On Wednesday, a federal judge sentenced Durham businessman Greg Lindberg to seven years and three months in prison. As the Wall Street Journal explained, “Lindberg’s prison sentence is among the stiffest for white-collar defendants in recent years.”
Undoubtedly, Lindberg and his attorneys are asking themselves what they could have done to avoid this unprecedented punishment. The answer? Plead guilty, apparently.
Lindberg’s Sentence Includes More Jail Time than Some of the Most High-Profile White-Collar Cases
To support its claim that Lindberg’s sentence was “among the stiffest for white-collar defendants in recent years,” the Wall Street Journal compared Lindberg’s sentence to that of Martin Shkreli and John Kapoor.
Shkreli was sentenced to seven years after he was convicted based on allegations that he lied to investors about how well funds were doing. He allegedly used a pharmaceutical company as a piggy bank to pay off investors, cover personal loans and satisfy other debts.
Kapoor received five and a half years after the court convicted him of orchestrating a criminal conspiracy to bribe doctors to prescribe his company’s medication, even to patients who didn’t need it.
Did Lindberg’s actions warrant a more severe punishment than Shkreli’s and Kapoor’s? Prosecutors accused Lindberg of allegedly bribing North Carolina Commissioner of Insurance, Mike Causey, with campaign contributions.
Assuming you believe the allegations, which the jury did, these crimes are undoubtedly serious. Is an unsuccessful bribe to a politician worse than securities fraud or bribing doctors to prescribe unnecessary medication? That’s a question our readers will have to answer.
The disparity between Lindberg’s sentence and his codefendants’ sentences is even more striking.
The comparison between alleged political bribes, securities fraud and bribing doctors to prescribe unnecessary medications is admittedly abstract. The comparison between Lindberg’s sentence and his codefendants’ sentences, however, isn’t.
In its sentencing memorandum, the government asked the federal judge to “sentence Lindberg to 168 months in prison, followed by three years of supervised release, and a fine of $250,000.” That amount of jail time—14 years—is almost double the amount imposed by the court.
Had the court granted that request, the sentence imposed would be alarming on its face. Still, the seven years and three months imposed by the court is harsh.
But federal law gives judges quite a bit of discretion when it comes to criminal sentencing. In imposing sentences, judges consider “the nature and circumstances of the offense,” “the history and characteristics of the defendant,” “the need for the sentence imposed,” “the kinds of sentences available,” and more.
In Lindberg’s case, the judge presumably considered these factors. He also presumably considered them in Lindberg’s codefendant’s cases as well. Because their offenses and criminal records were the same as, and sometimes worse than, Lindberg’s, their sentences were comparable, right?
Not even close. The government requested, and the trial court entered, a sentence of “probation” for codefendant Robert Cannon Hayes. And the government even charged Hayes with more crimes than Lindberg: two additional charges of making false statements to the FBI.
You might wonder, isn’t there a “need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”? There is such a requirement—a verbatim requirement in fact—under federal law.
So how do you explain the disparity between Lindberg’s and Hayes’ sentences? That’s a good question.
It seems that Lindberg’s decision to defend himself—to refuse to plead guilty—played a big role in the disparity.
The government explained why it was requesting drastically different sentences in its sentencing memoranda.
When it came to Lindberg, the government painted a dark picture. Lindberg “offered a $2 million bribe to buy the elected Commission of Insurance and to choose their own regulator,” the government said. Then “[t]hey attempted to cloak their scheme….” “And even now,” it continued, “after being caught, confronted with explicit recordings of their criminal conduct, and convicted at trial, the defendants have refused to accept responsibility for their actions….” This conduct is “as dangerous and it was brazen,” the government concludes.
Hayes’ role in the purportedly “dangerous” and “brazen” conduct was, at a minimum, comparable. After all, Hayes undisputedly participated in the alleged bribe. Yet the government’s tone when it came to Hayes was dramatically different.
Hayes initially “lied to the FBI, even after being reminded that it was a crime to do so, and even after being confronted with recorded evidence clearly demonstrating that his statements were lies.” “And he did so,” the government’s sentencing memorandum continued, “to protect himself and his political associates from an ongoing federal investigation.”
So what changed when it came to Hayes that didn’t change when it came to Lindberg? Just one thing: Hayes gave up his constitutional right to defend himself and pleaded guilty.
The government emphasized that fact in its sentencing memorandum. “Hayes has since admitted that his statements were untrue, pleaded guilty, accepted responsibility, and agreed to cooperate with the government,” it wrote. “As a result … the government recommends a sentence of probation.”
What If Lindberg Had Pleaded Guilty?
The Supreme Court has repeatedly made it clear that individuals charged with a crime have the constitutional right to defend themselves—under the due-process clause, under the Sixth Amendment and under the Fifth Amendment. Yet Lindberg and his attorneys will likely be asking themselves whether he should have pleaded guilty long into the future anyway. Had he “accepted responsibility” like Hayes, it’s almost certain that his sentence would have been shorter.
For Lindberg, though, pleading guilty to a crime he doesn’t believe he committed is wrong as a matter of principle. He explained to me that he never seriously reconsidered—and does not regret—his decision not to plead guilty. On the contrary, he continues to maintain his innocence. Lindberg has made it clear that he believes he didn’t commit a crime and was the victim of improper entrapment. And, again, Lindberg has the constitutional right to defend himself.
Yet it’s hard not to think that Lindberg’s decision to exercise that constitutional right has cost him years with his family, years running his businesses and years simply living.
Disclosure: Greg Lindberg owns Global Growth, the parent company that owns North Carolina News Daily.