Where's the Bone for Bernie Madoff?

By Jeralyn, Section Crime in the News
Posted on Wed Mar 11, 2009 at 09:45:00 AM EST
Tags: Bernard Madoff (all tags)

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Yesterday I wrote about the details of the Bernard Madoff non-plea agreement in which he pleads straight up to all 11 counts against him and receives no sentencing concession, no promises about non-prosecution of family members and no agreement that the Government's continuing investigation won't affect his wife and other family members' assets.

He's 70 years old. Even if he gets a 25 year sentence with good time, he's likely to die in prison. He's not going to a minimum security camp. So why is he pleading guilty? Are there secret agreements we don't know about?

It's customary in a death case for lawyers agree to a deal where the client gets life. For some, life without parole is preferable to death. I may not agree, but I can understand it.

But this? He's pleading guilty to a sentence of up to 150 years. The Government says it's no longer bound by its earlier promise at the time of the bond hearing not to take $70 plus million assets in the name of his wife. The Wall St. Journal now reports that prosecutors say the investigation is continuing and her ability to keep her assets depends on what they find.

[More...]

The U.S. attorney's office for the Southern District of New York noted Mr. Madoff's claim about his wife's assets in a footnote of a federal-court filing on Monday. The claim came as a federal judge modified a prior order freezing Mr. Madoff's assets. Prosecutors will now be allowed to seek the seizure of Mr. Madoff's assets without violating the prior order. "We consented to the order," said Ira Lee Sorkin, a lawyer for Mr. and Mrs. Madoff.

The filing didn't address whether Ruth Madoff's assets should be subject to seizure if her husband is convicted in an alleged multibillion-dollar fraud and prosecutors should seize his assets to compensate victims. In that circumstance, prosecutors would need to show that Ruth Madoff's assets are a product of Mr. Madoff's alleged fraud or that she was directly involved in the fraud, says Howard Kleinhendler, a New York lawyer.

Are they promising they will join in his request to remain free on bond until sentencing? They said no agreements, so I don't think so. Does Bernie have dual citizenship that would allow, under a prisoner transfer treaty, for him to be moved to a country that would release him shortly after the transfer, on the grounds that this specific country don't have the same criminal laws on assets and fraud and thus can't legally hold him? Another unlikely scenario.

So who agrees to start a life sentence at 70, when you can have another year or two at your luxurious Park Avenue abode in the company of your spouse and family, while awaiting trial?

It's not like the Government could give him any more time if he went to trial and lost. What was he afraid of? That he'd be sentenced to life plus cancer?

I don't get it. I know he has smart, expensive, white collar lawyers, but who pleads a client to life in prison without a plea agreement, without concessions to family regarding their retention of assets or an agreement not to prosecute them?

I've uploaded the documents for those who want to read them:

Madoff's Information (The Charges)
The Government's Letter With Sentencing Calculations
Madoff's response stating the Government's $177 billion forfeiture amount is too high
The DOJ Press Release explaining the charges.

There's got to be a bone for Bernie in here somewhere, but right now, I'm not seeing it.

The cynic in me would venture a guess that he and his wife stockpiled their Ambien and stronger prescription pills these past several months and he intends to take them in the privacy of his bedroom tomorrow night, along with a long swill of wine (Remember Tony Perkins in Play it As It Lays?) never making it to court Thursday. But, even that doesn't explain it. Since he's on bond, he could say his permanent goodnight towards the end of trial and have another year or more with his family at home.

What am I missing?

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Where's the Bone for Bernie Madoff? | 38 comments (38 topical)

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No exit (5.00 / 1) (#3)
by Mitch Guthman on Wed Mar 11, 2009 at 02:55:27 AM EST

Andgarden,

Why exactly would a man living in great material comfort and with a very high probability of be able to continue do so for the next several years be looking for an "exit"? Why would he volunteer to be locked up in a medium security federal prison for the rest of his life instead of living in comfort in his penthouse, sleeping in his own bed, eating good food and not being beaten up or extorted by his fellow convicts? I mean, really, even the good old "club fed" didn't remotely compare to a multi-million dollar penthouse. Believe me, both the quality of the living arrangements and the caliber of the inmate population the federal prison system has taken a decided turn for the worse in the past few years.

