Académique Documents
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:
:
SHELDON SILVER,
:
Defendant.
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PREET BHARARA
United States Attorney for the
Southern District of New York
One St. Andrews Plaza
New York, New York 10007
Carrie H. Cohen
Howard S. Master
Andrew D. Goldstein
James M. McDonald
Assistant United States Attorneys
-Of Counsel-
Table of Contents
I.
II.
III.
A.
B.
V.
A.
B.
C.
D.
VI. THE COURT SHOULD IMPOSE A SUBSTANTIAL FINE AND ORDER FORFEITURE
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CONCLUSION ............................................................................................................................. 33
-v.-
SHELDON SILVER,
:
Defendant.
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THE GOVERNMENTS SENTENCING MEMORANDUM
The United States of America respectfully submits this memorandum in advance of
defendant Sheldon Silvers sentencing proceeding, which is scheduled for May 3, 2016 at 2:00 p.m.
I.
PRELIMINARY STATEMENT
For more than twenty years, Sheldon Silver held a position of unparalleled power in New
York. By the time of his arrest in January 2015, Silver had occupied one of the three most
powerful offices in New York State government Speaker of the New York State Assembly
for decades. As the evidence at trial conclusively proved, Silver repeatedly abused that position
of power and public trust during the span of more than a decade for private gain. He enriched
himself with millions of dollars in bribes and kickbacks, confident that his power and his
repeated lies to the press, the public, his staff, members of the Assembly, and others would
enable him to operate with total impunity.
Silver exploited the vast political power entrusted in him by the public to serve himself.
He preyed on others dependence on him for favorable official action, and used the cover of his
law license to secretly steer to himself millions of dollars worth of business that he knew nothing
about and could not (and did not) perform, in exchange for official action that only he could
provide. There is no excuse or mitigating factor tempering the seriousness of Silvers crimes,
which were motivated by greed and accomplished through exploitation of his enormous power
and his willingness to lie and deceive at every turn.
While telling the public that disclosure [is] the key to preventing corruption (GX 4) and
insisting that he disclose[d] everything (GX 5), Silver lied year after year on his mandatory
disclosure forms, used an account in his wifes name to hide hundreds of thousands of dollars in
crime proceeds, and lied to the public again and again about the nature and sources of his outside
income. Silver further abused his power by resisting legislative reforms that would have shed
greater sunlight on his ill-gotten gains and refusing to comply with the inquiries of the Moreland
Commission to Investigate Public Corruption (the Moreland Commission) that might have
exposed his corrupt schemes.
Silvers crimes corrupted the institution that he led for more than 20 years. As a fixture
in the legislative leadership, an entire generation of New York legislators served in an institution
framed by his corrupt example. His crimes struck at the core of democratic governance a man
with unparalleled power over the affairs of New York State was secretly on the take, abusing all
that power to enrich himself and prevent anyone from learning about his corrupt schemes. His
crimes tainted an untold number of legislative actions.
The sentence imposed on Silver should reflect the unprecedented magnitude, duration,
and scope of his abuse of power. It should reflect the immeasurable damage Silver caused to the
democratic process and to the public trust. It should punish Silver for the vast harm he has
caused and the position of trust that he exploited, deter other elected officials from the temptation
towards corruption, and communicate to the public that the rule of law applies even to the most
prominent of public officials.
The sentencing range advised by the United States Sentencing Guidelines (the
Guidelines or U.S.S.G.) appropriately reflects the severity of Silvers crimes. As set forth in
the United States Probation Offices (the Probation Office) Presentence Investigation Report,
dated March 25, 2016 (Presentence Report or PSR), the applicable Guidelines range is 262
to 327 months imprisonment. (PSR 47-67). The Guidelines range is high because the United
States Sentencing Commission explicitly has recognized the threat to the integrity of democratic
processes caused by public corruption offenses, U.S.S.G. Manual app. C (Amendment 666),
and because of the many egregious aspects of the defendants crimes, including Silvers role as a
high level public official, his engagement in multiple corrupt schemes, the millions of dollars in
bribe money Silver took in, and his laundering of his crime proceeds. (PSR 47-67).
While a sentence within the Guidelines range would not be unreasonable or unjust, in
light of the egregiousness of Silvers conduct and the need for deterrence, the Government
respectfully submits that the Court should sentence the defendant to a term of imprisonment
substantially in excess of the 10 years recommended by the Probation Office and greater than
any sentence imposed on other New York State legislators convicted of public corruption
offenses. The Government further respectfully submits that the defendant must be required to
forfeit all of his crime proceeds which to date totals $5,179,106 and that a substantial fine of
at least $1 million is appropriate in this case, particularly in light of the defendants significant
remaining resources and his more than $70,000 per year pension, paid for by New York State
taxpayers, that Silver obtained over the course of years during which he was violating the public
trust.
II.
that the defendant orchestrated two complex and long-running schemes to monetize his public
position for private gain. 1 Relevant to sentencing, and as set forth in more detail below, the
defendants conduct demonstrated a brazen misuse of the enormous power he had amassed as
Speaker of the Assembly and caused immeasurable damage to the publics trust in its
government. Silver also abused his law license and damaged the legal profession by using his
status as a lawyer to obtain and make it difficult to trace the corrupt source of his outside income.
Through the two schemes, the defendant obtained nearly $4 million in bribes and extortion
payments, and he ultimately succeeded through his laundering of those crime proceeds to obtain
a total of over $5 million in ill-gotten gains.
A.
As the jury unanimously found, Silver engaged in a quid pro quo scheme to obtain
valuable leads to unrepresented patients with mesothelioma and millions of dollars in resulting
referral fees for himself in exchange for engaging in a series of official actions that benefited the
provider of those leads. Silver exploited Dr. Robert Taubs devotion to his medical research and,
through the use of his public position and access to State funds, induced Dr. Taub to send him
lucrative mesothelioma cases, all the while keeping secret and deliberately deceiving the public,
his Assembly staff, the partners at Weitz & Luxenberg (W&L), and others about how he
obtained such cases and the nature and source of his outside income.
For a more detailed recitation of the facts proven at trial, the Government respectfully
refers to its opposition to the defendants post-trial motions pursuant to Rules 29 and 33 of the
Federal Rules of Criminal Procedure and related transcript and exhibit cites. Herein, the
Government highlights the facts it respectfully submits are most pertinent to sentencing.
Once Silver had received a substantial quid, the lucrative leads and resulting referral fees
that exceeded his annual income as Speaker, he took official action that benefited Dr. Taub, the
provider of the quid, by directing his staff to disburse two consecutive $250,000 grants from the
taxpayer-funded and Silver-controlled Health Care Reform Act Assembly Pool (HCRA
Assembly Pool) to Dr. Taubs mesothelioma research. Silver did not disclose to his Assembly
staff or the distributor of the funds, the New York State Department of Health (DOH), the
millions of dollars in financial benefits he was obtaining from Dr. Taub, and, as Silver well
knew, neither his staff nor DOH had any way of figuring it out, given Silvers lies and secrecy
concerning the sources of his outside income. Silver also never publicly disclosed that he had
distributed the funds to Dr. Taub, even though the fundings stated purpose was to educate the
public and perform research that helped those harmed during the attacks of September 11, 2001,
which occurred in Silvers Assembly District.
The corrupt nature of the scheme was highlighted by proof that Silver cut off State
funding to Dr. Taub only because changes in laws, regulations, and funding sources would have
required that any additional grant to Dr. Taub be publicly disclosed and accompanied by
disclosure of the financial benefits that Silver was obtaining from Dr. Taub. Not content to end
his criminal conduct, as it had proven far too lucrative, Silver found other ways to use his official
position to benefit Dr. Taub. Again, Silver enlisted the unwitting help of his State-paid
Assembly staff to continue to provide official actions benefiting Dr. Taub, and thus keep the
lucrative leads and resulting referral fees coming his way. Silver helped Dr. Taubs daughter and
son secure jobs; Silver approved State funding to an organization affiliated with Dr. Taubs wife;
and Silver caused the New York State Assembly to issue an official resolution a form of
legislation that required a vote on the floor of the Assembly and an official Assembly
The Real Estate Scheme reflects similar greed and betrayal of the public trust. As the
jury unanimously found, for more than 15 years, Silver used the power of his office and others
dependence on favorable official action from him to get two real estate developers to send their
tax certiorari business to a law firm, Goldberg & Iryami, P.C. (the Goldberg firm) in exchange
he purportedly was representing Glenwood, one of the most active participants in the State
political process, he insisted to the public that he derived no outside income from anyone with
business before the State. Among other things, Silver falsely stated that his clients were little
people and that he did not represent corporations or entities that are, uh, um, you know,
involved in the legislative process or had an impact on anything we do legislatively. (GX 1A,
2, 4). Silver also lied about how he got the business: Silver falsely represented that he got
business because people in the community knew him and came to him based on his experience as
a lawyer, and that he spent hours each week evaluating such cases, never revealing the business
he got from major real estate developers by directly soliciting them. (Id.; see also GX 275).
Moreover, Silvers annual financial disclosures never revealed that the Goldberg firm served as a
source of outside income, despite forms that required Silver to list EACH SOURCE of outside
income, and Silver never revealed in those disclosures that he derived any outside income
connected to the real estate industry at all. (GX 2009 (summarizing disclosure forms)). Silver
persisted in these lies even while he stated publicly that disclosure [was] the key because,
among other things, it prevents activities that may be in conflict with an officials obligations
to the public. (GX 4).
Several aspects of the Real Estate Scheme were particularly harmful. Among other
things, Silver betrayed the trust that fellow legislators placed in him as their Speaker by
concealing his corrupt scheme from them even while he served as the Assemblys lead negotiator
on real estate legislation negotiations that included one of the very entities, Glenwood, that was
paying him. Silver also betrayed the trust that the people of the State placed in him as one of
three voting members of the PACB, a position to which Silver had appointed himself, by
concealing from the PACB and the public the fact that he was receiving hundreds of thousands
of dollars in Glenwoods largesse at the same time he was approving more than $1 billion in
financing for Glenwood. (GX 1522). Silver again enlisted his press officer in facilitating
unknowingly his fraudulent scheme, never disclosing to his press officer that he had made any
money from the real estate industry whatsoever, much less money from the States largest
corporate or individual donor, who regularly sought favorable specific official actions from him.
Silver also subjected Witkoff to legal and reputational risk, hiding the corrupt arrangement from
Witkoff until the Goldberg firm received a grand jury subpoena, at which time Jay Arthur
Goldberg tried to pretend that Witkoff had known about the arrangement.
C.
The jurys verdict also reflected that Silver maximized the value of his ill-gotten gains by
laundering it through investment vehicles not available to the general public. Jordan Levy, a
private investor who was friends with many politicians, testified that Silver, alone among all of
his politician friends, asked Levy to invest his funds in private high-yield investment vehicles.
Testimony and exhibits introduced at trial reflected that Silver funded these investments by
taking money that he made from the Asbestos and Real Estate Schemes, depositing the money
into a federally-insured bank account, and sending the money, including transactions in
increments of greater than $10,000, to the vehicles as directed by Levy.
The laundering scheme included further evidence of Silvers efforts to conceal the source
and extent of his ill-gotten gains. As Levy testified, Silver disclosed to him only that he was
looking for lucrative private investments because he had come into some extra money, without
ever disclosing his receipt of asbestos- or real estate-related fees to Levy. Moreover, Silver
asked that one of the investment vehicles be split in half, with half placed in his wifes name, so
that the public would not see the amount of his investment, and thus the wealth he had amassed
In sum, the defendant abused his power and exploited others who reported to him or who
were dependent on him for favorable official action to obtain close to $4 million in bribes,
kickbacks, and extortion payments, and to obtain an additional $1 million in proceeds from the
laundering scheme. He facilitated and concealed the schemes through repeated lies, defiantly
insisting that his outside income bore no relation to his official position even while he knew that
the truth was the opposite. Silver acted with impunity during the course of a more than a decade,
continuing to engage in official acts benefiting those who were benefiting him personally, and
continuing to lie to the public, until he got caught. As set forth above, there is no excuse for or
mitigating aspect of his conduct, and no explanation for it other than greed.
III.
of New York of their right to his honest services using the wires and mails, in violation of Title
18, United States Code, Sections 1341, 1343, and 1346 (Counts One and Two of the Indictment
(the Asbestos Scheme) and Counts Three and Four of the Indictment (the Real Estate Scheme)).
Silver also was convicted of extortion under color of official right, in violation of Title 18,
United States Code, Section 1951 (Count Five of the Indictment (the Asbestos Scheme) and
Count Six of the Indictment (the Real Estate Scheme)), and of engaging in prohibited monetary
transactions involving the proceeds of the Asbestos and Real Estate Schemes, in violation of
Title 18, United States Code, Section 1957 (Count Seven of the Indictment).
The applicable Guideline for Counts One through Six of the Indictment is Section 1B1.11
and for Count Seven of the Indictment is Section 2S1.1. Counts One through Seven are grouped
10
because, among other things, the offense level for these Counts is determined largely on the basis
of the total amount of harm or loss, see U.S.S.G. 3D1.2(d), and because the money laundering
guideline, U.S.S.G. 2S1.1, incorporates the offense level applicable to the honest services fraud
and extortion offenses (Counts One through Six of the Indictment), see U.S.S.G. 3D1.2(c).
Pursuant to U.S.S.G. 2S1.1(a)(1), the base offense level for Count Seven, the money
laundering charge, is the offense level applicable to the underlying offense(s) from which the
laundered funds were derived because the defendant committed the underlying offenses and the
offense level for those offenses can be determined. Here the underlying offenses are covered by
U.S.S.G. 2C1.1. (PSR 49).
Pursuant to U.S.S.G. 2C1.1(a)(1), the base offense level is 14 because the defendant
was a public official. The following specific offense characteristics increase the offense level as
follows:
Pursuant to U.S.S.G. 2C1.1(b)(1), because the offense involved more than one
bribe or extortion from more than one entity, the base level is increased by two
levels.
This calculation is conservative, as it does not include the millions of dollars in gain
obtained by W&L or the Goldberg Firm as a result of Silvers conduct, nor does it include the
millions of dollars in tax exemptions and other benefits obtained by Glenwood and others as a
result of Silvers favorable official actions, even though either such measure could have been
used to calculate Silvers Guidelines level. See U.S.S.G. 2C1.1(b)(2) (Guideline level based on
the greatest of, inter alia, the value of the payment, the benefit received or to be received in
return for the payment, the value of anything obtained or to be obtained by a public official or
others acting with a public official).
