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Judge Issues $1,000 Penalty for GEAR UP Boo-Boo; Coming Up: Guericke for Education Secretary?

The only person admitting guilt for anything in the GEAR UP scandal gets no substantial punishment and praise for his excellent public service. Former Mid-Central Educational Cooperative exec Dan Guericke, under whose supervision good Christian business manager and bully Scott Westerhuis made off with over a million dollars in federal grant money to enrich himself before burning up his estate and murdering his wife and his four children to escape earthly justice, will pay the state a $1,000 fine, $104 in court costs, and some fees for transcription services. And with suspended imposition of sentence, Guericke will spend no time behind bars and eventually see this matter wiped from his record…. because he’s just such a nice guy:

Judge Bruce Anderson said that Guericke’s was a case that “reeks of suspended imposition of sentence” and that, based on his perception of Guericke’s character and the outcome in the trials for the two other people charged in the GEAR UP case, it wouldn’t be fair to impose any substantial form of punishment. Anderson said that Guericke’s remorseful attitude in court led him to believe that Guericke had already punished himself enough.

“You seem to me to be a good man of good character and an excellent public servant,” Anderson said to Guericke.

Guericke’s wife, Jane Guericke, said at the sentencing hearing that her husband had never intended to commit a crime

“His main goal was always to serve the children of the district and their families,” she said. “… Because he is trustworthy, he tends to believe others are trustworthy” [Ellen Bardash, “Guericke Granted Suspended Imposition,” Mitchell Daily Republic, 2018.11.26].

Attorney General Marty Jackley acknowledged Guericke’s assistance with the GEAR UP investigation, which managed to convict no one else. But expect no further investigation of wrongdoing:

“Today brings closure to what I would say the criminal proceedings, but doesn’t bring closure to what we as a state could do to avoid this in the future,” Jackley said Monday afternoon. “It needs to be looked at from an oversight standpoint in the legislature, and the executive branch” [Danielle Ferguson, “Former Mid-Central Director Sentenced to Pay Fine for Backdating GEAR UP Contracts,” that Sioux Falls paper, 2018.11.26].

And if you’re expecting action from the incoming Executive Branch, well, get in line: Governor-Elect Noem has two more kids and a husband to find state jobs for, first. Maybe once the Noem clan is squared away, Noem can hire Guricke to run the Department of Education, because, hey, this upstanding citizen had just one little lapse of judgment, backdating one little contract, without any idea of the massive fraud his staff was perpetrating against the taxpayers and the Native American students those tax dollars were intended to help. Anybody could make that mistake, right?


  1. Donald Pay 2018-11-27 12:57

    And, thus, another chapter of South Dakota Republican corruption comes to its expected close: no one held accountable. But, why expect anything else? It’s just tax money that was supposed to go for the education of Indian children. When racism mixes with corruption and incompetence, you’ve got the perfect recipe for modern South Dakota Republican governance.

  2. Debbo 2018-11-27 15:40

    I had a comment in mind, but Mr. Pay said it first and better.

  3. marvin kammerer 2018-11-27 16:06

    one can”t expect competence from our attorney general now or from the next.& you can bet our next gov. will not demand anything can bet sd. will soon climb to the top of the heap as the most corrupt state in the nation!

  4. Robin Friday 2018-11-27 16:36

    Are all the judges in SD that. . .um. . .uninformed Republicans? I’m guessing the answer to that is “why wouldn’t they be?” They ALL allowed it to happen, they ALL should be in prison, including Joop Bollen. Stinking, nauseating, putrid, loathsome.

  5. Debbo 2018-11-27 20:01

    Robin, I don’t think your last sentence was strong enough.

  6. Cory Allen Heidelberger Post author | 2018-11-27 20:14

    An “excellent public servant” would not have let a business manager sneak off with that much money. An “excellent public servant,” seeing the Department of Legislative Audit digging into his organization’s books, would not have let his business manager talk him into backdating any contract without checking with the auditors first.

  7. Jake 2018-11-28 09:06

    A “History of Corruption” will be a good future book of 4 plus decades of GOP ruling government in SD. Each time we undergo these EB-5, Gear-Up and other fiascoes is another ‘dulling’ of the conscience of the voters. The SDGOP has an awful lot to be red-faced ashamed of but is too busy reaching for more taxpayer $$ to even acknowledge it! Now even the courts are involved in the white-washing of GOP scandals. “Legislative oversight” by the SDGOP has proven fruitless and hopelessly incompetent.

