar criminal activity is going to say, "Bernie only got 27 months, I'll take my chances and do the same thing" while if Bernie got 33 months, they'd say, "Oh that's way too much time, I'm not going to follow in his footsteps and take a chance on that big a sentence."

My prediction: The judge splits the difference, gives Bernie 30 months, and allows him to voluntarily surrender.

< Monday Night TV And Open Thread | Tuesday Open Thread >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft

  • Display: Sort:
    Why the bottom on the guidelines range? (5.00 / 1) (#1)
    by Peter G on Tue Feb 09, 2010 at 08:37:21 AM EST
    TL - Apparently there's a plea agreement that binds the defense lawyers not to ask for less than the bottom of the federal sentencing guidelines range, which is 27 months.  But as I read your post (not having read the actual written agreement), I gather the judge is not bound by the agreement.  And the guidelines are just that, only advisory, not binding.  The judge's duty, under federal sentencing law, 18 USC 3553(a), is to impose a penalty which is "sufficient, but not greater than necessary" to accomplish the varied goals of the criminal justice system.  (Note to non-lawyer readers, subsection (b) of that law, which seems to require that the sentence usually be within the guidelines range, was stricken from the statute by the Supreme Court in 2005.) You say, "my view is Bernie should get the bottom of the guideline range, 27 months."  Why, in this case would the sentence required by law, that is, the minimally sufficient penalty, not be less than 27 months' imprisonment?  Why not probation, even?  I would not endorse the idea of any incarceration at all in a case of fairly petty tax cheating, where the defendant pleaded guilty and is making amends.

    the plea agreement (none / 0) (#4)
    by Jeralyn on Tue Feb 09, 2010 at 11:10:53 AM EST
    prohibits either party from asking for a sentence outside the guidelines or suggesting the judge sua sponte grant one. While the judge isn't bound by the agreement and could, as you say, decide to impose a lower or higher sentence, I'm assuming he will accept the agreement and impose a sentence within the range. The PSIR agrees the range is correct.  The false statement charges are the reason I think the judge won't just sentence as a tax case: he's got false statements to the White House and on a mortgage application.

    Thanks for clarifying that (5.00 / 0) (#5)
    by Peter G on Tue Feb 09, 2010 at 11:43:46 AM EST
    Yes, I agree that false statements to a bank and to a federal agency (the White House) definitely makes a difference.  Kerik's guilty plea to those charges definitely makes the recommended sentence more plausible.   But only in the context of our system's over-reliance on incarceration.  I still have problems with the assumption that imprisonment is the appropriate punishment for most non-violent felonies.

    It's times like this... (5.00 / 1) (#3)
    by kdog on Tue Feb 09, 2010 at 10:58:25 AM EST
    when its hard god damn work not to descend into the depths of "eye for an eye" and say let Bernie-Boy reap what he has sown in his various positions of authority and get the max....hard god damn work.

    But my motto is be better than your adversaries..and bottom line, Bernie-Boy ain't a threat no more now that he has no badge and no position...27 months is a long time, there is certainly no need for 33.