Former Aspen Skiing Co. executive Derek Johnson was sentenced to six years in the Colorado Department of Corrections Tuesday, in a decision that was a distinct rebuke of the official pre-sentence investigation report that recommended a probationary sentence with up to six months in the Pitkin County Jail.
One person outright clapped at the conclusion of the sentencing hearing, which occurred under the watchful eyes of the myriad stakeholders, including numerous SkiCo executives and employees, that packed the courtroom.
It was many of those former colleagues of Johnson’s who submitted letters decrying his treatment of them and the personal injury they felt by both his managerial style and theft of more than 10,000 pairs of skis from the company over a more than 12-year period running an illicit eBay company with his wife, Kerri Johnson.
In fact, SkiCo associate general counsel David Clark made a statement to that effect at the start of the prosecution’s case.
“Since his arrest, Mr. Johnson’s behavior has been unapologetic, devoid of remorse and at times arrogant,” he said. “The Johnsons’ stealing and lies are nothing short of a betrayal to everyone here. [He’s been called] a master manipulator, a bully and worse.”
When requesting that Judge Chris Seldin sentence Johnson to 10 years in state prison, Deputy District Attorney Don Nottingham described a duplicitous man whose carefully crafted reputation as a one-term city councilman, failed mayoral candidate and local football coach was not reflective of his more nefarious character.
“This defendant concentrated in the last decade-plus on his reputation, and the court has seen the letters that are the result of that work,” Nottingham said in reference to letters the court received from supporters of Johnson asking for a lenient sentence. “Who he really was … was someone totally different.”
To illustrate his point, Nottingham turned to the letters submitted from Johnson’s former colleagues, who painted that different picture.
“The vice president who oversees employees who used to work under the defendant stated: ‘100 percent of the people I met with told me, usually through tears, how much emotional abuse they had suffered under Derek.’ The people who spent 40-60 hours a week with him described him as a sociopath,” he said. “While he built that reputation, the character that he displayed among those who worked with and under him is one of a bully and an abuser.”
Beyond causing emotional distress, the Johnsons’ theft likely had negative financial repercussions on his SkiCo colleagues, as well, Nottingham continued.
“They missed out on bonuses, they missed out on 401k amounts, they undoubtedly missed out on promotions,” he said.
Johnson in November pleaded guilty to theft between $100,000 and $1 million, a class 3 felony that carries a presumptive penalty range of four to 12 years in the Department of Corrections.
While SkiCo leadership acknowledges Johnson’s assertions that the online sales operation began as an above-board endeavor with the company’s knowledge, that was only true for the first few years — and it was Johnson himself that ended it, claiming it no longer made business sense. From then on, the Johnsons siphoned high-performance skis and snowboards off the company’s retired demo rack and even intentionally over-inflated SkiCo purchasing orders on premier gear to sell as new and nearly new through his illegal eBay business.
“In very general terms, Mr. Jonson would instruct our buyers to buy more inventory than we actually needed,” Clark said of tour-operator, high-performance skis. “In I believe 2017 [or] 2018, our actual need for these skis — these were premium skis that were given out to VIPs, high-profile guests ... to our senior staff — we had need for approximately 175 pairs. Mr. Johnson told the buyer to order 600 pairs.”
Security footage caught Johnson taking the equipment from the racks in a SkiCo-owned storage facility, loading a truck and transporting the stolen goods to a Mill Street storage unit he owned, according to an arrest affidavit. Early estimates suggested the years-long operation accumulated more than $2 million in sales, none of which came back to SkiCo. That figure, however, only applies to the profits made by the Johnsons — the value of the actual stolen equipment totalled closer to $6 million.
That’s largely because the Johnsons were able to sell the stolen winter gear at far below-market rates, Clark contended in his statement on behalf of SkiCo.
“It didn't matter how low that price was because every dollar is profit when your entire inventory is stolen,” he said. “While he has confessed to a class 3 felony [of stealing between $100,000 and $1 million], he and Mrs. Johnson acknowledge that profits amounted to at least $2.4 million. We cannot lose sight of the fact that the amount lost to the SkiCo was close to $6 million.”
The probation department’s recommendation, then, came as a surprise not only to SkiCo officials but also to Nottingham, who said as much in court.
“I want to talk for a minute about … why sentencing the defendant to probation would be a travesty and injustice,” he said. “I would wager that the vast, vast majority of criminal defendants that come through this courtroom, if given the opportunity to spend 6 months in jail in exchange for $3 million, would do it in a heartbeat. That is not a punishment; that is an incentive.”
Additionally, he continued, many of the mitigating factors that often contribute to a probationary sentence do not apply to Johnson, who before being terminated in December was among SkiCo’s highest-paid executives and still lives in publicly subsidized housing with his family.
“This court sees, over and over, defendants that have mental health issues ... defendants that have social barriers that keep them from progressing in the world. This defendant has none of that. The PSI notes that there’s nothing that would keep [Johnson] from being a law-abiding citizen. He should have been able to comply over the last 13 years. He absolutely had the choice, and he chose theft. This is not Jean Valjean.”
It was ultimately the scale and intentionality of Johnson’s crimes that swayed Seldin to deviate from the the defense’s request that he adhere to the probation department’s recommendation.
“The scale of the crime over time and the amount of the theft is enough alone to justify a sentence to the Department of Corrections in the court’s view,” Seldin said in explaining his decision. “But it is that feature which really stood out to the court, just the willingness to subjugate the interests of the company’s division over which he has authority to his own personal interest.”
In addition to the six-year prison sentence, Johnson shares a $250,000 restitution with his wife, who in December pleaded guilty to class 4 felony theft and will be sentenced next month. The Johnsons have apparently not yet made a single payment toward restitution.
“The amount of restitution agreed to is really just a fraction, less than a 10th, evidently, of the profits realized, but I haven’t been given any indication we’ve received any payments as of yet,” Seldin said. “One of the things that I think maybe influenced the plea bargains [of similar, previous cases] is the fact that those defendants had actually made significant payments to their restitution prior to their sentencing.”
And while Denver-based defense attorney Pam Mackey contended that Johnson be sentenced to a “lengthy term of probation to allow Mr. Johnson … pay back the money he has agreed to repay, that he owes and is responsible for,” Seldin determined that a prison sentence wouldn’t unduly delay restitution, which may never be fully realized anyway, but that a probationary sentence would unduly depreciate the seriousness of his crimes.
Seldin also echoed Nottingham’s points that the sentence handed down would send a broader message to the community about what is and is not tolerable behavior, as evidenced by the crowded courtroom. He addressed the public who attended directly.
“The judicial system depends for its legitimacy upon the participation of the public in its processes,” he said. “You are our judges, and so by coming here and observing our work, you help ensure that we are serving the people in the way we’ve been charged to do, so I appreciate you taking that time.”
Johnson, too, addressed his former colleagues and the larger community during his statement.
“To you all, I am deeply sorry and remorseful,” he said. “Over time, I am hopeful that I will not be remembered for my falling down but rather how I was able to get back up and that you look at someone who has atoned for their sins.”