Case 1:08-cr-20574-JAL Document 1054 Entered on FLSD Docket 01/10/2011 Page 1 of 15

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CASE

08-20574'-CRIMINAL-LENA D CLERK U S DIST cT.

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UNITED STATES OF AMERICA,

Plaintiff ,

Miami r Florida
January 3, 2011

EFRA IM DIVEROLI and AEY , INC .,

Defendants .

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SEM ED SENTENCING HEARING
HELD BEFORE THE HONORABLE JOAN A . LENARD,
UNITED STATES DISTRICT JUDGE

APPEARANCES :

FOR THE GOVERNMENT :

ELOISA FERNANDEZ, ESQ ., and

FM NK TAMEN , ESQ .
ASSISTANT UN ITED STATES ATTORNEYS
99 Northeast Fourth Street
Miami , Florida 33132

FOR THE DEFENDANT

EFM IM DIVEROLI :

HOWARD SREBNICK , ESQ .r

BLACK, SREBNICK , KORNSPAN & STUMPF, PA
201 South Biscayne Boulevard
Suite 1300
Miami , Florida 33131
- and-

CYNTHIA HAWKINS , ESQ .

150 North Orange Avenue ,
Orlando, Florida 32801

FOR THE DEFENDANT

AEY , INC . :

414

HY SHAPIRO , ESQ .r and

MARKO CERENKO , ESQ .
HOGAN r GREER & SHA PIRO

24 00 South Dixie Highway

Suite 200
Miami r Florida 33133

t
k

Case 1:08-cr-20574-JAL Document 1054 Entered on FLSD Docket 01/10/2011 Page 2 of 15

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FOR US PROBATION :

SARA GARCIA

REPORTED BY :

LISA EDWARDS, CRR , RMR

Official Court Reporter
40O North Miami Avenue
Twelfth Floor
Miami, Florida 33128

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(305) 523-5499
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Case 1:08-cr-20574-JAL Document 1054 Entered on FLSD Docket 01/10/2011 Page 3 of 15

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(REPORTER 'S NOTE: The following contains

proceedings from the above-captioned sentencing hearing which

have been ordered sealed by the Courto

MR . SREBNICK ;

Thank you for accommodating us, Judge.

THE COURT :

DR . STRUMWASSER :

Okay .

The courtroom is now sealed .

My name is Dr . Steven Strumwasser,

licensed clinical psychologist/certified addicton

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professional .
And again , thank you for allowing me to participate i

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this extremely important sentencing process .

Your Honor,

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believe that what I have to say is very

relevant to the sentencing of Mr . Diveroli .

I was asked to speak on acceptance of responsibility,

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which is an ongoing process for Mr . Diveroli .

It is with any

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individual with mental health and drug addiction issues.

However, over the years, Mr . Diveroli has made great

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strides .

The following is just a quantity of the information

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gathered during the last two and a half years that I 've been

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treating Mr . Diveroli .

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was in the PSI

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think

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I will not repeat the information that

I will try

be as brief as possible, but I

will take a few moments.

I believe this information , again , is useful

determ ining his sentence .

The PSI is just

drop of grain -- is just a grain of

Case 1:08-cr-20574-JAL Document 1054 Entered on FLSD Docket 01/10/2011 Page 4 of 15

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sand in the number of mental health and substance abuse and

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psychological issues of this man .

I began to provide services to Mr . Diveroli on

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July 21st --

THE COURT :

Well, 1et me direct you to the issue that

I have to decide now -DR . STRUMWASSER ;

THE COURT :

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Yesr m a 'am .

which is whether or not he should be

given two levels off for acceptance of responsibility of the

advisory guidelines
So, really ,

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would like you to direct your -- I 've

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read the PSI and the information that you supplied in the PSIR

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regarding his mental health and addiction issues .

So this hearing is really limited to how that

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information relates

acceptance of responsibility .

DR . STRUMWA SSER : Unfortunately , your Honor, I was

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never asked to participate in the PSI . The information that I

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have is not in the PSI.

For whatever reason,

was not asked .

