alcolm Wittenberg, the former Crosby, Heafey, Roach & May partner who pleaded guilty to insider trading, escaped the confines of a federal prison Tuesday when he was sentenced to three years' probation.
U.S. District Judge William Alsup cited Wittenberg's paltry ill-gotten profit -- $14,000 -- and his "stellar" record of community and professional service in handing down the sentence.
"In my 2 1/2 years on this job I have not seen a record that is more deserving of the label 'outstanding good deeds,'" Alsup said. "This is not just a person who has had a blameless life, but a person who has had a stellar life."
For the next month, Wittenberg will live in a halfway house, followed by three months of home detention. In addition, Alsup ordered Wittenberg to pay a $10,000 fine and speak to 300 lawyers over the next 12 months about his plight.
Numerous letters were submitted on behalf of Wittenberg -- who now works as a patent agent at a law firm other than Crosby, Heafey -- from colleagues and friends expressing shock at his indictment.
Wittenberg himself expressed dismay at his situation.
"Standing before you as a felon is about as painful a position as I can imagine," Wittenberg said.
"I wish I could turn the clock back."
Alsup rejected the government's request (and the probation officer's concurrence) that Wittenberg be given a two-level sentencing enhancement for abuse of trust, which would have mandated a sentence in federal prison.
Alsup ruled that abuse of trust is an element inherent in the insider trading charge. "I think what we have in the guidelines is an apparent contradiction," Alsup said.
Alsup also granted a downward departure for aberrant behavior despite some misgivings about the fact that Wittenberg told the Securities and Exchange Commission that he had no inside information a year after he made the trade.
Wittenberg, who was an outside patent attorney for Forte Software Inc., bought 2,000 shares in the company over a three-day period after he learned of its pending merger with Sun Microsystems.
Assistant U.S. Attorney John Hemann made entreaties to Alsup that he "not treat Mr. Wittenberg as a special case because he had a high position in society."
Wittenberg's attorneys, Farella Braun & Martel partner Douglas Young and Weinberg & Wilder's Doron Weinberg, told Alsup that the public humiliation and suspension of his law license called for mercy.
"His life has been dissected by the media ... and every legal panel that discusses these issues," Young said. "His life from now on will be 'The Wittenberg Case.'"
Young also read part of a letter Wittenberg's son Sean had sent to his father. "Dad, you are my crutch that keeps me from falling ... my light that keeps me on the path."
Young also acknowledged that Wittenberg's ability to practice law "will most likely be taken from him forever."