The Guidelines calculation also is conservative because it does not incorporate the
arguably applicable upward departure under U.S.S.G. 5K2.7. See U.S.S.G. 2C1.1 cmt. 7 (In
a case in which the court finds that the defendants conduct was part of a systematic or pervasive
corruption of a governmental function, process, or office that may cause loss of public
confidence in government, an upward departure may be warranted. See [U.S.S.G.] 5K2.7
(Disruption of Governmental Function).). Here, the defendants conduct arguably merits an
11
Pursuant to U.S.S.G. 2C1.1(b)(3), because the defendant was an elected highlevel public official, the base offense level is increased by four levels.
(PSR 50-60).
The resulting adjusted total offense level is 39. (PSR 57). The defendant has no prior
convictions, so his Criminal History Category is I.
level of 39 and a Criminal History Category of I, Silvers Guidelines range is 262 to 327 months
imprisonment. The Probation Office recommends a below-Guidelines sentence of 120 months
imprisonment (on each count to run concurrently). (PSR at 33).
The Probation Office also calculates a Guidelines fine range of $25,000 to more than $7
million. It recommends a fine of $1,000,000, as well as forfeiture in the amount of
$5,179,106.12, a mandatory special assessment of $700, and two years of supervised release (on
each count to run concurrently). (PSR at 33).
The applicable Guidelines range is high, but it is based on the Sentencing Commissions
considered assessment of the high level of culpability of public officials who abuse the public
trust, and the severity of the harm caused by their crimes. Indeed, approximately ten years ago,
the Sentencing Commission increased the offense levels applicable to public corruption offenses.
See U.S.S.G. Manual app. C (Amendment 666). In doing so, the Commission stated, in relevant
part:
This amendment increases punishment for bribery, gratuity, and
honest services cases while providing additional enhancements
to address previously unrecognized aggravating factors inherent in
some of these offenses. This amendment reflects the
upward departure in view of the systematic and long-running abuse of his office and the loss of
confidence in government caused by his conduct, among other factors.
12
a chart reflecting sentences imposed on other elected state and federal officials convicted in
federal court of public corruption-related offenses (the Sentencing Chart); it is attached as
Exhibit A. 3 The sentences set forth in the Sentencing Chart reflect that, nationally, public
officials who seriously abuse the public trust over a substantial period of time, or using multiple
3
The Sentencing Chart was compiled using information provided by the Department of
Justices Public Integrity Unit and gathered by the Government through public sources but
because there is no central database of federal public corruption cases or sentences, it is possible
that sentences inadvertently may not be included.
The Sentencing Chart does not include the many other New York State legislators who
were convicted in State court or who were convicted of crimes that did not involve corruption.
See New York Public Interest Research Group, A Review of Albanys Ethical Failures,
December 2015, available at
http://www.nypirg.org/pubs/Albany_Ethics_Failures_2015_12.11.15.pdf (listing 41 state
officials convicted since 2000) (last visited Mar. 29, 2016).
13
means and methods, consistently receive significant sentences approaching the Guidelines range
applicable to their offense conduct.
including the Guidelines (except for the one instance where the Guidelines range was life) and
non-Guidelines sentences, the average sentence for public officials convicted of public
corruption offenses is approximately a downward variance of between 20 and 25 percent from
the applicable Guidelines range.
A.
Focusing on the sentences of New York public officials reflects that during just the past
several years the very time when Silver was committing the crimes for which he is to be
sentenced numerous other New York State legislators have received substantial sentences after
being convicted of federal public corruption-related crimes, although those crimes did not
approach Silvers in their length, amount of corrupt gain, or extent to which the publics trust
was violated. While the Court must sentence the defendant based on the conduct specific to this
case and the defendants individual circumstances, in order to fully take into account the
seriousness of the defendants offenses, the acute need to deter others who might be tempted to
follow the defendants path, as well as to avoid unwarranted sentence disparities with
similarly-situated defendants, 18 U.S.C. 3553(a)(6), a more detailed overview of several recent
federal prosecutions and convictions of other New York public officials convicted of similar
crimes is warranted.
1.
Carl Kruger, a former State Senator who served for a brief period of time as Chairman of
the Senate Finance Committee, fully accepted responsibility for his criminal conduct by pleading
guilty to corruption charges resulting from his participation in two separate bribery conspiracies
14
involving approximately $500,000 in bribes that occurred over a four-year period of time,
between 2007 and 2011. Krugers principal offenses involved pressuring a hospital executive
who depended on favorable legislation to award a contract to a hospice company that employed
Krugers consulting firm, and providing favorable official actions to other individuals and
entities that were paying third parties connected to Kruger offenses similar in nature to Silvers
Asbestos and Real Estate Schemes, though far more brief and far less lucrative. After his guilty
plea, Kruger requested a very lenient sentence and only a short period of imprisonment from
Judge Rakoff, which the defense argued would account for the good Carl Kruger [had] done as
a senator, as a community member, and as a family man. 11 Cr. 300 (JSR), Docket #207 at 1-2,
71 (Kruger Sentencing Memorandum).
After calculating a Guidelines range of 108 to 135 months imprisonment, based on a loss
amount of between $400,000 and $1,000,000 and inclusive of acceptance of responsibility credit,
Judge Rakoff largely rejected Krugers sentencing arguments and imposed a sentence of 84
months (7 years) imprisonment. In doing so, Judge Rakoff described the systemic harm
wrought by public corruption and the concomitant need for stiff punishment:
. . . without any need to do so, Mr. Kruger entered into extensive,
long-lasting, substantial bribery schemes that, frankly, were like
daggers at the heart of honest government. Its really difficult to
overstate the evils that are wrought when a government official
comes to bribery, let alone one of Mr. Krugers power and
province. We have only to look at other countries to see that once
corruption takes hold, democracy itself becomes a charade, justice
becomes a mere slogan camouflaging a cesspool of self-interest.
When a legislator accepts bribes, he not only betrays his
constituents trust, he strikes a blow against every principle on
which a democracy is founded.
(Sentencing transcript, attached hereto as Exhibit B, at 46-47).
15
Notably, the need for punishment was not overridden by Krugers cited history of good
works in office. Judge Rakoff acknowledged that there is a great deal of good in Mr. Krugers
character and in the way he has conducted much of his life, as evidenced by the many letters
that the Court has received and in the evidence of his activities over many years inside and
outside New York government. (Ex B at 46). But Judge Rakoff explained that, whatever
credit is due Mr. Kruger for his good deeds and whatever sympathy one might feel, as I do feel,
for a fellow human being who, in the Courts view, feels genuine remorse[,] must be balanced
against the huge harm that Mr. Kruger has done that make this country, and the principles for
which it stands, the last best hope of democracy. And I think that balance weighs heavily in
favor of a substantial sentence. (Ex. B at 47).
There are several important distinctions between Silvers crimes and Krugers crimes,
none of them favorable to Silver. First, as set forth above, Silvers crimes ran for far longer and
resulted in millions of dollars more in ill-gotten gains. Second, unlike former Senator Kruger,
Silver stood at the apex of power in New York State government, possessing near-unparalleled
ability to grant or withhold favorable official action from the State. Silver betrayed the
extraordinary public trust that came with extraordinary power not only through his ill-gotten
gains, but by lying to the public and using his State-paid staff to carry out his schemes and
unknowingly repeat his lies. Third, and perhaps most critically, unlike Kruger, here Sheldon
Silver has accepted no responsibility and shown no remorse for his crimes, instead repeatedly
trumpeting that he will be vindicated if not by the jury of his peers that convicted him of all
counts, then at some later point in time.
16
2.
Malcolm Smith served as a New York State Senator and for a very brief period as Senate
Majority Leader. Smith was convicted at trial of various corruption offenses that arose
principally from his scheme to bribe Republican Party officials to be placed on the Republican
ballot for the 2013 New York City mayoral race. Even though Smith requested a sentence of one
year and one day, and even though Smith obtained no personal financial gain from the offense,
Judge Karas sentenced him to a term of imprisonment of 84 months (seven years), only slightly
below the Guidelines range of 97 to 121 months imprisonment. In imposing sentence, Judge
Karas noted that a sentence imposed in a public corruption case should be fashioned to give
serious pause to other public officials, who may be in [the defendants] position going forward
who have to say to themselves I dont want to face the consequences of not giving my
constituents or the people of the State of New York my honest services. (Sentencing transcript,
attached hereto as Exhibit C, at 25). Judge Karas also determined that a sentence of 84 months
imprisonment, close to the applicable Guidelines range, was appropriate notwithstanding the
defendants prior good acts, explaining:
[I]n any of these public corruption cases there is that tension where
presumably the person who has been elected or appointed to some
sort of public service position is engaged in public service but if
they have taken a bribe or offered a bribe or done something that
corrupts the process, then the law takes into consideration the fact
they theyre public servants. Thats what makes the crime so
serious. It is that we are entitled to expect our public officials to
only engage in selfless good deeds and to only legislate in the best
interests of their constituents and to act in a way that is exemplary.
(Ex. C at 21-22). 4
In that case, Judge Karas also sentenced former New York City Councilman Daniel
Halloran to 10 years imprisonment for his participation in the scheme. See United States v.
Daniel Halloran, 13 Cr. 297 (KMK).
17
By any measure, Silvers conduct was more serious than Smiths conduct. Unlike Smith,
Silver abused the power of the office of the Assembly Speaker for millions of dollars in personal
financial gain. Unlike Smiths scheme, which related to failed efforts to influence a single
election in 2013, Silvers abuse of power was highly successful, and highly lucrative, over the
course of more than a decade at the apex of power, and it corrupted State funding and legislation
over a period of years.
3.
Anthony Seminerio, Silvers former colleague in the New York State Assembly, pleaded
guilty to corruption charges relating to his receipt of approximately $1 million worth of bribes
from hospitals through a consulting firm. Although the applicable Guidelines range was 135 to
168 months imprisonment, Seminerio sought a sentence of home confinement, citing his
advanced age, significant health issues, his acceptance of responsibility, and his long career in
public service. In rejecting such arguments and sentenced Seminerio to 72 months (six years)
imprisonment, , Judge Buchwald explained that [c]itizens are entitled to trust in the integrity of
their government. Now is the time to impose a sentence which sends a message that such
conduct is unacceptable because it destroys the fabric of our society. This is [a] message to
people like you . . . who have a choice, who have options. This sentence must be a message to
other public officials who see easy money and a setting in which the ethics rules do little to
prevent temptation. (Sentencing transcript, attached hereto as Exhibit D, at 19).
Again, Silvers crimes were more serious by any measure, reflecting greater abuse of
power over a longer period of time, greater financial gain, no acceptance of responsibility, and
no analogous health circumstances.
18
4.
Efrain Gonzalez, a former New York State Senator, pleaded guilty to corruption charges
involving the embezzlement of more than half a million dollars from nonprofit groups to cover
his personal expenses. Judge Pauley found that the Guidelines range was 108 to 135 months
imprisonment, and sentenced the defendant to 84 months (7 years) imprisonment. In doing so,
Judge Pauley also observed the immeasurable damage caused by public corruption crimes:
As an elected official for so many years, you understand better
than anybody else in this courtroom that what you did was wrong
. . . . In the end, you undermined the publics confidence in the
integrity and altruism of their elected officials, and in this respect
you have done incalculable damage.
(Sentencing transcript, attached hereto as Exhibit E, at 41-42). In response to Gonzalezs
citation to his prior good acts, Judge Pauley explained that [w]hile he undoubtedly performed
some good and generous acts throughout his life and as a senator, as many of the letters that were
submitted to the Court attest, he has brought public disgrace onto himself and the New York
State Senate. (Ex. E at 40). Thus, there is a compelling need to punish him for his venal acts
and to ensure general deterrence among those who would try to use their public offices for
personal gain. (Ex. E at 41).
5.
William Boyland, Jr., a former New York State Assemblyman and a rank-and-file
member and colleague of Silvers in the Assembly, was convicted at trial in the Eastern District
of New York of 21 public corruption counts, stemming from four separate corrupt schemes, one
of which was an FBI sting operation. The applicable Guidelines range was 235 to 293 months
imprisonment, and Judge Townes sentenced him to 168 months (14 years) imprisonment,
notwithstanding Boylands record of community service, noting that he had betrayed the trust of
19
As established at trial, given Silvers virtually unmatched position of power, the duration
of his misconduct, the multiplicity of his schemes, the extent of his ill-gotten gains, his repeated
lies to the public about his outside income and how he earned it, and his continuation of illegal
conduct in the face of the repeated warnings that came in the form of so many fellow legislators
convicted before him, the magnitude of Silvers betrayal of the public trust exceeds the harm to
the public manifested in the other cases discussed herein. In terms of the Guidelines, the 262 to
327 month range (driven largely by the extent of Silvers ill-gotten gains, his position of power,
and the multiplicity of his schemes) exceeds that of all the foregoing public officials. Those
New York officials with the Guidelines ranges closest to Silver were William Boyland, Jr. (235
5
Also notable was the sentence imposed on former New York State Assemblyman and
Silver colleague Eric Stevenson, a rank-and-file member, who was convicted at trial for
accepting multiple cash bribes from businessmen in exchange for taking official actions in their
favor. The bribes to Stevenson totaled approximately $22,000, and his conduct took place over
the course of less than a year. In sentencing Stevenson to 36 months (three years)
imprisonment based on a Guidelines range of 51 to 63 months, Chief Judge Preska observed that
the crime of conviction was that of selling an assemblymans core function for money. It was a
betrayal of the responsibility bestowed on an elected official by his constituents for his own selfaggrandizement and not in the service of his constituents. (Sentencing transcript, attached
hereto as Exhibit G, at 15). Chief Judge Preska took into account the good works that
[Stevenson] had done, but stated that there is a need for an incarceratory sentence here to
reflect the seriousness of the offense, particularly the betrayal of an elected officials core
function. There is certainly a need for an incarceratory sentence to provide general deterrence to
others who might be so minded. (Ex. G at 15-16).
