Grappling with white-collar crime
Brandon Outlaw’s alleged theft of condo association fees has cost Jeff Antonius and hundreds of other property owners in the valley a total of at least $650,000.
Sandy and Kathy Treat, owners of Edwards-based Summit Habitats, are still waiting to be paid more than $850,000 in restitution after one of their employees swindled $2 million from their business.
As they grapple with the effects of not just losing thousands of dollars, but also with the emotional distress, many white-collar crime victims in Eagle County are wondering what is better: sending the thieves to jail or getting paid back?
Recent embezzlement cases in Eagle County show a legal system that puts restitution ahead of punishment; sometimes, against the will of the victims.
“We felt insulted with the deal,” said Jeff Antonius, a homeowner at Vail Point, after District Judge Tom Moorhead moved forward with a plea bargain offered to Outlaw by District Attorney Mark Hurlbert.
On Oct. 8, Outlaw, a 30-year-old Avon resident, pleaded guilty to stealing $650,000 in local condo fees. The plea agreement includes restitution of $112,000 and no jail time.
“It is wrong to steal and this wasn’t a spur of the moment crime. It was a calculated, well-thought out crime,” Antonius said. “The $112,000 restitution is a slap on the face.”
Moorhead accepted the deal in spite of several homeowners’ pleas to reject it. He still has to decide on the sentence for Outlaw, who pleaded guilty to one count of theft, a class four felony, that can carry a sentence of two to six years in prison.
“We’re looking for full restitution and punishment,” Antonius says. “(Outlaw) should still have a punishment even if he returns all the money.”
Outlaw could have faced between four and 12 years in prison for the initial charges. Moorhead, however, could accept Hurlbert’s request of a six- to 12-month home detention sentence.
Hurlbert says the first thing he tries to get in an embezzlement case is restitution. Embezzlement is a felony offense that can carry up to 12 years in prison.
“When you’re looking at property crime cases, judges won’t consider prison,” Hurlbert says. “They’d rather put a rapist in prison than a person who embezzles – if he is a first time offender.”
A common crime
Though embezzlement is a common crime everywhere, Hurlbert says he has seen more cases in Eagle County than in others.
In the past two years, the Eagle County District Attorney’s office has dealt with 44 embezzlement cases involving the loss of more than $3.5 million. In 31 of those cases, restitution was awarded and ranged from $601 to as much as $864,000. More than half of the embezzlers were women.
“It’s a common crime. In 24 years practicing in Eagle County, I have dealt with 24 cases,” says local attorney Terry O’Connor. “But I don’t think it happens in Eagle County more than in other parts of the country. Or that it’s treated differently here than in other places.”
In Colorado, there were 116 arrests for embezzlement offenses in 2002 compared to 425 for rape and 121 for murder, reports the Colorado Bureau of Investigation.
Given the situation in the Outlaw case, getting more than $100,000 in restitution up front is significant, Hurlbert says.
“It’s unfortunate that they’re calling this a slap on the face,” he says.
“Crimes are crimes, they have an impact on somebody else. But a person who has been raped or a child who has been sexually assaulted will live with that for the rest of their life.”
“Justice needs to be served”
A person convicted of theft, as in any felony crime, has a potential of going to prison. But if it’s their first offense, they might get probation, unless it’s a violent crime, O’Connor says.
“Typically, embezzlers will do some jail as condition of probation,” O’Connor says. “Generally, victims don’t want them to go to jail – or go through the ordeal of a trial – and they accept the DA’s offer.”
Kit Phillips, a partner in Crescent Club Investors and Crescent Club Holdings, says he’d rather see real estate agent Mark Mogul in jail than risk non-payment. Mogul, 44, of Edwards, is accused of stealing $351,000 from time-share sales from Edwards Crescent Club Investors and Crescent Club Holdings.
“We might lose the money, but justice needs to be served,” Phillips says.
Mogul entered a new plea of not guilty on Oct. 8 after a district judge rejected a plea agreement and set the embezzlement case for trial in March. Although Mogul told District Judge Richard Hart he fully accepted responsibility and that he would abide by the plea, the alleged victims concerns were stronger and Hart rejected the plea at a sentencing hearing, saying the victims were against the deal.
“Mr. Mogul stole a lot of money in a position of trust,” says Patrick Tooley, an attorney representing Crescent Club Investors. “This should be treated as nothing less than a felony offense.”
Mogul, a first-time offender, had accepted a plea agreement from the Eagle County District Attorney’s office that included a 30-day jail sentence if he paid $351,000 in restitution. Mogul, who had pleaded guilty to a class four felony theft charge – which can carry two to six years in prison – had agreed to pay Crescent Club Investors and Crescent Club Holdings, the victims in the case, $7,900 a month until all the money was paid off.
J.D. Finley, another Crescent Club Investors partner, says he was concerned with Mogul’s ability to make the $7,900-a-month payments.
“He already has demonstrated in the civil case that he couldn’t hire private counsel so he got a public defender,” Finley says. Mogul also faces a civil lawsuit in the case.
Ultimately, embezzlement cases are a juggling act, both for the prosecution and the judges, says Ken Lane, spokesman for Colorado Attorney General Ken Salazar.
“They have the dilemma that you only have so many prison beds,” Lane says.
This list includes some of the 44 embezzlement cases prosecuted by the Eagle County District Attorney’s Office from January 2001 through October 2003.
(R) Restitution has been paid or is in the process of being paid.
(L) Means the case was lost or is still pending.
– Karen Sue Kaffka – $864,000 (R). Got 20 years of probation.
– Brandon Outlaw – $650,000 (L).
– Brenda Dobbs – $530,286 (R). A three-time offender, got five years in prison.
– Joseph Tighe – $436,000 (L).
– Mark Mogul – $351,000 (L).
– Christina McCann – $103,000 (R). Got a four-year deferred sentence and 30 days in jail.
– Barbara Marks – $76,000 (L).
– Lisa Lynn Jensen – $70,764 (R). Got 50 hours community service and 45 days in jail.
– Kathleen Cleaver – $48,468 (L)
– Pamela Tyler – $36,000 (R). Got four years of probation.
– Jamie Lynn Higgins – $32,703 (R). Got six years of probation and 90 days in the county jail.
– Kevin McCann – $25,000 (R). Got two years of probation.
– Doris Flores – $19,178 (R). Got 120 hours of community service, 15 days in jail and four years of probation.
– Kristine Ayers – $15,822 (L). Still pending. Has a previous offense.
– Ryan Flock – $11,390 (R).
Source: Eagle County District Attorney’s Office.
Veronica Whitney can be reached at 949-0555, ext. 454, or at firstname.lastname@example.org.