Brooks sentenced to 18 months for embezzling

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by Chris Braithwaite

BURLINGTON — Kim Brooks will serve 18 months in federal prison for embezzling more than $160,000 from her former employer in Orleans.

The 48-year-old Brownington woman was dismissed from her job at Desmarais Equipment in the spring of 2011 after an audit of the farm equipment dealer’s books revealed significant discrepancies.

She has since been an active volunteer with the Orleans County Fair, where she served on the board of directors.

Indeed, the thousands of hours Ms. Brooks donated to the fair were cited by two people who spoke on her behalf at her sentencing hearing in U.S. District Court here Monday.

Her attorney, David Sleigh, used their remarks as the basis of a request for a “downward departure” from federal sentencing guidelines that would have reduced her prison sentence to five months.

But Judge William Sessions was unmoved.  His remarks suggested that the fact that Ms. Brooks is “obviously an extraordinarily intelligent person” who enjoyed her community’s respect made her crime all the more serious.

“How can someone who is so respected commit such a flagrant violation of trust?” the judge asked before he handed down the 18-month sentence.  He said he would request that the sentence be served at a federal prison camp in Danbury, Connecticut, and ordered Ms. Brooks to surrender herself there on October 8.

Ms. Brooks was first cited to appear in state court in early 2012 following a State Police investigation.  Her case moved to U.S. District Court after a federal grand jury issued a three-count indictment in October 2012.

Ms. Brooks pled guilty to one count after negotiating a plea agreement with federal prosecutors in late April this year.

Judge Sessions waived any fine, which could have been as high as $250,000.  But as part of the plea agreement she was ordered to forfeit $11,885 to the government in a “preliminary order of forfeiture” issued by the court on Friday.

According to a press release from the U.S. Attorney’s office, Ms. Brooks must pay a total of about $163,000 in restitution.  Judge Sessions ordered her Monday to give up 10 percent of her future gross income for that purpose.

That was one of several conditions of a three-year term of supervised release the judge added to her prison sentence.  He also ordered Ms. Brooks to avoid work that involved any fiduciary responsibility.

The judge told Ms. Brooks he had considered several factors before passing sentence.  None of them seemed to work out in her favor.

“What was most important in my assessment is the level of planning,” he said.  “This is a case in which money was taken over three years,” he noted.  “It was not some casual act.  That level of calculation is extremely serious.”

Judge Sessions noted that Ms. Brooks had been working with a small company for 15 years, and knew that her embezzlement would make it impossible for her co-workers to get raises or bonuses.

“That’s a pretty flagrant violation of a person’s level of trust,” the judge remarked.  “That you could go to work, knowing full well you have been stealing from them for years, is inconceivable to me,” he added.

Turning to deterrence, the judge said embezzlement cases have become so common in Vermont that “some have referred to it as an epidemic.”

“There needs to be a statement to the community that these violations of trust are treated seriously,” Judge Sessions said.  “There needs to be a clear understanding by people who are in charge of other people’s money that to steal it is a serious crime.”

The brothers whose business was the victim of the crime, Rene and Roger Desmarais, both had a chance to speak to the court Monday.

“We were in business for 49 years and had a lot of good help — people you trusted,” Roger Desmarais said.  “Apparently we had a silent partner we didn’t know anything about.”

He said the loss cut into the price the brothers got when they sold their business.  “We weren’t showing the profit we should have been,” he said.

He recalled the day an accountant “figured out something was wrong,” and confronted Ms. Brooks.

“She said she had made some mistakes in life.  She was as cool as could be,” Mr. Desmarais said.

Reading from a pre-sentence investigation that was not made public, Judge Sessions said that Rene Desmarais felt humiliated by the case, a feeling that was “fueled by her arrogant public behavior.”

After Ms. Brooks was caught, the judge asked Roger Desmarais, “was she acting in an arrogant way?”

“No,” Mr. Desmarais replied.  “Kim was being Kim.”

“We considered her a real friend,” Rene Desmarais said when it was his turn to talk.  He said the crime also affected 12 to 14 people who worked for the dealership.  They got no raises for four or five years, he said.  “At the end of the year there was no profit to distribute.”

The judge asked Rene Desmarais if Ms. Brooks was arrogant after her crime was revealed.

“If I was accused of doing what she did, there’s no way I would have flaunted myself,” Mr. Desmarais replied.  “She goes on as if nothing ever happened.”

Judge Sessions established the fact that Ms. Brooks hadn’t paid any of the money back since her crime was discovered in early 2011.

Ms. Brooks’ attorney, David Sleigh, took responsibility for that.  He routinely warned his clients against contacting their alleged victims before the criminal case was settled, he told the judge.

Two friends were in the courtroom to speak for Ms. Brooks.

Lori Royer said her friendship with the defendant went back to their high school days.  “She did a lot for the fair,” Ms. Royer said.  “She kept the harness racing alive and well.”

“She’s got a very kind heart,” Ms. Royer said of Ms. Brooks.  “She’s a very good person.”

Judge Sessions asked if the two had talked about the criminal case.

