Tom Petters on the stand.
Jim Freitag, Star Tribune
Hank Shea, an assistant U.S. attorney in Minnesota.
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ABOUT THE AUTHOR
Henry (Hank) J. Shea is a Senior Distinguished Fellow at the University of St. Thomas School of Law and a Fellow at its Thomas E. Holloran Center for Ethical Leadership in the Professions (www.stthomas.edu/ethicalleadership). He previously served as an assistant U.S. attorney for the District of Minnesota for 20 years. His e-mail is firstname.lastname@example.org.
A 'conversation' with Tom Petters
- Article by: HENRY (HANK) J. SHEA
- Special to Star Tribune
- January 3, 2010 - 10:48 PM
Sometime this holiday season Tom Petters will be visited by his attorneys. While their advice to him will be confidential and privileged, here's a glimpse of some of what they could say:
Tom, we lost on every count at trial, so you need to prepare yourself for an extremely difficult sentencing. You won't receive 150 years like Bernie Madoff, but you will very likely get a life sentence. Although federal sentencing guidelines are only advisory, the judge has to consider them in determining your sentence. And, as we told you when you decided not to accept any responsibility for wrongdoing, your crimes send the guideline calculations off the charts.
Tom, let us explain again what you are facing. As you know, the amount of financial loss caused by or attributable to you will drive your sentence. After Enron, WorldCom and the corporate fraud spree of the last decade, the guidelines' top loss amount was increased to $400 million. You, of course, have to answer for a loss of $3.5 billion. No one in Congress or the Sentencing Commission ever contemplated the likes of you and Madoff.
Tom, at trial you only had to listen to the heartbreaking stories of a few of your victims. As you know, the U. S. Probation Office is attempting to identify and contact all of the many people harmed by your conduct. All of their names and stories will be put into a report that the judge will use at your sentencing. As we told you when you decided to plead not guilty, the guidelines say a scheme that causes more than $400 million in losses and involves more than 250 victims calls for life without parole.
Tom, there is more. The judge also will have to take into account (and add onto your sentence) your leadership and organizing role in your sophisticated scheme and because you and your cohorts laundered tens of billions of dollars over the years. There is another upward adjustment for substantially endangering the financial security of 100 or more victims, but we're hoping the court will stop counting since you'll already be facing life without parole.
Tom, we do hope that we saved you from one really black mark. All judges hate perjury in their courtrooms. We discussed many times the pros and cons of your exercising your constitutional right to testify, but that we could not be part of any perjury. You made the choice to testify as you did. You thought that trying to charm the jury was worth the risks since you felt you had little to lose.
By the end of your cross-examination, we and you knew your gamble had failed. We later made the unusual decision to not have Paul Engh refer to your trial testimony in his closing argument to the jury. We abandoned what was supposed to be the core of our defense in order to try to avoid the judge finding that you obstructed justice at trial, which is another sentence enhancement.
Tom, you shouldn't just be concerned about the guideline numbers. The government almost certainly will move for an upward departure from the guidelines in your case. They will point to the enormous, almost unfathomable damage you have caused to so many, such as the hundreds, maybe thousands, of people who lost their jobs and to the charities and other nonprofits you have imperiled.
Broad base of victms
Tom, the prosecutors may even argue that everyone in Minnesota and beyond is a victim of your fraudulent conduct. As you know better than most, our entire economy is built on trust. We trust all sorts of business people to handle, invest, and safeguard our money. The enormity of your crimes has led to communities and a state where people trust business and each other less than before your scheme unraveled. So everyone can be viewed as a victim of your greed.
Tom, we recognize that many of us in some way are responsible for creating an environment that allowed your crimes to flourish and go undetected for so long. Our society's obsession with wealth, instant gratification and judging others by how much money they have, created the Madoffs -- and, yes, the Petterses -- of the world.
That is why people wanted to be invited to your parties and be photographed with you. Too many people throughout our community made you larger than life and fed your ego and envied your lavish lifestyle. So, as we all come to our own judgments of you, perhaps we should ask ourselves about what role money plays in our own lives and whether we excessively honor and celebrate those with wealth. Do we let money define who we are and how we value and treat others? Has each of us answered the question "What is really important in life?"
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