Scinto Defense Sentencing Memo

Case 3: 1 0-cr-00207 -CSH Document 27 Fifed· 03/28/11 .
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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

3:10CR207(CSH)

UNITED STATES OF AMERICA.

Plaintiff,

v.

ROBERT D. SCINTO, Defendant.

DEFENDANT'S MEMORANDUM IN AID OF SENTENCING

Defendant,

ROBERT D. SCINTO

James T. Cowdery (ctOSl03)

COWDERY, ECKER & MURPHY, LL.C. 280 Trumbull Street

Hartford, CT 06103

(860) 278-5555

(860) 249~0012 Fax jcowdery@cernlaw.com

- His Attorneys-

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Case 3:10-cr-00207-CSH Document 27 Filed 03/28/11 Page 2 of 44

TABLE OF CONTENTS

Page

L PROCEDURAL HISTORY 1

n. THE GUIDELINES CALCULATION 2

A. Cross Reference Is Improper Because The Charging Document Does Not

"Establishl] The Elements of Another Offense" 3

B. The Information Fails To "EstablishD The Elements" Of Improper

Gratuity. . _ 4

1. The Information Does Not Allege Mr. Scinto Bestowed A Gratuity .

Upon A "Public Official" 5

2. The Information Does Not Allege Mr. Scinto Bestowed A Gift "For or

Because of' An Official Act. . 7

ill. APPLYING THEORA TUITY GUIDELINE HERE WOULD VIOLATE

PRINCIPLES OF FEDERALISM AND SEPARATION OF POWERS 8

IV. SENTENCING FACTORS UNDER SECTION 3553(a) 11

A. - Robert Scinto's History And Characteristics 12

1. Brief History. 12

2. Characteristics 15

a. Generosity. .. . . . . '. . . . . . . . . _ . . . . . . . . . . . . . . . . . . . . . . . . . . 15

h. Commitment To Education _ , . , , 18

c. Contribution To Community Life ....•.......... , , . , , , , , , . 20

d. Support For The Disabled. . , , , , 23

e. Faith And Supp011 Of The Church, .. , , 24

f. Loyalty.. , , ', . , 25

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g. Other Charitable Work. . 26

h. Family , 27

B. Nature And Circumstances Of The Offense. . 28

1. The False Statements. , 28

2. The Gifts. . , 28

C. The Kinds Of Sentence And Sentencing Range Under The

Guidelines. .........,.........................................., 31

D. The Need For The Sentence To Provide Just Punishment 31

. E. The Need To Afford Adequate Deterrence: Community Service

Obligation. , , , 33

F. The Need To Avoid Unwarranted Sentence Disparities. ., 35

v.

REQUEST FOR DOWNWARD DEPARTURE OR NON-GUIDELINE

SENTENCE , , 37

VI.

SENTENCING REQUEST AND CONCLUSION 39

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Case 3:1 O-cr-00207 -CSH Document 27 Filed 03/28/11 . Page 4 of 44

UNITED STATES DISTRICT COURT DISTRI.CT OF CONNECTICUT

UNITED STATES OF AMERICA

NO.3:10CR207(CSH)

v.

ROBERT D. SCINTO,

Defendant.

March 28,2011

DEFENDANT'S MEMORANDUM IN AID OF SENTENCING

The defendant Robert Scinto respectfully submits this memorandum in aid of his

sentencing, scheduled for April 6, 2011. As explained more fully below, we submit that a

sentence of probation, with special conditions of home confinement and a targeted community

service obligation, and a fine will be sufficient, but not greater than necessary, to achieve the

purposes of sentencing set forth in 18 U.S.C. § 3553(a).

I. PROCEDURAL HISTORY

On October 21, 2010, Mr. Scinto waived indictment and entered a plea of guilty to a one-

count information charging him with making false statements to the FBI in violation of 18 U.S.C.

§ 1001, Mr. Scinto executed a plea agreement letter and stipulation dated October 21, 2010 in

connection with his guilty plea, He was released on a nonsurcty bond pending sentencing.

Meghan Nagy of the United States Probation Office has prepared a thorough presentence report,

which has been fully reviewed and commented upon, as discussed more fully.below,

Case 3: 1 O-cr-00207-CSH Document 27 Filed 03/28/11 Page 5 of 44

n. THE GUIDELINES CALCULATION

/

Even though Mr. Scinto pled guilty to a violation of the false statement statute, 18

U.S.C. § 1001, the presentence report calculated his sentencing guideline range using the

gratuity guideline, U.S.S.G. § 2C1.2, rather than the false statement guideline, U.S.S.G. §

2B 1.1. The presentence report determined that it was appropriate to use the gratuity guideline

because ofthe "cross-reference" provision ofU.S.S.G. § 2Bl.l(c)(3), discussed below. The two

guideline sections lead to very different sentencing ranges, as the following table reflects:

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False Statement (2Bl.I) Improper Gratuity (2Cl.2)

Base offense level 6 Base offense level 9
Loss> $10,000 < $30,000 +4 Loss> $10,000 < $30,000 +4
More than 1 gratuity +2
Elected public official +4
Total offense level 10 Total offense level 19
Less acceptance -2 Less acceptance -3
Adjusted offense level 8 Adjusted offense level 16
Sentencing range 0-6 mos. Sentencing range 21-27 mos. The Court should calculate the applicable guideline range pursuant to § 2BI.l. nul §

2Cl.2. For the reasons discussed below. using the cross-reference provision to apply the

improper gratuity guideline to Mr. Scinto would constitute error. ~ United States y. Dorvee.

616 F.3d 174, 179 (2d CiT. 2010) (noting that improper calculation of guideline range

constitutes "significant procedural error").

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A. Cross Reference Applies Only When The Charging Document "Establishes The Elements of Another Offense"

Cross reference is permitted under § 2B 1.1 ( c )(3) only where "the conduct set forth in the

count of conviction establishes an offense specifically covered by another guideline in Chapter

Two." U.S.S.G. § 2B1.1(c)(3)(empbasis added). The Second Circuit has interpreted this

language to require that ''the conduct alleged in the . . . indictment ... establishD the elements

of another offense." United States v. Genao, 343 F.3d 578, 583 (2d Cir.2003). Genao has two

components that are important here. First, the allegations must be contained in the indictment

or information itself, not in the PSR or the Stipulation of Offense Conduct. See id. at 584 n.7

("a sentencing court may no longer consider conduct set forth in a stipulation (but not in the

indictment) in determining whether the cross-reference provision applies") .. Second, the

information must establish the elements of another offense, in this case the illegal gratuity

statute, 18U.S.C. § 201 (c)(l)(A). See id. at 583. As discussed below, the PSR's application of

cross-reference provision runs afoul of both these requirements.

The Court in Genao based its conclusion on both the specific wording and the history of

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§ 2B 1.1 (c )(3). The Court's textual analysis relied on the plain meaning of § 2B 1.1 (c )(3). noting

that a cross reference could be undertaken "only if 'the conduct set forth in the count of

conviction establishes an offense specifically covered by another guideline in Chapter Two. '"

Id. (emphasis in original), ciring V.S.S.G. § 2B1.1(c)(3). The Court's historical analysis noted

that the prior version of § 2B 1.1 ( c )(3) contained broader language, permitting cross reference

whenever the indictment or information "establishe[d] an offense more aptly covered" by

another guideline provision, id. (emphasis in original), citing cmt, 14, while the later version

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allows cross reference only when the indictment or information establishes an offense specifically covered by another guideline. The Genao Court reasonably interpreted "[t]his change [toJ limitj] the applicability of the cross-reference provision to situations in which the conduct set forth in the relevant count of the indictment actually constitutes an offense covered by another Guideline." Id. at 584 (emphasis added). Genao is the law in the Second Circuit. Moreover, its reasoning has persuaded at least three other Circuits to follow suit. See United States v. Arturo Garci!!, 590 F.3d 308, 315-16 (5th Cir. 2009); United States v. B§h, 439 F.3d 423,427 (8th Cir. 2006); United States v. Kim, 95 Fed. Appx. 857,861-62 (9th Cir. 2004).

For the reasons set forth below, the Information in this case fails to "establish 0 the elements" of a gratuity offense. As a result, the cross-reference provision does not apply, and the Court should calculate Mr, Scinto's guidelines under § 2Bl.1, the guideline for false statements. See Genao. 343 F.3d at 583.

