criminal law

Here's a piece I wrote for the Connecticut Law Tribune regarding a former president of the Mashantucket Pequot Tribal Nation who, despite being a strong advocate for American Indian rights, is now serving a federal prison sentence for embezzling from the tribe:

Michael Thomas had a reputation as a "tireless and effective advocate" for the Mashantucket Pequot Tribal Nation, and he rose to president of the tribal council, a position he held for nine years, despite a difficult childhood. But now, with his conviction recently upheld by the U.S. Court of Appeals for the Second Circuit, Thomas will spend 18 months in federal prison for embezzling more than $100,000 in tribal funds.

It could have been worse for the former leader of the tribe that runs the successful Foxwoods Resorts Casino. When U.S. District Judge Janet Bond Arterton sentenced Thomas, she took into account his advocacy for American Indian rights and gave him a sentence that was more lenient than federal guidelines "to reflect [the] defendant's positive work for the tribe."

Over a two-year period, Thomas used his tribal American Express card to pay over $100,000 in personal expenses. Most of the money Thomas embezzled was spent on a car service he hired to bring his mother to and from her dialysis and other medical appointments, at $450 per trip. He also spent tribal money on Direct TV for his personal residence, Sirius XM Satellite Radio for his personal vehicle and cell phone service for two of his associates, among other expenditures.

Tribal law prohibited the use of the tribal-issued AmEx card to pay for personal expenses. Thomas himself signed that tribal resolution as the council chairman. But Thomas alleged that personal items could be charged on his card as long as they were reimbursed.

Prosecutors countered that Thomas had no way to repay the charges. His personal income was in decline and his personal checking account was overdrawn every month. Thomas also never reimbursed or attempted to reimburse the tribe for any portion of the $100,000 of the personal charges.

He was ousted from his elected position in 2009.

In the latest development, the U.S. Court of Appeals for the Second Circuit upheld Thomas' conviction on narrow grounds last month.

Thomas had been convicted of theft from an Indian tribal organization and theft from a tribal government that received $10,000 in federal funds. He agreed that his intention to repay the funds was not in itself a defense to charges of theft and embezzlement. But Thomas's counsel, Steven Rasile of the Law Offices of Mirto & Rasile in West Haven, argued that Thomas's "intent to repay, when coupled with the tribe's practice of permitting [Thomas] to place personal expenses on the tribe's charge card and reimburse them later could have demonstrated that the defendant lacked the requisite intent to commit the crimes with which he was charged."

The district court held that it was not relevant to the case that Thomas had previously reimbursed the tribe for $159,000 in personal expenses charged to his tribal-issued American Express card, or that Shalida Jones, another tribal councilor, had used her tribal credit card for $36,511 in personal expenses. If the defendant "had evidence that other tribal council members charged big-ticket items, like $80,000 of limo services, and went years without repaying, that's getting closer in comparability," Arterton said. "'From what the government is saying, there isn't any such evidence."

The Second Circuit panel of John Walker Jr., Jose Cabranes and Raymond Lohier Jr. rejected Thomas' contention that his due process rights were violated because he was not allowed to introduce that evidence at the trial.

"Even if the evidence at issue was sufficient to establish that the tribe, in practice, permitted its officials to charge personal expenses to their cards with subsequent reimbursement, such evidence would only have been relevant at trial if Thomas's conduct comported with that practice," the panel said. "Here, it is undisputed that Thomas did not reimburse the tribe for any of the over $100,000 in personal expenses that he charged to his card between October 2007 and September 2009—despite the fact that he was not indicted until January 2013."

Not only was Thomas' defense irrelevant to the crimes he was charged with, but the probative value of the evidence was substantially outweighed by the danger of confusing the jury, the court said.

The panel noted in footnotes that there were two issues of first impression in the case.

The first was whether theft from a tribal government could be prosecuted under a federal law that bars people from taking more than $5,000 in funds from programs that receive $10,000 or more in federal funds per year. While Thomas did not challenge federal jurisdiction over his embezzlement from the tribe, the panel did note that the Eighth Circuit has affirmed convictions in federal court for people who have stolen from a tribal government.

The second issue of first impression was whether a defendant's intent to repay funds can be used as a defense to charges of embezzlement and theft. The panel noted that, while it has not decided directly if a defendant's intent to repay funds is a defense to charges of embezzlement and theft, the Second Circuit has issued an unpublished opinion citing a First Circuit's ruling that "'an intent to return money or property is not a defense to the charge of embezzlement.'"

Rasile, Thomas' counsel, declined comment. Assistant U.S. Attorneys Christopher Mattei and Marc Silverman wrote the brief for the U.S. Attorney's Office in Connecticut. Mattei argued the case before the Second Circuit. That office declined comment as well.

Here's a piece I did for the Connecticut Law Tribune about a new call for Connecticut to cut its prison population:

It's not every day that red-state Texas is pointed out as a paragon for reform that blue-state Connecticut should emulate.

