Citron Can Avoid Prison if He Cooperates, Experts Say : Bankruptcy: Ex-Orange County treasurer’s age, 70, is also a factor. Judges seldom send elderly criminals to jail, records show.

He’s 70 and looks increasingly frail. There’s no evidence that his illegal transfers of public funds were used for his personal enrichment. He doesn’t have a criminal record.

And he can stay out of jail, as long as he continues to cooperate with the government in what is likely to be a lengthy and complex investigation into the Orange County bankruptcy.

Although Robert L. Citron faces a maximum of 14 years in state prison--and some county residents would like to see him serve every last minute of that term--the convicted former county treasurer might be able to keep out of prison altogether, legal experts say.

“He may well be able to avoid jail, especially given his age,” said criminal defense attorney Jack M. Earley. “I would assume there is more concern about Orange County getting its money back . . . than (about) what happens to Robert Citron.”

David Biggs, a Western State University College of Law professor who spent 10 years as a state prosecutor and another decade as a federal public defender, guessed that Citron would serve a short sentence in County Jail and a longer term of probation, never setting foot inside a state prison.

But if Citron’s cooperation drags out over several years, with testimony in state and federal trials, “it may very well be that he won’t serve any jail time whatsoever,” Biggs said.

In Orange County, the chances of someone 70 or older going to prison are remote.

According to records compiled by the state Department of Justice, only one of the 44 people in that age group arrested on suspicion of a felony was sentenced to prison between 1988 and 1992, the most recent years for which records are available.

And even in that one instance, 70-year-old Ruth W. Donner initially was given three years’ probation for possession of methamphetamine with intent to sell, and was sentenced to 16 months in state prison only after she violated her probation terms.

“Judges tend to be old,” UCLA law professor John Shepard Wiley Jr. said. “More typically than perhaps the rest of the population, judges tend to appreciate just how few years you have left at the age of 70. . . . One must acknowledge that when someone only has a few years left, a sentence of only a few years is a life sentence for that person.”

Biggs said there are practical considerations as well: “A person of that advanced age has a tremendous amount of medical expenses possible. We as a society don’t want to be placed in a position of having to shoulder those burdens if we don’t have to.”

State data shows that it is rare that someone arrested on suspicion of misappropriating public funds--among the charges to which Citron pleaded guilty last week--serve prison time.

Of the 10 people arrested in Orange County on such charges between 1988 and 1992, none went to prison. A notable exception occurred in 1993, when Stephen A. Wagner was sentenced to six years in prison for stealing $3.5 million from the Newport-Mesa Unified School District while he was chief financial officer.

Even in that case, federal authorities filed mail and wire fraud charges against Wagner because of public outrage that he was facing only about 2 1/2 years in prison on state charges, after subtracting credit for work, good behavior and time served. The federal charges effectively added about 13 months to Wagner’s prison term, after a plea bargain with federal prosecutors.

In Citron’s case, much will depend on whether federal authorities choose to prosecute.

If he were indicted and convicted, Citron would fall under federal sentencing guidelines that limit a judge’s discretion. Citron has received no assurance that he will not face federal charges.

“If he’s not indicted by a federal (grand jury), the chances are less than 50-50 that he’ll go to jail, as long as he continues to cooperate and tell the truth,” said H. Dean Steward, a federal public defender.

Former federal prosecutors cite what is referred to as the “petite policy” of the U.S. Department of Justice, which holds that suspects should not face charges from a U.S. attorney’s office for the same crimes that they have pleaded guilty to in state court. But that is only a policy; prosecutors can make exceptions.

Citron pleaded guilty last week to six felony counts. Two involve making untrue statements in connection with the sale of securities; the others concerned misappropriating public funds, failing to transfer public funds properly and maintaining false entries in a public record.

The Orange County district attorney’s office insists that Citron received nothing in exchange for his guilty plea and his pledge to cooperate with the government.

“At this point, Mr. Citron is facing a sentence of 14 years in prison and a $10-million maximum fine,” Dist. Atty. Michael R. Capizzi said this week. Asked what he thought Citron’s eventual sentence might be, Capizzi said, “I’m not going to engage in idle speculation.”

Citron’s attorney, David W. Wiechert, also refused to speculate about his client’s sentence, noting that it would be up to a judge. But he stressed the importance of the information that Citron will provide law enforcement, which began with a five-hour debriefing at the district attorney’s office Monday.

“Cooperation is an important factor in the sentencing calculation,” Wiechert said. “It demonstrates an individual’s contrition and remorse and is a key step toward righting the wrongs that that individual committed.”

A harbinger of Citron’s fate might be found in Wiechert’s own case files.

One of the lawyer’s clients, Lincoln Savings & Loan President Raymond C. Fidel Jr., received probation in 1993 after becoming the first defendant to plead guilty and testify against Charles H. Keating Jr., the head of Lincoln’s parent company.

Wiechert arranged a similar deal for Brian Fink, vice president of Parker Automotive. Fink testified against the company president, Michael E. Parker, in one of the largest S & L swindles in Southern California. Parker went to prison for 11 years, Fink for six months.

“That, to me, is the best lesson for what the odds are in this case,” said Wiley, a former federal prosecutor specializing in fraud.

There are, of course, major differences between the S & L cases and the one involving Citron--perhaps the most important being that Citron could turn out to be the highest-ranking potential offender in the Orange County crisis.

“What Fidel had that Citron apparently doesn’t have is this: Fidel had Charlie Keating to point a finger at,” said a key figure in the Keating case who spoke on the condition of anonymity. “But what the Keating case does suggest is that you can be involved in some fairly large-scale fraud, and if you’re willing to make amends and cooperate, you can keep yourself out of jail.”