B. The Information Fails To "Establish[] the Elements" Of Improper GratuitY

An improper gratuity offense is defined in 18 U.S.C. § 201(c)(1)(A) as "giv[ing], offer[ing], or promis[ing] anything of value to any public official, former public official, or person selected to be a public official, for or because of any official act performed or to be performed by such public official." Thus, the clements of this offense are:

The defendant knowingly gave a gift or gifts

.. To a public official, as defined

Fur or because uf an official ad by that public official

Sand, Federal Jury Instructions, Instruction 16-7; 1 Tnited States v. Snn-Diamonil ('flowers of CalifOrnia, 526 U.S, 39R, 404 (1999). As discussed below, the allegations contained in the Information fall far short of "establishjing] the elements" of an improper gratuity.

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1. The Information Does Not Allege Mr. Scinto Bestowed A Gratuity Upon A "Public Official"

Section 201 defines "public official" to include any:

Member of Congress, Delegate, or Resident Commissioner, ... or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof ... in any official function, under or by authority of any such department, agency, or branch of Government, or ajuror.

18 U.S.C. § 201(a)(1). Not surprisingly, courts have limited the reach of this statute to federal

officials and employees, or individuals charged with carrying out official federal responsibilities

under or by the authority of an agency or department of the federal government. See Dixson v.

United States, 465 U.S. 482.499-500 (1984). A city employee carrying out purely municipal

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functions does not qualify as a "public official" within the meaning of section 201(a)(1). See

United States v. DelToro, 513 F.3d 656. 662 (2d Cir. 1975) (holding that "a cityemploy.ee,

carrying out a task delegated to him by his superior, another city employee" was outside scope

of statutory definition). Here, the Information makes no allegations concerning any federal

responsibilities held by Building Official #1 or Public Official #1. To the contrary, it is clear

that Building Official #1 is a city employee simply carrying out his assigned municipal duties.

Likewise, the Information does not allege that any of the gifts to Public Official # 1 had anything

to do with a federal program or policy being carried out by him. As such, the Infonuation fails

to establish this crucial element of section 201 (c) (1) (A).

The government might claim that this element has been satisfied by pointing to the broad

definition of "public official" in Application Note 1 ofU.S.S.G. § 2Cl.2. However, relying on

the guideline provision instead of the statute would be error. "Amendment 591 to the

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guidelines, which took effect on November 1, 2000, requires the initial selection of the

applicable offense guideline to be based only on statute." United States v. Ferranti, No.

10-771-cr, 2011 WL 605275, *1 (2d Cir. Feb. 22, 2011) (emphasis added). See also United

States v. Rivera, 293 F.3d 584, 586-87 (2d Cir, 2002) (noting that a sentencing court must first

choose the applicable offense guideline based on the statute, then may consider relevant conduct

and specific offense characteristics in choosing the appropriate base offense level thereafter).

This approach makes perfect sense. A crime is committed only when a statute - not a guideline

provision - is violated. .A statute codifies anoffense .. while the corresponding guideline

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provision advises as to the manner in which the statutorily defined offense may be punished. In

fact, the Court in Genao followed this same logical procedure, analyzing the statute instead of

the guideline provision to determine whether the other offense had been established. See 343

F.3d at 585 (,·We also agree with the District Court that the conduct set forth in ... the

indictment does not establish a violation of 18 U.S.C. § 1512."). Moreover, because the

guidelines' definition of "public official" in Application Note 1 to U.8.S.G. § 2C1.2 is a

conglomeration of the several statutes that apply to this provision, it cannot be a reliable source

for determining whether an individual element of one specific offense has been established. As

such, looking to the guidelines' definition of "public official" instead of the statutory definition

of the term in section 201 would mistakenly reverse the order of this important analysis.

Because the Information fails to establish that a gift was made to a "public official," it

cannot "establishj]" an essential element of 18 U.S.C. § 201, Genao, 343 F.3d at 583, making a

cross reference inappropriate here.

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2. The Information Does Not Allege Mr. Scinto Bestowed A Gift "For or Because of' An Official Act

Even if the Information could establish that a gift had been made to a "public official," a

gratuity offense still would not be "establish] ed]" because the Information does not allege that

any item ofva1ue was given "for or because of any official act." 18 U.S.C. § 201(c)(1)(A).

Courts have interpreted this statutory language to require a specific link between the thing of

value conferred upon the public official and the specific official act for or because of which it

was given. In United States v. Sun-Diamond Growers of California, 526 U.S. 398, 405 (1999),

the Supreme Court decided that section 201 (c) does not "reachj] any effort to buy favor or

generalized goodwill from an official who . . . [is] in a position to act favorably to the giver's

interests." Instead, "some particular official act [must} be identified and proved." Id. at 406.

Under Sun-Diamond and the statutory text, it is clear that the Information in this case has not

alleged the offense of improper gratuity.

The Information alleges only four circumstances, beyond Christmas gifts, where Mr.

Scinto gave items of value to City of Shelton employees. All four lack the nexus required by

section 20 1 (c) and Sun-Diamond that the items be conferred "for or because of any official act."

The allegations that Mr, Sciuto paid for a service related to Public Official #I's business and

provided $500 cash to Public Official #1 do 110t even mention any "official act," much less say

that they were provided. "for or because of' one. As such, they do not establish a violation of

the gratuity statute. The remaining allegations pertain to Building Official #1. The Information

states that Mr. Scinto provided $2,500 cash to Building Official #1 in response to his request,

but again there is no allegation that it was for or because of an official act. Finally, the

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Information alleges that Mr. Scinto provided cash to Building Official #1 "when" he was issuing

certificates of occupancy. However, this temporal reference falls short of the specific link

required to establish a violation of section 201 (c). An improper gratuity occurs only when the

items of value "were given and accepted in exchange for [the receiver's] efforts on behalf of

[the payer}." United States v. Biaggi, 853 F.2d 89, 99 (2d Cir.1988) (emphasis added). There

was no such allegation in the Information in this case. See also United States v. Biaggi, 909

F.2d 662,682 (2d Cir. 1990). Because each of the alleged gifts fails to link to any

corresponding official act, the statutory test under section 201 cannot be satisfied,

Simply put, the Information does not allege the required "for or because of" connection

between any item of value and any official act necessary to establish an improper gratuity,

Because both this element and the required "public official" element are lacking, a cross

reference to the gratuity guideline is not authorized.

nr, APPLYING THE GRATUITY GUIDELINE HERE WOULD VIOLATE PRINCIPLES OF FEDERALISM AND SEPARATION OF POWERS

In view of the purely local character of Mr. Scinto's gift-giving and the absence of any

federal interest affected by that conduct, applying the gratuity guideline here would violate

principles of federalism that constrain the reach of federal criminal statutes and prosecutions

seeking to enforce them. This is reason enough for the Court to reject the government's

guidelines analysis, but the argument for respecting federalism limits is even stronger here

. because Congress itself clearly intended to respect those limits on its power by ensuring that the

federal gratuity statute reach only gratuities affecting federal interests. A judicial decision to

apply a sentencing guideline to purely local conduct intentionally left untouched by Congress

would raise grave questions not only of federalism, but also of separation of powers. This Court

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should decline to do so here.

First, the Supreme Court has made clear that constitutional principles of federalism sharply curtail Congress's ability to make federal criminal law, see,~, United States v. Lopez, 514 U.S. 549, 567 (1995) (Constitution denies a "general police power" to Congress and affirms the states' retention of it), and the Court has enforced this structural limitation on federal power by construing federal criminal statutes narrowly where necessary to avoid authorizing federal intrusion into the internal affairs of a state or locality. Thus, for example, in McNally v. United ~ 483 U.S. 350,352, 360 (1987), the Supreme Court rejected the government's contention that the mail fraud statute encompassed, under the honest-services theory of fraud, a state public official's undisclosed self-dealing scheme involving kickbacks from a private citizen. The Court noted, as one of its key reasons for rejecting the government's claim, that endorsing the honest-services theory would "involvej] the Federal Government in setting standards of disclosure and good government for local and state officialsj.]" ld. at 360. More recently, in Skilling v. United States, 130 S.Ct. 2896, 2929-31 (2010). the Court was guided by similar due process and vagueness considerations in limiting the scope of the honest services statute (which had been enacted after McNally to overrule it) to bribery or kickbacks. By limiting the statute to this well-understood and well-defined conduct, the Court clearly was seeking to avoid, among other difficulties, the problem noted in McNally - giving license to federal prosecutors to intrude in the functions of state and local governments, cf. id. at 2932-34 & n.44 (discussing concerns about lack of definiteness in liability standard and arbitrary prosecutions); Sarich v. United States, 129 S.Ct 1308, 1310 (2009) (Scalia, J., dissenting from denial of certiorari).

Treating Mr. Scinto's gift-giving to local municipal officials as afederal offense so as to

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permit application of the gratuity guideline would violate the teaching ofMcNaUy and Slcilling.