No, Ms. Royer replied.  “Rene’s my neighbor, Kim’s my friend, we just don’t talk about it.”

Randy Patenaude told the judge he had worked with Ms. Brooks at the fair, and that she had also cared for his mother, who suffered a serious stroke.

“Without her motivation, my mother would not be where she is now,” he said of Ms. Brooks’ care.

“Kim devoted thousands of hours to the Orleans County Fair,” Mr. Patenaude said, “not for any glorification or monetary gain.”

Mr. Sleigh did not argue that his client should not go to jail, but urged the court to shorten the term from the federal guideline of 18 to 24 months.

“Kim for years has given enormously to her community,” the attorney said.  “It is hard to overestimate the importance of the Orleans County Fair to the community.”

“Little of the wrongful taking wound up as a benefit to Kim,” Mr. Sleigh added.

The judge pursued that issue.  He noted that three checks involved in the crime had gone to her partner, for a total of close to $45,000.

“Where did that money go?” the judge demanded.

During a later exchange with Ms. Brooks, Judge Sessions said the three checks went to Harvey Cleveland, Ms. Brooks partner and, until he stepped down in July, president of the Orleans County Fair.

“What were they used for?” the judge asked.

“One, and a significant portion of another, was sent to Ohio to assist someone I knew,” Ms. Brooks replied.

According to the grand jury indictment, “$11,885 in proceeds from one of these unauthorized checks was used to purchase a used truck in Ohio.”

“One went to a young farmer who was trying to start up a business,” Ms. Brooks continued.  “At the time I anticipated it was coming back,” she said of the money.  “I found out that was not true.  I never received any of the money back.”

Then Ms. Brooks turned to face the Desmarais brothers and their wives.

“I’m sorry I betrayed your trust,” she told them.  “I’m sorry for losing your friendship.  I will do everything I can to pay you back.”

contact Chris Braithwaite at chris@bartonchronicle.com

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Roger Pion denies crushing cruisers

Attorney David Sleigh (left) represents Roger Pion in Orleans Superior Court. Photo by Joseph Gresser

copyright the Chronicle August 8, 2012

by Joseph Gresser

NEWPORT — Roger A. Pion pled innocent Tuesday to crushing seven police vehicles with a jumbo tractor.  He also denied charges related to a July arrest for possession of marijuana and resisting arrest.

An affidavit for the July 3 incident says Mr. Pion was injured during arrest and required medical treatment.

One of the charges against Mr. Pion was dismissed by Judge Robert Bent.  David Sleigh, the 36-year-old Newport resident’s lawyer, is asking Judge Bent to throw out others as well.

Mr. Pion first appeared in the Orleans Criminal Division of Vermont Superior Court Friday for arraignment on 11 felony charges and three misdemeanors related to the destruction of the police vehicles on August 2.

Seven of the felonies were for unlawful mischief involving more than $1,000 in damages, one for each of the destroyed vehicles, which belonged to the Orleans County Sheriff’s Department.

The other felony charges included two of carrying a weapon while committing a crime, one of impeding a public officer and one of aggravated assault — with a weapon — of a law enforcement officer.

Mr. Pion was also charged with reckless or grossly negligent driving, leaving the scene of an accident, and unlawful mischief resulting in damages less than $250.

Mr. Sleigh told Judge Howard vanBenthuysen, who presided by telephone, that Mr. Pion would not waive the 24-hour period allowed by law before entering a plea, so the arraignment was postponed until Tuesday at 1 p.m.

Judge vanBenthuysen set bail for Mr. Pion at $50,000, despite Orleans County State’s Attorney Alan Franklin’s request that Mr. Pion be denied bail, or should bail be granted, that it be set at $250,000.

Mr. Sleigh pointed out that Mr. Pion had been unable to meet bail of $15,000, to counter Mr. Franklin’s request.

In court on Tuesday Mr. Pion pled innocent to the remaining charges related to the events of August 2, in order to allow the judicial process to move forward.  Mr. Pion also entered a plea of innocent to misdemeanor charges of resisting arrest and possession of marijuana that resulted from a traffic stop in Newport on July 3.

Newport City Police Patrolman Aaron Lefebvre said in an affidavit that he followed a car east on East Main Street that day, and saw that it lacked a license plate validation sticker and that it was speeding.

He pulled the car over and was told by the driver that she was rushing to Tractor Supply in Derby for work-related reasons, Patrolman Lefebvre said.  He said Mr. Pion and Joshua Hall, the car’s two passengers, confirmed the woman’s story.

Patrolman Lefebvre said he noticed that Mr. Hall seemed nervous and that he smelled the odor of pot coming from the car.  He said he asked the occupants of the car to get out and allow the car to be searched.

The driver and Mr. Hall agreed and the latter quickly handed over a container with a small amount of marijuana in it and a wooden pipe, Patrolman Lefebvre said.

He said that Mr. Pion, who was in the rear seat of the car with his pit bull, initially refused to get out of the car, but eventually consented to do so, although he would not allow officers to pat him down for weapons.

Patrolman Lefebvre said the search of the car turned up no more pot, and the three were allowed to get back in.

