U.S. v. Brubaker, 81-1261
| Decision Date | 12 November 1981 |
| Docket Number | No. 81-1261,81-1261 |
| Citation | 663 F.2d 764 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ralph E. BRUBAKER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
William G. Schick, Rock Island, Ill., for defendant-appellant.
Terry G. Harn, Asst. U. S. Atty., Peoria, Ill., for plaintiff-appellee.
Before PELL, SPRECHER, and BAUER, Circuit Judges.
The defendant, Ralph E. Brubaker, pleaded guilty to two counts of embezzlement on a twenty-two count indictment, 18 U.S.C. § 656, and a one count information charging income tax evasion, 26 U.S.C. § 7201. The district court imposed the maximum sentence of five years of imprisonment on each of the two counts of the indictment, the terms to be consecutive, and a three-year concurrent term on the one count information. In addition, the court fined the defendant $5,000.00 on each count, a total of $15,000.00. This appeal challenges the sentences.
The indictment charged Brubaker with twenty-two counts of embezzlement of bank funds administered by him in his capacity as trust officer at the Rock Island Bank in Rock Island, Illinois. Government attorneys presented a negotiated plea agreement to the district court on December 16, 1980, proposing that the Government dismiss the twenty-two count indictment and substitute a two-count information consisting of one count of income tax evasion and one count of embezzlement. The district court refused to accept the plea agreement for the express reason that the reduction of a twenty-two count indictment to a two-count information would be an effective control on the court's discretion over sentencing and available punishment which the court was unwilling to allow without knowing more about the facts of the case.
Three days later, another plea agreement was presented to the district court. In this agreement the defendant would plead guilty to two counts of the original twenty-two count indictment and to the one count information for tax evasion. This agreement was accepted by the district court at the sentencing hearing held on February 5, 1981. At that time, the judge indicated that he had carefully read the presentence report and the eleven letters submitted to the court on the defendant's behalf, as well as a transcript of the sentencing hearing in the prior state court prosecution of the defendant for felony theft. Following testimony by witnesses on defendant's behalf and statements of counsel, the judge sentenced the defendant as previously set forth herein.
On February 13, 1981, the defendant appealed and on the same day submitted an application for reduction of sentence. The application for reduction of sentence stated that the defendant and his wife had signed promissory notes and had given mortgages on their home in restitution of the amount involved in an earlier state court prosecution concerning funds embezzled from the estate of Margaret Winbigler and that they had sold an empty lot next to their house in a continuing effort to make full restitution of all the funds misappropriated from the Rock Island Bank. Brubaker's application for release pending appeal was granted by the district court.
A year earlier, on January 16, 1979, in state court, Brubaker pleaded guilty to the charge that he had unlawfully converted trust funds from the estate of Margaret Winbigler in violation of state law, Ill.Rev.Stat. Ch. 38 § 16-1 (1979). That offense was not included among the charges presented in the federal indictment. At the time of sentencing, evidence in aggravation of the sentence was presented to the state court consisting of seventeen additional charges of embezzlement of funds from other estates. However, there were no substantive charges brought on the seventeen additional charges. 1 The state court sentenced Brubaker to two years of probation and 1,000 hours of public service work. 2
At the time of sentencing by the district court, Brubaker was sixty-three years old and a life-time resident of Rock Island, Illinois. For forty-one years he had been married to Pauline Brubaker. The Brubakers had adopted two children and cared for approximately twenty-five foster children over the years. According to the presentence report submitted to the district court, Brubaker had completed school up to the tenth grade when family obligations forced him to drop out in order to support his younger siblings following the death of his father. He nonetheless earned a G.E.D. certificate during military service and in 1959 graduated from a trust management course offered by the Illinois Banker's Association Trust School in Chicago, Illinois. He served two tours of active duty in the military and was honorably discharged.