He was not charged with, did not plead guilty to, and does not stand convicted of, bribery or

kickbacks. The recipients ofbis gifts were local officials who were not carrying out official

federal responsibilities, and so his conduct plainly falls outside of the federal gratuity statute.

There being no plausible theory of federal criminal wrongdoing in regard to the gift-giving, two

facts are especially significant: the State of Connecticut long ago made a deliberate public policy

decision not to criminalize gift-giving of the sort at issue here by repealing its criminal gratuity

provision,' and the City of Shelton's ethics code imposes a subjective standard that entrusts

significant discretion to municipal officials in their dealings with private citizens. See footnote

2, p. 31 infra. As a consequence; the Supreme Court's federalism concerns in McNally,

implicitly reaffirmed in Skilling, apply here with particular force and require rej ection of the

government's gratuity theory. Cf. Cleveland v. United States, 531 U.S. 12,24 (2000)(rejecting

government theory that "would subject to federal mail fraud prosecution a wide range of

conduct traditionally regulated by state and local authorities").

Sel:und, Iederalism concerns ate even more compelling in the present context - and

compounded by separation of powers concerns - because Congress itself made clear its

intention to respect federalism constraints on its power by limiting the scope of the gratuity

statute so that it protects onlyfederal interests. Thus, the gratuity statute is expressly limited to

gratutties involving federal officials and employees, or individuals charged with carrying out

official federal responsibilities. 18 U.S.C. § 201 (a); Dixson, 465 U.S. at 499-00. Mr. Scinto

I Connecticut repealed its gratuity statute, former Conn. Gen. Stat. § 53-:266, in 1969, ~ Public Act No. 828 (1969) § 214 (effective October 1,1971).

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gave gifts to purely local municipal officials, so, apart from the fact that the federal gratuity statute does not even encompass his conduct to begin "With, the federal interests sought to be vindicated by the statute plainly are not present here.

A longstanding rule used to interpret federalism limitations reveals the extreme position being taken by the government in this case. The rule is that "if Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear ill the language of the statute." Gregory v. Ashcroft, 501 U.S, 452, 460-61 (1991) (internal quotation marks and citations omitted); ~ also Solid Waste Agency of North em Cook Countyv. U.S. Anuy COlpS of Engineers, 531 U.s. 159, 172-73 (2001) (noting that this issue is "heightened where [an J administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power"); Cleveland, 531 U.S. at 25; United States v. Bass, 404 U.S. 336,349 (1971). But with respect to criminalizing gratuities, not only did Congress not make an intention to encroach on state regulatory power "unmistakably clear," it clearly indicated a contrary intention by leaving purely local graluily CUI1uuCl untouched,

IV. SENTENCING ll'ACTORS UNDER SECTION 3553(3)

A sentence must be sufficient, but not greater than necessary, to carry out the purposes of sentencing -- as relevant here, the need to reflect the seriousness of the offense, promote respect for the law, provide just punishment and afford adequate deterrence. 18 V.S.C. § 3553(a)(2). After determining the proper guideline range, the court, in making its sentencing determination, "must form its own view of the 'nature and circumstances of the offense and the history and characteristics of the defendant.'?' United States v. Cavera, 550 F.3d 180. 188 (2d Cir. 2008)

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(en bane), quoting 18 U.S.C. § 3553(a)(1). Furthermore, the court must consider the kinds of

sentences available, the sentencing guideline range, the need to avoid unwarranted sentence

disparities and the need to provide restitution. 18 U.S.C. § 3553(a)(3)-(J); Caver!b 550 F.3d at

188-89. Here. the section 3553 factors fully support the sentence we propose.

A. Robert Scinto's History And Characteristics

1. Brief History

Bob Scinto was born and raised in a working-class family in the West End of Bridgeport,

Connecticut. (pSR if 35; letter of Alan Fischer). His father, a plumber who ran his business out

of the basement of their house, worked long hours to support the family; he was fondly recalled

as someone "hard as flint" who handed nothing to Mr. Scinto. (pSR ~ 37; letter of Mark

Cassidy). By the time he was in third grade, Mr. Scinto was working as a helper in his father's

plumbing business and being paid a penny for each fitting that he cleaned and buffed. (pSR ~

40). Mr. Scinto's mother, Doxie, stayed at home to take care of the kids and the house; it was

with her that Bob fanned his strongest bond. (pSR 'If 35,38). Doxie, now 93, lives in an

assisted living facility and suffers from early dementia; Mr. Scinto calls her every day, visits her

weekly, takes her to dinner and sees that her needs are attended. (pSR ~ 35; letter of John

Stamos).

School was a tremendous challenge for Mr. Scinto. Because of an early hearing defect

that eventually resolved itself. Mr. Scinto had profound difficulties with pronunciation and '

speech and, in addition, suffered severe dyslexia. (PSR ~ 38). A childhood friend recalled that

Mr. Scinto had a rough time in elementary school because of a speech impediment, for which he .

was cruelly teased for years. (Letter of Russ Helgren). Dyslexia was not understood in the

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1950s, and Mr, Scinto's teachers in Bridgeport felt, as did most teachers, that his poor reading and writing were the result oflaziness or slow-wittedness. (pSR 1 38). He was held back in second grade but did not improve. He received more help and support when his family later moved to Fairfield, but even with the extra help, the fact remained that Mr. Scinto could barely read when he graduated from high school. His verbal SAT score was 218, barely above the minimum score of200. (pSR ~ 40). It was only when he attended Sacred Heart University that he learned how to process information by reading. (pSR 1 40). To this day, reading for Mr. Scinto is a laborious, though rewarding, process. (Letter of Kathleen Miller) .

.Mr. Scinto worked his way through college, taking classes at night, helping his father in the family plumbing business and working part time as a shoe salesman at a department store. (PSR , 41). After graduating, he continued to work as a plumber and began his career as a developer, first remodeling rooming houses. (pSR 1 43). Eventually, Mr. Scinto was able to secure bank financing and developed his first commercial property, an apartment building in Bridgeport, in 1975, when he was 28. (pSR ~ 43,44). Through his company,R.D. Scinto, Inc., Mr. Scinto has been developing and managing properties ever since.

In the early 1990s. Connecticut's commercial real estate world turned from boom to bust, and practically overnight commercial properties lust much of their value. Many developers declared bankruptcy or went out of business at the time. RD. Scinto, Inc. was devastated by this recession. Mr. Scinto realized that he was losing $500,000 per month on his properties, that he owed his banks $62 million, that he owed his subcontractors and vendors another $7 million, and that he had 365,000 square feet of vacant space that he desperately needed to lease. (pSR ~ 45). Development projects, and developers, were failing. all over the

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state. (Letter of David Carson, former President of People's Bank). Ultimately, 35 Connecticut banks would fail during this crisis. (CT Dep't of Banking, Banking Tnfonnation and Failed Banking Institutions, available at www.ct.gov/dob).

The typical, expedient course for developers during this crisis was to declare bankruptcy to discharge the old debts or simply give back assets to nonrecourse lenders. (Letter of Anne Connell ofTIAA-CRBF). But Mr. Scinto's bankers knew him, and knew he would keep his word on all the loans. (Letter of David Carson). He did. For the next four years, Mr. Scinto worked ~~esslY to lease unrented space .~d tum his business around. (PSR ~ 45). J~e soJ~.his spacious home in Fairfield and moved into a rental home to free up additional money. (pSR, 45), He never even considered bankruptcy. (pSR, 45). Though it took him. 11 years, Mr. Scinto paid back every penny of the money he owed to the banks, vendors and subcontractors. (pSR , 45, Letters of David Carson, Christopher Rallo, and James Beard). As one of'his subcontractors wrote. "[Mr. Scinto] owed several million dollars to his subcontractors on two large buildings under construction. He promised he would repay this 'old' money if we stood

behind him As a testament to Bob's word, everyone on the team stayed, finished the

buildings and although it took some time. got paid the 'old' money, W~ all knuw there are

many ways to survive 'hard' times, but that's the way this man did it." (Letter of Roderick Dapkins).

After restoring financial stability to the company, Mr. Scinto slowly began developing new industrial, commercial and residential real estate projects. His company has continued to w-ow; it currently has approximately 65 employees and owns and manages over 30 properties in Fairfield County, most of which are in Shelton, where the company has its headquarters.

