Feds say Sen. Files’ ‘deliberate fashion’ to commit fraud warrants more prison time

Federal prosecutors are asking for up to 24 months of prison time for former Sen. Jake Files, R-Fort Smith, more than the 12 to 18 months that may have been suggested by the United States Probation Office (USPO). Files’ attorney is seeking a “very brief term of incarceration.”

Files’ sentencing is set for 10 a.m., June 18 at the federal courthouse in Fort Smith with U.S. District Court Judge P.K. Holmes III, presiding.

Files entered a guilty plea on Jan. 29 to one count of wire fraud, one count of money laundering, and one count of bank fraud. He resigned his Senate seat in early February. According to court records, between August 2016 and December 2016, while serving in the Arkansas State Senate, Files used his State Senate office to obtain General Improvement Funds (GIF) “through fraudulent means and for personal gain,” according to the U.S. Attorney’s office.

The court filing says Files authorized and directed the Western Arkansas Economic Development District, which was responsible for administrating the GIF in Files’s legislative district, to award a total of $46,500 in GIF money to the city of Fort Smith.

TRUE ‘FIRST-TIME OFFENDER’
While the USPO sentencing report is sealed, Files’ attorney James Pierce addressed in a May 29 sentencing memo a suggested sentencing range of between 12 and 18 months. Pierce, assistant federal public defender for the Western District of Arkansas, noted in the memo that a “very brief term of incarceration followed by a term of home detention for the initial period of supervised release would be an appropriate sentence, along with an order of restitution.”

“Mr. Files has no prior criminal history, and has never been arrested. He is a true ‘first-time offender.’ As will be discussed in more detail below, these characteristics (among others) indicate that he is very likely to live a law-abiding life from this point forward. Mr. Files has been, and hopes to continue to be, a productive and contributing member of society and his community. His history and characteristics should be viewed as mitigating factors that speak to the appropriateness of a downward variance from the advisory guideline range in this case,” Pierce wrote.

Pierce also referred to a December 2012 sentencing of Jaime Suarez-Reyes who pleaded guilty to a check-kiting scheme that amounted to $693,000, significantly more than the money lost in the Files’ case. Suarez-Reyes, who also was a first-time offender, received one day of jail time and five years of supervised release. Suarez-Reyes suggested sentencing was initially 27 to 33 months in prison.

“A sentence of imprisonment within the advisory guideline range would result in an unwarranted sentencing disparity between Mr. Files and other similarly situated individuals. A downward variance is appropriate based on the circumstances of this case.”

Pierce also suggested Files’ is already being punished for his actions.

“Mr. Files now stands convicted of three federal felonies which will forever stain what had previously been an unblemished record. Mr. Files is already suffering significant consequences from his illegal actions. His reputation in the community which he has served for many years has been ruined. He has resigned his position in the Arkansas Senate, and his career in politics is over. He has lost his home, and is otherwise in the midst of total financial ruin.”

TRUST AND FAITH
But Duane “Dak” Kees, U.S. Attorney for the Western District of Arkansas, and AnnaLou Tirol, acting chief of the public integrity section of the U.S. Department of Justice, noted in their May 29 sentencing memo that a stiff penalty is “paramount” to maintain public trust in government and elected officials. They are asking for an upward variance for sentencing between 18 and 24 months.

“The need to deter this defendant and similarly situated individuals from engaging in this type of misconduct is paramount. The people’s trust and faith in representative government hangs in the balance. Indeed, the pursuit of elected office must be motivated by a desire to serve and protect the State of Arkansas and its residents, not by corrupt and profit-seeking motives,” the federal attorneys noted in their filing.

They also argued that the means by which Files committed fraud “renders the overall wire fraud offense more sophisticated than its basic form, thereby warranting the application of the sophisticated means enhancement under” federal sentencing guidelines.

“That was his job, his responsibility, and his solemn duty as a senator. But Files betrayed this trust and used his authority over GIF money not to promote economic and community development in his district but to personally enrich himself instead,” Kees and Tirol wrote in the filing.

Files is not eligible for probation alone because of the Class B felony of bank fraud.