Berbos sentenced to probation, fined $250,000

An Aberdeen man who offered extra employment benefits to a worker in return for testimony in connection to a 2013 federal investigation avoided prison time, but must pay a hefty fine.

Nickolas J. Berbos, 53, previously pleaded guilty to a felony federal count of illegal gratuity to witness. Monday, he was sentenced to five years probation and ordered to pay a $250,000 fine, the maximum allowed. Judge Charles Kornmann varied from the nonbinding sentencing guidelines that take into consideration previous criminal history, acceptance of responsibility and other factors, and handed down less prison time and a steeper fine than they suggested.

Simply put, Kornmann said, the charge amounts to Berbos attempting to bribe a witness, which is serious.

The sentencing hearing lasted about 90 minutes and drew some three dozen spectators, a mix of supporters and those who commented as they left the courthouse that they hoped for a more severe sentence.

At the end of the hearing, federal prosecutors dismissed charges against Berbos related to filing fraudulent crop insurance claims, counts one of Berbos’ attorneys, Wendell Hoskins II, said there was never any evidence of.

According to previous testimony, those charges had to do with an insurance agent erroneously entering information on a crop insurance form that indicated that 74.3 acres of Berbos land were prevented plant acres. Prevented plant acres are entitled to federal crop insurance payments when extreme weather conditions prevent crops from being planted.

The prevented plant issue led to the U.S. Department of Agriculture withholding about $2 million in farm program payments from Berbos Farms and to the operation being ineligible for crop insurance this year. As a result, the Berbos land was rented out.

Berbos served 76 days in custody after Kornmann ruled in July that Berbos violated the terms of his bond by moving to Florida without notifying or getting permission from court officials, testing positive for marijuana and missing a previous court hearing. That was enough time behind bars, the judge decided.

A prosecuting attorney had asked for prison time, saying that Berbos has, throughout his adult life, shown a disregard for the law and for others and that his trying to influence a witness shows a disregard for the judicial system.

While he imposed no prison time, Kornmann didn’t exactly disagree, telling Berbos his actions while awaiting sentencing were unacceptable.

“If he doesn’t follow the guidelines while on federal probation, he’s going to regret it,” Kornmann said during the hearing. “I hope he’s learned a lesson here.”

A point of lengthy discussion during the sentencing was the nature of a phone call Berbos made while in custody to a staffer of U.S. Sen. Tim Johnson, D-S.D., whose son is Brendan Johnson, the U.S. attorney for South Dakota.

Hoskins said that Berbos called the staffer to express aggravation about the fraudulent crop insurance charges and that the conversation had nothing to do with illegal gratuity to witness charge he pleaded guilty to. And, Hoskins said, the story about the call was relayed by Joe Berbos, Nick Berbos’ estranged brother. Joe Berbos and his wife have filed a civil lawsuit seeking the dissolution of Berbos Farms, which the three have operated for decades.

The disparaging remarks about the state’s U.S. attorney were improper, Kornmann said. He said there was an implication that if Brendan Johnson didn’t “back off,” Nick Berbos wouldn’t sell Tim Johnson’s staffer a piece of property.

In settling on a fine amount, Kornmann said that Nick Berbos needed to face significant consequences. Most defendants in federal criminal cases can’t afford to pay fines, the judge said, but noted that isn’t the case for Berbos, who listed his net worth as $48 million.

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