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Over the advice of probation officials, a Southern District of New York judge on Monday sentenced shopping mall magnate A. Alfred Taubman to one year in prison for his leadership role in the Sotheby’s and Christie’s price-fixing conspiracy. Saying “No one is above the law,” Judge George B. Daniels turned aside the federal probation department’s recommendation of no jail time for the 78-year-old former Sotheby’s chairman, and rejected arguments by defense lawyers that their client’s lifetime of good works made him the perfect candidate for probation. Taubman sat stoically while Daniels outlined his reasons for a sentence that was still well short of the 30 to 36 months called for under the federal sentencing guidelines and sought by the government. Taubman, who had already paid $186 million of his own money as part of a civil settlement that Sotheby’s reached with consumers, was also ordered by Daniels to pay $7.5 million in fines. While Judge Daniels called Taubman’s conduct “aberrational,” cited his extraordinary “philanthropic generosity,” and noted that Taubman’s circumstances take the case “out of the heartland of cases contemplated in the sentencing guidelines,” the judge nonetheless said, “one cannot give to the poor and steal from the rich.” Taubman took the lead role in “a deceitful, secretive criminal scheme whose object and purpose was illegal profit,” he said. “This was not a crime motivated by desperation or need but by arrogance and greed.” Taubman was convicted in December by a Southern District of New York jury which heard how he conspired with his counterpart at Christie’s, Sir Anthony Tennant, to fix sellers’ commissions over a six-year period. Tennant was also charged in the case, but he lives in England and has refused to submit to the jurisdiction of the United States. In addition to volumes of documentary evidence, the jury heard from Taubman’s top lieutenant, Diana “DeDe” Brooks, and former second-in-command at Christie’s, Christopher Davidge, both of whom testified that they were charged by their superiors with implementing a conspiracy that cost sellers more than $40 million. Davidge was not charged in the case, while Brooks testified pursuant to a plea bargain worked out with the government. She is scheduled to be sentenced April 29. Taubman’s lawyer, Robert Fiske Jr., entered the courtroom Monday armed with a probation department recommendation that seemed to pave the way for leniency for his client. He also barraged the court with letters from former President Gerald Ford and other notables vouching for Taubman. Fiske, of New York-based Davis Polk & Wardwell, argued that a sentence of three years in prison would amount to a “life sentence” for his client, who suffers from diabetes, hypertension and other ailments that require constant medication. Fiske said further that Taubman’s charitable endeavors were “extraordinary” when compared with other white-collar defendants who have received downward departures in the 2nd Circuit for their contributions. He also said that Taubman had already been severely punished because he was “totally devastated,” by his indictment, trial and conviction, a process that “left his life in shambles.” Fiske added that a sentence keeping Taubman out of prison would not undermine the deterrent effect of laws against price-fixing. The government has sent the message, he said, that “price-fixing will be effectively and vigorously prosecuted.” But Justice Department antitrust prosecutor John J. Greene said the only way to deter price-fixing is to make sure that violators pay the consequences for their actions. Greene began by reminding the court that Taubman personally organized a conspiracy “in which he literally stole millions of dollars from thousands of people.” Greene directly challenged both Fiske’s argument on deterrence and the probation department’s pre-sentence report. He questioned whether the probation officials who compiled and approved the report had the experience needed to evaluate what it takes to deter rich and powerful people such as Taubman from entering into a conspiracy. The probation department, he said, appeared to be of the opinion that “the federal sentencing commission was wrong when it said prison sentences are necessary to deter price-fixing.” Fiske responded by noting his own experience as Southern District U.S. Attorney. He said white-collar criminal prosecutions have been the “hallmark” of the Southern District, and its probation department “has time and time again” fashioned appropriate sentencing recommendations. “I dare say there is no probation office in the country more qualified to balance deterrence and individual characteristics,” in recommending a sentence, Fiske said. LACK OF CONTRITION But Judge Daniels was clearly troubled by what he saw as Taubman’s “lack of contrition.” Under the scheme outlined in U.S. Sentencing Guidelines � 2R1.1, the “base offense level” for felony price-fixing is 10. That base level, and the potential sentence for a defendant, is increased by the volume of commerce “affected by the violation.” Daniels found that between $150 to $160 million in commerce was affected by the violation, taking Taubman’s base offense level to 17. Two more points were added by the judge for Taubman’s lead role in the conspiracy. The judge then elected to downwardly depart under the guidelines by six points, leaving Taubman at 13 points and allowing a sentence of one year. Fiske later requested the judge make the sentence “one year and one day,” in order for Taubman to be eligible for as much as a 15 percent reduction for good behavior in prison. Daniels granted the request. The judge made a reference to Taubman’s strategy at trial, where the former chairman painted himself as removed from the day-to-day operations of the auction house, and placed the blame for the price-fixing conspiracy squarely in the lap of Brooks. Taubman has “neither acknowledged personal responsibility nor shown any remorse,” he said, and instead “portrayed himself as a victim of a vicious scheme of perjury and lies.” But the apparent lack of remorse by the defendant was not the only factor in the sentence decided upon by Daniels. “Price-fixing is a crime whether it is committed in a local grocery store or in the halls of a great auction house,” he said.

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