20
to 293 months imprisonment), Anthony Seminerio (135 to 168 months imprisonment), Carl
Kruger (108 to 135 months imprisonment), Malcolm Smith (97 to 121 months imprisonment)
and Efrain Gonzalez (108 to 135 months imprisonment). They were sentenced to 14, six, seven,
seven, and seven years imprisonment, respectively, despite having significantly lower
Guidelines ranges and despite making arguments similar to Silvers argument to the Probation
Office, and expected argument to this Court, that his good works in public service warranted
leniency. Moreover, as discussed above, their conduct was less serious than proven here, and
unlike Silver, all but Boyland and Smith pleaded guilty and accepted responsibility for their
crimes. 6
The significant sentences imposed by other federal sentencing judges in this Circuit and
others and the compelling rationales articulated in support of them, which are equally if not more
applicable here, animate the need for a significant incarceratory sentence for Silver. The
defendants crimes tragically demonstrated that corruption of public office for personal financial
Sentences for public officials in other circuits vary widely based on the applicable
Guidelines ranges, the nature and circumstances of the offense, local conditions, and other
factors not relevant to the instant proceeding. One recent high-profile public corruption
sentencing, that involving the former Governor of Commonwealth of Virginia, Robert
McDonnell, for example, is readily distinguishable from this case. McDonnell received a
sentence of only 24 months imprisonment based on a Guidelines range of 121-151 months after
having been convicted at trial of trading favors in return for $177,000 in loans, vacations, and
gifts for himself and his co-defendant wife. (See Ex. A and United States v. McDonnell, No.
3:14-cr-12 (E.D. Va. 2015)). Among other things, McDonnells conduct was far shorter and less
lucrative than Silvers crimes, McDonnell did not initiate the scheme, and McDonnells wife
played a significant role in the offense and received many of the luxury goods. By contrast,
Silver personally initiated and actively extorted the bribe payments through two separate
schemes over the course of more than a decade, netting (when laundering conduct is taken into
account) more than five million dollars for himself. Moreover, unlike former Governor
McDonnell, Silvers criminal conduct arose in the context of a long and public history of
corruption within New York State, and he blocked legislative and other efforts to increase
transparency, as well as making numerous false statements and taking other steps to avoid
discovery of his corrupt schemes.
21
benefits reached the very highest levels of New York State a true dagger[ ] at the heart of
honest government, Ex. B at 46, even more damaging to the public trust than the crimes set
forth above. The sentence in this case must account for the seriousness of the defendants crimes
and promote sorely-needed deterrence and respect for the law particularly among elected
officials, who should have no doubt that, if they flout the publics trust like Silver did, their
conduct will be met with severe consequences.
V.
Every time a public official commits a crime, his or her conduct taints the body in which he or
she serves and the government as a whole. Such conduct undermines the core principle of a
representative democracy that elected representatives should act solely in the interest of the
public good and their constituents. It perpetuates the belief that New Yorks government is
hopelessly corrupt. It unfairly taints those elected officials who are law-abiding and who serve
their constituents with integrity. And it discourages many honest citizens who would otherwise
seek out public service from doing so at a time when their service is sorely needed. In sum,
elected officials who exploit the power and responsibility of representing the people by using
their power as an opportunity for private gain do true violence to our system of governance.
Also important is the harm Silvers crimes have caused to the legal profession and the popular
notion that lawyers are inherently dishonest.
A.
The offenses of conviction were extremely serious. As set forth above, the defendant
engaged in two long-running schemes in which he repeatedly sold one of the three most
powerful offices in the State for millions of dollars in personal financial gain. He cynically
22
exploited 9/11, his near-unparalleled power over State funding and legislation, and his staff to
carry out his crimes. He facilitated and concealed his crimes with repeated lies to the public
during the course of more than a decade, despite knowing the importance of disclosure to the
public trust and to prevention of misconduct. Silver acted with impunity to resist legislation and
investigations such as the Moreland Commission that might have prevented or revealed his
schemes until he was caught. The defendants crimes were sustained, systematically carried out,
and multifarious, involving two different schemes and using two different law firms, numerous
private investment vehicles, and numerous different lies and methods of concealment.
To make matters worse, Silver committed these crimes during a time when numerous
State legislators were being convicted of public corruption offenses and he publicly was claiming
to be trying to prevent such crimes. Silver repeatedly told the public that he favored stronger
laws and regulations to prevent public corruption in the State legislature while, in truth and in
fact, he further abused his power by resisting legislative reforms and inquiries of the Moreland
Commission that would have shed greater sunlight on his ill-gotten gains and might have
exposed his corrupt schemes.
Importantly, there is no excuse or mitigating factor warranting imposition of a lesser
sentence for Silvers criminal conduct. Silver engaged in a long-running abuse of power for no
reason other than personal financial gain. Silver was financially stable by any objective
standard, even without his criminal schemes, his children were no longer dependent on him, and
he had no desperate need for the money, earning more than $120,000 as the Speaker, and another
$120,000 just for agreeing to affiliate with W&L and occasionally appearing at the firms New
York office. The only apparent motivation for his crimes was greed and the belief that he could
23
get away with it undetected through abuse of official power and his law license, and through
systematic lies.
Like all public officials, Silver took an oath swearing to provide the people of the State of
New York with honest services to subordinate his own personal interests to the publics needs.
He renewed that oath many times while he was perpetrating the schemes. The nature and
circumstances of the offenses of conviction support a severe punishment that reflects the degree
to which Silver betrayed the public trust for private gain.
B.
Silvers history and characteristics do not support a lenient sentence. As no doubt every
other public official convicted of criminal conduct has done at sentencing, Silver has asserted to
the Probation Office, and is expected to assert to this Court, that his public service, including
several official acts benefiting specific constituencies, merits leniency in this case. While Silver
may cite his good acts as a politician to try to avoid otherwise-warranted punishment for his
crimes, he fails to acknowledge the special position of trust and obligation that accompanied his
position. Undeniably Silver has done good deeds in his political life but he was supposed to do
that. Service to the public is expected of a member of the New York State Assembly. Silver
received a substantial salary, a large staff, and control over legislation and hundreds of millions
of dollars in discretionary funds in order to ensure that he was able to carry out that expected
service. Thus, Silvers provision of some honest services as part of his lengthy career in public
service does not merit a reduction of the sentence that is warranted for his corrupt use of that
same position, staff, and power to serve dishonestly, for his own private gain. See United States
v. Serafini, 233 F.3d 758, 773 (3d Cir. 2000) (good works as a legislator reflect[] merely the
political duties ordinarily performed by public servants and if a public servant performs civic
24
and charitable work as part of his daily functions, these should not be considered in his
sentencing because we expect such work from our public servants); United States v. Morgan,
No. 13-6025, 2015 WL 6773933, at *22 (10th Cir. Nov. 6, 2015) (finding that sentencing judge
erred in sentencing the former President Pro Tem of the Oklahoma State Senate to probation for
accepting a $12,000 bribe, in part, by giving undue weight to letters of support: The number of
letters was certainly impressive but not surprising. As the Government aptly points out: One
does not become President Pro Tem without the confidence of many supporters, some quite
influential. The letters must be viewed in that light.).
In any event, Silvers service to the public was tainted in many respects, including and
extending beyond his offenses of conviction. As set forth above, Silver may have provided
important service to the community after 9/11, but he also exploited 9/11 to get millions of
dollars in ill-gotten gains without detection by steering State grants referencing 9/11 to Dr. Taub
in exchange for lucrative leads and referral fees.
In addition, while Silver may have helped certain needy members of his community, as
more fully set forth in the Governments Motions in Limine, dated September 11, 2015, Silver
engaged in concerted efforts over the course of decades to prevent development of much-needed
low-income housing in the Seward Park Urban Renewal Area (SPURA), a large, barren site in
Silvers District near his personal residence. When confronted with evidence of his involvement
in preventing low-income housing from being developed at the SPURA site, Silver publicly tried
to distance himself from his own actions by falsely representing to the public that his actions had
been mistaken for that of another individual named Sheldon E. Silver, who in fact had no
involvement in the defendants continuing efforts to stop low-income housing at SPURA.
Similarly, as reflected in the motions in limine, Silver used his power to try to obtain a reduction
25
from the City in local real estate taxes for the building in which he resided tax burdens that
would have been redistributed among other New Yorkers without disclosing to the City that he
stood to benefit financially from any reduction.
Moreover, while Silver may have used his official position to help certain members of the
community, he also benefited some more than others based in part on his relationship to them
and the benefits that they were providing him. As the evidence at trial showed, Silver pressed an
entity that depended on him for discretionary funding, and that had never before received such a
request from him, to hire Dr. Taubs son, without revealing that he was receiving millions of
dollars in private benefits in exchange for that assistance. In addition, as set forth in the
Governments Motion in Limine, dated October 12, 2015, Silvers assistance to women with
whom he had extramarital relationships further demonstrates Silvers misuse of his office for
personal benefit. In particular, Silver pressed a state agency that was particularly dependent on
him, and that had never before received such a request from him, to hire one of the women,
without revealing the nature of his relationship with that woman. Silver also gave preferential
private access to a lobbyist who lobbied the defendant on a regular basis on behalf of clients who
had business before the State, contributing substantially to the lobbyists financial success, while
concealing from his staff and the public his personal relationship with the lobbyist, and his
personal motives for providing that access.
Each of these abuses of power further demonstrate Silvers willingness to use his position
to further his personal interests, rather than to act in the best interests of all of the people of his
Assembly District and the State.
In addition, through his conduct, Silver misused his law license both as a shield from
disclosure (see, e.g., GX 4 and 5 (statements by Silver that he could not disclose much about his
26
outside income because of attorney ethics rules)) and as a vehicle to commit fraud and extortion.
The harm Silver caused to the legal profession and the reputation of attorneys in general also
should be considered as part of Silvers history and characteristics.
The Probation Office also cites Silvers age, health, and family circumstances as
mitigating factors. While many of the sentencing factors weigh heavily in favor of a significant
term of imprisonment, the Government recognizes that Silver is 72 years of age, has had some
recent health problems, and generally appears to have had a positive impact on family and
friends. While the Court can and should take these circumstances into account, the described
personal difficulties faced by an educated, accomplished professional, who had plenty of options
other than illegal conduct, are not any more sympathetic than those of the many less-privileged
defendants that are routinely sentenced to significant terms of imprisonment in this District,
many of whom are of advanced age and have similar health concerns. Moreover, any of Silvers
health concerns can be handled effectively by the Bureau of Prisons, which routinely deals with
such issues.
C.
The need to promote respect for the law and deter other legislators from engaging in acts
of corruption also requires a substantial sentence here, particularly given that political corruption
has plagued the New York State Legislature in recent years, including through the conviction last
year of Silver and his counterpart in the Senate, Dean Skelos. 7 See 18 U.S.C. 3553(a)(2)(A).
7
Indeed, in recent prosecutions by this Office, public officials have been caught on
recorded conversations candidly discussing the sad state of affairs in New York government.
See, e.g., Assemblyman Stevenson (Bottom line . . . if half of the people up here in Albany was
ever caught for they do . . .they . . . would probably be [in jail], so who are they BS-ing?); City
Councilman Daniel Halloran (Money is what greases the wheels good, bad, or indifferent . . .
Thats politics, thats politics, its all about how much . . . and thats our politicians in New York.
Theyre all like that, all like that. And they get like that because of the drive that the money does
27
Given the harm caused by public corruption crimes, and the extent of the corruption problem in
New York, Silvers sentence should communicate that these types of violations of the public
trust will be met with significant sentences.
Silvers conduct here provides a powerful reminder of the dire need for greater
deterrence. Silver persisted in corrupting his official position even after he watched numerous of
his legislative colleagues brought down by criminal charges. As if that was not enough of an
aggravating factor warranting significant punishment, even as Silver knew he was being
investigated by the Moreland Commission for conduct related to his outside income he did not
stop the scheme, but rather took steps to stop that investigation and lie to the public about his
outside income. In this light, Silvers conduct demonstrates, as Judge Pauley emphasized in
sentencing former State Senator Gonzalez, a compelling need to punish him for his venal acts
and to ensure general deterrence among those would try to use their public offices for personal
gain. (Ex. E at 40-41).
A significant sentence in this case also would promote deterrence and respect for the law
by refuting Silvers repeated assertions that his conduct effectively was business as usual in
Albany, and by showing that to the extent his conduct could be considered business as usual, that
was so only because Silver set the rules of Albany rules that allowed Silver and other corrupt
legislators to act with impunity year after year, over and over again. A significant sentence is
necessary to demonstrate that no one, not even one of the most powerful public officials in this
for everything else. You cant do anything without the Fing money.). Silver himself
acknowledged awareness of convictions of New York State elected officials, including
Seminerio, for engaging in similar conduct, but he was undeterred by those convictions from
continuing to engage in criminal conduct. (See GX 3 (unredacted version reflecting Silvers
awareness of Seminerios conviction for corrupt receipt of outside income and concealment on
disclosure forms)). These statements by public officials, including Silver himself, support the
need for the sentence in this case to promote general deterrence.
28
State, is above the law. Indeed, the Second Circuit specifically has endorsed the sentencing court
taking into account local deterrence under Section 3553(a). See United States v. Cavera, 550
F.3d 180, 195 (2d Cir. 2008) (en banc) (affirming sentence based, in part, on need for local
deterrence of crime); see also United States v. George Pabey, (recounting recent public
corruption convictions in the region and stating that the sentence for the former Mayor of East
Chicago should send the necessary message that corruption by elected public officials will not
be tolerated and the epidemic of political corruption that has existed in this region of our state for
at least the past three decades has got to stop).
Silvers repeated assertions that he will be vindicated at some later point, and his lack
of remorse or acceptance of responsibility for the offense, also are relevant considerations when
determining the sentence necessary to promote deterrence and respect for the law. See, e.g.,
United States v. Martinucci, 561 F.3d 533, 535 (2d Cir. 2009) (lack of remorse is a pertinent
sentencing factor under Section 3553(a)); see generally United States v. Keskes, 703 F.3d 1078,
1090-91 (7th Cir. 2013) (A lack of remorse is a proper sentencing consideration because it
speaks to traditional penological interests such as rehabilitation (an indifferent criminal isnt
ready to reform . . .). (citation omitted)).
Thus, Silvers corrupt conduct and the institutional harm he has caused, as well as the
compelling need for deterrence, are aggravating factors that call for a significant term of
imprisonment.
D.