Brubaker had no criminal record of any kind prior to the discovery of the series of embezzlements committed over a four-year period from 1975 to 1979. According to the federal presentence report, these embezzlements were mainly of estates and trusts of elderly and mentally incompetent persons and amounted to a total sum of $75,800.48, as determined by the FBI investigation. Brubaker retired from his position as Acting Head of the Trust Department after thirty years of employment at the Rock Island Bank upon admitting to officers of the bank that he had embezzled funds from the Winbigler estate. According to a statement by Brubaker in the presentence report, his reason for embezzling the funds was that he felt that he was not being promoted or given the salary he deserved over the last eight years under the current president.
The defendant has been a city official holding the office of Rock Island City Treasurer from 1958 until 1977, when that position became a full time appointive position. According to the presentence report, the records of the United States Attorney indicated that an investigation by the Internal Revenue Service had been conducted regarding allegations that the defendant as Rock Island Treasurer and other city officials were misappropriating city funds for personal gain and that this investigation had led to the discovery that the defendant had embezzled funds from the Winbigler estate.
At the state court hearing, fifteen witnesses testified on the defendant's behalf including a number of lawyers, business and community leaders, several family members, as well as one foster child, and the minister of the defendant's church. The testimony received in general indicated that Ralph Brubaker was active in community affairs and a good family man who went out of his way to care for elderly relatives and the many foster children he took into his home. The defendant's minister related that Brubaker was a licensed lay person authorized to serve communion at his Episcopal Church. Much of the testimony indicated that Brubaker was highly regarded by the professional and business community in Rock Island and had enjoyed a reputation of unquestioned honesty and integrity. Many of the witnesses expressed shock at hearing about Brubaker's crimes and stated that such acts seemed totally out of character. The sentencing judge in the state court proceeding sentenced the defendant to probation because he felt that a period of imprisonment would not be appropriate in the case.
At the district court hearing three witnesses appeared on Brubaker's behalf: David McAdam, the chief probation officer of the state judicial circuit, Jason Kimball, the Executive Director for the Foundation for Crippled Children where the defendant was performing community services work as part of his probation, and the defendant's wife, Pauline Brubaker. This testimony was in supplementation of the record of the testimony in the state court, a transcript of which was before the district court. Eleven letters were also submitted on the defendant's behalf from family members, friends and business associates of the defendant, as well as a letter from the state probation officer, and the Executive Director of the Foundation for Crippled Children.
In the district court, McAdam, the state probation officer, testified that the defendant was given the highest score of 100 in his classification system used for purposes of determining what kind of supervision would be appropriate in the case of a particular probationer. The score of 100 showed that the defendant was an exceptional case needing only selective intervention due to his stable life, employment and community involvement, and indicated that the defendant was able to function on his own. According to the probation officer, such probationers are best allowed freedom to continue working with others. 3
The prosecution, however, advanced a point of view on the appropriate sentence differing substantially from that presented on behalf of the defendant:
Whatever reputation Mr. Brubaker enjoyed for the 30 years that he was employed as a trust officer for The Rock Island Bank, for the last four years of those 30 years, he was a fraud. Beginning in 1975, as he plead guilty to in this court, Mr. Brubaker systematically pilfered the trust accounts and the state accounts of the sick, the infirm, the incompetent, and heirs of these people. It was not The Rock Island Bank that was the victim of these crimes, but people who were not in the position to defend themselves. This happened for four years without any apparent motive on the part of Mr. Brubaker. It involved serious breaches of trust for the bank. It involved in 1976 Mr. Brubaker evading payment of his income taxes. And as the Court is well aware, a large amount of the taxes that he attempted to evade were based on a lawfully received income source of some $25,000.
Your Honor, this evidence is to me an attitude on the part of Mr. Brubaker that relates to the most basic of faults of mankind-and that is greed-as the sole motivation for Mr. Brubaker's activity. He now stands convicted of four serious felonies.
The United States Government, your Honor, highly...
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