Are good works enough to mitigate jail time? Is a nice resume an excuse to skip prison? Probably not. The 3rd U.S. Circuit Court of Appeals has ruled, in United States v. Tomko, that a sentence given to William Tomko which did not include prison time was not appropriate considering his crime. The case illustrates continuing confusion about federal sentencing guidelines now that the U.S. Supreme Court has ruled that they are merely “advisory.”
William Tomko Jr., the owner of a construction company, pleaded guilty to tax evasion charges for persuading the contractors who built his luxurious new home to send their bills to his company, W.G. Tomko & Sons, Inc., a la Leona Helmsley. He also allegedly wrote off expenses for other luxury items, like his Rolls Royce and his custom motorcycle, as company expenditures. This was allegedly easy for Tomko because many of his company’s projects were otherwise linked to big-ticket expenditures for schools and government.
As a result, Tomko illegally defrauded the government of almost a quarter million dollars in taxes. Federal sentencing guidelines called for a prison term in the range of 12 to 18 months – Helmsley served similar time, remember?
But Tomko had the kind of lawyers that could get him out of such a pickle. They argued that putting Tomko in jail would be harmful to his employees and, after all, he was really a good guy. They cited his “exceptional” charitable and community activities. And for some reason, the judge bit, sentencing Tomko to three years of probation, including one year of house arrest (in the $5 million mansion that he built for himself and billed to his company), 28 days of in-house treatment for alcohol abuse, 250 hours of community service and a $250,000 fine. The judge ruled that the offense was nonviolent, not ongoing in nature, not part of a larger pattern of criminal activity, and that there were no identifiable victims of the offense (er, other than taxpayers who do pay their taxes and therefore supplement Tomko’s ongoing lifestyle, but who’s counting them?). The judge also noted Tomko’s “good family history, educational attainment, gainful employment, and negligible criminal history” (hmm… what’s negligible these days?) and claimed that Tomko could benefit from treatment for his drinking problem.
Hmm. I really don’t want to make this into a class war… but let’s make this into a class war. Is the judge saying that because Tomko was rich, well-educated and from a good family that jail wasn’t fair? Is jail only for the under-educated and poor? That’s sure what it sounds like. And I, for one, find that offensive.
The 3rd Circuit has agreed that the failure to include at least some prison time in his sentence was unreasonable (though I’m not sure that they agree with my logic).
Judges writing for the majority opinion stated:
“Tomko’s sentence of probation included home confinement in the very mansion built through the fraudulent tax evasion scheme at issue in this case — an 8,000-square-foot house on approximately eight acres, with a home theater, an outdoor pool and sauna, a full bar, $1,843,500 in household furnishings, and $81,000 in fine art. The perverse irony of this gilded-cage confinement was not lost on the government, it is not lost on us, and it would not be lost on any reasonable public observer of these proceedings, including those would-be offenders who may be contemplating the risks associated with willful tax evasion.”
Adding to the reasoning for a reduction in Tomko’s sentences was evidence of Tomko’s charitable acts. However, the 3rd Circuit was not impressed by character references and what one judge referred to as Tomko’s “well-timed interest in Habitat for Humanity.”
The case now goes back to the District Court for sentencing.
What do you think? Should white collar criminals escape jail time if they are rich, educated and a source of income for others? Is a history of charity activities sufficient evidence of good character to merit merely house arrest and probation?
