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UNITED STATES v. BERGMAN

June 17, 1976

UNITED STATES of America,
v.
Bernard BERGMAN, Defendant



The opinion of the court was delivered by: FRANKEL

SENTENCING MEMORANDUM

 FRANKEL, District Judge.

 Defendant is being sentenced upon his plea of guilty to two counts of an 11-count indictment. The sentencing proceeding is unusual in some respects. It has been the subject of more extensive submissions, written and oral, than this court has ever received upon such an occasion. The court has studied some hundreds of pages of memoranda and exhibits, plus scores of volunteered letters. A broad array of issues has been addressed. Imaginative suggestions of law and penology have been tendered. A preliminary conversation with counsel, on the record, preceded the usual sentencing hearing. Having heard counsel again and the defendant speaking for himself, the court postponed the pronouncement of sentence for further reconsideration of thoughts generated during the days of studying the briefs and oral pleas. It seems fitting now to report in writing the reasons upon which the court concludes that defendant must be sentenced to a term of four months in prison. *fn1"

 I. Defendant and His Crimes

 Defendant appeared until the last couple of years to be a man of unimpeachably high character, attainments, and distinction. A doctor of divinity and an ordained rabbi, he has been acclaimed by people around the world for his works of public philanthropy, private charity, and leadership in educational enterprises. Scores of letters have come to the court from across this and other countries reporting debts of personal gratitude to him for numerous acts of extraordinary generosity. (The court has also received a kind of petition, with fifty-odd signatures, in which the signers, based upon learning acquired as newspaper readers, denounce the defendant and urge a severe sentence. Unlike the pleas for mercy, which appear to reflect unquestioned facts inviting compassion, this document should and will be disregarded.) In addition to his good works, defendant has managed to amass considerable wealth in the ownership and operation of nursing homes, in real estate ventures, and in a course of substantial investments.

 Beginning about two years ago, investigations of nursing homes in this area, including questions of fraudulent claims for Medicaid funds, drew to a focus upon this defendant among several others. The results that concern us were the present indictment and two state indictments. After extensive pretrial proceedings, defendant embarked upon elaborate plea negotiations with both state and federal prosecutors. A state guilty plea and the instant plea were entered in March of this year. (Another state indictment is expected to be dismissed after defendant is sentenced on those to which he has pled guilty.) As part of the detailed plea arrangements, it is expected that the prison sentence imposed by this court will comprise the total covering the state as well as the federal convictions. *fn2"

 For purposes of the sentence now imposed, the precise details of the charges, and of defendant's carefully phrased admissions of guilt, are not matters of prime importance. Suffice it to say that the plea on Count One (carrying a maximum of five years in prison and a $10,000 fine) confesses defendant's knowing and wilful participation in a scheme to defraud the United States in various ways, including the presentation of wrongfully padded claims for payments under the Medicaid program to defendant's nursing homes. Count Three, for which the guilty plea carries a theoretical maximum of three more years in prison and another $5,000 fine, is a somewhat more "technical" charge. Here, defendant admits to having participated in the filing of a partnership return which was false and fraudulent in failing to list people who had bought partnership interests from him in one of his nursing homes, had paid for such interests, and had made certain capital withdrawals.

 The conspiracy to defraud, as defendant has admitted it, is by no means the worst of its kind; it is by no means as flagrant or extensive as has been portrayed in the press; it is evidently less grave than other nursing-home wrongs for which others have been convicted or publicized. At the same time, the sentence, as defendant has acknowledged, is imposed for two federal felonies including, as the more important, a knowing and purposeful conspiracy to mislead and defraud the Federal Government.

 II. The Guiding Principles of Sentencing

 Proceeding through the short list of the supposed justifications for criminal sanctions, defense counsel urge that no licit purpose could be served by defendant's incarceration. Some of these arguments are plainly sound; others are not.

 The court agrees that this defendant should not be sent to prison for "rehabilitation." Apart from the patent inappositeness of the concept to this individual, this court shares the growing understanding that no one should ever be sent to prison for rehabilitation. That is to say, nobody who would not otherwise be locked up should suffer that fate on the incongruous premise that it will be good for him or her. Imprisonment is punishment. Facing the simple reality should help us to be civilized. It is less agreeable to confine someone when we deem it an affliction rather than a benefaction. If someone must be imprisoned -- for other, valid reasons -- we should seek to make rehabilitative resources available to him or her. But the goal of rehabilitation cannot fairly serve in itself as grounds for the sentence to confinement. *fn3"

 Equally clearly, this defendant should not be confined to incapacitate him. He is not dangerous. It is most improbable that he will commit similar, or any, offenses in the future. There is no need for "specific deterrence."

 Contrary to counsel's submissions, however, two sentencing considerations demand a prison sentence in this case:

 
First, the aim of general deterrence, the effort to discourage similar wrongdoing by others through a reminder that the law's warnings are real and that the grim consequence of imprisonment is likely to follow from crimes ...

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