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2. Characteristics

The brief history outlined above reveals several important aspects of Mr. Scinto's character. including determination, hard work and commitment to his obligations. But as the presentence report and letters show, Mr, Scinto has many other exemplary traits that define him as a genuinely good and decent person, including extraordinary generosity, commitment to education, contributions to his community, support for the disabled, abiding religious faith. loyalty, charity and devotion to family.

a. Generosity

Mr. Scinto genuinely feels blessed to have overcome his challenges and built a successful business. As a result, he feels a very strong need to give back -- to friends, business associates, employees, tenants. vendors. contractors, churches, charities. civic groups, schools and the Shelton community as a whole. (Letter of Barbara Scinto). Mr. Scinto's giving is not limited to simply 'Writing checks, although he certainly does plenty of that. Rather. he possesses a generosity of spirit that leads him to devote large amounts of his time and talent to helping others, often without recognition and never expecting anything in return. The letters sent to the Court provide compelling examples of Mr. Scinto's kindness and generosity toward people in need.

Mr. Scinto and his family took in Charles "CC" Brown, a talented but troubled young African-American actor from inner city New Haven whom they met at the Downtown Cabaret theater. MI. Brown lived with the Scintos for several years, eating meals with the family and going on all the family's vacations and outings. When Mr. Scinto discovered that CC was a serious cocaine addict and had betrayed the family's trust, Mr. Scinto reacted not by terminating

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Filed 03/28/11 Page 19 of 44

the arrangement and tossing him out, but by getting CC into a rehabilitation program - not once, but twice -- and working hard to help CC overcome his problems and develop his acting career, which he ultimately did. All told, Mr. Scinto supported CC for more than a decade, among other things giving him a car and a furnished apartment and helping to promote him. (Letters of Charles "CC" Brown, Janet Brown-Clayton and Rob Scinto). Mr. Scinto also supported CC's sister, Janet, through her divorce

II; ,. including paying the college tuition for Janet's daughter. As Janet wrote, "If I

attempted to retreat into depression and drop out of contact, they reached out to me. While I had nothing to offer but heartfelt gratitude. this relationship continued as did Bob's concern and commitment." (Letter of Janet Brown-Clayton).

Clare Dennean, a fellow parishioner, learned one day in 2002 that her son was in a coma following a devastating car crash, and that he had suffered a traumatic brain injury. Clare had no job and no income, and her insurance refused to pay for her son's costly rehabilitation. Mr. Scinto paid for months of her son's rehabilitation at renowned Gaylord Hospital, and later for a personal trainer to continue his course of treatment. Clare's son is now fully recovered. Mr. Scinto also arranged scholarships for Clare's children to go to college. (Letter of Clare Dennean).

Troy Howard, Rob Scinto's freshman roommate at Iona College) contracted a serious illness his freshman year that caused him to lose his football scholarship and, with It, the abliity to pay for college. On hearing about this, Mr. Scinto anonymously established a special scholarship for Troy so that he could remain in, and graduate from, Iona, It wasn't until he was a senior that Troy learned that the scholarship, which provided more than $30,000 per year for

. _ __~_ ~S:

16

_~_~~"L'~ ·_ _

I


four years, had been provided by Mr. Scinto. (Letter of Troy Howard).

Mr. Scinto provided for a nurse to make home visits to Colin Lewis, an employee, when Colin became sick in the late 1990s. Later, Mr. Scinto paid all his legal bills to become a permanent resident, and last.year paid $7,000 of medical bills for Colin's uninsured mother. Colin proposed that he forsake his Christmas bonus to repay Mr. Scinto, but when Christmas came, Mr. Scinto cheerfully refused and paid Colin his full Christmas bonus, too. (Letter of Colin Lewis).

Many other letters from friends, employees and tenants describe countless acts of kindness and generosity, including stories of how, on learning that an employee had never had a family vacation, Mr. Scinto provided someone with a vacation or outing (Letters of Abbate, Aguillon, Arnold, Beck, Gaspar, Andrew Howard, Parnoff Pereira Family), or how he funded the tuition for a girl to attend Lauralton Hall School (Letters of Foley, Paez) or a boy to attend Fairfield Prep School (Letters of Bolton, Masaryk), or paid the tuition or arranged a scholarship for someone to attend college (Letters of AltavilIa, Dennean, Pereira Family). or forgave all or part of a tenant> s rent (Letters of Ballou, Felman, Kiley, Manning, Scavone, Sharma. Twist), or offered, arranged or paid for someone's medical care (Letters of Corbin, Delco, Demchak, Dennean, Dykes, Gaines, Andrew Howard. Piaoitelli, Turner, Schock), or helped someone get a job (Letters of Abbate, Brodacki, Demchak, Mantilla, Plotkin), or donated land or services for charitable undertakings (Letters of Fomcris, Johannessen, Lowney, Thomas, Twist, Walsh). Notably, on learning from the mother of a serviceman that her son's platoon in Iraq would not have their Christmas tree, Mr. Scinto sent a tree at his expense. (Letter of Diane L. Ferguson). And Mr. Scinto and his family bought, wrapped and sent gifts to soldiers in the 159th Combat

17


Aviation Brigade in Iraq and the 82nd Combat Aviation Brigade in Afghanistan, and later made

his home in Aspen available to one of the returning soldiers for a week-long family reunion.

(Letter of Carol Weinshel), Bob Scinto is, in short, a truly generous person who repeatedly

gives from the heart with no expectation of a return.

h. Commitment to Education

It might seem incongruous that someone who struggled so much with school would later

so ardently support education. But it is precisely because of'his struggles that Mr. Scinto

understands the value of education. The letters reveal Mr. Scinto's extraordinary commitment

of time, enthusiasm, effort and money to support a 'Wide variety of educational institutions and

organizations.

Andrew Boas, the President of the Charter Oak Challenge Foundation, describes how

. .

Mr. Scinto responded to his ambitious proposal to build a school to serve 1,700 disadvantaged

inner-city Bridgeport children. Within 20 minutes, Mr. Scinto was driving Mr. Boas to visit one

of the proposed sites. Mr. Scinto fully embraced the project and coordinated with architects and

engineers in the planning. Later, Mr. Scinto had R.D. Scinto act as general contractor for no fee,

with Mr. Scinto calling Mr. Boas first thing every morning to provide a status report. (Letter of

Andrew Boas).

A man who did not know Bob Scinto, but knew of Ills service on the William Pitt

Foundation, approached him to solicit support for a newly formed elementary school for

economically disadvantaged children in Stamford. The mission of the school was to provide a

rigorous private education equivalent to that afforded by private schools for affluent children.

After a careful vetting process, Mr. Scinto threw his support behind the school. As a result of

18


his efforts, the school was able to obtain a substantial grant from the William Pitt Foundation, of which Mr. Scinto was chairman until very recently. The school is now thriving, with many of its students graduating to full scholarships at elite private schools in the area. (Letter of Konrad Kruger).

Dacia Toll, CEO and President of Achievement First, a nonprofit orgariization that operates a network of charter schools, describes Mr. Scinto's steadfast support of her organization. The mission of Achievement First is to provide college preparatory education for low income students from Bridgeport, Hartford and New Haven. Ms. Toll described how Mr. Scinto was integral to convincing the City of Bridgeport and the Bridgeport Board of Education to allow Achievement First to locate a school in Bridgeport (Letter of Dacia Toll). Max Medina, a prominent Bridgeport attorney who served on the Bridgeport Board of Education at the time, described the other side of the transaction. Mr. Medina explained how Mr. Scinto worked tirelessly to overcome the Board's historical bias against charter schools and described Mr. Scinto's subsequent personal involvement in renovating.the old, to-be-closed Barnum School into the new Achievement First Bridgeport Academy Middle School. Later, an elementary school and kindergarten were added. Mr. Medina concluded, ''No one knows of Bob's behind the scene t:{Curls to help those children. There is no plaque that will ever proclaim his contribution. He will never earn a dollar Of garner any acclaim for his efforts. There will be no networking benefit which will laud him a single new tenant because these schools have opened. But there are hundreds of families and thousands of children who will immeasurably benefit from his advocacy." (Letter of Maximo Medina, Jr.). A member of the board of Achievement First wrote, "With his help and guiding hand, this institution continues to tum

. around the lives of hundreds of underprivileged children in our cities who otherwise would 19

. ....:...:..:......",~~ • .;i_ , .

• __ ,_ •• ~._ ••.•• ,_,.,_,. __ . .~_,_ •• c_.,'",,, •• ,, ... ,,_.


likely be left by the wayside." (Letter of Warner Depuy).

In addition to the unique projects described above, Mr. Scinto has for decades been a crucial supporter of Sacred Heart University, raising millions of dollars for scholarships for needy students. (Letter of Christopher Mcleod). Moreover, Mr. Scinto has steadfastly supported the Notre Dame Catholic High School (Letter of William F. Sangiovanni), and has arranged scholarships for students to attend Fairfield Prep, Lauralton Hall, St. Joseph's, Hartt Conservatory, and numerous other schools.

c. Contribution To Community Life

One of Mr, Scinto's defining characteristics, one not commonly seen any more, is a strong desire to enhance the life of his community. While the letters provide dozens of examples of Mr. Scinto's contributions to the health, happiness and cultural enrichment ofhis community, three in particular stand out: Downtown Bridgeport Cabaret, Nights with Shakespeare and Breast Health Awareness.

