CORPORATE CRIME REPORTER
Should
Kindness to Others Mean Less Jail Time for Ebbers?
19 Corporate Crime Reporter 27(1), June 28, 2005
Should kindness to others mean less jail time for Bernie Ebbers?
No, say the prosecutors who want him to serve the rest of his life behind bars.
The former WorldCom CEO, facing life in prison after being convicted in March
for perpetrating an $11 billion accounting fraud, now wants a downward departure
for, among other reasons, his “kindness to others.”
But the Justice Department, in papers
filed in federal court in New York, says no.
Federal prosecutors argue that “individuals with sufficient stature, ability
and opportunity to commit white-collar crimes are commonly involved in community
service and charitable endeavors, and such activities do not remove the defendant
from the contemplated heartland of defendants charged with white-collar offenses.”
“The Sentencing Commission intended its guidelines and policy statements
to ‘equalize punishments for white collar and blue collar crime,’
and courts have endeavored to implement that intention in sentencing,”
the prosecutors wrote.
In the brief, Assistant U.S. Attorney David Anders and Katherine Goldstein write
that “Ebbers has been blessed with tremendous wealth and success”
and “perhaps in response to this success, Ebbers has certainly made significant
charitable contributions, which are commendable.”
Yet Ebbers has not presented “a basis to conclude that his record of charitable
contributions, community service, and other good works has been so extraordinary
as to justify a downward departure” from the Sentencing Guidelines.
Earlier this month, in a filing with the court, Ebbers’ attorneys asked
for leniency.
"Although Mr. Ebbers stands by his testimony and is deeply disappointed
by the jury's verdict, Mr. Ebbers is profoundly sorry that fraudulent activity
took place at WorldCom during his tenure as the company's CEO and for all the
harm suffered by WorldCom's investors," they wrote.
Attached to the filing were 169 letters from friends and colleagues testifying
to his good works.
But Anders and Goldstein said that “most of the good works cited by Ebbers
– showing kindness and compassion for friends, family, staff and colleagues
going through difficult times, and acting as a role model for others in their
professional lives – are what one should expect of decent, hardworking
people.”
“Ebbers has clearly gathered during his life a group of loyal and dedicated
friends, which reflects well on him,” they wrote. “However, this
does not distinguish his good works from what would ordinarily be expected of
any individual who claims to care about others, and particularly those with
the means to devote time and resources to assisting others in need. Nor does
the fact that many of the defendant’s friends and colleagues think highly
of him as a person and as a professional distinguish him from other white collar
criminals.”
The prosecutors quoted one judge finding that “excellent character references
are not out of the ordinary for an executive who commits white-collar crime
– one would be surprised to see a person rise to an elevated position
in business if people did not think highly of him or her.”
The prosecutors wrote that “the case law is legion with convicted felons
who, other than their criminal conduct, appear to be otherwise compassionate
and praiseworthy people.”
“The Sentencing Guidelines do not, however, authorize a downward departure
merely because a defendant has shown kindness, even considerable kindness, to
others or because he or she has had an otherwise successful career,” they
wrote. “Nor does Ebbers’s record of contributing time and money
to various charitable and religious organizations merit a downward departure.
Courts have widely recognized that it is far from unusual for white-collar defendants,
because they are often quite wealthy, educated, and well-connected, to be heavily
involved in charities and civic organizations.”
Sentencing is scheduled for July 13 before Judge Barbara Jones in Manhattan.
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