I have been in constant contact up until

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Mr . Diveroli 's arrest with Laura Esquivel, senior US probation

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officer .

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provide any information to the PSI

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But for whatever reason ,

was never asked to even

But I understand your point and

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will try to be as brief as possible .

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think necessary .

will -- believe I

Interrupt me whenever you

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THE COURT :

will .

DR . STRUMWA SSER : Okay.

I will also try

if I 'm speaking too fast -- I 'm going

please 1et me know .

THE COURT :

speak --

try to speak fast

Don rt speak too fast .

Tt 's very difficul

for the court reporter, please .

DR . STRUMWASSER :

As Efraim entered early adolescence

his behaviors became even more disparaging and self-defeating.

He retained

he obtained constant failing grades in school .

There was great discord at home and he was unable

cope with

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his situation . He became severely depressed without any

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solution .
Unfortunately, as many individuals do, he was

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introduced to alcohol and marijuana by his peers. And,

unfortunately, due

his very, very severe issues involving

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his problem-solving, learning capacities, other issues that

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presented learning difficulties, which were never diagnosed, he

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continued to deteriorate .

His parents were -- unfortunately, Efraim grew up in

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an environment where, in his home , there was so much chaos and

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conflict and other psychological and emotional issues of the

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parents that , unfortunately, Mr. Diveroli was not attended to.

Their attempts

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him away

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unfortunately

resolve his problems were to send

schools, which failed because they ,

and this is one of the reasons that

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Mr . Srebnick asked the courtroom to be sealed -- his parents

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did not believe that there were any psychological problems or

psychiatric problem s, which were more than clear with this

particular individual .
This put him in a horrific situation without the

coping skills or any of the mechanisms or any of the

interventions or any of the strategies that were available .

He was -- and his family, from my observations, is

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predisposed

depression, debilitating anxiety, mood swings,

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very inadequate coping skills. And, unfortunately, the school

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produced a horrific impact. They just failed -- continued to

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fail him .

Efraim unfortunately was sent away to California at a

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very, very early age because nobody could cope with him . At

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that particular time, Efraim found something incredibly

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important .

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sense of value and self-worth that he ever achieved .

He had a skill to sell.

This provided him the only

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This was another incredible turning point in his life

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because r as you can -- as I'm sure that you are aware, this is

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an individual that not -- did not engross himself with luxury

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automobiles and penthouses and so on .

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work 15, 16,

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appear to others of value and worth . And this is a critical,

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critical component in this individual 's behavior and what drove

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it .

This was

he would

hours a day just to make money so he could

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Simultaneously, the use of drugs and alcohol that wer

so entwined and enmeshed in his life caused him to drown .

Those were the issues -- he was medicating issues through his

sub stance abuse and chem ical dependency .

I 'm almost done .

Mr . Diveroli's issues dramatically came to light

during his early preadolescent years . He was struggling with

his familial, psychological and psychiatric problems and, in

addition , the environment which he grew up in was poorly

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equipped and unwilling to handle any of his issues and actually

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provided no other intervention than sending him away .

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It 's easy to forget that this -- that this young man

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sitting here was 20 years o1d when he was arrested for

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participating in contracts of unbelievable amounts of money .

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This sheer scope of this is unimaginable, how a

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zo-year-old immature and obviously psychiatrically and

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psychologically impacted, uneducated and terribly meager

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social-skilled individual could become involved

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sophisticated and professional and carefully managed military

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business dealings .

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these highly

It is completely bewildering.

Mr . Diveroli 's intense financial pursuits were

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immature and evolved at him needing recognition , respect from

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others, admiration from his peers, love from his parents and

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society as a whole at any cost or risk to himself.

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Efraim 's severe acting-out behavior was really a cry

Case 1:08-cr-20574-JAL Document 1054 Entered on FLSD Docket 01/10/2011 Page 8 of 15

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for help and attention from a severely disturbed young man due

to untreated mental health and developm ental problems,

substance abuse, chemical dependency and so on .