As set forth above, the Guidelines range in this case also is entitled to careful
consideration under Section 3553(a)(4). As noted above, the Sentencing Commission
purposefully raised offense levels applicable to bribery offenses because offenders who abuse
29
their positions of public trust are inherently more culpable than those who seek to corrupt them,
and their offenses present a somewhat greater threat to the integrity of governmental processes.
U.S.S.G. Manual app. C (Amendment 666).
In consideration of all of these factors, the Government respectfully submits that while a
sentence within the Guidelines range would not be unreasonable or unjust, in light of the
egregiousness of Silvers conduct and the need for deterrence, the Court should sentence the
defendant to a term of imprisonment substantially in excess of the 10 years recommended by the
Probation Office and greater than any sentence imposed on other New York State legislators
convicted of public corruption offenses.
VI.
by the Probation Office should be imposed on Silver to reflect the fact that Silver stands to
collect a lifetime pension of more than $70,000 per year from the ultimate victims of his crime,
the people of the State of New York, and that he has ample means to pay a larger fine and has no
dependents, as his children all are adults well-past college age and his wife has sufficient
remaining funds.
Section 3572(a) of Title 18, United States Code, sets forth the factors to be considered by
the district court before imposing a fine, in addition to the factors set forth in Section 3553(a).
Such factors include: (1) the defendants income, earning capacity, and financial resources;
(2) the burden that the fine will impose upon the defendant and any of his dependents; (3) any
pecuniary loss inflicted upon others as a result of the offenses; (4) whether restitution is ordered;
(5) the need to deprive the defendant of illegally obtained gains from the offenses; and (6) the
expected costs to the government of any imprisonment. 18 U.S.C. 3572(a). Section 5E1.2 of
30
the Guidelines states that a district court shall impose a fine in all cases, except where the
defendant establishes that he is unable to pay and is not likely to become able to pay any fine.
U.S.S.G. 5E1.2(a). In determining the size of any fine, the district court shall consider:
(1) the need for the combined sentence to reflect the seriousness of the offense (including
the harm or loss to the victim and the gain to the defendant), to promote respect for the
law, to provide just punishment and to afford adequate deterrence;
(2) any evidence presented as to the defendants ability to pay the fine (including the
ability to pay over a period of time) in light of his earning capacity and financial
resources;
(3) the burden that the fine places on the defendant and his dependents relative to
alternative punishments;
(4) any restitution or reparation that the defendant has made or is obligated to make;
(5) any collateral consequences of conviction, including civil obligations arising from the
defendant's conduct;
(6) whether the defendant previously has been fined for a similar offense;
(7) the expected costs to the government of any term of probation, or term of
imprisonment and term of supervised release imposed; and
(8) any other pertinent equitable considerations.
U.S.S.G. 5E1.2(d). The Guidelines further provide that, [t]he amount of the fine should
always be sufficient to ensure that the fine, taken together with other sanctions imposed, is
punitive. Id. The defendant bears the burden of demonstrating an inability to pay a fine. See
United States v. Camargo, 393 F. Appx 796, 798 (2d Cir. 2010); United States v. Salameh, 261
F.3d 271, 276 (2d Cir. 2001).
31
In this case, pursuant to 18 U.S.C. 3571(b), the maximum fine is $10,358,212.24 (twice
the gain) per count, which totals $72,507,485.68 over the seven counts of conviction here. (PSR
122, 124). At offense level 39, the fine recommended pursuant to Sections 5E1.2(c)(3) and
5E1.2(h)(1) of the Guidelines is in the range of $25,000 to $72,507,485.68. Here, the need to
provide just punishment for the offense, to promote respect for the law, and to afford adequate
deterrence to criminal conduct, and accounting for Silvers ample future income and financial
resources, all weigh in favor of imposing a substantial fine of no less than the $1 million fine
recommended by the Probation Office. (PSR at 33).
Silver has managed to amass a net worth, excluding seized funds, in excess of $2 million
(including readily liquid assets of more than $1 million) during his tenure in the Assembly.
(PSR 107 at 23). On top of that, the day after the jury rendered its verdict in this case, Silver
applied to New York State to receive a pension of $5,846 a month totaling more than $70,000
per year for the rest of his life. (PSR 107 at 23). Imposing a fine that somewhat counteracts
the pension income that even corrupt State legislators collect, serves the purpose of sending the
strongest message possible that the community will not tolerate corruption by its highest-level
public officials. 8
Accordingly, the Government respectfully submits that the need for the sentence to
reflect the seriousness of the offenses, promote respect for the law, deter others, and provide just
punishment combined the defendants ability to pay warrants the imposition of a substantial fine.
In addition, forfeiture of the defendants ill-gotten gains is mandated under the applicable
forfeiture statutes.
Perhaps not surprisingly, efforts to pass legislation to prevent convicted elected officials
from collecting State-funded pensions failed in the Assembly under Silvers leadership.
32
CONCLUSION
For the reasons set forth above, the Government respectfully requests that the Court
impose a significant sentence and fine on Sheldon Silver that reflects the seriousness of his
crimes, the immeasurable harm he has caused to the public trust, and the need to deter other
public officials who might consider abusing their power for personal gain.
Dated:
/s/
_____
Carrie H. Cohen/Howard S. Master/
Andrew D. Goldstein/James M. McDonald
Assistant United States Attorneys
33
Defendant
Defendants
Position
Guidelines
Range
Sentence
Disposition
Court
Year
Malcolm
Smith
State Senator
97-121
months
84 months
Trial
SDNY
(Karas, J.)
2015
William
Scarborough
Assemblyman
12-18
months
13 months
Plea
NDNY
(McAvoy, J.)
2015
John Sampson
State Senator
N/A
Pending
Trial
EDNY
(Irrizary, J.)
2015
Trial
SDNY
(Briccetti, J.)
2015
Thomas
Libous
State Senator
0-6 months
Six
months of
house
arrest
William
Boyland Jr.
Assemblyman
235-293
months
168
months
Trial
EDNY
(Townes, J.)
2015
Dan Halloran
NY City
Councilman
151-188
months
120
months
Trial
SDNY
(Karas, J.)
2015
Eric Stevenson
Assemblyman
51-63
months
36 months
Trial
SDNY
(Preska, J.)
2014
Larry
Seabrook
NY City
Councilman
70-87
months
60 months
Trial
SDNY
(Batts, J.)
2013
State Senator
18-24
months
12 months
and one
day
Plea
EDNY
(Weinstein, J.)
2013
Shirley
Huntley
Defendant
Defendants
Position
Guidelines
Range
Sentence
Disposition
Court
Year
Pedro Espada,
Jr.
State Senator
70-87
months
60 months
Trial
EDNY
(Block, J.)
2013
Carl Kruger
State Senator
108-135
months
84 months
Plea
SDNY
(Rakoff, J.)
2012
Nicholas
Spano
State Senator
12-18
months
12 months
and one
day
Plea
SDNY
(Seibel, J.)
2012
Hiram
Monserrate
State Senator
21-27
months
24 months
Plea
SDNY
(McMahon, J.)
2012
Vincent
Leibell
State Senator
18-24
months
21 months
Plea
SDNY
(Eginton, J. (by
designation))
2011
Efrain
Gonzalez
State Senator
108-135
months
84 months
Plea
SDNY
(Pauley, J.)
2010
Anthony
Seminerio
State
135-168
Assemblyman months
72 months
years
Plea
SDNY
(Buchwald, J.)
2010
Brian
McLaughlin
State
151-188
Assemblyman months
120
months
(reduced
to 72
months)
Plea
(cooperator)
SDNY
(Sullivan, J.)
2009
Miguel
Martinez
NY City
Council
Member
60 months
Plea
SDNY
(Crotty, J.)
2009
57-71
months
National Cases
Defendant
Defendants
Position
Guidelines
Range
Sentence
Disposition
Court
Year
Leland Yee
California State
Senator
57-71
months
60 months
Plea
N.D. Cal.
(Breyer, J.)
2016
Paul Bookout
Arkansas State
Senator
27-33
months
18 months
Plea
E.D. Ark.
(Miller, J.)
2016
Michael Morgan
Oklahoma State
Senator,
President Pro
Tempore
41-51
months
Pending2
Trial
W.D. Okla.
(Cauthron, J.)
2016
Robert
McDonnell
Governor of
Virginia
121-151
months
24 months
Trial
E.D. Va.
(Spencer, J.)
2015
Derrick Smith
Illinois State
Representative
51-63
months
5 months
Trial
N.D. Illinois
(Coleman, J.)
2015
Gordon Fox
Speaker of
Rhode Island
House and
41-51
Vice-Chairman months
of City Board of
Licenses
36 months
Plea
D.R.I.
(Lisi, J.)
2015
Martha Shoffner
Arkansas State
Treasurer
188-235
months
30 months
Trial
E.D. Ark.
(Holmes, J.)
2015
Mayor of St.
Gabriel,
Louisiana
Life
(capped at
1200
months)
240 months
Trial
M.D. La.
(Hicks, J.)
2014
Michael A.
Brown
D.C. Council
Member
57-71
months
39 months
Plea
D.D.C.
(Roberts, J.)
2014
Patrick Cannon
Mayor of
46-57
Charlotte, North
months
Carolina
44 months
Plea
W.D.N.C.
(Whitney, J.)
2014
Morgan was originally sentenced in 2015 to probation, but the Tenth Circuit reversed the sentence as
insufficiently low. Resentencing is pending.
3
Defendant
Defendants
Position
Guidelines
Range
Sentence
Disposition
Court
Year
Ray Nagin
Mayor of New
Orleans
188-235
months
120 months
Trial
E.D. La.
(Berrigan, J.)
2014
Tony Mack
Mayor of
Trenton, New
Jersey
63-78
months
58 months
Trial
D.N.J.
(Shipp, J.)
2014
Paul Ben
Arredondo
Arizona State
Representative
18-24
months
18 months
of home
confinement
Plea
D. Ariz.
(Martone, J.)
2013
U.S.
Congressman
46-57
months
30 months
Plea
D.D.C.
(Jackson, J.)
2013
John Bencivengo
Mayor of
Hamilton
Township, N.J.
63-78
months
38 months
Trial
D.N.J.
(Thompson, J.)
2013
Kwame Kilpatrick
Mayor of
Detroit
360
months-life
(capped at
4,416
months)
336 months
Trial
E.D. Mich.
(Edmund, J.)
2013
Richard Renzi
U.S.
Congressman
97-121
months
36 months
Trial
D. Ariz (Bury,
J.)
2013
David Silva
Mayor of
Cudahy
70-87
months
12 months
Plea
C.D. Cal,
(Real, J.)
2013
Stanley Wright
Mayor of
Bayou La Batre
41 t51
months
15 months
Trial
S.D. Ala.
(DuBose, J.)
2013
Bob Mellow
Pennsylvania
State Senator
21-27
months
16 months
Plea
M.D. Pa.
(Slomsky, J.)
2012
D.C. Council
Member
41-51
months
38 months
Plea
D.D.C. (Bates,
J.)
2012
Hector MartinezMaldonado
Puerto Rico
Senator
Trial
D.P.R.
(Besosa, J.)
2012
Terry Spicer
Alabama State
Representative
57-71
months
Plea
M.D. Ala.
(Thompson, J.)
2012
57 months
Defendant
Defendants
Position
Guidelines
Range
Sentence
Disposition
Court
Year
Don Siegelman
Governor of
Alabama
151-188
months
78 months
Trial
M.D. Ala.
(Fuller, J.)
2012
Rod Blagojevich
Governor of
Illinois
360
monthsLife
Pending3
Trial
N.D. Ill.
(Zagel, J.)
2011
Jack Johnson
Executive of
Prince Georges
County,
Maryland
87-108
months
87 months
Plea
D. Md.
(Messitte, J.)
2011
Jorge De Castro
Font
Majority Leader
108-135
of the Puerto
months
Rico Senate
60 months
Plea
D.P.R.
(Besosa, J.)
2011
Phillip Hamilton
Member of
Virginia House
of Delegates
151-188
months
114 months
Trial
E.D. Va.
(Hudson, J.)
2011
Salvatore F.
DiMasi
Massachusetts
House Speaker
235-293
months
96 months
Trial
D. Mass.
(Wolf, J.)
2011
George Pabey
Mayor of East
Chicago
27-33
months
60 months
Trial
N.D. Ind.
(Moody, J.)
2011
Peter Kott
Speaker of
Alaska House
of
Representatives
N/A
Time
Served (17
months)
Plea
pursuant to
Rule 11(c)
D. Alaska
(Beistline, J.)
2011
Dianne Wilkerson
Massachusetts
State Senator
37-46
months
42 months
Plea
D. Mass.
(Woodlock, J.)
2010
Larry Langford
President of
Jefferson
County
Commission
and Chairman
of Finance
292-365
months
180 months
Trial
N.D. Ala.
(Coogler, J.)
2010
Blagojevich originally was sentenced to 168 months before certain of his counts of conviction were
vacated on appeal by the Seventh Circuit. Resentencing is pending.
4
The defendant pled guilty pursuant to a Rule 11(c)(1) plea agreement providing for a time-served
sentence after his initial 72-month sentence was vacated for reasons unrelated to the sentence.
5
Defendant
Defendants
Position
Guidelines
Range
Sentence
Committee
Disposition
Court
Year
1
C4qdkrus
SENTENCE
1
2
4
5
v.
CARL KRUGER,
6
7
Defendant.
------------------------------x
8
April 26, 2012
4:05 p.m.
9
10
Before:
11
APPEARANCES
PREET BHARARA
United States Attorney for the
Southern District of New York
BY: MICHAEL BOSWORTH
GLEN McGORTY
Assistant United States Attorneys
18
19
20
21
- also present 22
23
24
25
2
C4qdkrus
SENTENCE
1
THE CLERK:
MR. BOSWORTH:
Michael
counsel table are Chris Kelly and Julie Brown of the FBI.
THE COURT:
MR. BRAFMAN:
With us at
Good afternoon.
Good afternoon, your Honor.
Benjamin
10
11
12
THE COURT:
13
MR. KATZBERG:
14
Good afternoon.
Your Honor, are you going to take Mr.
15
THE COURT:
No.
16
Mr. Kruger, but you are more than welcome to stay there at
17
18
MR. KATZBERG:
19
THE COURT:
20
23
MR. BRAFMAN:
24
THE COURT:
25
All right.
Carl Kruger.
21
22
report?
