Aleph Institute's Center for Halacha and American Law
- Questions And Answers Series
Isaac M. Jaroslawicz, Esq

Nephew In Trouble

Since 1981, the Aleph Institute has provided humanitarian, educational and religious advocacy assistance to thousands of Jewish men and women in state and federal prisons, and to their families. Most recently, Aleph has established a Center for Halacha and American Law, dedicated to enhancing awareness within the Jewish community of American civil and criminal law and its intersection with Jewish religious law.

Mr. Jaroslawicz may be reached at 9540 Collins Avenue, Surfside, Florida 33154; (305) 864-5553.

To learn more about The Aleph Institute and its important work on behalf of families, you can visit Aleph’s Internet site at http://www.aleph-institute.org.

Q. Some months ago, my young nephew was arrested on federal charges of conspiracy and credit card fraud. He tells us that he and a group of other students at his Yeshiva dormitory received credit cards and used them improperly. He is a highly-observant young man, and has offered to repay all outstanding charges on the cards he used, yet the prosecutor insists on pursuing these charges. Why? Considering that he has never been in trouble before, the judge can’t send him to prison, can he? We have a good relationship with our local Congressman. What can we do to help?

A. Your letter raises many serious issues confronting families of young people away from home, in Yeshiva dormitories or otherwise. Too often in recent years, we have seen the painful situation of young men (and women) who allow themselves to be influenced by the lure of fast times and easy money. These situations are particularly troubling when they involve otherwise-observant young people who somehow manage to rationalize and minimize their conduct; that is, they are extremely careful to be devout in matters of "bein adam la’Mokom" (ritual observances such as kashruth, the Sabbath, etc.), yet fail to adhere to the equally-serious obligations "bein adam la’chavero" (interpersonal obligations to one another).

This rationalization process, that one can deem oneself to be "observant" yet be casual in matters of financial impropriety, creates a particularly rude awakening when one realizes that the failure to abide by the religious requirement of "dina d’malchusa dina" -- the obligation to follow the law of the land -- can have serious and immediate ramifications in the here-and-now. The federal government is certainly becoming more aggressive in prosecuting what may seem to many to be "minor" crimes, and is not particularly interested in how devout you are otherwise.

And there are, unfortunately, many ways for young people to find themselves in serious trouble when it comes to credit cards.

In the first place, what does your nephew mean when he says he "received" credit cards and used them "improperly"? Did he apply for cards in his own name under false pretenses (phony income stated)? If so, he may be liable under federal criminal statutes including, but not limited to, bank fraud. If he was involved with others, and depending on the scope of his involvement, he may also be liable for "conspiracy," a separate and distinct violation of federal law.

Sometimes, students are recruited as "runners" who are given false identification and directed to banks to make cash advances on fraudulent credit cards. In such cases, participants are often charged under federal statutes that prohibit trafficking in "unauthorized access devices" and conspiracy to commit "access device" fraud (18 U.S.C. § 1029).

No matter what federal law is involved, there is nothing your friendly Congressman can do except write a letter to the judge, with probably little effect as outlined below. Your nephew’s potential punishment is governed by a strict set of rules known as the "United States Sentencing Guidelines," which control all sentencing decisions made by federal judges.

The Guidelines assign an "offense level" to the crime itself, with adjustments based on things like the amount of money involved, the role of the defendant, and other factors.

For example, the "base" level for a violation of 18 U.S.C. § 1029 is six "points." Depending on the amount of dollars involved in the total fraud, anywhere from one to eighteen points may be added (a $500,000 fraud adds 10 points). Note that in a conspiracy case, your nephew can be held responsible for the total amount obtained by all the participants in the conspiracy, whether or not he benefitted from it all. If sophisticated means were used to further the conspiracy, or if your nephew directed other participants, additional points may be added.

The Guidelines provide for subtractions of points, too. Pleading guilty quickly (and saving the Government the time and money of a trial) is one way to earn a deduction of two or three points. Having a minimal role in a conspiracy may also earn a slight deduction. Plea negotiations today often involve haggling over every point.

Other "departures" from the Guidelines are available, but they are granted in only the rarest of cases. Very unique situations that are found by the judge not to have been adequately considered by the Guidelines (such as extraordinary family circumstances, aberrant behavior, and other factors), may provide a basis for the judge to "downwardly depart" to a lower Total Offense Level.

Having a young wife and child does not qualify for a downward departure. Section 5K1 of the Guidelines allows a judge to depart from the Guidelines if the Government tells the judge that the defendant has provided "substantial assistance" to them. Sadly, informing on others remains the one best way to obtain leniency.

After all is said and done, the final score (and the defendant’s previous criminal history), determines the range of sentencing the judge must follow -- all of which is outlined on a chart. For example, a Total Offense Level of "18" for a first-time offender requires an imprisonment range of 27 to 33 months under the Guidelines. That’s right; the judge only has the discretion to vary within a six-month range. The judge must sentence the defendant to a minimum of 27 months in a federal prison, but may impose a sentence as long as 33 months. A "16" would require a sentence of 21-27 months. Anything over a "10" requires some time in a federal prison.

Offering now to pay back the amounts stolen may have little or no effect on the ultimate sentence. It may demonstrate some remorse to the judge, but the Guidelines provide that restitution shall be made in all cases. Indeed, in cases of conspiracy, each individual participant may be charged to repay the total amount obtained by the entire group involved, so paying back just the amount your nephew obtained may be way too little, too late. Depending on the defendant’s ability to pay, the judge may impose a substantial fine, too. Your nephew will also be subject to "supervised release" by the U.S. Probation Department for as long as three years after he is released from prison.

What can you do? Contact your nephew’s lawyer and see if there is any letter you can write to the judge on behalf of your nephew before sentencing. Sometimes, the lawyers can use personal anecdotes to support an argument they want to make for a downward departure, or to motivate the judge to sentence at the low end of the applicable range. Visit the boy’s parents and just sit and listen with a caring attitude. All too often, families in this kind of trouble are abandoned by family and community. These parents are about to deal with the pain of having to visit their son in prison for the next year or two . . . or three. They need someone who can hear their anguish without judging them.

And talk to your own teenage and older children. What may seem to be a "lark" or harmless fun may actually involve serious transgressions of Jewish law -- and turn out to have a long-lasting and profound effect on their young lives – and on yours.

Answers provided in this column are general responses to issues and should not be construed as rabbinic or legal advice, which can only be provided by your rabbi or lawyer after careful analysis of the specific facts and law involved in your case. For a free copy of a recent issue of Aleph’s Journal of Halacha and American Law, or to have your own questions answered in future columns, write to Isaac M. Jaroslawicz, Esq., Director of Legal Affairs, The Aleph Institute, 9540 Collins Avenue, Surfside, Florida 33154. Visit Aleph’s website at www.aleph-institute.org.

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