  8. bearcreekbat 2018-11-28 12:13

    So, without reading a pre-sentence report or having any personal knowledge of everything the sentencing judge considered, what sort of sentencing recommendation would Cory and other dis-satisfied commenters make here for pleading guilty to one count of the non-violent crime of falsifying evidence? If jail time is included, can you please indictate how much time should be served for this non-violent crime, and to what end? For example, if deterence is your goal, how much potential jail time is needed for any individual defendant to deter someone else from committing a similar crime, over the deterence that already comes with a statute that allows a judge to impose substantially greater punishment in individual cases?

    And as for the suspended imposition of sentence, what is the main objection you might have if any? Would you contend that for certain crimes a defendant’s history and rehablitation potential should be disregarded, and the defendant labeled as a felon for life?

    I often read our objections to the harshness of our criminal penalties, including jail time for non-violent crimes and additional lifetime consequences, such as disenfranchising from voting, or community exclusion of people by registration requirements, of people who have successfully served their time. The reaction to the Judge’s sentence here seems a bit inconsistent with these objections. Any particular reason for treating this offender as someone that should be jailed and then permanently labeled for pleading guilty to his apparently first (non-violent) crime?

  9. Michael L. Wyland 2018-11-28 15:56

    As a few of you are aware, I have been following, writing, and interviewed on TV about the GEAR UP scandal almost from the beginning. My belief is that it was, indeed, a scandal where many people did wrong things and/or did things wrongly from 2005 until at least the present day. It would have been satisfying and convenient if the major transgressions were criminal acts as defined in state statute. Unfortunately, they weren’t and aren’t. Even the state’s attempt to prosecute on minor related charges resulted in two acquittals and one minor sentence.

    As for violations of federal law and regulations, there was at least one federal investigation we know of related to GEAR UP, but no charges have been filed as yet. [The feds will only formally acknowledge the existence of an investigation if and when charged are filed.]

    GEAR UP was a failure of federal and state education officials to exercise good judgement in their management of their respective offices. That mismanagement having occurred, and how it occurred, facilitated further mismanagement involving Mid-Central Education Cooperative, the American Indian Institute for Innovation, the Oceti Sakowin Education Cooperative, and other individuals and entities. The puzzling thing is that no one amassed millions of dollars and absconded to a tropical island. Nonetheless, the central tragedy is that $62 million in federal funds and promised state matching funds resulted in very little (and no measurable) improvement in South Dakota Native American and other impoverished individuals’ success in higher education.

    I have a plan/proposal that I will be sharing with the incoming SD Legislature that I believe will reduce the likelihood of future GEAR UP-like scandals.

    I’m not so arrogant as to believe I possess unique wisdom and the only “solution” to corruption in our state. However, after developing a concept paper on my proposed approach, I was amused and a little surprised to read that Winston Churchill proposed essentially the same solution to the UK Parliament in 1902-1903 and a form of that solution has worked well there ever since.

  10. Cory Allen Heidelberger Post author | 2018-11-28 20:03

    Bear, I appreciate the honest and intelligent question in opposition to the position I take.

    I agree that my complaint here shows my sense of mercy is far from universal. I do pick and choose some people on whom I would rain down fire and brimstone… if the law permitted. There’s one great frustration here: real harm was done to the taxpayers, real fraud was committed, real corruption took place, and that unchecked corruption led to a selfish bully killing his family, and our laws and courts can exert no substantive justice.

    Maybe we can’t fine Guericke or throw him in prison for a while or leave this conviction on his record for him to explain for the rest of his life the way people who’ve let less harm come to pass must. But must we pat him on the back on his way out the courtroom and call him an excellent public servant? If Guericke made just one mistake, it was a whopper, one that snowballed over several years and took more money out of Americans’ pockets than several welfare queens ever would.

    This affair is a classic example of the rigging of the system for white-collar criminals who look like us and are close to the people in power. When the system is already designed to do guys like Guericke (and Bollen) favors and to make sure friends of Rick Melmer and Melody Schopp don’t even have to face questions let alone the music, I don’t feel like I’m under any obligation to add to the favors. I might actually have an obligation to tilt the other way, to be one of the voices who’s less concerned about rehabilitating poor good public servant Dan and more concerned about reminding everyone how bad the system in which Guericke was a cog let the corruption get in Platte.

  11. Cory Allen Heidelberger Post author | 2018-11-28 20:04

    Michael, I look forward to hearing your proposal. Feel free to share it as a guest post here, if you feel that would not hurt its chances of serious consideration in Pierre. Let us know when you go to testify in committee!

  12. bearcreekbat 2018-11-28 21:04

    Okay Cory, how much prison or jail time would you be satisfied with and what particular sentencing objective do you contend such a sentence would serve – deterrence? retribution? incapacitation? rehabilitation?

