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(not the actual cover)

Kelco Petitions the U.S. Supreme Ct.

    Kelco's three executives, Stephen L. Keller, Grant Sutherlin, and Keith Drach have petitioned the U.S. Supreme Court for a hearing on the ruling that convicted them of various fraud charges and sent them to prison for terms ranging up to ten years.*

    The Petition for a Writ of Certiorari was filed on August 26, 2005. It appeals the May 31, 2005 decision of the appeals court. The appeals court did not address the issues raised here. The appeals court only addressed the sentencing, and sent the case back to the federal district court judge for a lower sentence.

    The issue presented to the Supreme Court challenges the finding of fraud by a jury. It is alleged that the jury was incorrectly instructed to find fraud if insurance companies did not have responsibility for thorough underwriting.

    In other words, if insurance companies are as naive as the average retiree who invested throughout the 1990s, then insurers were defrauded. If insurers had an obligation to perform more thorough underwriting and would have discovered the fraud, then the Kelco executives should not have been found guilty.

    The Petition to the Supreme Court asks the justices to consider that there have been contrary rulings on this issue by different courts. The Supremes are asked to rule so that all courts will be consistent. If the inconsistency remains, then people in one court will always get lighter sentences (or no sentences) while people in another court will be punished more harshly. This contradicts the theory of justice: People in like situations are treated alike.

    A responsive brief by the U.S. Department of Justice was due on September 29 but Paul D. Clement, attorney for the U.S. Dept. of Justice, waived the government's right to respond unless the Court requests a response be filed.

    The case is named Robert Grant Sutherlin, Stephen L. Keller, and Sterling Keith Drach v. United States, and was docketed on August 30 and assigned number 05-264. John D. Cline of Jones, Day in San Francisco represents the Petitioners. Cline was one of the attorneys who accomplished the release of wrongly accused and imprisoned Wen Ho Lee.

* Initial sentences were as long as 14 years.  U.S. District Judge Karl S. Forrester's new ruling on September 16 reduced Steve Keller's fourteen year sentence to ten years (with an additional two years for fleeing with his family to Panama).

    Sutherlin, now 28 years of age and regretful of  the eleven years he spent as Lexington's wealthiest young man, sobbed and blamed Keller for everything. Sutherlin had been found guilty on 46 counts, but his performance was worthy of an Oscar. The judge reduced his sentence from twelve years and seven months to three years.

    Keith Drach, 56. who suffers from a rare form of  cancer (mantle cell lymphoma), currently in remission, had not be imprisoned until now. Drach had been found guilty on two counts of conspiracy, after the judge forced a hung jury to bring back a decision on Drach. Until now Drach was not ordered to prison. Until now, the court had either compassion or understanding that prison could result in Drach contracting other illnesses.

    Drach's battle with cancer is in remission but he has a severely suppressed immune system. He cannot fight infection like a normal person. Drach explained:

    "When I come out of remission, I need a strong body to undergo more chemotherapy and another stem cell transplant. There is no expertise for this in Kentucky which is why I went to the Lied Transplant Center at the University of Nebraska for my first treatment of mantle cell lymphoma. They treat between 50 and 100 cases per year of this disease."

     Judge Forester's compassion ended with the reduced sentence for Sutherlin. Perhaps due to a  bad night's sleep or to sour milk in his morning coffee, Judge Forrester ignored the huge risks of sentencing Drach to a medical prison facility, where he will be exposed to all sorts of infections--and prison medical facilities are akin to storefront medical clinics. Drach was sentenced to four years for the two counts of conspiracy--a far longer sentence than Sutherlin, who was sentenced for 46 counts.

    The judge ignored Drach's attorney's plea for home detention. Had Drach similarly sobbed and blamed Keller for everything, the Court may have recognized the likelihood that this will turn into a death sentence. Judge Forester wanted to see and hear remorse. Drach's precarious health obviously did not move him.

    Stephen Keller's ten-plus two years sentences is far more punitive than warranted by the nature of the crimes: The court views his wife as a felon. Forget Family Values: Tamara Keller is considered a felon because she joined her husband, along with their two very young children, in fleeing the U.S. after Steve Keller was found guilty of fraud and money laundering.

Now deemed a felon, Tamara Keller does not have the right to visit her husband, nor does Steve Keller have the right to associate with a felon. The only reason Tamara ever is allowed to visit her husband is to allow the children to have contact with their father.

The Supreme Court petition

The waiver form used by the Dept. of Justice (They seemed to know that the Supremes would not pay attention to this, and didn't waste time replying to the petition).