I think Jeralyn's point (which I agree with) is that because Madoff gains nothing by this plea there is no reason for him to enter it. Any reasonably capable lawyer could probably keep him living in palatial splendor for several more years at least. He didn't make a deal to save his family from prosecution or to preserve their ill-gotten gains. If there isn't a secret deal, what's the idea behind this plea?

I would be really curious to know what kind of legal advise Madoff has been getting and what his high-priced, famous lawyer thinks about this plea. Of course, I've always wondered why any criminal defendant in his right mind would hire a lawyer whose family was screwed out of nearly a million dollars by said criminal defendant. I just can't figure it out. The whole thing feels like we've fallen down a rabbit hole. There is something really, really strange going on here.

re (5.00 / 1) (#11)
by Bemused on Wed Mar 11, 2009 at 08:30:03 AM EST

Look at it this way. He knows that with or without an agreement, he's going to prison for the rest of his life. He also knows that the government is going to seek to locate and take his assets. Maybe with a deal his wife's $70 million would be spared, but maybe he has much more than $70 million somewhere he does not think the government will ever find unless he helps them find it. a plea agreement would require him to provide that help otherwise it would be free to void the agreement and take the $70 million.

So, he decides the agreement really provides him no gain and in fact a bigger loss than no agreement. That would make some sense if those assumptions are accurate.

As for buying him much more "freedom," the difference between the time he would be required to surrender to serve his sentence under a plea agreement conviction and straight-up plea may be negligible.

He might even believe that going to trial would not increase the time before he is incarcerated because he belives both that the government would seek revocation of release on bond and the court would order it if he digs in his heels and insists upon a trial.

When weighing all these factors including the stress of the proceedings, he might just have decided that pleading straight-up and not being bound to help the government locate assets serves the greatest good from his perspective.

Who knows how much he might have somewhere in the world under other names or in anonymous accounts that he believes the government will either not be able to find or pry loose if it does find it unless he tells them where it is and agrees to execute documents transferring the assets to the government. The money might not do him any good but it might help others he wants to help and if voluntarily disclosing it and transferring it won't prevent him from going to prison for the rest of his life what is his real incentive?

Madoff's Pleading SO He Can PREVENT (5.00 / 4) (#12)
by tokin librul on Wed Mar 11, 2009 at 08:42:55 AM EST

a trial.

In court, it would come out that his wife and sons were deeply implicated in the fraud and theft.

THis way, his childhood sweetheart gets to keep the penthouse, and his sons get to keep their 'reputations,' and all that ill-gotten gleep ($62 Million? Momma Madoff made out just fine) stays right in family...

Protecting the sons (5.00 / 2) (#14)
by ruffian on Wed Mar 11, 2009 at 09:08:02 AM EST

is tghe only thing that makes sense. He's taking the fall for all of them.

Don't know if the wife will get to keep the homes and money, but at least the sons won't be in jail.


sometimes the only thing that makes sense ... (none / 0) (#26)
by wystler on Wed Mar 11, 2009 at 11:46:26 AM EST

... is surrender. (As in: Bernie's guilty; he knows it; his lawyers know they don't stand a snowball's chance in hell ... along, possibly, that any sentence mitigating strategy might be undone by trying to conduct a defense that sought a favorable verdict on any of the counts)


: You Think He's Defeated (5.00 / 1) (#40)
by tokin librul on Wed Mar 11, 2009 at 05:52:57 PM EST

I think he's scamming.
Still.
He'll do just fine in some Club Fed--there's a really nice one between San Luis and Morro Bay where I'd go to retire--where he can polish his tennis serve or his backhand.
He'll suffer no privations, that much is guaranteed.

Dissatisfied Russian Oligarchs (5.00 / 1) (#15)
by scribe on Wed Mar 11, 2009 at 09:46:42 AM EST

who lost lots of money - maybe the feds will work toward keeping them off the Madoff family's tail, and keeping this out of the papers and out of court will assist in that.