    Since the defendant pled guilty to a felony, the judge certainly could have imposed a sentence by “throw[ing] him in prison for a while or leave this conviction on his record for him to explain for the rest of his life.” Do you think the judge was improperly influenced by “people in power” to give this defendant an undeserved break, or do you think the judge imposed a lighter sentence in good faith?

    As for other defendants who have been sentenced more harshly for what many might perceive as less harmful offenses, can you explain how imposing jail and denying the suspension on this man (or any other defendant for that matter) might in any way benefit those defendants sentenced too harshly for less damaging crimes?

    And if the system is in fact rigged, can you explain in what manner it should be changed?

    -Adopt mandatory minimum sentences regardless of mitigating facts?

    -Adopt sentencing guidelines to eliminate a judge’s discretion in sentencing?

    -Build more prisons so we have room for long sentences for more white collar offenders?

    -Mandate imposing a more harsh sentence when there are uncharged, dismissed, or acquitted allegations?

    -Increase the punishment of a defendant based on conduct of others involved in the offense?

    What is it specifically about our current sentencing laws that you object to as rigged and would seek to change if elected to office?

    These are not “gotcha” questions, nor rhetorical/argumentative questions. Rather these are serious questions deserving some thought and considerable refection before we start demanding the judge throw the book at any defendant or criticizing the judge because she didn’t sentence harshly enough to satisfy our somewhat natural but primal emotional responses to the harm his conduct caused others.

  13. Cory Allen Heidelberger Post author | 2018-11-29 22:08

    BCB, there may not be a sentencing solution. But could we at least send the felon away with criticism rather than praise? How about, “You pled guilty, as well you should have. You let the public down. You let serious crime happen. You failed to do due diligence. And look what happened. Let that be a lesson to us all. Whatever job you go do next, don’t ever screw up this badly, ever again.”

    I don’t think that’s a primal emotional response. I think that’s the response of a citizen seeing corruption happen because of cronyism and lack of rigorous oversight and seeing the cronies get pats on the back on the way out the door with their puny penalties.

  14. Michael L. Wyland 2018-11-30 11:08

    Here’s where some will attack without thinking. Please remember that I’ve been inveighing about GEAR UP for 3+ years:

    I visited with Dan Guericke’s wife briefly during Stacy Phelps’ trial in Sioux Falls. She was in the courtroom waiting for her husband to testify. She was both angry and nearly in tears about what her husband and family have suffered. I understood completely the perspective of a spouse defending her husband and feeling aggrieved. It didn’t in any way change my opinions about GEAR UP, but it did remind me there are multiple perspectives as well as there are many ways to suffer.

    To those who think the defendants got off scot free, they didn’t. Hubers and Guericke lost their jobs and sustained legal fees that likely have resulted in their families and their losing any assets they have accumulated (e.g., home equity, savings) aside from their pensions. Guericke is now managing a nursing home, unlikely to ever hold a responsible position in education. They’ve been living with GEAR UP over their heads for 2+ years, not knowing what the ultimate outcome might be. Imagine the emotional toll that takes on a person and those close to that person – and the additional pain caused by watching those you love being economically and emotionally hurt by the consequences of your actions.

    This is not to say that criminal convictions and penalties would have been inappropriate or wrong. It’s just to say, as I said above, there is more than on way to exact a penalty on an individual, and these people have not emerged from the GEAR UP scandal unscathed.

  15. bearcreekbat 2018-11-30 11:49

    Michael’s factual information helps clarify a punishment beyond jail and fines that a defendant and his family and associates experience from being charged and convicted of a serious crime. I did not have access to the pre-sentence report or other factual information available to the sentencing judge, but in the typical case a judge is provided with substantial information to help guide the final sentencing decision.

    Here, Cory doesn’t seem to think we need changes in our sentencing laws. And I have seen no evidence nor credible argument that this sentencing judge acted improperly due to improper influence from people in power or a rigged system. Hence, I could be wrong but absent such evidence I presume the judge acted in good faith.

    Cory and other early posters who have not responded to my earlier comments and questions apparently disagree with this analysis. Is there evidence about the judge that we have missed?

  16. mike from iowa 2018-11-30 11:53

    From what little I have seen, Marty Jackley tended to throw the book at people who crossed him and made him look bad. See Mette case and its outcome for state employees charged with bogus crimes for protecting minors.

  17. bearcreekbat 2018-11-30 12:19

    mfi, that is a good point. Prosecutors frequently overcharge a defendant to gain some advantage in plea negotiations. This is especially pernicious in systems with mandatory minimum sentences as prosecutors can then charge and threaten the defendant with an offense carrying a mandatory sentence the judge cannot modify as facts might warrant.