3
C4qdkrus
SENTENCE
1
MR. BRAFMAN:
THE COURT:
MR. BOSWORTH:
THE COURT:
OK.
No, sir.
Very good.
and the Probation Office that the total offense level is 31,
10
which is not binding on the Court but which the Court must and
11
12
13
14
15
16
17
white-collar scheme.
18
19
20
21
22
23
24
25
4
C4qdkrus
SENTENCE
1
kind of a crime this was, how did it affect the public wheel,
what kind of human being was the defendant, what motivated his
punishment.
Court consider not just the guidelines but all the factors
10
So I think
11
12
13
guidelines.
14
15
16
heard.
17
MR. BRAFMAN:
18
19
20
21
22
appreciate --
23
THE COURT:
24
25
MR. BRAFMAN:
5
C4qdkrus
SENTENCE
1
secondary.
every case, and I think the Court very carefully reviews the
10
11
12
13
the Court began with the observation that it made, and I will
14
15
16
17
18
19
20
21
22
23
Obviously, my grave
24
25
I think it is
6
C4qdkrus
SENTENCE
1
come out and the position that the government has taken, I just
courtesy.
But I greatly
10
11
12
as well.
13
THE COURT:
14
15
16
17
18
you presented.
19
MR. BRAFMAN:
20
21
22
23
24
sentence.
25
But to be
7
C4qdkrus
SENTENCE
1
10
11
12
13
14
15
16
And I write
17
18
over the years, as I know so many people who have been helped
19
20
21
come away from this with a sense of despair that there isn't
22
23
24
it's important that not only that your Honor hear it but that
25
8
C4qdkrus
SENTENCE
1
They
You come
10
into the well of the courtroom, and then you are an advocate,
11
12
13
the Court.
14
15
on my written materials?
16
17
18
sentence is imposed.
19
20
come on the bench not yet firm in his or her mind where they
21
are going to come out and maybe something you say helps.
22
speak.
23
So
24
25
9
C4qdkrus
SENTENCE
1
besides Mr. Kruger and perhaps the people closest to him and
the Court and the government has read the sentencing memo.
about Mr. Kruger in addition to all of the bad that this case
already.
And
Mr. Kruger perhaps years from now reads the record of these
10
11
this feel level to the extent that it can be, because despite
12
13
14
THE COURT:
15
16
the time of sentence not only for the reasons that you have
17
18
19
20
21
22
23
24
25
So I think myself
10
C4qdkrus
SENTENCE
1
So please continue.
MR. BRAFMAN:
10
senator."
11
for today, and this morning when I read this paragraph again,
12
13
powerful observation.
14
15
16
17
quantify it.
18
It is a very
You cannot
19
20
21
concludes for the Court that the man that you are about to
22
23
24
25
And if someone
11
C4qdkrus
SENTENCE
1
from, your Honor, suggest that the help that Mr. Kruger
10
11
12
13
14
15
16
It is part of the
And I do not have any doubt that Mr. Kruger went well
17
18
It is not as if
19
20
21
22
23
24
25
MR. BRAFMAN:
He had
The
12
C4qdkrus
SENTENCE
1
And
10
11
missions of mercy that suggest that you are really dealing with
12
13
14
15
have -- with great deference and always given you credit, your
16
17
18
referring to --
19
20
THE COURT:
hands.
21
MR. BRAFMAN:
No.
22
23
bench that it was the quote from Adelson that caused them to
24
25
provide.
13
C4qdkrus
SENTENCE
1
Adelson:
10
11
balance."
12
So
All of the
13
14
is a good man.
15
16
17
18
19
the Court referenced good things he did from the time of this
20
21
indictment and sentence that he could then cite to, someone who
22
23
let me just say one thing about the job of being a state
24
senator.
25
14
C4qdkrus
SENTENCE
1
professions.
no stamps in it whatsoever.
He has
10
11
12
13
14
15
16
17
He is 62
18
19
20
THE COURT:
21
22
23
politicians.
24
25
15
C4qdkrus
SENTENCE
1
who misuses his political office and accepts and does a favor
to them.
This is not a legal defense that Mr. Kruger did not personally
I get it.
corrupt scheme, at a time when the Olympic fund was flush and
10
11
Mr. Kruger to pay off his Visa credit card bills borrowed
12
13
When that was being paid back at a time when the Olympic
14
accounts were flush, he did not use those funds to pay back his
15
debt; it was charged against his weekly salary until the loan
16
17
18
political persons.
19
20
21
22
23
24
25
16
C4qdkrus
SENTENCE
1
defense.
THE COURT:
motivation.
10
nonmonetary.
11
MR. BRAFMAN:
But the
12
13
14
15
politician.
16
spend it.
17
18
themselves.
19
It's real.
It's hard.
You can
20
21
22
23
24
exception of a sister who he cared for and helped care for for
25
17
C4qdkrus
SENTENCE
1
needed each other at a time when each of them was going through
family unit.
brilliant physician who had trained very hard, lost his medical
10
11
12
is a complicated case.
13
14
15
16
17
18
I think it is complicated.
I don't
19
20
21
22
your Honor, we could have filled the courthouse with people who
23
24
25
additional letters.
We did not.
We did not.
18
C4qdkrus
SENTENCE
1
THE COURT:
MR. BRAFMAN:
They
trying to say, you know, I'm who I am and I want you to read
10
11
12
13
14
And I think
15
and has nobody, and Mr. Kruger finds his body, brings it back,
16
17
service.
18
19
being abandoned.
20
21
22
23
kindness you can do, because you cannot ever expect to have
24
25
because you are a good guy, just because you are a nice person,
19
C4qdkrus
SENTENCE
1
impose, I think the fact that someone is a kind human being and
consider.
to do.
check them off the insurance list because they no longer have
to pay his coverage and they move on and they replace them.
They don't track down their bodies and get them a grave and
10
11
12
13
14
15
She is a survivor.
She comes to
16
17
18
19
murdered.
20
21
our memo:
22
legs.
23
24
25
20
C4qdkrus
SENTENCE
1
2
conduct themselves.
They
10
11
his name is Orazio Martello, his begins, "If not for Senator
12
13
story, your Honor, and I'll paraphrase it, but this man was
14
15
going to die.
16
17
18
19
20
21
22
23
24
25
could have written a letter just like the other politicians did
He
21
C4qdkrus
SENTENCE
1
2
these people.
someone comes in and says I'm going to die unless you get the
He continues:
10
other politicians.
11
12
13
14
15
16
17
18
19
20
21
22
was part of his job but because it was part of who he is."
23
He is here.
His
24
25
22
C4qdkrus
SENTENCE
1
life hang in the balance, and takes on the FDA and succeeds.
bureaucracies.
them to change.
10
11
I think that's
12
13
14
15
16
17
did three acts of kindness, that took some of his time, some of
18
his effort, and they commended him for that that there was a
19
20
service.
21
And the
22
23
that case.
24
25
23
C4qdkrus
SENTENCE
1
out free flu shots, has tested people for high cholesterol.
This is not something you could get in any state senate office,
assemblyman 35 years.
Those streets
10
11
12
13
14
minute.
15
He
16
17
18
at all.
19
20
21
22
23
24
25
24
C4qdkrus
SENTENCE
1
Elections.
important restaurant.
burned down consoling her and helping her and promising her
that he will help her rebuild and that there will be people
10
11
12
who is a lawyer.
13
14
15
16
17
And there
He is
18
vulnerable.
19
corruption.
20
21
vulnerable.
22
23
person.
24
25
So he's
That matters.
He also has, I think, an advocate, quite frankly, who
25
C4qdkrus
SENTENCE
1
understanding.
think that's more important than anything else for a court that
8
9
And I
We say
I would never
10
11
12
13
14
15
justice system.
16
17
18
19
20
I don't think
21
22
23
be too light.
24
guts and the integrity to do what you think is right, and I've
25
seen you do that in many cases where you do what you think is
26
C4qdkrus
SENTENCE
1
right and that you don't really pay attention to what anyone
else says after the fact because you live with your conscience
of knowing that you are an honest, wise man, and I don't say
I looked at the
vast discretion.
10
11
12
13
14
15
16
number of issues.
17
18
recidivist behavior.
19
20
21
that he had been dishonest in any other way his entire life.
22
23
danger to the community that Mr. Kruger has to be put away for
24
25
27
C4qdkrus
SENTENCE
1
That's not a
Half of 3553 goes right off the chart when you look at
6
7
8
9
it.
So another question is punishment and I think the
question is deterrence.
And I think when you look at punishment, Judge, to be
10
11
12
13
be candid with you, I'm stunned that he has made it this far
14
15
the sadness that has overwhelmed his life from the moment he
16
pled guilty until now, from the moment he was indicted until
17
18
19
He's punished.
20
punished.
And
To
He is going to be
21
22
23
24
25
really know how to do, and he's going to go throughout his life
He is never going
28
C4qdkrus
SENTENCE
1
He is 62 years old.
You
10
11
Certainly in today's
12
accepted responsibility.
13
14
15
16
17
18
required to go through.
19
20
21
22
23
responsibility.
24
25
Both
Went through
29
C4qdkrus
SENTENCE
1
plead guilty.
10
In the Martinez
11
12
13
14
15
16
17
18
19
20
21
responsible for.
22
23
24
25
Both at
In his
30
C4qdkrus
SENTENCE
1
letter to the Court, I don't know that you could read a letter
10
11
We get to
12
13
14
people?
15
16
I just
17
18
19
20
in the case, the government got up and said we don't think what
21
22
but we want other people to see his sentence and to think twice
23
24
25
Because
31
C4qdkrus
SENTENCE
1
that sentence will one day keep a person who may not yet even
can't do that.
He said, I
10
11
I have faith that you will think about this and have thought
12
13
14
15
16
read a lot of what I've said already and I'm being repetitive.
17
18
19
20
the quiet of their mind I'm going to continue this corrupt act
21
22
23
24
conversations.
25
Nobody
32
C4qdkrus
SENTENCE
1
punishment.
integrity of this process and too much respect for your Honor
is I don't know what number, and how you get to that number,
10
11
12
13
Crime?
Yes.
Serious crime?
Yes.
14
15
16
17
18
the end of his career, you got a lot of really good stuff
19
there.
20
21
I've persuaded you that this is just not a politician who went
22
23
who went through the real hard work of being a very good man,
24
and that the people he has saved and the people he has helped
25
are real people, and that really counts and it should count for
33
C4qdkrus
SENTENCE
1
a lot.
friend.
resigns in disgrace.
He was a good
10
11
12
good, and that's -- and that must count for something today.
13
14
a lot.
15
He did a world of
16
17
their memo.
18
19
20
Yes.
21
really don't.
22
23
does Probation.
24
25
They
Neither
34
C4qdkrus
SENTENCE
1
extraordinary stuff.
stuff.
5
6
So I am done.
THE COURT:
MR. BOSWORTH:
10
11
12
13
THE COURT:
Yes.
14
MR. BOSWORTH:
I have them.
15
16
17
18
between the government and the defense, and that is that this
19
is a tragic case.
20
I would like to
21
22
23
money in Albany.
24
25
35
C4qdkrus
SENTENCE
1
From who?
executives.
the trust that had been placed in him, to help the Turano
family?
8
9
To help
10
year.
11
Bentley.
12
13
14
15
16
THE COURT:
17
18
19
20
21
22
23
MR. BOSWORTH:
24
THE COURT:
All right.
25
MR. BOSWORTH:
36
C4qdkrus
SENTENCE
1
he did benefit, and the Court addressed that issue and I don't
the Turanos.
Mr. Kruger
10
11
12
13
14
15
16
17
baccarat table and chairs that were bought with the bribe
18
proceeds.
19
one of the family albums that was seized with all of them
20
21
22
23
own words.
24
25
first with Michael Turano and then with Dorothy Turano, Gerald
37
C4qdkrus
SENTENCE
1
"This whole
9
10
11
12
13
14
He
15
can say, and how to parse out the percentage due to each?
16
17
18
But
19
20
21
22
23
24
of public service.
25
Mr. Brafman
And
That's
But
38
C4qdkrus
SENTENCE
1
there can also be no dispute that Mr. Kruger used all those
like this?
Because of
10
11
12
13
14
15
16
17
18
19
20
owes to all the citizens of New York State, who he was elected
21
22
23
24
25
He
39
C4qdkrus
SENTENCE
1
State's budget.
part to help people that needed help and in part to help people
Lipsky's wife.
hospital and said, listen, Carl Kruger can get you money but
And because
10
11
12
13
14
15
Chair.
16
She was
And the Court is aware from the David Rosen trial, Mr.
17
He sent
18
19
20
bribes from David Rosen, but over $300,000 Mr. Kruger went
21
22
23
Jamaica Hospital.
24
25
40
C4qdkrus
SENTENCE
1
his borough.
Parkway
It wasn't even in
harm that extends and spilled all over New York State.
people are cynical about their government, and when they have
10
When
11
12
13
14
guilty.
15
16
He got caught.
17
fought the charges, as is his right, for many months, and when
18
19
guilty.
20
21
22
He
But that's
23
24
25
41
C4qdkrus
SENTENCE
1
be true.
measured.
sort of break.
10
11
12
and deterrence.
13
14
15
16
17
it is.
18
particularly repugnant.
19
multiple.
20
to detect.
21
22
pled guilty.
23
sophisticated design.
24
25
They were
It is hard
42
C4qdkrus
SENTENCE
1
that that's the line that at one point in time Aquino, Kalish,
Honest work.
It is no accident
10
11
one.
12
13
deterrent effect.
14
15
16
17
18
19
20
21
22
23
their sentences.
24
25
43
C4qdkrus
SENTENCE
1
prison.
years in prison.
prison.
convicted.
10
All of
11
12
13
14
When
15
Of
16
17
18
And if it's there has been a lot of shame here and here is a
19
20
On the
21
22
23
life.
24
25
44
C4qdkrus
SENTENCE
1
In part,
10
11
12
13
14
15
16
And the
17
18
19
Thank you.
20
THE COURT:
21
22
THE DEFENDANT:
23
All right.
24
THE COURT:
That's fine.
25
THE DEFENDANT:
45
C4qdkrus
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1
is simple:
My message
I am sorry.
Legislature.
battles.
10
over.
11
managed to achieve.
12
13
myself that very question, but going down that path, I don't
14
15
16
17
18
19
20
So my
21
My prison
22
23
underway.
