“[Roger] Faulkenberry sold to the investing public a bill of goods. He made material misrepresentations about what he was selling, about the health of the company. He knew the problems that arose with the scheme and he knew about the falsified reports,” said U.S. District Judge Algenon Marbley, fixing his eyes on the flushed defendant.
Faulkenberry, 47, was the fourth National Century executive sentenced for his role in a fraud scheme that cost investors roughly $1.89 billion. He had been convicted months earlier of conspiracy to commit securities and wire fraud; substantive securities and wire fraud; and substantive money laundering.
I had followed the case since February, when the trial began. It had spanned about a month, instantly generating interest and grabbing headlines, many of them damning the avarice of the executives. I remember the details originally baffled me. Something about buying receivables from health-care providers, packaging those receivables as asset-backed bonds, and selling them to investors. Which to me, a novice to business, sounds like a rip-roaring good time.
At any rate, now here I am, several months later, an intern to Judge Marbley. I’m sitting four feet to the right of the bench, flanked by law clerks at the courtroom desk that hugs the west wall. Faulkenberry sits 10 feet to my right, his hands resting in his lap, pinned together by handcuffs. We both listen as the judge hands down the sentence:
120 months of incarceration.
Three years of supervised release.
Roughly $2.3 billion in restitution.
Roughly $1.7 billion in forfeiture.
Faulkenberry exhales deeply, and his shoulders shift ever so slightly. He’s otherwise stoic. Behind him, the gallery, filled with Faulkenberry’s family and friends, shows disappointment. His wife shakes her head faintly, squinting through tears; his mother clenches her fists, looking away; and his minister bows his head, as if to pray one second too late. It’s a depressing scene. As I look on, I feel like the guy who slows down to check out a car accident, voyeuristic and invasive. I feel like an intruder.
And yet I keep watching.
Several officers, probably U.S. Marshals, approach Faulkenberry from behind, guiding him out of his chair and toward the bar, then the double-door exit. He doesn’t dawdle, doesn’t look back, as his family and friends simply stare, apparently vexed by what is happening. Myself, I stare with them, but not because I’m vexed. Rather, I understand exactly what is happening, the gravity of it. Faulkenberry will likely file post trial-motions. He will likely file an appeal to the Sixth Circuit. But in the meantime, he has lost the next 10 years of his life; and once he’s out of prison, any money the man makes is not his to keep.
Faulkenberry is a man scorned, a warning to others.
I am witness to one of the worst days of his life.
This Is What We Do
U.S. District Judges do not have bloated staffs and endless resources. So I worked for free and I did a lot of work, substantive work, for which I was grateful. Because much of my job involved drafting opinions and orders, something I had not yet done in law school, I very quickly had to learn that craft.
First step, I honed my research skills, because, as a writer, I believe that you write clearly when you think clearly (always challenging for me). Second step, I got rid of my style and voice. My journalism experience, spanning six years and including hundreds of bylines, has endowed me with a distinct style and voice, developed each time I’ve sat down to wrestle words into sentences, into paragraphs, into an essay. I had to capture Judge Marbley’s style and voice. To that end, I read a number of his published opinions, studied his use of adjectives and adverbs, his use of literary devices, and then I tried to make myself comfortable as a chameleon. Third step, I prepared for some hardcore editing, ultimately a process that made the shower scene from “Psycho” seem clean by comparison.
My tenure included two trials, one civil and one criminal, which meant that I spent a lot of time, aside from drafting opinions, researching evidentiary issues. Having no formal training in evidence, I was adrift in uncertainty. It now seems naïve and adorable, but I once thought that anyone who practiced in an area of law had formal training in that area. I said as much to one of the clerks.
“Let’s try to have something by the end of the day,” the clerk says, handing me a memo characterizing a Brady-Giglio issue that arose at trial.
After giving it a quick read, I call after him, “I’m not sure I can do this … I haven’t even taken evidence yet.”
“No big deal. You’ll figure it out. I see a lot of issues everyday that I hadn’t seen in law school. It’s part of the job, part of being a lawyer,” he responds, disappearing around the corner and into his office.
I stand there for a moment, feeling a bit daunted, looking like a babe in the woods. Then I realize that standing there won’t resolve the evidentiary issue, nor will it soften my deadline. I head upstairs to the law library, where I grab a yellowed, leather-bound evidence treatise from a dusty shelf, convinced that I’ve found something off Gutenberg’s printing press. I flip to the table of contents.
Pages 1-46, Overview and Preliminary Matters.
Ah, 46 mouth-watering pages, all about evidence. And with preliminary matters! Overwhelmed by anticipation, I immediately dive in, attempting to tutor myself in the principles of evidence. I read about the purpose and structure of the rules, different types of evidence, and the most common issues that arise at trial. I begin to feel more confident, so, informed by my quick-and-dirty tutorial, I turn my attention to the evidentiary issue assigned to me: Brady-Giglio.
Because the cases complement each other, I read them both twice. First time, I get the gist of each case individually. Second time, I determine how they fit together. And once I do that, it is pretty easy to apply the doctrine to the relevant facts, and to make my written recommendation to the law clerk. Which he grabs as soon as I put it on his desk, asking me to wait while he reviews it.
As a minute ticks by, he looks up and says, “I’ll have to review it more thoroughly later in the day, but your research and recommendation look right.”
I thanked him, he thanked me, and then he added, “See, I told you that you’d figure it out. This is what we do.”
It was the first inkling of what has become a stark realization: Law is first, foremost, and forever a self-taught discipline.
Privilege, Honor, and Humility
It was a privilege to intern for Judge Marbley. I deepened my understanding of the law and the legal system, I sharpened my writing and editing skills, and I matured professionally.
My coworkers were personable and pleasant, all of them boasting good senses of humor. But through it all, they took very seriously the responsibilities charged to them. It sounds melodramatic, but lives depend on their commitment; so does the fair administration of justice. I felt honored to participate in that process, however distant and modest my role.
And I’ll never forget Faulkenberry, his hands resting in his lap, pinned together by handcuffs; his wife crying, his mother looking away. He was a man scorned, a warning to others.
Just as I was an intern humbled.
Tags: Jonathan Peters