Or, maybe Bernie has a terminal medical condition and has nothing to lose (and his family a lot to gain) by his going off to prison quietly.

Finally, compare Duke Cunningham - he pleaded and was sentenced and the government never asked him for cooperation, either. They didn't want to know what he had done.

Is it possible (5.00 / 2) (#16)
by Lil on Wed Mar 11, 2009 at 10:12:11 AM EST

I know this will get ridiculed, but is it possible that he just "surrendered". Maybe he just feels guilty and is willing to move on and not spend time fighting anymore. Is it possible that he is a true repentant?

Or, is it possible that (none / 0) (#21)
by Inspector Gadget on Wed Mar 11, 2009 at 10:55:46 AM EST

this was his only way to avoid having to name all the names behind him and his scheme? They can't threaten him with prison or a longer sentence if he refuses to talk at this point.

Could be that the bigger forces behind him were always open about what would happen to him if he got caught and talked? He could be personally safer in prison.

Sounds like he isn't doing much to protect his family members...maybe he was always upfront with them...join this at your own risk. We get caught, everyone is on their own.


Is he afraid of more than (none / 0) (#25)
by Fabian on Wed Mar 11, 2009 at 11:17:06 AM EST

the government?

If he was dealing with Bad People, he may have a lot of incentive to plead guilty, not say another word and serve his sentence.


doubtful (none / 0) (#27)
by wystler on Wed Mar 11, 2009 at 11:53:32 AM EST

Those kind of folks aren't stopped by prison walls, and don't tend to believe a stretch in the joint guarantees silence. If that's the circumstance, then Bernie's family can order the headstone now.


re: doubtful (none / 0) (#35)
by goroei7 on Wed Mar 11, 2009 at 01:35:20 PM EST

Those kind of folks aren't stopped by prison walls, and don't tend to believe a stretch in the joint guarantees silence. If that's the circumstance, then Bernie's family can order the headstone now.

Yep. I think the no-agreement plea is BM's way of making it clear that he is saying nothing - any possibility of a bargain means he might talk/have talked.

He probably still dies, but maybe some of his family members survive.


: So, as I said... (none / 0) (#36)
by Inspector Gadget on Wed Mar 11, 2009 at 02:11:33 PM EST

They can't threaten him with prison or a longer sentence if he refuses to talk at this point.
He has essentially assured all involved that he won't be giving up any information.

I don't know about you (none / 0) (#33)
by MrConservative on Wed Mar 11, 2009 at 01:12:02 PM EST

But if I had an opportunity to be out on bail for the only 1 or 2 years I'd ever get of freedom I'd have for the rest of my life, repentance would take a seat to practicality. And I'm not even as evil as Bernie Madoff. This doesn't seem to be in his "best interest".


I confess (5.00 / 1) (#18)
by jbindc on Wed Mar 11, 2009 at 10:41:21 AM EST

I know this is a defense-based site, but I confess - I don't really care if Madoff got a bone or not. With as many people as he hurt, I'm sorry he won't be alive to serve all 150 years and then some.

this is not about caring about Bernie (none / 0) (#20)
by Jeralyn on Wed Mar 11, 2009 at 10:53:55 AM EST

but trying to figure out why he would plead guilty to a life sentence when he couldn't do any worse if he went to trial. Unless the government is promising him something it's not telling us, it isn't adding up yet.


tamping down evidence (5.00 / 1) (#29)
by wystler on Wed Mar 11, 2009 at 12:00:32 PM EST

Taking the straight plea bypasses the prosecution's case.

Feel free to assume what you will. (But it's likely worse.)

The possibilities are endless. (Including Israel?)


: just one of many possibilities (none / 0) (#38)
by wystler on Wed Mar 11, 2009 at 03:13:09 PM EST

I see no reason to go there, beyond minor mention, excepting that some cash flows would have been broadly exposed by a protracted trial.
Just what have you managed to infer, that you've drawn out ...

