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April 10, 1974

Michael PATERNO et al., Defendants

Frankel, District Judge.

The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

The two defendants have come on for sentencing upon a jury's solidly grounded verdict finding them guilty of cheating on taxes in substantial amounts over a period of years.

 The defendants have lived to middle age with unblemished -- indeed, highly respectable -- reputations. They have been industrious. They have employed their business and professional skills for socially constructive ends. They were endowed with above average talents for the acquisition of money. Their community has rewarded them with esteem and with material blessings considerably more lavish than those fated for the common run. Nevertheless, though they were surely not driven to crime by the goads of want, these defendants found it agreeable to engage, over at least several years, in a knowing, wilful, blatant scheme to defraud their fellow citizens by defrauding the Treasury of the United States.

 This is, in short, a species of criminal case sorrowfully familiar to everyone.

 The sad question now, acknowledging our imperfect understanding and our still primitive instruments of criminal justice, has been the determination of a just sentence. Justice is owed, certainly, to the defendants themselves. We are not permitted, however, to overlook that the community for which the judge is commissioned to speak ultimately decides and demands and is owed justice too.

 We start, if only fleetingly, with the sentencing provisions of the laws defendants have violated. Defendant Michael Paterno has been convicted on eight counts carrying, in literal but fantastic terms, total sentences of 34 years' imprisonment and $65,000 in fines. The comparably astronomic numbers for defendant George Denti are 28 years and $55,000. Paterno's corporation has also been convicted, and it faces theoretical fines totaling $50,000. Although our newspapers delight in publishing numbers like these, nobody supposes seriously that cumulative sentences remotely approaching them will actually be imposed.

 The largest single question, faced at the threshold, is whether the individual defendants are to be imprisoned at all. Judges, armed with too much discretion in such matters, are sharply divided on this question. Many eschew prison sentences in such cases as unnecessary and cruelly retributive. Others, in seemingly growing numbers, recoil from the evident premise that "respectable" criminals -- who have lived seemingly ordered lives, well groomed and well spoken, so much like ourselves after all -- should be immunized for all that against the law's harsher sanctions.

 The arguments against imprisonment cover a familiar gamut and include, at this particular time in our history, a special, if passing, supplement. The latter, to dispose of it first, runs this way: How can we condemn and imprison relatively obscure men for mere fraud upon their government when so many near the pinnacles of power have been discovered lately perjuring themselves, obstructing justice, burglarizing, spying, criminally giving and receiving forbidden monies for campaign uses, taking bribes, and otherwise betraying their trust? The question is not frivolous. But it has -- it must have while we survive as what we mean to be -- a clear answer.

 We are, for much more than a slogan, a government "of the people." We are not led by any permanent or sacred aristocracy, anointed to do its will and pronounce our standards, good or evil, from on high. To be sure, we look for leadership to those we select. But we select them. And in the end it is we who govern them, not they who govern us. The Supreme Court recalled a while ago, and we do well never to forget, two bedrock propositions as James Madison declared them for us:

"The people, not the government, possess the absolute sovereignty."
* * *
"If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people." *fn1"

 It follows that the missteps of people in power are no excuse, and should be no cause, for our breaking faith with ourselves. Wrongdoers in high places and low must be brought to justice. Whether or not that ideal is always achieved, our standards of law and morality are rooted in the people. If the poet may be paraphrased without disrespect, it is to ourselves, not the occasionally fallen star, that we must look for the preservation and steady renewal of our deepest values.

 We come, then, to the more familiar appeals for leniency in cases like those here considered. The defendants, as has been mentioned, have led exemplary lives -- at least so far as anyone knew until now. They have built stable families and a stable business. People of distinction and more humble workers in their enterprise write letters of sincere praise, devotion, and appreciation on their behalf. The defendants have not been ungenerous in dealing with friends, employees, family members, and charitable agencies. It may be predicted with reasonable confidence that neither defendant will ever run afoul of the law again. The fall from untarnished eminence in their communities has been an irreparably grievous blow. The ...

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