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November 16, 2015

Sentencing prominent federal defendants: should sex offender Jared Fogle or Sunwest CEO fraudster get longer prison term?

Two notable (and notably different) federal prosecutions are to reach sentencing this week in Indiana and Oregon.  Though the crimes and defendants are not similar, the range of sentences being requested by prosecutors and defendants in these two cases are comparable.  Via press reports, here are the basic elements of these two federal cases (with links to some underlying documents):

Jared Fogle, who pleaded guilty to federal sex offenses, "Jared Fogle asks for 5-year prison term in court filing before sentencing":

Jared Fogle's attorneys asked for a five-year prison term for the former Subway restaurant pitchman in a court filing before his sentencing Thursday.  The filing says Fogle will speak publicly during his hearing before Judge Tanya Walton Pratt in federal court in Indianapolis.  "He is painfully aware of the fact that he has impacted the lives of minor victims, hurt those closest to him and, for all practical purposes, destroyed the life he worked to build over the last 18 years," the filing says.

Fogle has agreed to plead guilty to two counts: possession of child pornography and traveling across state lines to engage in sex with a minor.  The prosecutor is asking for 12½ years in prison, followed by a lifetime of supervised probation.  That was the maximum sentence the U.S. attorney had agreed to seek in a plea bargain struck with Fogle in August. Fogle faced a maximum sentence on the two federal felony charges of 50 years.  The judge has discretion to sentence Fogle to more or less than what the prosecution has requested.

The defense filing acknowledges that the advisory sentencing guideline is 135 to 168 months, but said it is "entitled to little weight because it is the result of a flawed and widely criticized set of … provisions."

Jon Michael Harder, who pleaded guilty to federal fraud offenses, "Former Sunwest CEO, facing sentencing for $130 million fraud, apologizes for 'carnage and problems'":

U.S. prosecutors accuse former Sunwest Management CEO Jon Michael Harder of orchestrating the biggest investment fraud in Oregon history, and they are asking a judge to sentence him to 15 years in prison.  IRS criminal investigators say that as the head of a vast network of assisted living centers, he helped make off with $130 million from 1,000 investors between 2006 and 2008.

Harder will go before a judge Monday morning for a rare two-day sentencing hearing before U.S. District Judge Michael H. Simon, who found him guilty last January of mail fraud and money laundering.  

Harder's legal team, seeking leniency, is asking Simon to sentence him to five years in prison. Assistant Public Defender Christopher J. Schatz took the unusual step of filing a court declaration that describes his client as possibly suffering from undiagnosed post-traumatic stress disorder from the emotional clubbing he took after Sunwest's failures.  "Many of the investors in Sunwest were family members, family friends and members of the Seventh Day Adventist community," Schatz wrote. "Mr. Harder feels that he let all the investors down, that he failed them all."  

Harder, too, filed a court paper — a letter of apology to Simon.  "I feel incredibly badly for all the carnage and problems that I have caused," he wrote. "I have obsessed, over the last 7 ½ years, about what I should have or could have done differently in operating Sunwest."

government sentencing memo paints Harder as a chief executive who burned through corporate cash as if it were his own. He drove luxury cars, owned six homes, and once flew about 100 people to Alaska — most of them Sunwest employees — to go fishing.

Intriguingly, it seems that the federal sentencing guidelines would call for a much, much longer sentence for the fraudster than the sex offender: while Jared Fogle appears to be facing a guideline sentencing range of roughly 12 to 14 years, Jon Harder appears to be facing a guideline sentencing range of life without the possibility of parole.

November 16, 2015 at 10:05 AM | Permalink


Specifically what harm did he cause?

List the harms.

Posted by: Supremacy Claus | Nov 16, 2015 12:39:46 PM

What I think these examples show is the enormous power that prosecutors wield in sharping sentencing decision by the charging decision they make.

Posted by: Daniel | Nov 16, 2015 12:41:17 PM

If Jarod Fogel gets 5 years for CP/contact with a minor, that's a slap in the face to all those currently serving 5 years for CP/non-contact sex offences. If he gets only 5 yrs, then shouldn't those accused of non-contact, lesser crimes, get less time?

As for Mr. Harder, 15 yrs in prison isn't going to do anything for the investors who lost money. Better to put him in a work release program where he can start paying back what he took. If that takes the rest of his life, well, at least he's out doing something constructive, trying to make amends. In prison, he'd get 25 cents an hour for prison work and the taxpayers would foot the bill for his room and board.

Posted by: kat | Nov 16, 2015 12:53:49 PM

kat, on the Fogel call, I couldn't agree more heartily with you. Because of his 'celebrity status' the contact conviction alone should have been good for a 10 to 15 stretch by itself.

Posted by: in agreement | Nov 16, 2015 5:59:46 PM


Even Doug has shown the "Great American Ignorance" to use the term "Sex Offender" synonymously with "Scum who should not have been born".

I thought in the last post that the Feds were unable to find a minor, contact "victim", even though he may have crossed state lines with intent and/or made his intentions known. In my mind, his biggest crime may have been viewing the CP produced by the head of his foundation. However, I never trust any information released by prosecutors and LE.

No, stealing from people millions of their hard-earned money (where there is real harm) just isn't THAT hurtful.

Posted by: albeed | Nov 16, 2015 10:52:21 PM

Albeed. The lawyer defends the murderer of black male victims to further the vile, racist feminist lawyer agenda. Those should be released by the busload. But first, relabel them. They are non-violent drug offenders.

Posted by: Supremacy Claus | Nov 17, 2015 1:52:07 AM

I am pretty sure, albeed, that Fogel had sex with underage prostitutes and specifically sought out underage girls for sexual encounters.

Posted by: Doug B. | Nov 17, 2015 8:23:43 AM


Thank you for replying. I am not sure if he did or didn't based on what was released by the legal system(s) (I have stopped saying Justice) and printed in the media.

I think that there should be a significant difference between "sought out" and actually doing the deed. However, you already know my thinking on the arbitrariness on "age of consent" and what actually constitutes "sex", i.e., heavy petting vs. touching (over/under clothes) vs. actual penetration. With todays laws, there is often little distinction in punishments with getting to first base and going all the way, to use a vernacular that may be obsolete.

Posted by: albeed | Nov 17, 2015 10:35:51 AM

Assume he had intercourse with women age 14. Isn't consent a defense to crime?

The law states that people under an age may not consent to sex activity, and the victimization is statutory.

This is the place to challenge that lawyer fiction.

The Daubert decision applies to criminal trials. Prove someone fourteen is not an adult. One of the challenges to the prosecutor would be, try to make the hussy do anything she does not want to, for example, her homework. See if she is capable of asserting her refusal.

Posted by: Supremacy Claus | Nov 17, 2015 11:46:58 AM


Posted by: Rita Ora | Nov 17, 2015 1:29:51 PM

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