Mr. Scinto has long believed that Bridgeport, his home town and the largest city in Connecticut, needs a place where people can come in from the suburbs and city alike to enjoy a live musical theater performance. A13 with Nights with Shakespeare, discussed below, Mr. Scinto believes that the arts sustain the vitality of a community. So for 25 years, Mr. Scinto has served as chairman of the board and chief fundraiser tor the Downtown Cabaret Theatre, which includes both a children's theater and adult productions. As its Executive Producer wrote, "Bob was always the person we could count on," and "he always gave the Theatre his undivided attention as if it were his own survival and personal business at stake." (Letter of Hugh Hallinan). The Cabaret is an integral part of Bridgeport's artistic and cultural community. A13

20


its treasurer noted, "Inner city children are regular attendees for our critically acclaimed Children's Theater, . .. In many cases we are the only live musical theater that many of these students VIilI ever attend." (Letter of Gary Clayton).

Over the past two and a half decades, Mr. Scinto has raised more than $2 million for the Theatre,provided an annual $25,000 corporate sponsorship and donated at least $100,000 in emergency funding. (Letters of Susan Hallinan and Hugh Hallinan). But his support is deeper than just writing checks. As Susan Hallinan explained, "When Bob comes in to help, it is a oneway ticket. He stays. There's no 'Here's your check' (which [there] invariably is), 'I'm a busy man' (which he invariably is) and offhe goes. No! He is with us right to the wire, With Bob the lines are always open.'; (Letter of Susan Hallinan). He was, the former General Manager said, "by far, the most dedicated, the hardest working, and the most productive volunteer supporter of the Theatre." (Letter of Maggie Silverstein). An example: one evening many years ago, the Theatre, which is housed in a City building, encountered a lighting problem for which electrical work was immediately needed. Bob personally called the City's Director of Maintenance, who said there was no budget for overtime. Mr. Scinto said he would be happy to pay for the overtime or send his own electrician, if that would be better. The Director of Maintenance concluded, "I sent in the city electrician. I often thought how great it was that not only was he understanding the city's plight but that he was considerate enough to pay for it and call me and ask if it was okay." (Letter of Daniel E. Sullivan).

Interestingly, after the City's Maintenance Director retired, he began attending "Nights With Shakespeare" lectures by acclaimed professor, author and director Robert Smith at the Stratford Library, noting with mild astonishment that, "unlike my high school days I found it

21


Filed 03/28/11 Page 25 of 44

very enjoyable." (Letter of Daniel Sullivan). Unfortunately, the library had to cancel the series because of space limitations. Mr. Scinto had been attending these lectures for nearly a decade, and in its last year in Stratford, underwriting it Knowing the quality of the presentations and the demand for the series, Mr. Scinto became the sale sponsor, underwriting all the costs and providing his company's state-of-the-art auditorium in Shelton as the lecture hall. Every attendee receives a free copy of the play, and Mr. Scinto provides a technician to run the audiovisual equipment that accompanies the lectures. (Letter of Bob Smith). Approximately 200 people - including Mr. Sullivan -- attend each lecture, for free. One senior citizen noted that the series «has filled a void in my life" (Letter of Anne Keams) while another Shelton resident discussed how because of the series, Shelton High School was able to lure Mr. Smith there to address the junior and senior advanced placement classes. (Letter of Cheryl O'Brien). Bob Smith's letter recounts many of the expressions of gratitude by people who attend the lectures, sometimes with their parents, sometimes with their children. (Letter of Bob Smith). .

In addition to sustaining the cultural vitality of his community.Mr. Scinto also actively supports the physical health and well-being of its citizens. When Lee Ami Riley and Donna Twist wanted to find an affordable location to start a breast care clinic, they came to Bob Scinto. After hearing their mission and their passion, Mr. Scinto helped them design and build out the space in his building (Letter of Sally Cascella) and agreed to base the lease payments on what they could afford rather than the much higher market value. (Letter of Donna Twist). Since opening a decade ago, the clinic has served over 18,000 women. Mr. Scinto provides his company's auditorium and facilities, including catering, for free to clinic personnel and speakers for educational programs and conferences. (Letter of Sally Cascella), More generally, Mr.

22

·.' .. ,." ... _~·'.r_.·_·_· .. , ... , ..... _ ... ,~ ..... :.:.'''''._ .. _" .. _ ..


Scinto has long supported cancer programs at Bridgeport Hospital (Letter of Robert Folman,

:M:o) and St, Vincent's Medical Center in Bridgeport (Letter of William Carroll), and hosts the

annual NOITIla Pfriem Breast Care Medical Symposium, (Letter of David Thomas). Every year,

he sponsors a blood drive for the American Red Cross and offers free flu shots to his tenants and

other Shelton citizens; last year he provided over 6,000 shots through this program. (Letter of

David Thomas).

Mr. Scinto actively supports his community in countless other ways, from stepping in to

pay for Bridgeport's Fourth of July fireworks celebration when funding was cut (Letter.of James

. - . . "". ~- .- ", '. .'. . " . ....

Lindner) to building housing at cost for Operation Hope to give shelter to homeless families in

Bridgeport (Letter of Meghan Lowney) to actively supporting the rehabilitation of me

Bridgeport YMCA (Letter of Robert Mantilla) to serving for more than a decade on the board of

Junior Achievement of Western Connecticut (Letter ofBemadine Venditto) to supporting and

speaking at the McGivney Community Center, which serves nearly 300 low-income inner city

kids from Bridgeport (Letter of Karen King) to co-chairing the regional chapter of the National

Conference for Community and Justice, an organization that promotes understanding and

respect among all races, religions and cultures (Letter of Charles M. Needle).

d. fumllod For The Disabled

Partly as a result of'his own experience growing up with profound learning disabilities,

Mr. Scinto has long contrilnrted his efforts and funds to support programs that help the disabled,

especially children. For example, he is an active supporter of The Connecticut Association for

Children and Adults with Learning Disabilities, to which he has donated not only money but

also time and expertise. (Letter of Beryl Kaufman). He regularly gives talks to students with

learning disabilities, explaining that with hard work they too can overcome their .challenges,

23

Case 3: 1 O-cr-00207wCSH Document27 Filed 03/28/11 Page 27 of 44

(Letter of Rick Fernandes).

Mr. Scinto also serves on the Business Advisory Council of The Kennedy Center, a

nonprofit agency that supports people with disabilities. In that capacity, Mr. Scinto has used

every opportunity to promote the overarching mission of the Center, which is to find jobs for the

disabled; and he bas led fundraising efforts far the agency and provided outings for the staff.

(Letters of Joan Nassef and Martin Schwartz). The Center's motto is "Celebrating the Potential

of All People," a credo that Bob Scinto has lived by his entire life. With the Kennedy Center, as

elsewhere, .Mr, Scinto has done more than just write checks, A. contractor. who was working at

. .' . - . . . ~ . .. . . . . ."

the Center described how Mr. Scinto personally oversaw and directed the construction of a

basketball court for the people at the Center. (Letter of Erik Johannessen). Mr. Scinto has

actively promoted the Center to business colleagues and tenants in an effort to find jobs for the

disabled. (Letter of Joan Nasset). In recognition of his many contributions, the Kennedy

Center awarded Bob its Vision Award in 2007 and made him the keynote speaker that year, and

two years later made him its 2009 Tribute Journal honoree. (Letter of Martin Schwartz).

e. Faith And Support Of The Church

A common theme that runs through the letters is Bob Scinto's abiding faith. Father

Thomas Lynch, who has been Mr. Scinto's pastor at St. James Church in Stratford for more than

two decades, described how he has made faith - both in church and outside it - a part of his

daily life. (Letter of Thomas Lynch). In addition to performing numerous individual acts of

kindness for parishioners, described above, Mr. Scinto paid for the renovation of the interior and

roof of St. James Church and the roof of St. James School, all without acclaim or attempt to call

attention to himself. (Letter of Deacon Thomas Masaryk). Notably, Mr. Scinto paid for the

church roof repair at the same time he was going through his own financial crisis. (Letter of

24

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. Case 3: 1 O-cr-00207-CSH Document 27 Filed 03/28/11 Page 28 of 44

Richard Gretsch). In addition to supporting St. James, Mr. Scinto has been a consistent and generous supporter of other Catholic charities, including the Inner-City Foundation for Education and Charity, the McGivney Center, and the Christian Foundation for Children and Aging. (Letters of Bishop William Lori and Deacon Timothy Bolton). Indeed, Mr. Scinto takes Father Tom on the family's vacations and makes sure time is set aside for church. (Letters of Kevin Foley and Andrew Howard).

