This post is not about a corporate executive (though it’s arguably white collar in nature). But it’s a gorgeous Friday afternoon in DC and I just filed a Third Circuit brief, so I think a lighter subject is in order.
Katherine Harrell was initially indicted in the Eastern District of Pennsylvania for embezzling just over $500,000 while she was the branch manager of a bank. She pleaded guilty to two counts in September 2010. It was a pretty small case with not much jail time likely. In February 2012, she appeared for sentencing. That’s when it all went so very, very wrong.
Ms. Harrell was a sympathetic defendant at the sentencing hearing. She told the court that her father was deceased. She also explained why a long sentence in prison would affect her family, including her son:
THE DEFENDANT: On January 16th, my brother and I were involved in an accident. My brother was severely injured. On February 10th, I took him home to live with me. I wouldn’t allow him to be put in a nursing home. He is set up in a hospital bed in my living room. I have to feed him, change him, and bathe him.
What it comes down to is I don’t care about me. It’s my baby and my brother. My brother will be put in a nursing home and my son will be put in foster care. I don’t have anybody that he can go to. I don’t have parents . . . . I just don’t want to lose my son –
THE COURT: Okay.
THE DEFENDANT: – and I don’t want my brother to be put into a nursing [home] where’s just treated as somebody who’s just laying there.
Judge Anita Brody of the Eastern District of Pennsylvania told Ms. Harrell that she would “take all those things into consideration” when she imposed the sentence. Apparently, the judge was a woman of her word. She sentenced Ms. Harrell to one day in prison on each count, to be served concurrently, plus five years supervised release. Not too bad, right?
Well, unfortunately for Ms. Harrell, the government discovered that she had lied. Not just a little, inconsequential lie. Big, fat lies. The government first filed a motion to vacate her sentence under Rule 35(a) as a fraud on the court. The court said that wouldn’t work because the Third Circuit had held that:
In order to meet the necessarily demanding standard for proof of fraud upon the court we conclude that there must be: (1) an intentional fraud; (2) by an officer of the court; (3) which is directed at the court itself; and (4) in fact deceives the court. We further conclude that a determination of fraud on the court may be justified only by “the most egregious misconduct directed to the court itself,” and that it “must be supported by clear, unequivocal and convincing evidence.”
Herring v. United States, 424 F.3d 384, 386-87 (3d Cir. 2005) (quoting In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 538 F.2d 180, 195 (8th Cir. 1976)). The government could not show that the statements were made by an “officer of the court” nor was the motion supported by any evidence. The court denied the motion.
The government did not give up. It indicted Ms. Harrell in October 2012 for corruptly influencing the due administration of justice, 18 U.S.C. § 1503. The maximum sentence under the statute for a case not involving murder is 10 years. According to the indictment, Ms. Harrell had lied about her father being deceased and that her brother had been in an accident. Ms. Harrell pleaded guilty.
Judge Eduardo Robreno sentenced her to 70 months in prison and three years of supervised release. One day to 70 months = 2100% increase.
As George Washington once said, “It is better to offer no excuse than a bad one.”