The following first appeared in The Hutchinson News. It is reprinted here with permission.
May 16, 2006
— Desiring to send a message to deter white-collar crime, U.S. District Judge J. Thomas Marten ordered Max Ary, former Kansas Cosmosphere and Space Center founder and president, to prison for three years for stealing and selling space artifacts.
Ary, 56, sought to avoid prison. But Marten said he gave the sentence "careful, careful consideration" and thought imposing a prison term was "important."
Ary also faces three years of supervised release after he serves his prison sentence for three counts each of mail fraud and interstate transportation of stolen property and two counts each of wire fraud, theft of government property and money laundering.
In addition, court-ordered restitution — yet to be determined — could top $200,000. Ary also must pay $100 per conviction, or $1,200 to the federal crime victims' fund.
He remains free on bond, pending notification from the U.S. Bureau of Prisons. Usually, 30 to 90 days lapse between the sentencing and the date to report to prison, according to Jim Cross, spokesman in the U.S. Attorney's office.
Ary lives in the Oklahoma City area. Marten recommended the Bureau of Prisons assign Ary to an institution as close to family as possible to aid visitation.
An appeal is likely, but no decision has been made, said attorney Erin Thompson, part of Ary's Wichita-based legal team headed by Lee Thompson.
If Ary appeals, his attorneys also can request that he remain free pending the appeal.
Marten opened the sentencing hearing by revealing his intentions.
The judge placed Ary's convictions, combined with a non-criminal history, on Offense Level 22 of the federal sentencing guideline grid. Imprisonment could range from 41 months to 51 months, according to the grid.
Marten said he intended to give 41-month concurrent terms for each of the 12 felonies, followed by three years of supervision. As for restitution, he favored requiring about $261,034 from Ary.
Assistant U.S. Attorney Debra Barnett urged 51 months in prison and restitution in the $200,000 to $400,000 range.
Defense attorney Thompson said the $52,755 received from auction sales was the "accurate loss" figure, and he preferred probation, not prison, for his client. At worst, one year of incarceration, Thompson suggested.
Those arguments apparently swayed Marten's decision.
"I think 41 months is harsh," Marten said. "I can't say that it's completely unfair."
He departed — slightly — from the grid, subtracting five months and settling on three years.
Marten said sentencing is not a time for vengeance or retribution.
"It's a time to account for what has been done," he said.
As for restitution, Thompson maintained that the government had not met the burden of proof on all missing items attributed to Ary.
Marten concluded Monday's hearing by saying he was "not completely comfortable" with the restitution figure. He called for a follow-up hearing within 30 days devoted to that issue.
"I do have some questions with respect to ownership," Marten said.
Ary, given a chance to speak before sentencing, stood at a podium that faced Marten.
The past 21/2 years have been "a very surreal experience," Ary began.
He said he felt "great responsibility" for the problems the case caused the Cosmosphere, which he led for more than 26 years. He noted the case also had affected Kirkpatrick Science and Air Space Museum Omniplex, Oklahoma City, which Ary led at the time Cosmosphere officials notified law enforcement about missing artifacts, including astronaut gear and spacecraft hardware.
Ary's involvement in the planetarium in Hutchinson that grew into the Cosmosphere at 11th and Plum spanned five different decades of his life, Ary said.
Mistakes occurred, but they were plowing new ground, he said.
"I throw myself on the mercy of the court," Ary said, asking for "as much leniency as the court can give me."
Prosecutor Barnett, however, slashed away at Ary's conduct, noting that he has shown neither remorse nor insight into his behavior.
The prosecutor called Ary "a liar," who used people in a very cold and calculating way, including officials at NASA, his wife, Jan, and Cosmosphere staff.
Imposing a prison term would demonstrate to him that his conduct will not be tolerated, Barnett said.
Ary has performed non-paid consulting work for Kirkpatrick since his departure, said Don Otto, the Oklahoma museum's current executive director.
Otto spoke favorably of Ary, but Barnett expressed concern about Ary's involvement with museums.
"He is ripe for doing this again," she said.
Barnett wanted the court to put restrictions on his employment by future museums, but Marten did not agree.
If some place wants to take a chance on you, Marten said to Ary, that was their choice.
"That's going to be your call and their call," the judge said.
Tom Sellers, chairman of the Cosmosphere board of directors, did not weigh in on the sentencing decision, telling Marten that the museum's only concern was the return of items.