The statements that I -- that I made before is not

intended to blame the parents. However, psychologically, this

type of parental child-rearing and modeling results in

deleterious psychological consequences to the child, especially

to an individual who 's genetically predisposed to mental

illness, as this family is .

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Simultaneously, a11 during our therapy, Mr. Diveroli

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continued to take responsibility for his actions .

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was drowning in his own problem s.

However, he

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Your Honor, I 'm almost done .

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I'm a licensed clinical psychologist/certified

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addiction counselor approved to provide psychological services

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to federal probationers in Dade, Broward and Palm Beach

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Counties, to provide psychological services to federal inmates

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in those counties as well, sworn as an expert witness,

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consultant to attorneys, probation officers in those three

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counties and have provided over 50,000 documented hours of

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individual group and family therapies .

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I 've directed and supervised contracts with the

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Florida Department of Corrections and the Federal Bureau of

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Prisons, and I've clinically supervised a 45-bed federal

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halfway house .

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Your Honor,

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believe that now we have an opportunity

to change this person 's life . Efraim needs not only

rehabilitation , but habilitation .

He never really learned how

to cope appropriately .

He needs rehabilitation to stop

depending on unhealthy substances as a crutch that only further

debilitates his life.

I believe Efraim could effectively utilize residentia

treatment at A lina Lodge, an excellent and successful long-ter

residential habilitation and rehabilitation facility in

Pennsylvania, accredited by the Am erican Correctional
Association, and it 's established over 50 years .

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have used

them successfully for over the last 15 years.

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THE COURT : Well, 1et me ask you a question .

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DR . STRUMWASSER :

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THE COURT : Well, let me ask you a question .

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One more paragraph .

Yes .

Because

you are directing al1 of this towards ultimate sentence, and

I 'm not there yet .

Okay?

There ls a very distinct and discrete process that goe

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on in a federal sentencing hearing .

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adoption

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normally, of the advisory presentence investigation report .

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or lack of adoption

The first is the

but adoption in some manner,

The issue that I now have

decide is whether or not

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Mr . Diveroli should be granted acceptance of responsibility .

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And the real issue

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any question that he began to cooperate after he was arrested

-- there's no

don 't think there 's

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for this offense .

I don 't think the Government would dispute

that .

the Government intended to call him in the trial of Ralph

Merrill .

He was listed as a witness . And I know , quite frankly,

I don 't think they would dispute that .

The real issue is that , after he was arrested, after

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he pled guilty , while he was out on bond, he went and committed

another offense , selling ammunition in Northern Florida .

I have to now put that into perspective as to why

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why not that subsequent conduct would allow him or not allow

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him to receive an acceptance-of-responsibility reduction in the

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determination of the advisory guidelines in this case .

DR . STRUMWA SSER : Wellr your Honor, as I see this,

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Mr. Diveroli , since I have met him , has accepted responsibility

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as best as one in his condition can .

He has made great strides.

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Simultaneously, this is a

long and arduous path for an individual who not only needs
rehabilitation , but needs habilitation .

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So I believe --

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THE COURT :

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DR . STRUMWA SSER : Habilitation is -- to habilitate

''Habilitation '' meaning what?

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well, to rehabilitate is to bring an individual back to a level

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of

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THE COURT : You rre saying he has to first learn

societal norm s?
DR . STRUMWASSER :

Correct.

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This is an individual that dropped out of school at

16; but several years prior to that, his parents just moved hi

from school to school to school .

This is a very, very -- you know, for me, an

interesting and extremely complex case because this individual

does not -- did not display normal behavior for his age and

intelligence and it was due to that he was either preoccupied

or, similar to other of his family members, is predisposed to

severe mental health issues.

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He has --

was going to, you know, read more . But h

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has been on over 20 regimens of psychiatric medications in the

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last several years .

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Unfortunately, this individual also utilized

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substances which confounded some of that, but this individual

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really never received the beginning interventions and treatment

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that most kids -- if you will, most kids receive on Miami

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Beach .

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His issues were never recognized early on ,

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unfortunately , by his parents. And because of the type of

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schools that he was in, they just kicked him out without any

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type of plan

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just saw him and labeled him as unruly and a malcontent. And

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that is not correct .