24
but myself to blame, and that reality will haunt me for the
25
rest of my life.
46
C4qdkrus
SENTENCE
1
sentence me.
Thank you.
THE COURT:
of this, in the many letters that the Court has received and in
And to be frank,
10
11
only because of the respect that I have for Mr. Brafman but
12
13
14
assess character.
15
deserves some credit on this day of judgment for his many good
16
17
18
19
20
21
22
23
government.
24
25
We have only to
47
C4qdkrus
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1
When a
10
11
Mr. Kruger has done that make this country, and the principles
12
13
14
sentence.
And I
15
16
17
18
19
20
months.
21
22
23
24
25
48
C4qdkrus
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1
that has now been agreed to by the parties, and I have signed
the two orders that were presented today for restitution and
5
6
10
11
12
13
14
15
16
17
18
19
20
supervised release.
21
22
23
24
25
49
C4qdkrus
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6
7
MR. BOSWORTH:
Yes.
THE COURT:
10
11
you propose?
12
MR. BRAFMAN:
All right.
13
14
15
June 26th.
16
properly designated.
17
18
19
camp for religious and dietary needs that will be met and
20
21
22
23
24
25
THE COURT:
appropriate.
50
C4qdkrus
SENTENCE
1
2
THE DEFENDANT:
THE COURT:
Yes.
10
afford counsel for the appeal, the Court will appoint one for
11
12
THE DEFENDANT:
Yes, I do.
13
THE COURT:
14
15
Very good.
Thanks a lot.
16
17
18
19
20
21
22
23
24
25
Case
Case1:15-cr-00093-VEC
7:13-cr-00297-KMK Document
Document264-3
461 Filed
Filed07/28/15
04/20/16 Page
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F71ismis ag
SENTENCE
v.
MALCOLM A. SMITH
6
7
Defendant.
------------------------------x
July 1, 2015
10:05 a.m.
White Plains, N.Y.
9
10
11
Before:
HON. KENNETH M. KARAS,
12
13
14
15
16
17
18
19
District Judge
APPEARANCES
PREET BHARARA
United States Attorney for the
Southern District of New York
DOUGLAS B. BLOOM
PERRY CARBONE
JUSTIN ANDERSON
Assistant United States Attorneys
WINSTON & STRAWN
Attorney for Defendant Smith
GERALD L. SHARGEL
EVAN LIPTON
20
21
SENTENCE
22
23
24
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
Case
Case1:15-cr-00093-VEC
7:13-cr-00297-KMK Document
Document264-3
461 Filed
Filed07/28/15
04/20/16 Page
Page22ofof29
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F71ismis ag
1
SENTENCE
appearances?
4
5
MR. BLOOM:
MR. SHARGEL:
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THE COURT:
seated.
10
11
report?
12
MR. BLOOM:
13
MR. SHARGEL:
14
15
Please be
The presentence
Yes.
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17
18
MR. SHARGEL:
19
THE COURT:
No, sir.
Is there anything
20
21
22
MR. BLOOM:
23
THE COURT:
24
then the government, you can reply to anything they have said
25
and then I'll give your client the opportunity to have the last
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THE COURT:
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Sure.
You know, there are more than a hundred
11
THE COURT:
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MR. SHARGEL:
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14
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of occasions.
20
There's no
Your
21
the beginning of this case against Mr. Smith, but it's also
22
highly significant.
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that Rabbi Beck knew of the recordings and knew the fact that
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11
man.
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13
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16
record.
17
said, a snippet, that Malcolm Smith is a very good man who has
18
19
figure, who has been good for the community, but not only the
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Because there's a
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Not
But
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that was able to work on behalf of the people not only in his
York.
Stern said, I've heard so much about you from Rabbi Beck and
again and again, the asset that was praised, the asset that was
10
praised was his ability to get things done for his constituents
11
12
In fact
13
help but think, I can't help but think that if it were not for
14
the fact that that scoundrel, and I may call him a scoundrel
15
16
17
18
19
beyond any doubt, if he had not come to Malcolm Smith with his
20
plans and his ideas that evolved not at the first meeting but
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did with Malcolm Smith was very very artful, "they" being the
25
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your Honor can still consider the way that this case came
about, the way that the genesis of this case was injected, and
think there's case law, Ninth Circuit and Second Circuit case
10
application for the most lenient sentence that your Honor may
11
12
13
14
15
a common theme in each one of those letters again and again you
16
hear that Malcolm Smith went out of his way, Malcolm Smith,
17
18
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21
22
23
24
did all that he did, helped in the way that he could help, not
25
just simply by making a phone call but by being there, any time
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of day or night.
when a family member was taken to the hospital the first call
that was made, it was the middle of the night, it was Malcolm
Smith and he was there; the tragedy at the World Trade Center,
10
time but I think it's in our Exhibit LL, the letter that I
11
referenced a moment ago with the parents who had a son that was
12
murdered.
I thought it --
13
THE COURT:
14
MR. SHARGEL:
15
one.
16
THE COURT:
Right.
17
MR. SHARGEL:
18
letters, one of the most those eloquent things that I read was
19
that the person referenced in LL, where the young man was
20
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23
contribution.
24
help.
25
He
He just wanted to
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wanted to help.
52
You heard
argument.
It
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not found a single case in all the research that can be done,
17
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24
substance.
25
Where in the
In a case
My greed is
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question about the fact that he never sought to make any money
Never.
I have to respect
not only the verdict but I do respect the FBI agent, the
undercover FBI agent for the work that he was able to do.
But
10
suggestions.
11
community center was being built, and the agent said would you
12
13
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17
18
19
agent said in words or substance, I'd like to see you earn here
20
21
And
The undercover
22
23
The government points to the notion that well, when he came out
24
25
he'd have a soft landing with the agent, they could go on and
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happening four or eight years down the road, and that shows
not.
corruption?
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9
That's
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had just been burned by the politics, the so-called coup and
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He
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He
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that he has done, recognizing the letters that have been put
before you and their very important content, and they are quite
about that, I ask you, your Honor, I ask you most respectfully
guideline range.
Outside of a
10
11
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17
most appropriate.
18
19
THE COURT:
your submission.
I think that
20
Mr. Bloom.
21
MR. BLOOM:
22
think gets lost in all of the noise about this case and the
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form of corruption.
No.
We agree.
What he was
benefit.
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12
13
That is what
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15
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20
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the genesis of this case and look at how this case came about.
24
You should look at other cases and say I've never seen a public
25
Because what
That's what
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And Judge in the face of that fact, and given what the
mitigating circumstances.
corruption cases, because the good deeds are what he's supposed
This, as we said
10
to do.
11
12
He did.
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14
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out.
20
21
22
23
If they want
24
There is no
25
mystery about how this case started, about who did what and who
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said what.
And the fact that he's able to generate so many letters on his
behalf, and he did wonderful things for the people who wrote
10
11
circumstance.
12
politician.
13
14
15
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that.
19
He was
He knew what it
20
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range, not just for himself but to deter others who would
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unfortunately we all know well now, there are others and there
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25
Because as
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pay attention to what this Court does and what the courts that
activities is.
here, the next person who comes along may think twice if the
8
9
They
10
11
references.
12
how this case began, the introduction of Rabbi Beck, what you
13
14
accident.
15
16
Malcolm Smith.
17
checks.
18
tape.
19
is a great guy.
20
That's on
What is Rabbi
21
Beck, a man whose character we don't know other than the acts
22
So yes, he did do
23
good deeds.
24
phenomenally corrupt.
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cases.
And for
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THE COURT:
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17
MR. SHARGEL:
18
briefly is this.
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20
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that.
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And I'm not going, we're not here to retry the case and I'm not
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THE COURT:
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THE DEFENDANT:
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THE COURT:
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THE DEFENDANT:
Good morning.
Good morning.
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14
15
THE COURT:
Okay.
And I did
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the goals of the sentencing laws as they apply to Mr. Smith and
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to this case.
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calculation yields.
objection.
6
7
18
And I guess I didn't ask that, but you did go over the
presentence report with your client?
MR. SHARGEL:
THE COURT:
Certainly.
10
MR. SHARGEL:
No.
11
THE COURT:
12
MR. BLOOM:
Of course, Judge.
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THE COURT:
That is
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Because the
Because
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Section 2C1.1(b)(3).
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9
So
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here by Mr. Shargel today and it's clearly the theme of the
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And I
And
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appointed official, when that person does his or her job and
the job is public service the public has the right to expect to
sponsor legislation.
passed.
He'll
10
they're elected.
11
12
others.
13
We all
14
service goes way beyond what he might have done on the Senate
15
floor.
16
17
18
19
stories about what he was doing both before, during and after
20
Sandy.
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22
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25
many letters, speak to Mr. Smith going beyond that and almost
The
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literally going door to door and making sure that people were
the machine.
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11
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only will they look out for the interest of those who elected
15
them, but that they will dedicate their service to giving their
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corrupts the process, then the law takes into consideration the
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23
so serious.
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25
Because part
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side of the coin here, and I'm segueing a little bit to some of
10
11
respect for the law and takes into account the seriousness of
12
13
14
disparity.
15
16
think it was Mr. Bloom, talked about how there's been a lot of
17
noise.
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And it's
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taken into consideration the point that Mr. Smith didn't line
this.
should root for our public servants when they retire to take a
vow of poverty.
10
But I accept
11
12
13
14
scheme but who also were seeking to profit, line their pockets.
15
16
17
oranges comparison.
Yes,
18
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bribery.
21
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23
And the way that New York State by law has set this up is he
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There is a process.
And
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be respected.
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dispositive.
10
people in this scheme who were going to benefit the most it was
11
12
a good mayor.
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14
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17
here today.
18
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21
best mayor in the history of New York City I'm not going to to
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25
But what
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SENTENCE
the evidence showed was that Mr. Smith was all too willing to
go along with the scheme using other people's money to buy the
Wilson-Pakula certificate.
overwhelmingly shows.
disparate impact.
10
11
12
13
services.
14
15
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Specific
17
18
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22
23
serious crime.
24
has made an impact on people's lives way beyond the sort of job
25
So it's
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appropriate.
not going to impose a fine because Mr. Smith can't afford one.
10
11
this.
12
13
talk about how the person, the elected physician, the public
14
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17
of his salary.
18
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back.
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The
But
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given the evidence as I said that Mr. Smith was very active in
it's appropriate.
MR. BLOOM:
10
THE COURT:
11
12
impose.
13
14
15
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17
drug-testing conditions.
18
19
20
Probation Office.
21
are imposed.
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MR. BLOOM:
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13 Cr. 297.
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3
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SENTENCE
The government moves to dismiss those open counts.
THE COURT:
That's granted.
surrender date...
MR. LIPTON:
September 8th.
designation to Otisville.
THE COURT:
Any objection to
MR. BLOOM:
No, Judge.
10
THE COURT:
11
12
13
judgment is entered.
14
MR. LIPTON:
15
16
17
counsel.
18
THE COURT:
19
MR. BLOOM:
20
THE COURT:
21
22
government's response.
23
MR. LIPTON:
24
THE COURT:
25
(Counsel confer)
August 31st.
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MR. LIPTON:
THE COURT:
MR. LIPTON:
THE COURT:
One week.
We can move the surrender date back.
I would prefer that option.
September 21st for the surrender date.
a year and a day and the government asked the Court to impose a
10
11
12
13
Council member and he took the stand and lied which is why he
14
15
16
lower would not take into consideration just how serious the
17
18
19
20
MR. BLOOM:
21
THE COURT:
Mr. Shargel?
22
MR. SHARGEL:
23
THE COURT:
24
(Record closed)
No, Judge.
25
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
024AASEMS
v.
08 CR 1238 (NRB)
ANTHONY SEMINERIO,
Defendant.
6
7
------------------------------x
New York, N.Y.
February 4, 2010
11:00 a.m.
8
9
10
Before:
11
APPEARANCES
15
PREET BHARARA
United States Attorney for the
Southern District of New York
WILLIAM HARRINGTON
Assistant United States Attorney
16
17
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19
20
21
22
23
24
25
(212) 805-0300
024AASEMS
Sentence
(Case called)
THE COURT:
MR. HARRINGTON:
Please, be seated.
Bill Harrington, for the United
States.
THE COURT:
MR. ROSS:
Good morning.
Michael Ross and Pery Krinsky and Joes E.
10
All right.
11
MR. ROSS:
12
THE COURT:
13
14
15
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18
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21
and there were submissions both before and after that hearing.
22
23
w~th
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25
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024AASEMS
1
memorandum.
have the draft before the hearing and got the final copy
We
10
11
12
13
document~
14
other
15
16
THE COURT:
17
MR. ROSS:
18
Addressed to me?
It was submitted to probation and to the
government.
19
THE COURT:
.Not to me?
20
MR. ROSS:
21
THE COURT:
22
Okay.
That's everything.
Very good.
23
24
25
MR. ROSS:
We have.
(212) 805-0300
024AASEMS
Sentence
MR. HARRINGTON:
THE COURT:
All right.
No objections.
Aside
10
11
12
13
THE COURT:
Okay.
14
MR. ROSS:
I am.
Thank you.
15
16
17
understanding that both you and your staff have very carefully
18
19
~0
21
22
23
24
25
3553 (A) .
(212) 805-0300
024AASEMS
Sentence
Mr. Seminerio you measure the good against the bad, I thought I
five minute, but in two of my own minutes tell you how I think
10
11
12
13
14
above all else throughout his entire life, going from the
15
16
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18
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21
22
THE COURT:
23
MR. ROSS:
That's right.
I know about my own background, but I can
24
25
(212) 805-0300
024AASEMS
Sentence
I say that only because when you consider the things that the
there is on one hand evidence of the bad things that are done
in someone's life.
about this one is that was there a notion that everything that
Mr. Seminerio did in his life was for money or for greed?
10
11
And
12
the three volumes that you have in front of you which have more
13
14
THE COURT:
15
16
MR. ROSS:
17
18
19
not the slightest doubt of that and I am sure you know I don't
20
21
22
following:
You can take all of those 300 letters and, obviously,
23
24
normal person you read them and you say, well, this is a good
25
letter and this letter you always wonder how these letters are
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
024AASEMS
Sentence
written.
letters?
was not just doing it for a vote, to curry favor, to try to get
a convincing picture
10
As I started reading
11
these letters again this last week to prepare for today because
12
13
14
15
16
17
18
19
people day in and day out he has placed family and friends and
20
21
And if you look at these 300 letters and you rip them
22
23
24
from our submissions and say there are a lot of people who
25
really believe that he is a good man, a good person and has not
SOUTHERN DISTRICT REPORTERS, P.C.
