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A fraud that was off the charts in the event yielded a sentence to match. Bernard Madoff, aged 71, would probably have spent his life behind bars whether ordered to serve 20 years or 150 years. That a judge on Monday opted for the latter – the statutory maximum – in part reflected his impression that Mr Madoff had not been forthcoming in helping piece together the intricacies of his fraud and the extent of his investors’ losses.
Just how many billions are really at stake, however, made little difference to this outcome. The top bracket for losses under federal sentencing guidelines is “more than $400m” in cases of this kind. Meanwhile, the 14 fraud-related cases since 1999 pointed to by the defence – where a guideline of life yielded an average sentence of about 15 years – did not exceed $1bn. For the victims, the process of determining who gets what and from where has barely begun. The court-appointed trustee, Irving Picard, who is handling 8,800 claims, is launching civil suits to claw back profits distributed from Mr Madoff’s scheme. Meanwhile, the criminal decision on restitution has been delayed pending further work.
Separating “real” losses from vast fictitious gains is slow, painful work. Together, Mr Madoff’s investors believed they had $65bn. The government’s latest estimate for net losses – the sum of accounts where more was invested than withdrawn – is about $13bn and likely to rise. Scavenging for cash from those who reaped false profits while the going was good – or giving only partial credit to those with some withdrawals – pits investor against investor. But it is the only way. Those billions in improbable, imagined profits are now matched by a sentence 12 times Mr Madoff’s life expectancy. That leaves little incentive for the one person who knows the truth to help unearth it.
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