't. Loyalty

Another characteristic that is fundamental to Mr. Scinto is strong loyalty. (pSR ~ 50).

When his insurance agent died unexpectedly, Mr. Scinto encouraged the agent's widow, then a stay-at-home mom, to obtain her license and carry on her husband's insurance practice. If she would do that, Mr, Scinto said, he would keep his business With her as long as she needed it. She got her license, Mr. Scinto kept his promise, and she kept his business. She wrote: "The support and encouragement Bob gave to me at every turn enabled me to educate my children, all of whom have gone on to successful careers and lives." (Letter of Karen Friedberg). When one of Mr. Scinto's mentors became chronically ill and later died, leaving a son, Mr. Scinto personally intervened to help first the father, then the son. at a time when many others were turning away. (Letters of Terry Hersher, and Richard Berkowitz). An engineer fondly recalled a story where Boh hugged and greeted -~ by name -- a Portugese immigrant laborer who had last worked for Mr. Scinto nearly 10 years ago. (Letter or Joseph Pereira), And when an old high school classmate returned from Vietnam and found that many former friends wanted nothing to do with him, Mr. Scinto was there for him, taking a personal interest in. him and eventually introducing him to his wife and attending his wedding. (Letter of Philip Tierney).

25


Mr. Scinto's loyalty is seen especially vividly with young entrepreneurs whose careers he helped to develop. William Raveis, who went on to develop a very successful real estate business, notes that when he started, "the company was me, a phone and a desk in a 100 sq. ft. office above a grocery store .... [Mr. Scinto] took a chance on me." (Letter of William Ravels). Steve Maklari told a similar story: ''1 had immigrated to the United States seven years earlier from Hungary and my command of the English language was limited .... Although others doubted me, Bob recognized my fortitude and gave me a chance." That was in 1977; they have been working together ever since. (Letter of Steve Maklari). The letters recount other examples of Mr. Scinto giving a chance to, and then continuing to use, engineers (Joseph Pereira), insurance agents (Sean Carroll), start-up companies (George McKinnis) and shopkeepers (Donna Scavone, Marco Mastrogiovanni).

Finally, Mr. Scinto's great loyalty is reflected in the many letters from suppliers and subcontractors who note that time and again Mr. Scinto chose to use them for his jobs. Some noted things that Mr. Scinto had done to help them in their business (DeCarIe), and all stressed how important Mr. Scinto's future development projects will be to their companies' continued well-being. (Robert Burke of Lindquist Security. Jerome Cox of J&J Blasting, Joseph DeCarIe of DeCarie Construction, Jim Funk: ofF&W Equipment, Kim Laprade ofM.I. Jacobs & Sons, Jeff Reaney of Stratfordshire Landscaping).

g. Other CharitabJe Work

In addition to the generosity, loyalty and support of education, the community, the disabled and the church, Mr. Scinto has for decades substantially contributed to dozens of charities. In the letters, the charities and their directors attest to Mr. Scinto's lifetime of giving,

26

'I


and express their heartfelt thanks. The list includes the Boys & Girls Club (Letter of Roger Preis), the Boy Scouts of America (Letter of Joseph Delco), Child & Family Guidance Center (Letter of Philip Guzman), Daughters of Charity Preschool and Rescue Mission (Letter of Sister Theresa Tremblay), the Jewish Home (Letters of Andrew Banoff and Alan Fischer), and United Way (Letter of John WaIsh), among many others.

h. Family

Last, Mr. Scinto is completely devoted to his family. The presentence report describes .a loving, 39-year marriage to Barbara, and four wonderful children: Dana (35), Amy (35), Katie (32) and Rob (29). (pSR ~1f 48-49). Barbara describes Bob as a wonderful father and grandfather who works bard to instill good values ill their children, (pSR , 50), and she considers herself "the luckiest woman in the world" to be his wife. (Letter of Barbara Scinto). Mr. Scinto is a devoted son; he still regularly calls and checks up on his 93-year-old mother. (Letter of John Stamos). And he is without question a wonderful father. His son Rob wrote of the tremendous support he received and the lessons he learned watching his father support CC Brown through his addiction troubles, but also of the finn message that Rob should work hard and make something of himself. (Letter of Rob Scinto). His daughter Katie wrote of her father's tenderness and support during the very time he was going through the company's financial crisis in the 1990B (T .erter of Katie Scinto), while daughters Dana and Amy described the many conversations over dinner regarding the need to be kind and to think of others. (Letters of Amy Scinto Corselli, Dana Scinto Colangelo).

In stun, the history and characteristics of this defendant truly set him apart. He has constantly given of his time, treasure and talent to help others with no thought to benefitting

27

Case 3:10-cr-00207-CSH Document 27 " Filed 03/28/11 Page 31 of 44

himself. When he could easily have rested on his success, Bob Scinto did just the opposite. He has helped countless others in ways that very few among us have.

B. Nature And Circumstances Of The Offense

1. The False Statements

On June 18,2008, two special agents of the FBI interviewed Robert Scinto in connection with the government's ongoing investigation into allegations that Shelton officials had received cash and other items of value from local developers. The agents asked Mr. Scinto ifhe had provided cash and items of value to Shelton officials. While Mr, Scinto told the agents "about a number of gifts that he had provided to Shelton officials over the years, he did not tell them about gifts he provided to a Shelton building official. And while Mr. Scinto told the agents that he allowed an elected official to use his vacation house in Aspen for a week, for which the official later gave him a $500 check, he did not tell them that when the elected official tendered the $500 check, he asked Mr. Scinto to give him back $500 in cash, which Mr. Scinto did. He also did not tell them that many years ago, he paid for a service at the elected official's commercial establishment for which the elected official UCVL::r repaid hiin.

Mr. Scinto knew he had lied in response to some of the agents' questions and failed to tell the whole truth as to others, and he knew it was wrong to lie to the agents. He feared -correctly -- that it would look bad, both for him and the officials, if it came out that he had provided those gifts. He recognizes the seriousness of this offense and fully accepts responsibility for it.

2. The Gifts

As the previous discussion makes clear, Bob Scintois and always has been a person who

28

Case 3:10-cr-00207-CSH Document 27 Fried 03/28/11 Page 32 of 44

gives without wanting or expecting anything in return. It is part - a big part - of who he is. In this case, he was not looking for anything in return from the people to whom he gave gifts. There is no indication here, nor could there be, that any project was approved that shouldn't have been approved, that any official action was taken that shouldn't have been taken, or that any official action was ever taken for or because of any gift he gave. Nor is there any evidence that Bob Scinto ever asked for anything or expected any official action in return for any gift he gave. The gifts were not given for or because of an official act.

Thus, this is not a case like United States v. Botti. where the Court found that, in addition to laundering money and implicating his father in the scheme, the defendant had engaged in quid pro quo bribery involving hundreds of thousands of dollars for the purpose of obtaining official action on development proj ects that needed approval. Similarly, United States v. Ganim and United States v. Santopietro were cases in which the elected officials were charged with. and found guilty of, quid pro quo bribery. This case, by contrast, involves Mr. Scinto giving gifts to Shelton ufflcials, not in exchange for anything and not for or because of an official act, but because that is what he does, as reflected in his private life for the past 30 years.

The government has provided the Probation Office with tapes of surreptitiously recorded conversations between Mr, Scinto and Randy Szkola, a landscaping subcontractor and friend who has worked for Mr. Scinto for more than a decade, (PSR ~~ 11). The tapes contain hlunt, coarse language about Shelton officials. While these comments do not cast Mr. Scinto in a favorable light, they do not show that anything was ever solicited or given for or because of any official act. Indeed, Mr. Scinto angrily denounces the elected public official, asserts that he wants to see him voted out of office, and says that he might write a letter to the editor exposing

29

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Filed 03/28/11 Page 33·of 44

,

I

I

I

the official's misconduct. (pSR 1 11). These comments, far from showing there were

payments for or because of an official act, reflect Mr. Scinto's anger at what he believed to be

the elected official's wrongful attempt -- born of personal animus -- to sabotage a Scinto project

that had already been approved by the Zoning Commission.

There is also a conversation where Szkola tells Mr. Scinto that a zoning inspector has

asked to be given any shrubs left over after the job is done, and Mr. Scinto says to give him the

shrubs, adding, "I love it when a [ expletive] guy asks for something like that, then you own

[hlm][expletive deleted]." (PSR 111). This crude comment certainly shows that Mr. Scinto is

not above making stupid, boastful comments in private conversations with his subcontractors.

