A juror’s letter to the trial judge expressing concern over the fate of a “really good person” does not provide the basis for overturning a five year sentence for the treasurer of a youth hockey league who admitted that he used more than $290,000 in league funds to keep his business afloat.  An appellate court in New Jersey has denied the treasurer’s request for a new trial and rejected his claim that he did not have a fiduciary relationship with the league.  (State v. Stern, Superior Ct., NJ, App. Div., No. A-4744-10T1, 4/30/13.)

Michael Stern was the volunteer treasurer of a youth hockey league.  He admitted that he had written about 155 checks to himself, his business, or cash totaling $292,572 over five years and used the funds for his own business.  When confronted with evidence of the loss, he said he had periodically repaid some of the funds when league bills were due.  He also borrowed $105,000 from a friend to repay the missing funds and promised to repay all that was still outstanding.

He was prosecuted for theft and for misapplication of entrusted property.  At trial, he admitted using the funds “as if it were my account,” but testified that he always intended to return the money and there was no danger it would be lost because he had “a half dozen avenues” for doing so.  The jury failed to reach a verdict on the theft charge, but found him guilty for misappropriation of more than $75,000 in funds entrusted to him.  When polled after the verdict was read at the trial, each of the jurors indicated agreement with the verdict.

Two days later one of the jurors wrote to the trial judge expressing sympathy for Stern and saying that she had not given her vote as to the dollar amount of the misappropriation.  She was concerned that the amount might affect the sentence.  She asked whether as a juror she could have said it was a lesser amount in order to get a “lighter sentence” for the defendant “who has suffered such emotional distress from his wrong doing.”  She urged the judge to be “merciful.”

The judge sentenced Stern to five years, the minimum of the ordinary range for the crime, but he was admitted into an intensive supervision program and released after serving about five or six months in custody.

Stern moved for a new trial, complaining that the jury instructions were confusing, the polling of the jury was insufficient, and the trial judge should not have disregarded the information from the jurors who were interviewed in court after the letter was received.  The trial court denied the motions.

The Appellate Division found that the charge to the jury conformed to the model charge for the offense and was not confusing; that the polling of the jury was sufficient and that each juror had agreed with the verdict; and that the jurors should not have been called back for an evidentiary hearing about what happened in the deliberations, but that the complaining juror’s testimony was inconsistent and there was no question about the amount actually misappropriated.

Stern also argued that he did not hold a fiduciary position with respect to the league.  But the Court said that state criminal law defined a fiduciary to include an “agent or officer of a corporation, public or private … or other person acting in a similar capacity.”  The Court held that although the league was not incorporated, the treasurer’s position was “similar” to that held by an officer of a privately-held corporation.

“The evidence established that defendant was entrusted with the funds of the hockey league, which in turn, was responsible for managing the funds paid to it by the teams or individual players or collected on their behalf through gate receipts. He was a fiduciary within the meaning” of the law.

YOU NEED TO KNOW

This is another of those cases that should never have occurred.  There was apparently no oversight on the treasurer’s maintenance of the accounts for five years, no basic financial controls.  Even though everyone is a volunteer, it is still possible to have more than one person reviewing the finances, if only to have a second person reconcile the checkbook.  Even the nicest people may be tempted to use organizational funds when they are in a pinch. They are much less likely to succumb if they know someone will catch it next month.