This letter is
024AASEMS
Sentence
because they have always been there with him, not like other
family members in different cases over the years who are there
Mr. Seminerio are there because they generally love him and
they are bound to him the way I suppose only a mother and a
10
11
The family of
12
13
14
the factors.
15
16
17
send a message.
18
19
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have as a judge.
22
My years as a
23
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25
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024AASEMS
1
I think the
10
11
has done in his life, his age and all of the other factors and
12
13
14
cases at the end of the day the case law says more than that it
15
16
law is that you measure the entire person, the good and the
17
bad.
18
19
Cases and say, well, this person got this sentence and this
20
21
germander result.
22
23
24
25
But I am hopeful
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024AASEMS
1
10
a number.
10
11
immediate.
12
13
THE COURT:
14
MR. ROSS:
I agree
15
16
the letter of the doctor I think what he said was that any
17
18
something.like that.
19
recognize and I think the government does too, that a level two
20
facility -- you know you learn a little bit about the Bureau of
21
22
23
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Intellectually, intellectually, I
(212) 805-0300
024AASEMS
1
11
Sentence
I recognize that some lawyers would stand up and to
other interests, maybe to hear their own voice, they say based
memorandum.
MR. ROSS:
I understand that.
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11
of evidence.
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case.
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~hat
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period of time he has remaining in his life with his family and
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know, your Honor would see only the man Mr. Seminerio is and
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(212) 805-0300
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Sentence
024AASEMS
1
decision.
your decision.
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hearing.
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Mr. Seminerio the hope that at the end of that sentence he will
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THE COURT:
Mr. Harrington.
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MR. HARRINGTON:
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and at the end of that process sent a very potent message about
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public trust, his decision at some point ten years ago to begin
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(212) 805-0300
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Sentence
024AASEMS
1
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And
Here is
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Sentence
024AASEMS
1
14
He was
more severely.
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and may of the people that the Court heard from, Mr. Seminerio
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changed that.
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looking out for his own pocketbook, that he would extort very
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years.
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(212) 805-0300
024AASEMS
THE COURT:
15
something?
THE DEFENDANT:
THE COURT:
No.
guidelines range for your crime and having read the volumes of
I learned and the portrait of you that you would prefer I see.
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Let me say right at the outset that I do not doubt that you
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behalf.
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beyond.
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I have received that you have not been honest with your family,
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your criminal.conduct.
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In making
(212) 805-0300
024AASEMS
1
Sentence
However, my role in the justice system requires that I
defendant.
half day hearing that was held after you decided to challenge
January 14th.
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16
The
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which there was no evidence that you performed any work beyond
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nothing".
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audience to read.
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depth of your criminal conduct has led your family, friends and
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(21Z) 805-0300
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Sentence
024AASEMS
1
examples.
submitted was how much you value education and how you urged
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I quote:
12
the language here is a little salty but it's not what I said.
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14
Again
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something?
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wrong.
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Ho~est
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(212) 805-0300
024AASEMS
1
city.
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Sentence
servant who fought for the little guy, but here is how you
bitches there in the healthcare field, you know, and they were
making thousands.
consultant.
Screw you.
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By that time
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values you had been brought up with and had apparently lived
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message.
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(212) 805-0300
Sentence
024AASEMS
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The
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You abused
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real motivation?
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government.
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temptation.
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Those
(212) 805-0300
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Sentence
024AASEMS
1
hearing.
circumstances.
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As I have said,
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months.
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in your life and I've considered your age and your physical
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condition.
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MR. ROSS:
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Prisons a facility.
(212) 805-0300
024AASEMS
1
level two medical facility which will be able to care for him
wife Katherine to see him and I therefore would ask that you
THE COURT:
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MR. ROSS.:
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In light of
two facility.
THE COURT:
Is there
anything else?
MR. HARRINGTON:
Very good.
Thank you.
(Adjourned)
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SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
1
05P8GONS
1
2
4
5
v.
EFRAIN GONZALEZ,
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7
Defendant.
------------------------------x
9
Before:
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HON. WILLIAM H. PAULEY III
11
District Judge
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APPEARANCES
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PREET BHARARA
United States Attorney for the
Southern District of New York
MICHAEL LEVY
PABLO QUINONES
Assistant United States Attorneys
LINKLATERS LLP
Attorneys for Defendant
LANCE CROFFOOT-SUEDE
PATRICK ASHBY
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(212) 805-0300
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05P8GONS
(Case called)
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THE COURT:
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Michael Levy
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THE COURT:
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at counsel table.
This matter is on for sentencing.
ready to proceed?
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MR. LEVY:
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MR. CROFFOOT-SUEDE:
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THE COURT:
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THE COURT:
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Very well.
(212) 805-0300
3
05P8GONS
MR. CROFFOOT-SUEDE:
THE COURT:
MR. CROFFOOT-SUEDE:
to thank his sons Efrain and Carlos for being here today, as
well as his other relatives and friends, for supporting him and
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Mr. Baum hit it head on with that quote, and I do think it's
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balance.
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(212) 805-0300
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05P8GONS
the defendant."
Gonzalez has done that has violated the laws, breached the
however, also to discuss what Mr. Gonzalez has done with the
We are here,
And so if
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suffer difficulties.
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one of them.
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Puerto Rico.
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give.
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(212) 805-0300
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05P8GONS
Wonder bread.
he got his GED, his diploma, and he got his security guard
number of years.
Israel Ruiz, and at that point in his life he was able to begin
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York, which I think we are all aware of, and in his time as a
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manner.
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(212) 805-0300
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05P8GONS
and Medicaid.
am.
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probation office, your Honor, that Mr. Gonzalez has used his
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with the law, not many of us have devoted our lives, even in
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Honor, who would not attest to the fact that Mr. Gonzalez has
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It is a story of
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(212) 805-0300
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05P8GONS
but we cannot.
nonetheless.
There may be
state once and potentially for all that his motion to withdraw
his guilty plea was his effort to try to stand trial with an
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Many
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the Court.
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what that meant, and he chose at the very last moment to plead
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He
He was told
He understood
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in context.
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(212) 805-0300
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05P8GONS
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the probation office saw the glimmer of what it was that Mr.
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Gonzalez was passionate about bringing forth, and that was his
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14
incurred on his credit card and were paid with moneys from WBNA
15
specifically.
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scheduled.
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approximately $200,000.
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(212) 805-0300
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05P8GONS
that the stenographer who attended the sentencing has been busy
transcript.
We were told
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sentencing minutes.
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it's just a form that gets filled out letting everyone know
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which Mr. Bruno received for Mr. Gonzalez would also not be out
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of line here.
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the fact that two members of our state legislature, who have
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(212) 805-0300
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05P8GONS
went to trial, the other who pled guilty but then did move to
withdraw his guilty plea, why they should not receive similar
sentences.
Honor.
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as we all know.
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We are
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(212) 805-0300
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05P8GONS
a basic problem with what is going on, and this extends to the
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use.
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program fraud.
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letter a day or two before the actual plea, which notified him
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(212) 805-0300
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05P8GONS
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On and on and on
11
all well aware of the fact that there are such things as Fatico
12
hearings, and we are well aware of the fact that the Court may
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of this case, Mr. Gonzalez did not plead guilty to any of that,
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cards that were paid by WBNA and ULAF and just saying there,
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your Honor, it's all bad, it's all money that was
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Gonzalez.
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(212) 805-0300
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05P8GONS
10
They told Mr. Gonzalez that they wouldn't require him to plead
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work.
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them to the Court, and say, Mr. Gonzalez converted all these
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moneys.
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(212) 805-0300
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05P8GONS
once, but they are really trying to shove lock through this
They want
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11
Only $122,000 of the forfeiture order that they would like this
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And again, with the 50 victims enhancement they have not tied
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addition to the fact that Mr. Gonzalez did not plead guilty to
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(212) 805-0300
15
05P8GONS
moneys that WBNA and/or ULAF had received for his personal
gain.
It
for the enhancement for the abuse of public trust and also
It is the same
10
conduct.
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12
for the abuse of the position of public trust based on the same
13
conduct.
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THE COURT:
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not-for-profits a victim?
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MR. CROFFOOT-SUEDE:
Why isn't
18
case, your Honor, that each of the moneys that that individual
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THE COURT:
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uses $50 to pay for an apartment, that couldn't have been what
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MR. CROFFOOT-SUEDE:
(212) 805-0300
16
05P8GONS
$100 that this contributor gave and those $100 were misused by
Mr. Gonzalez.
THE COURT:
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MR. CROFFOOT-SUEDE:
THE COURT:
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papers.
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Circuit.
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MR. CROFFOOT-SUEDE:
We
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is in our papers.
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here, your Honor, where the government has to admit that there
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WBNA and the same for ULAF, but then they just assert
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THE COURT:
There is no direct
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amount.
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(212) 805-0300
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05P8GONS
MR. CROFFOOT-SUEDE:
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THE COURT:
Because
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MR. CROFFOOT-SUEDE:
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THE COURT:
That's
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MR. CROFFOOT-SUEDE:
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far more than small amounts, and to the extent that the
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government wants to lump Pathways in, which they are saying was
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number.
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(212) 805-0300
18
05P8GONS
1
2
5
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MR. CROFFOOT-SUEDE:
all right.
MR. CROFFOOT-SUEDE:
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than 50 contributors.
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chunks of money.
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Gonzalez.
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(212) 805-0300
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05P8GONS
argument.
The
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that was what was the basis of the motion to withdraw the
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one.
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the Court that his plea was not voluntary, would seem to us to
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(212) 805-0300
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05P8GONS
He genuinely
affidavit.
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Mr. Gonzalez was not intending to dispute the fact that certain
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One
He never has
(212) 805-0300
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05P8GONS
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perpetrate the crimes that he has pled guilty to, and that he
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serious mistakes.
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time.
Mr. Gonzalez
He has made a
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To
To
(212) 805-0300
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05P8GONS
and that they have not done sufficient work to warrant the
actually says.
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consideration of an appeal.
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possible.
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We would, of
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(212) 805-0300
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05P8GONS
THE COURT:
MR. LEVY:
Yes.
first.
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your Honor has looked over the Arnaout case that the defendant
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the donors were other than to say $300,000 must have been the
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Money is fungible.
If 50 people
There is no way to
The
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Bronx.
(212) 805-0300
24
05P8GONS
continuous.
particular, around 2001 and 2003, when the vast majority of the
donors gave.
during 2001 and 2003, the off years, they went to West Bronx.
And if your Honor looks, and may well have looked, at the
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conspiracy.
17
But
The Seventh
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taken out of context, and if it's not, it's just wrong, and
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right.
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(212) 805-0300
25
05P8GONS
victimized.
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severe.
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Quite
In his sentencing
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He will never
(212) 805-0300
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05P8GONS
charity.
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He
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constitutional grounds.
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The Second
There is no argument
He is saying he
(212) 805-0300
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05P8GONS
didn't do it.
His
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occasion.
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crime.
23
It wasn't on occasion.
If
That's not on
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The government
(212) 805-0300
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05P8GONS
offense.
To
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responsibility.
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The
He is denying
This
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so.
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Now, he has a
(212) 805-0300
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05P8GONS
8
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called his lawyer and his lawyer scheduled the plea, and when
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we can't tell.
18
objective fact.
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defendant's affidavit.
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perfectly well.
That's a lie.
(212) 805-0300
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05P8GONS
about it.
He lied in his
The government
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9
It's an
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It is one
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13
to hear.
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not just from anyone, but from charities and from people who
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Unfortunately,
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here.
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legitimate causes.
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appropriate.
(212) 805-0300
31
05P8GONS
Bruno.
Bruno's case.
interest.
is, I'm a senator, Joe Bruno was a senator, anybody who looks
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11
Bruno discount.
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an aggravating factor.
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It's
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That cuts
(212) 805-0300
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05P8GONS
will send a message far and wide that this activity is OK, that
your constituency.
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appropriate.
14
THE COURT:
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MR. CROFFOOT-SUEDE:
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it in its overzealousness.
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25
We do not know
(212) 805-0300
33
05P8GONS
senator.
full well his sentence is already being enhanced two points for
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11
organization.
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It's the
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He was
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defendants.
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What is
(212) 805-0300
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05P8GONS
punishment.
sentence.
6
7
THE COURT:
MR. CROFFOOT-SUEDE:
THE COURT:
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Yes.
THE DEFENDANT:
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12
communities.
13
Thank you.
14
THE COURT:
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Foundation.
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This Court
(212) 805-0300
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05P8GONS
grouped together.
the guidelines.
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victims.
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v. Abiodun, 536 F.3d 162 (2d Cir. 2008) (quoting from the
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evidence.
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2008).
25
United States
A sentencing
(212) 805-0300
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05P8GONS
Foundation.
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Dominican Republic.
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warranted.
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a charitable organization.
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25
Friedberg, 558 F.3d 131 (2d Cir. 2009) (quoting from the
In
United States v.
(212) 805-0300
37
05P8GONS
133-34.
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11
As the
enhancement.
Here, an enhancement for abusing a position of public
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In perpetrating his
The abuse
(212) 805-0300
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05P8GONS
1
2
warranted.
Now, the government argues that Mr. Gonzalez should
instant offense."
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13
United
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23
Accordingly, I
But now that his motion to withdraw his plea has been
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"In
(212) 805-0300
39
05P8GONS
factual guilt."
2001).
2002).
8
9
See also United States v. Cox, 299 F.3d 143 (2d Cir.
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the import of his words in his allocution, this Court can only
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The defendant
In
Moreover, even in
(212) 805-0300
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05P8GONS
I.
Mr. Croffoot-Suede
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12
In
13
14
lost his high public office as a New York State senator with a
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16
again.
17
performed some good and generous acts throughout his life and
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He has
While he undoubtedly
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(212) 805-0300
41
05P8GONS
acts and to ensure general deterrence among those who would try
While this
And it is
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have committed and the harm that you have caused to the people
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16
of the public.
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personal gain, and charitable funds for your personal gain, you
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decided that you should not continue in office, there are more
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(212) 805-0300
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05P8GONS
Counts Two and Three and 84 months on each of Counts Six and
10
supervised release.