But what it does not show is that his authorization to deliver these bushes (they were never

delivered) in response to the inspector's request was for or because of any official act. Nor is

there any indication before or after this conversation that this inspector, or anyone else in

Shelton, ever took or offered to take any official action for or because of any gift offered or

given by Mr. Scinto.

The fact remains, however, that giving gifts to Shelton officials, even with no intent to

influence them and no expectation of anything in return, is not a good practice. It blurs lines

that should not be blurred, creates an appearance of impropriety and undermines confidence in

local government. The problem was exacerbated in this case by a longstanding practice of gift

giving in Shelton, which this Court has commented on in previous proceedings, and a code of

ethics in Shelton that fails to provide clear guidance on receiving gifts.' It is for these reasons

:2 Section 2-353(b) of the Shelton Code of Ethics prohibits city officials from soliciting or . accepting. "any substantial gift" from someone who has business with the city. "Substantial" is

not defined.

30

· Case 3:10-cr-00207-CSH Document 27 Filed 03/28/11 Page 34 of 44

that the defendant's sentencing proposal includes a community service obligation that includes responsibility for underwriting the creation of a model ethics code for Connecticut municipalities and the production of training materials that city officials could make available to municipal officials and that chambers of commerce and other trade organizations could make available to developers and others who regularly do business with towns and cities in Connecticut.

C. The Kinds Of Sentence And Sentencing Range Under The Guidelines

The sentencing guideline-range is discussed above in Part II oftbis memorandum. If the guidelines are calculated under the false statement guideline, U.S.S.G. § 2B1.1, Mr. Scinto's adjusted offense level is 8 and his guideline range is 0-6 months. In that event, the sentence-we are recommending -- two years' probation with special conditions, including home confinement and a targeted community service obligation -- is permitted under the guidelines.

If the cross-reference provision is used to apply the gratuity guideline _- a course that we contend would be illegal and improper here -_ Mr. Scinto's adjusted offense level would be 16 and his guideline range would be 21-27 months. and probation would not be permitted by the guidelines absent a departure or imposition of a non-guidelines sentence. For the reasons set forth in Part V below, if the Court calculates the guideline range to be higher than a probationeligible sentence, the defendant requests that the Court depart downward to a level that allows a probationary sentence, or impose a non-guidelines sentence of probation with special conditions, including home confinement and community service.

D. The Need For The Sentenee To Provide Just Punishment

One of the factors to be considered in sentencing is the need for the sentence to provide

