As feds seek 14 years, Tom Girardi will undergo mental exam in North Carolina
The disbarred lawyer must surrender to federal custody on Jan. 7 for transportation, which his lawyers warned was akin to the incarceration they said threatens his life.
Federal prosecutors want disbarred Real Housewives of Beverly Hills lawyer Tom Girardi to go to prison for 14 years for defrauding clients out of millions of dollars, but he wasn’t sentenced on Friday because of a law that says he may need to go to a mental care facility.
U.S. District Judge Josephine L. Staton on Friday ordered Girardi to surrender to the U.S. Marshals on Jan. 7 so he can be flown to the Federal Medical Center in Butner, North Carolina, to undergo a psychiatric examination. She’ll then hold a hearing to decide whether the 85-year-old’s deteriorating mental condition means he must be hospitalized instead of imprisoned.
During a hearing in Los Angeles, Deputy Federal Defender Samuel Cross said he has “serious concerns” about Girardi going into federal custody and “how he will be treated and how he’ll survive within the Bureau of Prisons.” He asked for Girardi to be evaluated at the facility where he currently lives, but Staton said the North Carolina is “suitable” and he can be transported in a “safe and humane way” through a direct flight with no overnight stops.
Staton said the exam needs to look at Girardi’s “daily living,” “and I think that his placement in a facility in the custody of the Attorney General is what will provide the court with the best information for that.”
Staton said Girardi could transport himself to North Carolina, but Cross said they don’t have anyone who can help him get there.
Girardi “can’t transport himself … because he lacks the memory to know where he’s going,” Cross said.
A jury on Aug. 27 convicted Girardi of four counts of wire fraud for a 10-year scheme that defrauded clients out of millions of dollars in settlement money. Staton allowed him to remain out of custody at a residential care facility.
His law firm’s former accountant, Christopher Kamon, pleaded guilty on Oct. 11 to two counts of wire fraud and is scheduled to be sentenced on Jan. 31. He could face a sentence of up to 97 months in prison, according to the plea agreement.
Judge Staton in November rescheduled Girardi’s sentencing from Dec. 6 to Dec. 20 at the request of his lawyers, who want Staton to sentence him to confinement at his current care facility and no prison. All sentencing papers were filed when Staton on Monday ordered briefing on 18 United States Code § 4244 regarding whether Girardi should go to prison “or to another suitable facility based on his age and mental status.”
Prosecutors said Staton should proceed with sentencing on Friday because “the Bureau of Prisons has adequate protocols in place to evaluate defendant’s mental condition and ensure that any special needs of defendant are met.” Girardi’s lawyers said Staton had no choice but to hold a hearing “on his present mental condition and need for hospitalization.”
Staton vacated sentencing on Thursday but scheduled a status conference for the same time on Friday and ordered Girardi to appear. She said Friday that prosecutors “missed” the applicability of 18 U.S.C § 4244, and their brief doesn’t explain why the law shouldn’t apply.
Assistant U.S. Attorney Scott Paetty said his colleagues “hadn’t encountered [18 U.S.C § 4244] before” because “it doesn’t happen often.” He said Bureau of Prisons officials told him Girardi is their highest priority for evaluation.
“They are well versed in it, but it’s not something that was on our radar,” Paetty said.
Staton will schedule a hearing on Girardi’s mental state once he’s been evaluated and she’s reviewed the report. That’s when she’ll decide if he should be hospitalized by the Attorney General under 18 U.S.C § 4244, or if she should proceed with sentencing.
It will be the third time Staton has considered Girardi’s mental state, but the situation isn’t the same: Federal law distinguishes a defendant’s competency for trial from a defendant’s possible need for hospitalization.
“I’m trying to determine whether or not he needs to be placed in a suitable hospital facility or other suitable facility in lieu of custody,” Staton said on Friday.
Staton, a 2010 Barack Obama appointee, declared Girardi competent for trial in a January 2024 order that said he was faking or exaggerating his mental decline. She reiterated her belief that he’s malingering in her Dec. 2 order that rejected his motions for new trial and acquittal.
The order said Girardi’s trial testimony reiterated his competency. The fact that he “suffers from some cognitive issue is not disputed,” but Staton said Girardi is exaggerating his impairment and she “does not reach this conclusion lightly.”
The judge said her conclusion is contrasted by evidence Girardi’s lawyers submitted that’s sealed from public view, but she said Girardi could be faking that, too.
“[G]iven the sophistication of Defendant’s malingering when meeting with experts, it is not difficult to believe that Defendant tailored his behavior and statements in a manner designed to cast doubt on his competency,” Staton wrote in the 11-page order.
Staton also said it’s “highly unlikely” Girardi’s cognition declined as rapidly as his lawyers describe.
“The Court finds it far more likely that Defendant was simply feigning a complete memory loss to support his continuing claim of mental incompetency,” the judge wrote.
She quoted him telling now-former Assistant U.S. Attorney Ali Moghaddas during cross-examination, “As I told you before, I don’t take a salary.”
“Several times, when wanting to emphasize a point, Defendant would address the
prosecutor directly and remind the prosecutor that he had made a particular point before,” Staton wrote.
