Hawai'i defendant's sentence reduced
By Ken Kobayashi
Advertiser Courts Writer
A 58-year-old former bank executive became the first person in Hawai'i to get a more lenient sentence yesterday as a result of a sweeping U.S. Supreme Court decision last week affecting the way federal defendants are sentenced nationwide.
David Zerfoss was supposed to be sentenced to a prison term of 27 to 32 months for possession of child pornography under the federal sentencing guidelines, but the high court ruled in a 5-4 decision Jan. 12 that judges are no longer obligated to follow those standards.
Chief U.S. District Judge David Ezra sentenced Zerfoss to 18 months. The judge said Zerfoss has undergone lengthy treatment and is "highly unlikely" to repeat paying for and getting child pornography through his home computer.
Ezra also ordered Zerfoss to pay a $25,000 fine and participate in a sex-offender treatment program.
Yesterday was the first day for federal sentencing for Hawai'i defendants since the high court's decision that has had federal judges and prosecutors and defense lawyers sorting out the impact on the way more than 300 defendants here and tens of thousands across the country are sentenced each year.
The decision basically says federal judges must consider the guidelines, but are essentially free from following them. The guidelines determine a range of sentences based on a formula that takes into account factors such as a defendant's background and the nature of the crime.
"It's a whole new scenario," said U.S. District Judge Susan Oki Mollway, who sentenced a bank-fraud defendant yesterday to 15 months, which fell within the federal sentencing guidelines. She said federal judges are exchanging a "tremendous amount" of e-mails that include suggestions about how to proceed.
Zerfoss, who worked for Bank of Hawai'i for years before taking over as Central Pacific Bank's chief investment officer in 2003, pleaded guilty to the felony child pornography charge last year. He was charged after federal authorities raided his Prospect Street home in December 2003 and found the child porn in his computer.
Victor Bakke, Zerfoss' lawyer, argued that the federal guidelines were too harsh for a man who has been a devoted husband and a successful and trustworthy businessman. He said Zerfoss is not a child molester and has undergone extensive treatment. Bakke recommended a sentence of less than a year that would include house arrest.
Assistant U.S. Attorney Larry Tong urged the judge to sentence Zerfoss within the guideline range. He said Bakke was minimizing the seriousness of the offense, which exploits children. Tong said Zerfoss paid monthly subscriptions for the child porn and sought out Web sites with child pornography.
Zerfoss told the judge he was remorseful and promised that he won't repeat his actions. He also choked up when he turned to the gallery full of supporters.
"Words can't express how grateful I am for your forgiveness and understanding," he told them.
Ezra said he wasn't going to go along with the defense recommendation because Zerfoss had a habit of seeking the images over a period of time. "Without Mr. Zerfosses, there wouldn't be child pornography," the judge said.
Zerfoss, who must report to prison on March 14, declined comment as he left the courthouse, but Bakke said his client's reaction was one of relief after a difficult year of reflection since the raid. Zerfoss knew he would have to spend time behind bars, but 27 months was too long, Bakke said.
"This is a classic case of the guidelines being advisory (and not mandatory)," Bakke said.
Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com or 525-8030.