31

~~~,~~~~~---,-.,-,-.-.--_~-,-

.j


just punishment for the offense. 18 U.S.C. § 3553(a)(2){A)? At the same time, however, the

statute makes clear that the punishment should be the minimum necessary to achieve the

purposes of sentencing - in the words of the statute, "sufficient, but not greater than necessary."

As discussed below, the sentence we are proposing meets this need.

At the outset, tbi~ case has already dealt a tremendous blow to 11:r. Scinto .. He is a

convicted felon. He has been required to resign Ills chairmanship of the William Pitt

Foundation, a charitable organization he has served for nearly a decade, doing what he loves:

helping people. He has suffered enormous damage to his business reputation, something he, ,

.. ,_ .. ,

understandably prizes. More devastatingly, he feels he has let people down- family, friends,

employees, tenants and business associates - who for years have looked up to him. As the

letters make clear, .Mr. Scinto derives great pride and satisfaction from serving as a role model

for so many people. Now, whenever he addresses an elementary school class to discuss the

challenges of having learning disabilities, he will stand before them as a convicted felon. While

. .

they mayor may not know it, he will, and it, will hurt every time.

Moreover, Mr. Scinto will be placed on probation for two years, during which he will

have to perform an extensive community service obligation, discussed below. The Supreme

Court has commented that probationary sentences alone arc substantial restrictions on liberty,

Gall v. United States, 552 U.S. 38, 48 (2007); the sentence we propose would exact a far greater

toll. The community service obligation will continue the punishment of Mr. Scinto while at the

3 This subsection of section 3553 also notes the need for the sentence to reflect the seriousness of the offense and promote respect for law, but those needs. being outward looking, are inore closely related to deterrence than punishment itself. Deterrence.is discussed in the next section.

32

--------~<-- ... - .... -------- -

~~.",.~,~.~, .. "~ ..


same time promoting general deterrence, as discussed below. J\1r. Scinto will have to relive the

shame and embarrassment of his offense every time he gives talks to developers, contractors,

tradesmen, civic groups and community organizations to stress that giving gifts to state or local

officials with whom they do business is never appropriate, even ifboth sides understand that .

nothing is expected in return, even if the giver has known the recipient for years, even if gift

giving has been a common practice in the past.

Finally, we are recommending that the term of probation include a special condition of

six months' home confinement, during which Mr. Scinto will be confined to bis house except

'. • •• • + ,. + .'.,

for work, community service, worship and medical care. Bob Scinto is not a sedentary man.

The inability to attend and participate in the community activities he loves will be a genuine

punishment for this man: Home confinement can serve as an effective punishment and deterrent

in a case such as this. Indeed, demand for more flexibility in the sentencing system led to a

recent amendment to the guidelines that increased the availability of home confinement for

nonviolent first offenders such as Mr. Scinto. United States Sentencing Commission,

Amendments to the Sentencing Guidelines (May 3, 2010). The amendment expanded Zone B

to permit home confinement for a guideline range between levels 9 and 11, rather than the

previous 9 and 10. See U.S.S.G. Sentencing Table."

E. The Need To Mford Adequate Deterrence: Community Service Obligation

The Court has made no secret in prior proceedings of its belief in the importance of

sending a message to the Shelton community to accomplish general deterrence. While the Botti

4 The same amendment also expanded Zone C to Level 13 for Criminal History Category I defendants.

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., I

Case 3:1 O-cr-00207 -CSH Document 27 Filed 03/28/11 Page 37 of 44

case, unlike this one, involved bribery -- giving one thing in exchange for another -- we agree that it is appropriate to send a message in Mr, Scinto's case. That is why we have proposed that Mr. Scinto's probation include a special condition of 500 hours of community service, discussed below. We respectfully submit that these steps will far more effectively convey the Court's message than would a sentence of incarceration.

Community service has been recognized to be "a burdensome penalty that meets with widespread. public approval, is inexpensive to administer ... produces public value .. , and .. , can to a significant extent be scaled to the seriousness of crimes." Intermediate Sanctions in Sentencing GUidelines, National Institute of Justice, May 1997. As the United States Probation Service has noted, community service is "a flexible. personalized, and humane sanction, a way for the offender to repay or restore the community," while at the same time "addressjing] the traditional sentencing goals of punishment, reparation, restitution, and rehabilitation ... It restricts offenders' personal liberty .. , allows offenders to atone or 'make the victim whole' in a constructive way ... [and] may be regarded as ; .. a form of symbolic restitution when the community is the victim," Court & Community, An Information Series About u.s. Probation & Pretrial Services: Community Service, 2005; http://www.uscourts.gov/misc/revision~ community_pdf

. Mr. Scinto is an appropriate candidate for community service: he is a first-time offender, and he has an incredible history of service to both individuals and his community. An appropriately structured community service program can serve the needs of justice and deterrence very effectively in this case by taking Mr. Scinto's time and talent and putting them to use in a purposeful and directed manner.

·34

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___________________ ~_~ .. u, __ ~ r_'.~~·_···_·.,,_·."' .. · ...•. , .

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Filed 03/28/11 Page 38 of 44

The proposed community service obligation would have three components. First, acting

under the direction and supervision of the Probation Office and pursuant to a budget to be

approved by that Office, Mr. Scinto would underwrite the drafting by qualified experts of a

model ethics code for municipalities. This would involve having a law finn with expertise in

both municipal law and the issues involved in this case research the relevant law, including the

codes of other municipalities, draft a model code, and provide official comments that explain

and analyze key provisions.

Second, acting under the direction and supervision of the Probation Office and pursuant

to a budget to be approved by that Office, Mr. Scinto would underwrite the production and

dissemination of ethics training materials to accompany the model ethics code. The training

materials would include written materials and an audiovisual component which could be, in the

judgment of the Probation Office and production specialists, either a videotape or an interactive,

web-based training module.

TItird, acting under the direction and supervision of the Probation Office. Mr. Scinto

would make personal presentations to professional, trade and civic organizations to explain why

giving gifts to state or local officials with whom you work is never appropriate, and the adverse

c~nsequences that can result from doing so.

F. The Need To Ayoid Unwarrllnted_Sentenct;l Di~llarlties

In the Second Circuit, defendants in Mr. Scinto's criminal history category who pled

guilty to false statement offenses or gratuity offenses have generally been sentenced to

t· I

I

probation, especially when their offense level adjustments are similar to those presented in this

case. This section analyzes relevant data from the United States Sentencing Commission' s

. .

35


Filed 03/28/11 Page 39 of 44

database.'

The data reflect the following with respect to sentences for false statement convictions:

• Among false statement defendants sentenced in the Second Circuit under § 2B 1.1 (or its predecessor, § 2Fl.l) during the applicable period, 24 were in Mr. Scinto's loss category. Twenty-two of these 24 defendants (91. 7%) received a nonincarceration sentence. Of the remaining two defendants in this loss category, one was sentenced to six months' imprisonment, and the other, to under two months. See Appendix A.

• In the District of Connecticut, 28 defendants were sentenced under § 2B 1.1 or 2F1.1 following a conviction for violating 18 U.S.C. § 1001, including seven defendants in Mr. Scinto's loss category. In this Connecticut group, 25 defendants (89%) received probation, including everyone in Mr. Scinto's loss category. ·See iQ,. at 1-3.

The data reflect the following with respect to sentences imposed under the gratuity

guideline, U.S.S.G., § 2C1.2:

• Among all defendants sentenced in the Second Circuit under § 2C1.2 during the applicable period, five were ill Mr. Scinto's loss category. Four defendants in this group received probation and/or a fine. The remaining defendant in this loss category received a 4~month prison term. See Appendix B at 1, 2, 3.

• Looking more broadly, of the entire pool of defendants sentenced under § 2C1.2 in the Second Circuit, 22 of28 (nearly 80%) received non-incarceration sentences. Of the remaining six defendants in thiR group, the average prison sentence was 7.3 months - aterm of incarceration that is approximately 200% shorter than the advisory range that the government seeks here. See id.

In one District of Connecticut gratuity case not included in the above data, presumably

5 The sentencing dam presented in this section were obtained from the United States Sentencing Commission, which maintains a database housing sentencing data for virtually every federal criminal case that reached entry of final judgment during the period from FY 1999 through FY 2009. The data were collected and provided to the Sentencing Commission by the chiefjudge of each district, in accordance with 28 U.S.C. § 994(w). The data analyzed here are limited to defendants in Mr, Scinto's criminal history category (l) who pleaded guilty and did not receive a downward departure under U.S.S.G. § SKI. 1. The data presented here exclude a very small percentage of cases where the defendant was sentenced to time served or the information provided to the Commission was incomplete or insufficient to permit a reliable determination . regarding amount of loss.

36

..................... -- :-, - --.:- .


because of its recency, a defendant who pled guilty to providing substantial gratuities to the

Mayor of Waterbury over a period of years was sentenced to two' years' probation with six

months of home confinement United States v.Joseph Pontoriero, No. 3:09CR293(SRU).

In sum, the relevant data concerning the actual sentencing practices in this Circuit (and

this District) for false statement and gratuity offenses counsel strongly in favor of a sentence of

probation here. See 18 U.S.C. § 3553(a)(6).

v. REQUEST FOR DOWNWARD DEPARTURE OR NON-GUIDELUNESSENTENCE

To the extent that the guideline range found by the Court does notpermit the sentence of

probation proposed above, the defendant requests that the Court impose such a sentence either

as a non-guidelines sentence or as a result of a downward departure.

While a defendant's guideline range still plays an important role in determining his

sentence, Booker and its progeny have largely restored a district judge's traditional role in

sentencing, namely, to evaluate each defendant on an individualized basis, rather than to .

mechanically apply an abstract.set of'rules, See Caver!!, 550 F.3d at 188-89 (2d Cir, 2008);

United States v. Crosby, 397 F.3d 103, 113w15 (2d Cir. 2005). "After [calculating the correct

guidelines range] and considering all other relevant factors, the court should proceed to

determine an appropriate sentence, which mayor may pot be within the guidelines-

recommended range." United States v. Thomas, 628 F.3d 64, 67 (2d Cir. 2010). The initial

guidelines are "the starting point and the initial benchmark ... [but] are not the only

consideration." Gall, 552 U.S. at 49. Thus, while the district judge must carefully consider the

guidelines, ultimately he or she must conduct an individualized evaluation of the sentencing

factors in section 3553(a), giving each such weight as is appropriate, to fashion a sentence that is

37


Filed 03/28/11 Page 41 of 44

sufficient, but not greater than necessary, to achieve the purposes of sentencing. See, e.g., United States v, Stewart, 590 F.3d 93, 143-44 (2d Cir. 2009), cert. denied, 130 S. Ct 1924 (2010)i United States v. Campanelli, 479 F.3d 163,165 (2d err. 2007) (per curiam).

In this case, strong mitigating circumstances support a sentence of probation through either a downward departure or imposition of a non-guidelines sentence. First, Mr. Scinto's lifetime of good works and good deeds, noted in the PSR (pSR 1f SO), warrants such a sentence. While civic works are said to be not ordinarily relevant under the guidelines, U.S.S.G. §

SRI. II, they Will support a downward departure if their nature or extent take them outside the heartland of ordinary cases. United States v. Rioux, 97 F.3d 648, 663 (2d Cir. 1996)(as part of combination offactors), See also United States v. Serafini, 233 F.3d 758. 772-75 (3d Cir, 2000) (citing numerous letters describing defendant's charitable acts); United States v. Woods, 159 F.3d 1132, 1136 (8th Cir, 1998) (exceptional acts of kindness in helping needy friends and relatives); United States v. Jones, 158 F.3d 492, 500~OI (10th Cir, 1998) (upholding downward departure based on defendant's extensive community contributions). N1r. Scinto's community support, charitable contributions, civic work and good deeds are extraordinary, in both type and degree, under even the most cynical reckoning.

Seconl1. the ripple effect on R'D. Scinto, Inc, and the snrronnding commnnity will be devastating if Mr, Scinto is sent to prison. If11r, Scinto is incarcerated, he cannot direct the development projects that are in the planning stage, nor can he initiate new ones. The result is

. that new business will immediately grind to a halt. That, in turn, will mean that engineers, equipment companies, rock blasters, steel providers, masons, plumbers, electricians, landscapers and a host of other subcontractors and vendors who for years have looked to Bob Scinto for new

38


business -- and to whom Bob has been loyal for years -- will have no work and little prospect of

finding it elsewhere. This is not idle speculation; letter after letter clearly makes this point.

(See letters of Joseph DeCarIe, Engineer; Jim Funk, F&W Equipment Corp.; Seamus Sheelan,

Powerscreen Connecticut; Jerome Cox, J&J Blasting Corp.; Kim Laprade, M. Jacobs & Sons

Steel; Albert Papa, masonry; Rod Dapkins, EmcorINew England Mechanical; Jeff Reaney,

Stratfordshlre Landscaping; Robert Burke, Lindquist Security Technologies.)

Third, the gratuity guideline is far more severe than required to accomplish the purposes

of sentencing in this case, as the PSR intimates. (pSR ~ 82), Indeed, the maximum. sentence for

an illegal gratuity offense is two years, yet guideline calculations under § 2Cl.2, including the

one in this case, actually exceed the statutory maximum. Moreover, as the empirical

I

I

! i

I

information provided above shows, actual sentences for gratuity offenses in this Circuit have

generally been at the probationary level.

VI. SENTENCING REQUEST AND CONCLUSION

For the foregoing reasons. Robert Scinto requests that this Court sentence him to two

years' probation, including special conditions requiring six months' home confinement and 500

hours of community service under the direction and supervision of the Probation Office. as set.

forth in Part IV(E) above, and a fine.

39

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, ,

Case 3: 1 O-cr-00207 -CSH Document 27 Filed 03/28/11 Page 43 of 44

Respectfully submitted,

THE DEFENDANT, ROBERT SCINTO

By; //sl/ James T. Cowdery James T. Cowdery (ct05103) Cowdery, Ecker & Murphy, LLC 280 Trumbull Street

Hartford, CT 06103

(860) 278-5555 Office

(860) 249-0012 Facsimile jcowdezy@cerolaw.com

- His Attorneys-

40


CERTIFICATE OF SERVICE

I hereby certify that on March 28; 2011. the foregoing Memorandum in Aid of Sentencing was filed electronically, Notice of this filing will be sent bye-mail to all parties by operation of the Court's CMJECF electronic filing system. In addition. a copy of the foregoing . Memorandum in Aid of Sentencing was sent by email and regular mail to:

Ms. Meghan Nagy

United States Probation Officer United States Probation Office 915 Lafayette Boulevard Bridgeport, CT 06604

Ils// James T. Cowdezy

James T. Cowdery

41

~~~~~~-- ..... -.-~-~--- ......

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