If probation fails the first time, will it work in the second case? Time and J.J. Cafaro will tell

Most convicted felons would consider themselves lucky to get probation rather than jail time when appearing before a federal judge.

In the case of John J. Cafaro, he was lucky the first time, in 2002. Getting probation a second time Tuesday practically defies the odds.

But that’s what happened when Cafaro appeared before U.S. District Judge Kathleen O’Malley. She became the second judge to conclude, for whatever reason, that Cafaro’s transgressions did not rise to a level that made prison time necessary or appropriate.

One might be tempted to conclude that the judge did not consider Cafaro’s latest felony a serious breach of federal law. Yet, she fined him $250,000, which is certainly a serious number. It’s difficult to reconcile that fine (which virtually cries out, “This is a big deal”) with the other half of the sentence, three years probation (which kind of whispers, “Naughty, naughty”).

So one must wonder if the judge would have felt compelled to give a poor man some jail time, or would she have given the penniless defendant probation and a $250,000 fine, knowing that the fine would never be paid. And if not, does that mean that the heir to a real estate fortune can effectively buy a get-out-of-jail card?

To those who think that such speculation is unfair, blame it on the system — a federal court system that makes presentence reports confidential and so gives the public little more to do than speculate about how and why the wheels of justice turn this way or that.

And speaking of presentence reports, a couple of months ago, it appeared that Cafaro might be living a less-than-charmed life. That was when U.S. District Judge John R. Adams actually sent Cafaro to jail for a weekend after a probation officer told the judge that Cafaro was not cooperating in preparation of his presentence report.

Cafaro’s lawyer howled, but Adams remained firm. People were beginning to think Cafaro might actually be sentenced to a few months in a federal penitentiary, where he would be deprived of the company of his trademark cigars.

However, before Cafaro’s sentencing date arrived, Adams removed himself from the case, and the sentencing duties fell to O’Malley.

Why? Again, common folk can only speculate about the mysteries of our federal courts. No one is saying.

First things first

Let’s go back in time to examine some of the things the public does know.

In November 2002, Cafaro pleaded guilty to conspiring to provide an unlawful gratuity to former U.S. Rep. James A. Traficant Jr. Appearing before U.S. District Judge Solomon Oliver Jr., Cafaro accepted “full and complete responsibility” for all his actions in that case. (If that sounds familiar, maybe it’s because you already read on Page 1 that Cafaro said the same thing Tuesday. ) He expressed sorrow for the embarrassment brought to his family and thanked family an friends for their support through what he described as an “ordeal.”

He was fined $150,000 and sentenced to 15 months of probation. That probation would have expired in March 2004, and it appears that Cafaro managed to make it through the entire month of April after competing his probation without violating another federal law.

The information filed in this latest case states that sometime between May 5, 2004, and July 15, 2004 (meaning that he may have gone as long as four months after completing his probation crime-free), Cafaro “willfully caused to be falsified, concealed, and covered up by trick, scheme, and devise material facts and caused to be made a materially false, fictitious and fraudulent statement and representation, in that he caused the responsible official of the Capri Cafaro for Congress committee to file with the FEC a quarterly report that falsely stated that he had contributed only $2,000” to the campaign when he contributed $10,000 in the form of a loan to a campaign staffer.

Cafaro wanted to give $10,000 to his daughter’s congressional campaign, and he wasn’t about to allow federal election law stop him.

See a pattern?

There appears to be a pattern to Cafaro’s political mechanizations. He apparently enjoys trying to buy political favor and to use his money to try to affect elections, and the law in such matters is of little consequence to him.

We understand the first judge accepting the U.S. attorney’s recommendation of probation — Cafaro had become a cooperating witness in a larger investigation. But why go easy on him this time, when he was reluctant even to cooperate in preparing a presentence report?

To someone inclined toward criminal acts, probation ought to be seen as a shot across the bow, a final warning that unless he changes his life’s course, he is going to be sunk.

Judge O’Malley has now fired a second warning shot, and J.J. Cafaro, who laughed off the first, gets to smile broadly at this one. The rest of us must solemnly consider whether justice has become a farce, even in a federal courtroom.

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