... that Israel is somehow behind Madoff's scheme ...
That's a quantum leap far beyond alluding that Madoff's concern for Israel's well-being might possibly be best served by avoiding a trial.
True enough, there are myriad plausible reasons why he's chosen to plead out without a bargain.

Witness Protection Program (5.00 / 3) (#24)
by santarita on Wed Mar 11, 2009 at 11:09:09 AM EST

Bernie Madoff is a marked man. Not going to trial probably provides some protection from physical harm for his family members. And what better place for protection for Bernie himself that prison (assuming he gets a country club prison with other white collar criminals as his tennis partners.)

My grandfather was a judge. Bugsy Malone appeared before him on a vagrancy charge and asked to be put in jail. (He was running from Capone.) (At least, this is how my mother told me the story.)

: Bugsy... (none / 0) (#32)
by desertswine on Wed Mar 11, 2009 at 12:54:41 PM EST

Malone? This Bugsy Malone?
But I thought Jodie Foster was really cute.

As I indicated in my comment on the last thread (none / 0) (#1)
by andgarden on Wed Mar 11, 2009 at 01:21:02 AM EST

my first thought was that Madoff might be looking for the exit door sooner rather than later.

possibilities (none / 0) (#2)
by polizeros on Wed Mar 11, 2009 at 02:51:32 AM EST

a) He lied to the Feds continually, they found out, and lowered the boom.

b) He doesn't want a trial because of what would come out. (Like whatever organized crime was behind him?)

c) He's a genuinely broken man and doesn't care any more.

Madoff cares about himself (none / 0) (#4)
by Mitch Guthman on Wed Mar 11, 2009 at 03:10:17 AM EST

polizeros,

How could the feds "lower the boom" on him? Modoff just agreed to forfeit all his money and go straight to a federal prison where, shall we say, his lifestyle will undergo a nightmarish change for the worse? He agreed to die in prison---what more could the feds do to him?
Again, unless there is a secret side deal, the plea stops nothing from coming out because the feds have already indicated that they are going to continue investigating his family and everyone associated with him. How does this plea stop things from coming out?
I don't read Madoff as a "broken man". This guy did terrible stuff to people who were supposedly his friends, he took everybody he could even charities and people of very limited means---he took everything they had and he did it for maybe 20-30 years. This guy has got lots of heart----he is one stone cold, evil M-F.

Now, I always had it figured that if he could stretch things out for a few years and maybe save the family and their look, then when the appeals were exhausted and he had to report for intake, he'd check out with some pills and a bottle of scotch. But I don't see him just putting his hands up and volunteering to spend his golden years locked up in tiny little cell with a fellow sociopath for company. No way.

Didn't know about the children. (none / 0) (#6)
by Fabian on Wed Mar 11, 2009 at 05:01:47 AM EST

Thanks.

In our more local scandal, Tom Noe agreed to plea guilty to protect his wife, who would likely have been convicted if she had been prosecuted. No children involved.

I guess the real question is what do the prosecutors want - not what does Madoff want? Madoff's only hope of bargaining for advantage is to give prosecutors/investigators what they want.

I agree. (none / 0) (#7)
by LarryInNYC on Wed Mar 11, 2009 at 07:10:42 AM EST

As I posted last night, I don't see why he wouldn't try to draw it out as long as possible.

Possibilities I see?

No trial might mean no further development of evidence that might implicate family members.
He may actual be remorseful about what happened.

re (none / 0) (#8)
by Bemused on Wed Mar 11, 2009 at 07:11:28 AM EST

Maybe when it was realized that at his age, a plea with an agreement would likely result in a de facto life sentence even if the imposed term was not life, he decided that the portion of a plea agreement requiring him to be truthful and assist the government in locating and acquiring ALL assets was something he didn't want to accept.

If he got caught being less than truthful about assets then the government could void the plea agreement if it chose and if he was truthful then assets he might wish to remain available for others in the future would be lost.

Just a guess.

Why wouldn't he just disappear? (none / 0) (#9)
by Mikeb302000 on Wed Mar 11, 2009 at 07:21:56 AM EST

Any person who counts in millions like most people count in hundreds, could arrange to disappear secretly. He wouldn't be the first fugitive out there. What's preventing that, do you think?