Moghaddas was not in court on Friday because he’s now a partner with Edelson PC, which is the law firm that was working with Girardi on lawsuits in the Northern District of Illinois over the deadly Lion Air plane crash when founding partner Jay Edelson told the judge in December 2020 of missing settlement money.
Girardi’s life unraveled within a few weeks of Edelson’s report as his law firm, Girardi Keese LLP, declared bankruptcy and fraud allegations mounted. He and Real Housewives of Beverly Hills star Erika Jayne separated around the same time, and she publicly exposed his affair with a then-sitting California Court of Appeal justice. However, they are not divorced and testimony in court indicated they’re still in contact.
Both Kamon and Girardi still are charged in Chicago federal court with wire fraud related to the Lion Air embezzlements, as is Girardi’s former son-in-law David Lira. U.S. District Judge Mary Rowland is holding a status conference on Jan. 22; she said on Monday that she’s available for a two-week trial beginning July 7.
Prosecutors mentioned Girardi’s Chicago case in their 22-page sentencing memorandum.
“Although defendant is in his mid-80s and has some cognitive impairment, the gravity of defendant’s wrongdoing and the serious and, in many cases, irreparable damage he has done to his clients and the legal profession in general warrant a significant custodial sentence,” according to the memo.
Prosecutors want Girardi sentenced to $2.3 million in restitution and 168-month prison term, which is the high end of his standard range under the U.S. Sentencing Guidelines. The U.S. Probation Office recommends 135 months in prison.
Prosecutors’ memo cites fraudulent California lawyer Michael Avenatti’s 168-month sentence but does not mention that it recently was vacated by the 9th Circuit U.S. Court of Appeals, in part because Avenatti was punished for the total amount of his client settlements without accounting for his legal services and fees.
Prosecutors said Girardi’s theft of client money “was all the more reprehensible
in light of the fact that his victim clients had turned to defendant in their darkest hours, expecting to find an advocate and protector; instead, they were at the mercy of a thief who cared only about himself.”
“While defendant was spending extravagantly from the Girardi Keese accounts on private jets, luxury cars, jewelry and country clubs, his wife’s entertainment career, and direct transfers to himself, he was spinning cold-hearted lies to his vulnerable clients who desperately needed their settlement funds for basic necessities like housing and transportation,” prosecutors wrote.
The memo said a significant prison term would reinforce the notion that attorneys stealing from clients is “a serious matter that erodes the public’s confidence in the legal system and represents a threat to civil society.”
Girardi’s lawyers said any custodial term “will not only result in a hastened, costly, and lonely death in a BOP medical ward, but will result in a distinctly-punitive death-in-prison sentence that he will not meaningfully understand.”
“That is not to say that, under different circumstances, a punitive prison sentence might not be warranted. Nor is it to suggest that the clients in this case are not rightly angry. But the Court is not sentencing the memory of Tom Girardi or a guidelines abstraction. It is sentencing an 85-year-old dementia patient,” according to the 24-page memo from Cross and Deputy Federal Defenders Charles Snyder and Alejandro Barrientos.
Girardi’s brother said in a letter to Staton that he has “barely controlled glaucoma and he is going blind.”
“He has had multiple surgical events at the Jules Stein Eye Institute at UCLA to insert tubes into his eyeball to reduce the intraocular pressure. He is blind in one eye and losing vision in the other,” Robert Girardi wrote. “He requires medication for this,
which is administered by a registered nurse twice daily that the ophthalmologist says he must not miss to preserve his limited vision.”
Girardi’s convictions are for four bank transactions involving four settlements. The earliest was a $53 million settlement reached in 2013 with Pacific Gas and Electric Co. for the Ruigomez family over a gas explosion that badly injured Joseph Ruigomez and killed his girlfriend.
The other client victims were Josefina Hernandez, who never got anything from a $135,000 settlement reached in May 2020 for injuries related to a defective medical device; Judy Selberg, whose lawsuit over her husband’s deadly boat crash settled for $504,400; and Erika Saldana, whose lawsuit over her son’s catastrophic injuries in a car crash settled for $17 million. The boy died while Saldana was still trying to get her money from Girardi.
Prosecutors said the fraud was a 10-year Ponzi scheme involving $15 million, and a U.S. Attorney’s Office press release about Girardi’s convictions said he embezzled “tens of millions.”
Prosecutors’ sentencing memorandum places the total loss at more than $9.5 million but less than $25 million. Girardi’s lawyers said total loss shouldn’t factor into his sentence, while the Probation Office “ found that the intended loss to the wire fraud victims in the four counts of conviction is approximately $16.4 million,” according to prosecutors.
Prosecutors originally requested $3.7 million in restitution, but they later realized two victims “have been paid the equivalent of their settlement balance” and lowered the restitution request to $2.3 million.
Court documents:
Oct. 8 Christopher Kamon’s plea agreement
Dec. 2 Judge Staton rejects motions for new trial and acquittal
Dec. 6 Prosecutors’ sentencing memo
Dec. 6 Defense sentencing memo
Dec. 6 Declaration about federal prison dementia care
Dec. 6 Defense character reference letters
Dec. 9 Forfeiture application
Dec. 13 Prosecutors’ response to defense memo
Dec. 16 Judge Staton’s order on mental defect law
Dec. 18 Prosecutors’ brief
Dec. 18 Defense brief
Dec. 20 Judge Staton’s commitment order
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