    Where a judge has discretion in sentencing, however, the judge often sees through the prosecutor’s abusive stacking of charges and discounts these excess allegations when deciding upon a sentence. Undermining this judicial discretion is one strong objection many people seeking prison reform have to mandatory minimum sentencing statutes.

  18. Cory Allen Heidelberger Post author | 2018-11-30 12:44

    “imagine the emotional toll”—perhaps Guericke should have imagined that toll before letting Scott Westerhuis steal that money.

    We all have to think about the consequences of our actions, family men all the more so. Screw up at work, let corruption happen, and you may end up destroying your family’s livelihood.

    If the contention is that Dan Guericke has suffered enough without judicial punishment, then maybe I won’t fight too hard. Does that contention include the claim that he deserves that punishment?

  19. mike from iowa 2018-11-30 13:00

    bcb, in the Mette case Jackley behaved as if his family honor was questioned and though the judge could clearly see the charges were a joke, why wasn’t he disciplined. That attack of Jackley’s was clearly beyond the pale of prosecutorial misconduct, imho.

    As for Guericke’s family being involved, isn’t that part of the marriage vows- for better or for worse? No one paid much heed to Westerhuis’ family who paid the ultimate penalty for something the kids had no say so in.

  20. Michael L. Wyland 2018-11-30 13:24

    Personally, I take no position on whether Guericke has “suffered enough.” Each individual’s assessment of that question will differ, and my thoughts are no better or worse than anyone else’s.

    I would note in passing that Scott Westerhuis was the tactical leader in the GEAR UP scandal, but I believe a convincing case can be made that he wasn’t the strategic mastermind.

    What I see playing out is more a matter of citizenship than individual justice. What does the public require, and how can the criminal justice system fulfill that requirement, assuming it can? After all, a central purpose of the criminal justice system is to provide a legitimate and predictable way to address criminal acts against persons and property. As for whether it’s “satisfying” to each citizen is open to debate, as their is a wide gulf between mercy and schadenfreude.

    My recurring thesis is that GEAR UP was wrong, but its most serious transgressions weren’t criminal within current definitions. The criminal process wasn’t and isn’t equipped to deal with cronyism – justice needs to be found elsewhere.

    Jackley tried the Capone prosecution approach – we can’t prosecute Capone for organized crime, even though everyone knows what’s happening. We *do* have evidence he’s not paying income taxes, so we’ll get him for that. Unfortunately for Jackley, the charges he was able to make were very difficult to explain, especially to a jury largely unaware of contract law and the technicalities of corporate activity. Couple that with the apparent fact at trial that the contractual violations were tangential to the real issues at play. The jury had no problem saying, in effect, we aren’t sure what’s really happening here and if we’re not sure we’re supposed to acquit the defendant (find him not guilty).

    Mark Hanna, Stacy Phelps’ lawyer, repeatedly told the jury that Phelps was not being accused by Jackley of stealing any money. This was true. What he was being accused of was a “paperwork violation” (signing a backdated contract), the defense for which was that Phelps was a mission-driven leader with poor management and administrative practices who was suckered by Scott Westerhuis. Phelps didn’t realize the paperwork violation because he trusted Westerhuis and, besides, he (Phelps) was never good with paperwork anyway.

  21. Debbo 2018-11-30 14:05

    I feel bad for the people who suffered “collateral damage,” families, etc. I think people sometimes get caught up in things that start small, get bigger, and the individual feels stuck in it.

    I don’t know if that happened here, but the resulting damaging was widespread, even lethal, and Guericke played a role. I’d be satisfied with a change in the judge’s sentencing language more in line with what Cory suggested yesterday at 22:08.

  22. leslie 2018-12-01 11:04

    Jackley said whispered it all–after it was all over. Crony abuse of power. Failure of crony oversight. Failure of executive administration. Same thing happened with Joop the crook. Led to death. $600 million EB5 dollars mismanaged by hidden, unaccountable cronies who move on to be congressional reps and senators. $62 million of native american kids squandered by invisible white cronies. Jackley and Tidemann are enablers.

  23. leslie 2018-12-01 11:23

    Who is Judge Bruce Anderson? This is what you get when republican Federalist Society recruits and grooms Gorsuch and Kavanaugh cronies. SD has nothing but crony republican judicial appointments since the 70s at least. Hon Jeff Viken is a notable federal exception. So now Ravensborg will sully the state for years to come with Noem blythely in charge. We might as well have a Sarah Palin. IM22 and its predecessor as the will of the people expressed, have been and will be ignored. by crony republicans.

  24. mike from iowa 2018-12-01 13:07

    If Ravnsborg is half as incompetent as he seems, wingnut pols in South Dakota should be afraid for their mortal hides. He could accidently get them all jailed.

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