He said a records search then showed that there was a warrant out for Mr. Pion.  Patrolman Lefebvre said Mr. Pion became irate when asked to get out of the car again.

Patrolman Lefebvre said that there was “a brief banter of obscenities,” and then Mr. Pion pushed the driver’s seat forward and began to get out of the car.  He said he tried to take Mr. Pion into custody by using a “hands on approach.”

Mr. Pion continued to argue and resist arrest, Patrolman Lefebvre said, and during the confrontation, the dog got loose.

Patrolman Lefebvre said Mr. Pion stopped resisting and asked permission to get his dog and turn it over to the people in the car.  After he did so, Mr. Pion became combative again, Patrolman Lefebvre said.

Along with Patrolman Corey Marcoux, Patrolman Lefebvre said he tried to get control of Mr. Pion’s hands.  He said he then “proceeded to affect an arm bar take down which resulted in Pion being transferred to the ground while he continued to resist placing his hands beneath his stomach.”

After the officers handcuffed Mr. Pion, an ambulance was summoned to treat him for “non-life threatening injuries,” Patrolman Lefebvre said.  He said Mr. Pion was later taken to North Country Hospital to be evaluated for further injuries.

Patrolman Lefebvre said police searched Mr. Pion and found 4.3 grams of marijuana and a loaded .38 caliber hand gun concealed in Mr. Pion’s crotch area.

An affidavit from State Police Detective Trooper Lyle Decker traced the events of August 2.  Detective Decker said that the State Police were called around 12:42 p.m. and told that several of the sheriff’s vehicles were being run over behind the department’s headquarters on Route 5 in Derby.

Detective Decker said he spoke to several witnesses who told him they saw a tractor driven by a skinny man with facial hair.  One witness said he saw the tractor drive back and forth over several cruisers three or four times, Detective Decker said.

That witness said the man in the tractor then stopped as if waiting for someone to come out of the building, he said.

Detective Decker said that Newport Police Sergeant Nicholas Rivers and Patrolman Tanner Jacobs were in the Brown Cow restaurant, not far from the sheriff’s department.  As they left they saw a tractor matching the description of the one seen crushing the cruisers and caught up to it as it turned from East Main Street onto the Causeway, he said.

In his affidavit Patrolman Jacobs said the tractor slowed down after turning onto the Causeway.  The tractor’s driver looked back at the cruiser and “quickly accelerated in reverse towards our direction,” Patrolman Jacobs said.

Patrolman Jacobs said he put his cruiser into reverse and backed up ten or 15 feet before bumping into the car behind him.  He said the tractor was still coming toward the cruiser, so he and Sergeant Rivers, fearing that they would be run over,  jumped out of their car.

The officers drew their weapons and pointed them at the driver, he said.  The tractor stopped and, along with deputies and troopers who had arrived on the scene, Patrolman Jacobs said he ordered the driver out of the tractor.

Mr. Pion was arrested, Patrolman Jacobs said, and a hand gun was taken from him.  According to Detective Decker it was a VORA .70 caliber 765.

At Tuesday’s hearing, Mr. Sleigh argued that the evidence provided in the affidavits was insufficient to warrant some of the charges against Mr. Pion.

A felony charge of impeding a public officer was dismissed by Judge Bent for lack of probable cause after Mr. Sleigh argued that under Vermont law dating back to the 1830s, the crime requires that the officer be hindered while actual performing his duty.  Judge Bent rejected Mr. Franklin’s contention that the Orleans County deputies were impeded in their pursuit of  Mr. Pion by the lack of operable cruisers.

Mr. Sleigh also asked Judge Bent to dismiss the aggravated assault charge on the grounds that there was not proof that Mr. Pion had intended to cause bodily injury to someone.  He said the state’s affidavits showed that Mr. Pion had backed his tractor toward the officers, but also said that he stopped 15 feet from their cruiser.

Mr. Franklin said that Mr. Pion turned, looked directly at the officers and then backed his tractor toward their car.  He said the officers were in fear of their lives.

Mr. Sleigh countered that there might be charges under which placing someone in fear of imminent danger might be a factor, aggravated assault is not one of them.  He said that the affidavit provided no evidence that the tractor was used in a way that would cause bodily harm.

Judge Bent said he needed time to consider the matter and review the law before making a decision on Mr. Sleigh’s motion.

Mr. Sleigh’s final motion was one alleging that Mr. Franklin, by filing multiple charges of unlawful mischief, one for each car, is attempting to make several charges out of a single criminal act, thus violating the constitutional provision against double jeopardy.  Mr. Sleigh asked Judge Bent to strike all seven of the charges.

Mr. Franklin asked for time to respond to this motion, a request that Judge Bent granted.

Mr. Franklin again asked that Mr. Pion be denied bail, or that bail be set at $250,000.  Judge Bent, though, left bail set at $50,000.  Mr. Pion remained at Northern State Correctional Facility for lack of that sum.

contact Joseph Gresser at joseph@bartonchonicle.com

For more free articles from the Chronicle like this one, see our Editor’s Picks pages.  For all the Chronicle‘s stories, pick up a print copy or subscribe, either for print or digital.

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