But the author of a new book calling for a mass overhaul of Connecticut's criminal justice system says that Connecticut should adopt some of the best practices that have helped Texas reduce its prison population. Texas has reduced the number of inmates so much that the Lone Star State is closing prisons.

Brian Moran, a partner at Robinson & Cole in Stamford, is the principal author of the book: "The Justice Imperative: How Hyper-Incarceration Has Hijacked the American Dream."

Moran notes that Connecticut's prison population has grown from 3,800 inmates in 1980 to almost 17,000 as of January 2014. Meanwhile, the state spends more than $1 billion annually on incarceration costs, but well more than half the prisoners who are released end up back behind bars.

Federal prisons and state correctional facilities all have seen their populations explode because of the 40-year war on drugs, Moran said. It is estimated that in that time period, the penal population in the U.S. grew from 300,000 to more than 2 million.

But other states are further along in enacting reforms to steer more nonviolent offenders away from prison or to establish programming that helps ex-cons reintegrate into society after they finish doing their time, Moran said. "The 40-year war on drugs … is potentially affecting another generation of kids," Moran said. "We think it's long overdue for Connecticut to get onboard with this battle."

Linda Meyer, a Quinnipiac University School of Law professor and who was on the book's writing committee, said "everyone's intuition is that the more people you incarcerate, the less crime you have. We're trying to get the message out that is wrong."

The Connecticut juvenile justice system has taken steps that could offer guidance to the adult justice system, the authors argue. Even as the state has transferred more young lawbreakers from adult courts into the juvenile system, it has placed fewer juveniles in detention facilities and put a greater emphasis on rehabilitative programs. That focus has lowered recidivism rates, Moran says.

Similarly, the book says, the state should expand nonincarceration programs for adult offenders, ranging from transitional housing units for ex-cons to treatment programs for people with substance abuse issues and mental illness.

Moran and the coalition that backed his book project suggest that Connecticut should strive to cut its prison population in half in the next five years, close half of its prisons in five years, reduce recidivism rates by 30 percent in five years and reduce state spending on the prison system by half.

The books makes 30 recommendations for alternatives to incarceration, improving the reentry process, new legislation, new policies the executive branch could undertake and initiatives the Department of Correction could undertake.

Some of the recommendations include:

• Eliminate the requirement that inmates must serve 85 percent of a sentence for crimes classified as violent.

• Adopt reforms that allow for early parole and more time off for good behavior.

• Allocate one-third of any cost savings realized from reducing the prison population toward educational programs and vocational training aimed at reducing recidivism.

• Give judges more discretion in handing out sentences, "including the use of … offender-based data systems, sentencing-support analytics and mandatory offender family impact statements to facilitate informed decision-making."

• Provide employers who hire ex-offenders with tax incentives as well as immunity from liability.

When states such as Texas have enacted these sorts of reforms, and have reinvested savings in treatment, education and providing support to former inmates, they have also seen a reduction in the rate of crime, Moran said. Orienting Connecticut's criminal justice system in this way would provide a "trifecta of benefits: lower costs, lower recidivism and improved public safety," Moran said.

He added that there is a fourth benefit: Better success at achieving the "holy grail of corrections," which is to rehabilitate inmates and restore them to their families.

Moran, who practices in commercial litigation with an emphasis on antitrust, intellectual property and licensing disputes, was drawn to the topic of criminal justice because of his friend William Fox's involvement with the Malta Justice Initiative. The Southport-based group has an active prison ministry providing support to people who are incarcerated. It is overseen by a Roman Catholic religious order called The Sovereign Military Hospitalier Order of St. John of Jerusalem of Rhodes and of Malta.

John Santa, who is chairman of the initiative, said the gist of the book is about "more effective and compassionate treatment when [inmates are] in and more effective support when they're out and reentering." The group says that while Moran is the main author, the book is a collaborative effort, including the input from a bipartisan coalition of businesspeople, correctional professionals, legislators, judges, law enforcement professionals, lawyers, ministers and academics in Connecticut.

Moran also was drawn to the book because of reading Michelle Alexander's book, "The New Jim Crow: Mass Incarceration in the Age of Colorblindness," in which she argued that young black men, who go to prison for drug crimes 20 to 50 times more often than young white men do, are "part of a growing undercaste, permanently locked up and locked out of mainstream society."

The racial disparity in the criminal justice system is no different in Connecticut than it is nationally, Moran said. Blacks and Latinos make up 24 percent of Connecticut's overall population but they comprise 66 percent of the prison population.

That is another reason for criminal justice reform in Connecticut, Moran said. "There are two Connecticuts," he said, "the inner cities and what is happening outside of the bigger cities."

For more information on "The Justice Imperative: How Hyper-Incarceration Has Hijacked the American Dream," visit http://thejusticeimperative.org.