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any organized plan, any intervention .

I have seen this man weep .

responsibility for his actions .

They

I have seen this man take

I have seen this man so

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disturbed at his behavior --

THE COURT :

Well, 1et me ask you a question .

Why would he go and commit the offenses in Northern

Florida and selling ammunition after he already pled guilty to

this case?
DR . STRUMWASSER :

I believe that he got caught up in

his grandiosity and need to play the ''big guy'' role because the

truth is he really didn 't have any solid foundation underneath

his feet .

I believe that this was a move out of grandiosity

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and thinking that ''I 'm smarter than others'' and extremely

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immature .

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You know, it 's such an excellent question, because

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99.99 percent of individuals would not do that . He 's also

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easily lured by other individuals into doing things . That has

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been one of his major problems as well.

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He, Mr . Diveroli, for as long as I know him , had a

terrible issue with saying ''no .'' And if somebody wants

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something from him , they get it

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is not just someone that he was dealing with

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And, also, interestingly , it

Orlando.

Mr. Diveroli is an individual that also

and I thin

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others will talk about this today -- would give money to

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strangers.

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a hotel because he felt bad for them .

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individuals ' severity of their plight and their sense of

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helplessness.

He would help people off the street and put them in

He identifies with other

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I think that Mr. Diveroli is awake .

He has spent the

last five months incarcerated without any probability of -THE COURT :

Maybe we made a m istake letting him out o

bond initially .

That seemed to be the wake-up call, don 't you think?

DR . STRUMWASSER :

The wake-up call?

I 'm sorry .

Again, please?

THE COURT: The wake-up call was being put in jail --

DR . STRUMWASSER :

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THE COURT :

Yes .

-- if, indeed, there was a wake-up call,

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because it certainly didn 't work while he was out on bond .

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DR . STRUMWA SSER : He needed more time --

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THE COURT :

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He certainly wasn 't taking very seriously

the charges that he now stands before me to be sentenced for .

DR . STRUMWASSER :

He actually took them extremely

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seriously, your Honor, and was extremely frightened, like a

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child, and acted out accordingly .

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And inappropriate behavior is based on poor

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decision-making and a lack of appropriate, healthy and mature

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problem -solving skills .

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These last five months, he has grown up more than he

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has in the last 24 years of his life .

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THE COURT : Right.

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in limited circum stances.

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no longer go and say :

Because he was forced to.

He was

He could no longer be lured, could

I 'm going to be the big guy and sell

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ammunition .

I 'm going to do this .

I'm going to do that.

going to -- whatever he was going to do. He's in jail.

I 'm

What more limiting circumstance can there be in life?

DR . STRUMWASSER:

However, there can be a -- diminishing returns for a

young man like this with his vulnerability emotionally and --

However -- that is correct .

THE COURT : Well, we rre not there yet .

DR . STRUMWASSER :

THE COURT :

We 're not there yet .

We 're talking about acceptance of responsibility .

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That 's the issue I have to decide now .

DR . STRUMWASSER :

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-- psychologically .

He is there, your Honorr in my

opinion .
THE COURT : Any questions by

did you want to ask

him any further questions, Mr. Srebnick?

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MR . SREBNICK :

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THE COURT : Any questions from the Government?

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M S . FERNAN DE Z :

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THE COURT : Thank you, sir .

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DR . STRUMWA SSER :

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THE COURT :

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MR . SREBNICK :

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THE COURT :

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(End of sealed proceedings.)

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Nor Judge .

N o , you r H onor .

Thank you very much .

Can we reopen the courtroom?

Please .

You can unseal the courtroom , please .

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C E R T I F I C A T E

I hereby certify that the foregoing is an accurate

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transcription of the proceedings in the above-entitled matter .

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DA E

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s/Lisa Edwards
LISA EDWARDS, CRR, RMR
Official United States Court Reporter
400 North Miami Avenue, Twelfth Floor

Miami, Florida 33128

(305) 523-5499
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