Even though he failed to file tax returns during his entire eight years in the Florida Legislature — a four-term tenure during which he headed a powerful budget committee and preached fiscal responsibility — former Miami state Rep. Erik Fresen still walked into the federal courthouse for his sentencing Friday expecting to get slapped only with probation.
He walked out with a jail sentence.
The Miami Republican will have to serve 60 days in jail — and a year of probation — after pleading guilty to the crime of failing to file a 2011 tax return on $270,136 in income.
He will begin his jail term on Nov. 17 and serve 15 days in jail per month for four months, an intermittent sentence intended to keep him earning some income to pay back his remaining tax penalties.
“I want him to spend Thanksgiving and Christmas in jail so that every holiday for the rest of his life he’ll think back to that,” U.S. District Judge Robert Scola said.
Fresen’s mother, seated two rows behind him in court, sobbed silently. His wife and three sisters used tissues to dab tears from their eyes.
Fresen, whose voice had quivered moments earlier when he’d expressed remorse to the judge, did not object.
The jail sentence was shorter than what prosecutors sought: Fresen, whose sentencing was delayed by Hurricane Irma, faced up to a year in prison. Prosecutors asked for a sentence of six months in jail and six months of house arrest, while Fresen’s defense attorneys requested probation and no jail time.
Scola said he couldn’t be that lenient because though Fresen was only charged for his missing 2011 return, he didn’t properly report his income to the Internal Revenue Service from 2007-16 — a nine-year period that included his eight years in the state House. The court had to consider sending a message to any other elected leaders who might consider breaking the law, Scola said.
“This was a serious offense committed by a knowledgeable and sophisticated individual who knew what he was doing,” Assistant U.S. Attorney Harold Schimkat told the judge.
Fresen was once the influential House education budget chief. He holds a bachelor’s degree in finance and international relations from Florida State University and spent two years in law school, credentials prosecutors said showed Fresen knew better but flouted IRS rules anyway.
When Scola asked why he had failed to file tax returns for so long, Fresen admitted he couldn’t give a compelling explanation.
“I wish I had one,” he said, describing a sort of snowball effect that crippled him psychologically from remedying his behavior once his first return had gone unfiled. “I assure you that this inexplicable, inexcusable chapter of my life will never be repeated again.”
One of Fresen’s attorneys, Jeffrey Neiman, noted in a pre-sentencing memo filed ahead of Friday’s hearing that the former legislator cooperated with IRS agents once he learned they were investigating his messy finances. But Schimkat countered Friday that this was only after the IRS escalated Fresen’s case into a criminal matter, after a years-long civil investigation.
Fresen pleaded guilty in April, when he still owed at least $100,000 in back taxes, excluding fines and penalties, according to the government. He has since taken out a personal loan backed by friends and family, Neiman wrote, and repaid the debt. Still outstanding is a penalty being negotiated between Fresen’s attorneys and the IRS.
Neiman and Fresen’s other defense attorney, former Miami U.S. Attorney Marcos Jimenez, declined comment after Friday’s sentencing hearing. Fresen, who represented areas from Cutler Bay to West Miami, left office last year because of term limits, and decided not to run in 2016 or in 2020, as he had originally planned, because of the criminal IRS case against him.
“This has ended his public service career,” Jimenez told the judge — though, unlike with a felony, the misdemeanor conviction will not prevent Fresen from seeking public office again.
In total, Fresen underpaid his taxes by about $214,000 from the roughly $75,000 in income he earned annually from his own consulting company, Neighborhood Strategies. He also made about $150,000 a year from Civica, a Miami architecture-design firm where he worked as a land-use consultant, and about $25,000 a year from the state of Florida for his part-time job as a lawmaker.
Both Civica and the state House reported Fresen’s income to the IRS and withheld taxes. Neighborhood Strategies did neither.
Fresen did disclose Neighborhood Strategies income in annual forms required by the Florida Commission on Ethics. But he appeared to under-report the totals: The only year he listed more than $60,000 in income was 2015, when he disclosed earning $80,000 from the company.
Fresen’s finances have been in disarray for years, and Jimenez blamed some of his client’s initial tax trouble on not knowing how to handle a foreclosure that began in 2008. Fresen and his wife, Ethel, finally sold the Little Gables house — which was still in foreclosure — in March. Ethel Fresen briefly filed for personal bankruptcy last year; the couple now lives in a rental with their 12-year-old twin sons and 6-year-old daughter.
One of the reasons Fresen’s attorneys cited in court papers asking for leniency: His children had not been told of the criminal charge against their father.
The defense pointed to a slew of letters from Fresen’s family and friends attesting to his character, remorse and devotion to public service, including championing charter schools and other causes related to children. Scola said Fresen’s public work mitigated some — but not all — of the punishment he deserved.
“This is a very serious offense that occurred over a very long period of time,” the judge said. “It was committed while he was a public servant whose salary was paid for by taxpayers. We can’t have a government that operates unless citizens pay their taxes.”
This story was originally published September 29, 2017 11:22 AM.