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in this case.
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this Court.
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appeal.
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government?
MR. LEVY:
(212) 805-0300
43
05P8GONS
would ask for the 90-day period that is allowed under the
statute.
would ask for the 90 days so that the city can show the flow of
8
9
THE COURT:
MR. LEVY:
10
The city
A while ago.
11
don't think our office made clear to them early enough that
12
13
make that clear, I think they are working on showing the money
14
trail.
15
THE COURT:
Since we did
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Prisons.
21
He
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MR. CROFFOOT-SUEDE:
(212) 805-0300
44
05P8GONS
THE COURT:
surrender.
MR. CROFFOOT-SUEDE:
THE COURT:
MR. LEVY:
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THE COURT:
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MR. LEVY:
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THE COURT:
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MR. CROFFOOT-SUEDE:
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THE COURT:
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(212) 805-0300
Plaintiff ,
-against-
KELLY T. CURRIE
United States Attorney
BY: ROBERT L. CAPERS
LAN NGUYEN
MARISA M. SEIFAN
TANYA Y. HILL
Assistant United States Attorneys
271 Cadman Plaza East
Brooklyn, New York
Court Reporter:
Charleane M. Heading
225 Cadman Plaza East
Brooklyn, New York
(718) 613-2643
20
23
25
18
24
APPEARANCES:
17
22
TRANSCRIPT OF SENTENCING
BEFORE THE HONORABLE SANDRA L. TOWNES
UNITED STATES DISTRICT JUDGE.
16
21
:
:
15
19
11-CR-850(SLT)
CMH
OCR
RMR
CRR
FCRR
THE CLERK:
number 11-CR-850.
Boyland.
4
5
Docket
MS. NGUYEN:
Lan Nguyen,
Marisa Seifan, Robert Capers and Tanya Hill for the United
States.
10
11
Probation Department.
12
THE COURT:
13
14
15
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18
Good morning.
morning?
MS. NGUYEN:
19
THE COURT:
20
THE DEFENDANT:
21
THE COURT:
Stuart
Yes.
22
23
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25
CMH
OCR
RMR
CRR
FCRR
paragraph 61.
4
5
MR. GROSSMAN:
THE COURT:
Right.
MR. GROSSMAN:
I cited the
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11
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13
THE COURT:
All right.
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double counting.
Is that correct?
19
MR. GROSSMAN:
20
THE COURT:
21
All right.
22
MR. GROSSMAN:
23
THE COURT:
24
MS. SEIFAN:
25
THE COURT:
CMH
OCR
RMR
CRR
FCRR
10
11
As noted in application
12
13
14
15
16
17
18
officials.
19
20
The enhancement
21
22
this.
23
24
court.
25
CMH
OCR
RMR
CRR
FCRR
20 years.
of imprisonment of 10 years.
10
Count Two:
Count Five:
Bribery
Count Four:
Honest services
11
12
imprisonment of 20 years.
13
Count Sixteen:
14
15
20 years.
16
17
years.
18
19
of 20 years.
20
21
Count Twenty:
22
23
Count Twenty-One:
24
25
years.
Count Seventeen:
Count Eighteen:
Count Nineteen:
CMH
And
OCR
RMR
CRR
FCRR
convictions.
10
11
12
13
14
15
MS. SEIFAN:
16
MS. TIBBITS:
17
THE COURT:
18
19
20
Wait.
talk, not loudly, and then tell me what it is you want it say.
MS. HILL:
21
THE COURT:
22
23
Oh, yes.
Mr. Grossman?
24
MR. GROSSMAN:
25
THE COURT:
CMH
Okay.
OCR
RMR
CRR
FCRR
MR. GROSSMAN:
community.
in mentoring and nurturing young men and women from the, who
10
11
people did.
12
13
14
15
16
17
18
19
20
21
life.
22
He also
23
24
25
CMH
OCR
RMR
CRR
FCRR
fact that he's worked his entire life to help his community
sponsored or co-sponsored.
10
11
well aware, there are legislators who work not that hard,
12
13
14
15
Of course,
16
17
18
19
20
legislative responsibilities.
21
22
community.
23
24
25
loving, caring father, spent just about every weekend with his
CMH
OCR
RMR
CRR
FCRR
last five to eight, ten years, and the sentences they got for
THE COURT:
I don't see in
10
11
12
13
14
MR. GROSSMAN:
I didn't see
15
16
17
18
19
20
differently.
21
22
what Mr. Boyland has done and what kind of sentence that he
23
got.
24
25
THE COURT:
CMH
OCR
RMR
CRR
FCRR
That
MR. GROSSMAN:
THE COURT:
Well --
ex-legislators.
MR. GROSSMAN:
10
11
12
13
indicated.
14
THE COURT:
Okay.
15
understand you.
16
defendant was part of four schemes, not just what you have
17
just discussed, but then when you finish that, there are three
18
others.
19
MR. GROSSMAN:
I'm
20
not naive about that fact and just to finish what I was
21
22
23
24
25
CMH
OCR
RMR
CRR
FCRR
this.
bottom end of the guideline of 235 months and the top end of
262 months.
I would just point out to the Court that off the top
10
11
12
13
14
15
16
17
It seems
I know the
18
THE COURT:
Yes.
19
MR. GROSSMAN:
20
21
22
23
24
25
CMH
OCR
RMR
CRR
FCRR
7
8
THE COURT:
Okay.
MS. SEIFAN:
10
11
12
13
14
15
Brooklyn.
16
17
18
highest bidder.
19
He sold it to the
20
21
22
23
24
25
CMH
OCR
RMR
CRR
FCRR
New York and being on pretrial release did not deter Boyland
his conviction in this case when the Court remanded him into
custody.
10
Boyland was a lawmaker who simply believed the law did not
11
apply to him.
12
who violated the public trust, abused the power of his office
13
14
another district.
15
16
17
criminal conduct.
18
19
20
21
22
officials.
23
24
25
CMH
OCR
RMR
CRR
FCRR
point where the rule of law applies to all, not only to the
8
9
10
11
12
THE COURT:
13
It
14
THE DEFENDANT:
15
THE COURT:
16
THE DEFENDANT:
Yes, ma'am.
All right.
Go ahead.
17
18
19
20
21
they had her sign her home over unbeknownst to her, of course.
22
Through help with both State and City offices, we were able to
23
get that home back and, again, it wasn't about the work.
24
was about the fact that this woman would come by our house and
25
CMH
OCR
RMR
CRR
FCRR
It
help her to have some, some, some hope in, in the elective
process.
10
11
To the young man who came into our offices with a gun because
12
it was the only way he knew how to deal with his conflicts.
13
14
15
16
and turn the gun in and turn this same man around as well.
17
18
19
it's always been something that I think I thank God for, Your
20
21
Thank you.
22
THE COURT:
23
All right.
24
25
CMH
OCR
RMR
CRR
FCRR
$250,000.
10
defendant.
11
12
13
14
15
him other than what I had heard during the proof the trial, I
16
17
defendant.
18
19
20
21
some good and he also did the work, some of the work that he
22
23
24
25
CMH
OCR
RMR
CRR
FCRR
office for which he was elected and betrayed the trust of his
constituents.
10
11
12
13
14
15
16
a lawyer.
17
18
19
20
21
22
23
24
25
CMH
OCR
RMR
CRR
On recordings, the
FCRR
the politician.
this end so we know the folks that can pull the sort of
with his help, state grant money to renovate the hospital and
He
10
11
12
13
14
15
16
17
18
During a conversation
19
20
21
22
23
24
25
conversation you can have that, you know, especially with what
CMH
OCR
And
RMR
CRR
FCRR
The
The defendant
10
11
12
13
14
15
16
In reliance on these
17
The defendant
18
19
20
21
22
Office for the Aging, be used to pay for political events from
23
him even though he knew that in getting this money, it was not
24
25
opportunity.
CMH
OCR
RMR
CRR
FCRR
$235,535.
politically.
he was engaging in the carnival and real estate scheme and the
10
11
12
13
14
15
16
must be deterred, but also others who would act in the way
17
18
19
3553(a).
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21
22
23
24
25
CMH
OCR
RMR
CRR
I also
FCRR
the sentencing guidelines as they are here and the very high
guidelines.
10
11
12
13
14
15
16
17
18
Count Three,
19
60 months' imprisonment.
20
21
22
23
24
25
Counts Five
CMH
OCR
RMR
CRR
FCRR
State Office for the Aging due immediately and payable to the
10
11
12
13
release.
14
15
16
17
18
concurrently.
19
20
21
22
23
order that has been presented by the government and I have not
24
25
MR. GROSSMAN:
CMH
OCR
RMR
CRR
FCRR
THE COURT:
All right.
orders.
Officer.
10
11
12
13
requirements.
14
15
16
17
18
19
20
total of $2,100.
21
22
MS. NGUYEN:
23
24
25
rights to appeal.
CMH
OCR
RMR
CRR
FCRR
MS. NGUYEN:
Yes.
THE COURT:
MR. GROSSMAN:
THE COURT:
No, Judge.
appeal.
All right.
10
We are adjourned.
(Matter concluded.)
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12
13
14
15
16
17
18
19
20
21
22
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CMH
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Case
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E5LUSTES
1
2
v.
13 CR 161(LAP)
ERIC STEVENSON,
6
7
Defendant.
---------------------------------x
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Before:
LORETTA A. PRESKA
13
District Judge
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APPEARANCES
PREET BHARARA
United States Attorney for the
Southern District of New York
BY: BRIAN A. JACOBS
PAUL M. KRIEGER
Assistant United States Attorneys
PISHOY YACOUB
Special Assistant United States Attorney
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21
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23
24
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ALSO PRESENT
John Barry, Criminal Investigator
Stephanie DeAngelis, Intern, Law Offices of Murray Richman
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
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E5LUSTES
THE COURT:
THE COURT:
MR. RICHMAN:
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intern.
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THE COURT:
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Excellent.
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MR. RICHMAN:
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THE COURT:
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MR. RICHMAN:
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THE COURT:
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Thank you.
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E5LUSTES
MR. RICHMAN:
THE COURT:
Thank you.
level of 24 is appropriate.
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THE COURT:
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THE COURT:
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MR. RICHMAN:
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THE COURT:
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Yes, sir.
Thank you, your Honor.
Mr. Stevenson?
MR. RICHMAN:
I would.
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E5LUSTES
THE COURT:
MR. RICHMAN:
Yes, sir.
If the Court pleases, I have not been
years.
THE COURT:
MR. RICHMAN:
10
11
12
came in, and I have been familiar with the facts and
13
circumstances up to a point.
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THE COURT:
17
MR. RICHMAN:
Yes, sir.
That was subsequently changed, and we
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I am
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E5LUSTES
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I
This
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He said, no,
I want to do
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affair which the government says, that was bribery because they
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If that is the
He says that
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E5LUSTES
this.
him:
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for you.
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what's right.
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living.
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I see
This man
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man."
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We are
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The good man is not here who has not been tempted, but he who
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25
And I recognize
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E5LUSTES
that was the only argument that I saw for his defense
throughout.
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11
trial?
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made and he came to me, and I called Mr. Jacobs, and he said it
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15
these things.
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You cannot do
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is an elected official.
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is.
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He got
He is what he
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25
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E5LUSTES
part.
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Probation
You know, you have four people who did the bribing.
They just didn't bribe one man, they bribed two assemblymen and
10
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responsibility.
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The
THE COURT:
16
Richman.
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a public official.
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oranges.
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E5LUSTES
is conveyed is that, here are the parties that were wealthy and
they were able to bribe two different public officials and they
greater sentence.
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crack cocaine.
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hands.
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have the quote over here that uses the very argument that I
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apply the law the same way they did to these persons.
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justice.
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attention.
Probation has gone out of their way to recommend that this man
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THE COURT:
14
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behalf?
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THE DEFENDANT:
17
THE COURT:
18
THE DEFENDANT:
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20
happened.
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sentenced.
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25
I am sorry it ever
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E5LUSTES
was and I stopped him and said hello to him and told him about
me, maybe one day if you keep working hard, you will go through
And he told
tried my best.
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11
I worked hard.
12
or color.
13
servicing people.
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and what the government and them is asking just seems so beyond
18
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I say
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Thank you.
23
THE COURT:
24
25
Yes, sir.
Thank you.
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12
their word, that Mr. Stevenson has done good for the community,
same community which takes place when a lawmaker sells his core
appropriate.
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hardship.
12
are absurd.
13
14
household.
15
16
clear that Mr. Stevenson earned more than $72,000 a year, which
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19
that poor men should not be tempted, that simply does not
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His decision to commit the crime was the product of his own
11
choice and not any persuasion and not any coercion on the part
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showed otherwise.
20
several months.
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other side of the balance, Mr. Stevenson has done good and does
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THE COURT:
MR. RICHMAN:
Thank you.
what went on during the course of the trial and not having the
before, that the attempt to bribe was made by the one who was
10
11
stop it?
12
Thank you.
13
THE COURT:
14
15
16
17
18
Thank you.
19
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24
sentencing guidelines.
25
15
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to.
So the guideline
It
Mr. Richman has said about Mr. Stevenson's life, and I take
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for money.
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I do note the
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"Are Igor
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money on it.
sponsor too.
inauguration.
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so minded.
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his community.
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disparities perceived.
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release.
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MR. RICHMAN:
21
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THE COURT:
23
Mr. Stevenson.
24
THE DEFENDANT:
25
THE COURT:
Very well.
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months' incarceration.
THE DEFENDANT:
THE COURT:
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5
Yes, ma'am.
18
10
are that you not commit another state, federal or local crime,
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MR. RICHMAN:
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THE COURT:
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19
waived it, you have the right to appeal this sentence and you
MR. RICHMAN:
Most respectfully, I
I would ask
10
11
forma pauperis.
12
now.
13
THE COURT:
14
MR. RICHMAN:
Yes.
15
under that basis, but I have the financial affidavit from last
16
year.
17
THE COURT:
Yes.
18
MR. RICHMAN:
19
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21
take.
22
THE COURT:
23
MR. RICHMAN:
24
25
THE COURT:
Yes, sir.
I respectfully request the first week of
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Connecticut.
indictments.
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MR. RICHMAN:
I have no objection.
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THE COURT:
12
So ordered.
You have a
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community.
17
THE DEFENDANT:
18
THE COURT:
Thank you.
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SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300