: The places he'd have to go... (none / 0) (#31)
by Dadler on Wed Mar 11, 2009 at 12:24:39 PM EST

...to genuinely disappear in this instant video and communication age are places he could never survive in.

It makes no sense.... (none / 0) (#10)
by kdog on Wed Mar 11, 2009 at 08:07:06 AM EST

but then again, stealing more money than you could ever spend when you're already living in the lap of luxury makes no sense either...maybe he's just insane.

Or he's a guy that values life over liberty, and fears for his life on the street...I would if I screwed that many people over.

re (none / 0) (#13)
by Bemused on Wed Mar 11, 2009 at 08:46:39 AM EST

The problem with that reasoning is that would be a reason to accept not forego a plea agreement. Pleading straight-up and not cooperating leaves the government perfectly free to pursue additional charges against (or disgorgement of known assets it can show are derived from the criminal activity) against the family or others.

this plea does not protect his wife or sons (none / 0) (#17)
by Jeralyn on Wed Mar 11, 2009 at 10:13:44 AM EST

according the the Government, which says the investigation is continuing and there is no agreement with Madoff. Either the Government is lying and there is a deal or that reason doesn't fly.

Also, if he doesn't want to cooperate in the ongoing investigation to protect them, pleading guilty is not the way to go. He no longer will have a 5th Am privilege against self incrimination.

: no (none / 0) (#37)
by Bemused on Wed Mar 11, 2009 at 03:11:19 PM EST

That's not entirely correct. The privilege against self-incrimination extends to the sentencing phase (Mitchell v. United States, 526 U.S. 314 (1999)).
At the plea hearing the court must be satisfied there is a factual basis for the pleas, but that would not require him to disclose asset location or otherwise further incriminate himself.
Also, precisely because he has no agreement the government will not seek additional charges against him to which he is not currently subject, his ability to plead the 5th is enhanced mot limited by the lack of an agreement.
additionally, with or without an agreement, or if he went to trial the 5th amendment privilege is applicable only to information which incriminates him. It might be unlikely that any information he has about others wrongdoing is not also self-incriminating, but it is possible. In any event, I doubt the threat of contempt sanctions is a big worry at this point.

Are there bigger fish in this scandal... (none / 0) (#19)
by magster on Wed Mar 11, 2009 at 10:45:27 AM EST

than even Bernie Madoff? Would there be a cooperation agreement?

or, since Madoff's $$ is ill-gotten booty (none / 0) (#22)
by magster on Wed Mar 11, 2009 at 11:00:59 AM EST

it would be subject to forfeiture. Maybe he is able to keep some more $$ squirreled away undetected for later bequeathing to his heirs?


Plus (none / 0) (#23)
by jbindc on Wed Mar 11, 2009 at 11:06:35 AM EST

The tax bill on that ill-gotten gains. Wonder if he claimed all that income?


: Doubtful, besides there is no reason (none / 0) (#28)
by coast on Wed Mar 11, 2009 at 11:58:05 AM EST

for the IRS to even look. The man is going away for life and there are no funds to recover. It would be a waste of their time.

The REAL family that preys together (none / 0) (#30)
by Dadler on Wed Mar 11, 2009 at 12:23:10 PM EST

Now they're all just praying.

Seriously, something will come out that explains this. Life is full of confounding sh*t, people are very screwed up propositions. Usually though everything is about love or money or both, which seems the case here.

re (none / 0) (#39)
by Bemused on Wed Mar 11, 2009 at 03:47:00 PM EST

In my post above, I should also have added the lack of immunity resulting from a lea agreement adds to his ability to invoke the 5th.

The question really should be framed as what potential benefits would there have been from going to trial. Other than the possibility of acquittal on almost all charges it would seem the answer is none, unless we assume he would be allowed to remain out on home confinement for the duration.

As for a straight up plea versus a plea agreement, it's probably safe to assume the government was not willing to offer him any consideration that made that worth the costs.