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Case 1:10-cr-00166-CBA Document 26 Filed 09/28/12 Page 1 of 29 PageID #: 73

1 UNITED STATES DISTRICT COURT


EASTERN DISTRICT OF NEW YORK
2
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3 UNITED STATES OF AMERICA, : 10-CR-166(CBA)
:
4 :
:
5 -against- : United States Courthouse
: Brooklyn, New York
6 :
:
7 :
JOSEPH CAPONEGRO, : Tuesday, February 28, 2012
8 : 2:00 p.m.
Defendant. :
9 :
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10
TRANSCRIPT OF CRIMINAL CAUSE FOR SENTENCING
11 BEFORE THE HONORABLE CAROL BAGLEY AMON
CHIEF UNITED STATES DISTRICT JUDGE
12
A P P E A R A N C E S:
13
For the Government: LORETTA E. LYNCH, ESQ.
14 United States Attorney
Eastern District of New York
15 271 Cadman Plaza East
Brooklyn, New York 11201
16 BY: TARYN L. MERKL, ESQ.
JACQUELYN KASULIS, ESQ.
17 Assistant United States Attorneys

18 For the Defendant: SALUTI LAW GROUP, LLC


Attorneys for the Defendant -
19 Joseph Caponegro
50 Park Place
20 Suite 1001
Newark, New Jersey 07102
21 BY: GERALD M. SALUTI, ESQ.

22

23

24

25

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR


Official Court Reporter
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1
A L S O P R E S E N T:
2

3 UNITED STATES PROBATION DEPARTMENT


Eastern District of New York
4 75 Clinton Street
Brooklyn, New York 11201
5 BY: SINDEE J. HAASNOOT, U.S.P.O.

9 Court Reporter: Anthony D. Frisolone, CSR, RDR, FCRR, CRI


Official Court Reporter
10 Telephone: (718) 613-2487
Facsimile: (718) 613-2694
11 E-mail: Anthony_Frisolone@nyed.uscourts.gov

12 Proceedings recorded by computerized stenography. Transcript


produced by Computer-aided Transcription.
13

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17

18

19

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25

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR


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Sentencing 3

1 (In open court.)

2 (Defendant present in open court.)

3 COURTROOM DEPUTY: All rise. The United States

4 District Court for the Eastern District of New York is now

5 in session. The Honorable Carol Bagley Amon is now

6 presiding.

7 (Honorable Carol Bagley Amon takes the bench.)

8 COURTROOM DEPUTY: Calling criminal cause for

9 sentencing in Docket No. 10-CR-166, United States of America

10 against Joseph Caponegro.

11 Counsel, please note your appearances for the

12 record.

13 MS. MERKL: For the United States of America,

14 Assistant United States Attorney Taryn L. Merkl and

15 Jacquelyn Kasulis.

16 Good afternoon, your Honor.

17 MR. SALUTI: Gerald M. Saluti for Joseph Caponegro.

18 Good afternoon, your Honor.

19 COURTROOM DEPUTY: This is United States versus

20 Joseph Caponegro Docket No. 10-CR-166.

21 Counsel, state your appearances for the

22 record.

23 MS. MERKL: Taryn Merkl and Jacquelyn Kasulis for

24 the Government.

25 MR. SALUTI: Good afternoon, your Honor. Gerald

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Sentencing 4

1 Saluti appearing for Joseph Caponegro.

2 MS. MERKL: Your Honor, I also note that Sindee

3 Haasnoot from Probation is also with us.

4 THE COURT: Okay.

5 There are some procedural matters I think

6 that we first need to deal with, which is that a transcript

7 of the guilty plea that was taken before Magistrate Go, I

8 believe, and she recommends that I should accept the guilty

9 plea. I believe the guilty plea was based on a waiver of

10 indictment, and a plea to a conspiracy, extortion

11 conspiracy; is that correct.

12 MS. MERKL: That's correct, your Honor.

13 THE COURT: Counsel, is there any reason why I

14 should not accept the plea?

15 MR. SALUTI: No, Judge.

16 THE COURT: Is the Government aware of any reason

17 why I should not accept the plea.

18 MS. MERKL: No, your Honor.

19 THE COURT: All right. So I have reviewed the

20 plea minutes.

21 Also, there was a waiver as well, a waiver of

22 indictment.

23 Should I accept that as well?

24 MR. SALUTI: Yes, Judge.

25 THE COURT: I've reviewed the minutes which deal

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Sentencing 5

1 with both the waiver and the guilty plea, and they fully --

2 those minutes fully substantiate the recommendation that the

3 plea should be accepted as having been knowingly and

4 voluntarily entered into after advice of all the requisite

5 constitutional rights, and there was a factual basis for the

6 plea. So I will accept the waiver of indictment and the

7 plea.

8 Counsel, have you read over the presentence

9 report and discussed it with your client?

10 MR. SALUTI: Yes, Judge.

11 THE COURT: Now, there was a -- the report and a

12 confidential memorandum, I take it. You saw both of those.

13 MR. SALUTI: I think there's three things, Judge.

14 There's a report, there's a 5K, and then there's an ex parte

15 letter that I was not privy to.

16 THE COURT: I am talking to the probation

17 department.

18 MS. HAASNOOT: The confidential memorandum only

19 goes to you. If he wants to see it he can only see it in

20 chambers.

21 THE COURT: Do you want to take a look at it? The

22 principal difference is it gives more identifying

23 information.

24 MS. HAASNOOT: Do you want me to pass my copy down

25 the row, your Honor?

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1 THE COURT: Yes.

2 MS. HAASNOOT: It just gives the personal

3 information that we wouldn't want in the sanitized report.

4 THE COURT: That's exactly what it is. You can

5 also show it to your client.

6 THE DEFENDANT: I believe you.

7 MR. SALUTI: He trusts me.

8 THE DEFENDANT: I trust him.

9 MR. SALUTI: You've reviewed it, Judge, and

10 Mr. Caponegro is not just a client, I've known him for many

11 years. I'm very comfortable saying that the information

12 contained here is accurate.

13 THE COURT: Okay.

14 So I believe that from the probation

15 department there is no addendum, it's just the --

16 MS. HAASNOOT: No, your Honor.

17 THE COURT: -- just the confidential memorandum

18 and the PSR.

19 MS. HAASNOOT: Yes, your Honor.

20 THE COURT: Okay.

21 Mr. Caponegro, have you read the presentence

22 report?

23 THE DEFENDANT: Yes.

24 THE COURT: Have you discussed it with your

25 counsel?

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Sentencing 7

1 THE DEFENDANT: Yes.

2 THE COURT: Are you satisfied to have him

3 represent you?

4 THE DEFENDANT: Yes.

5 THE COURT: Okay.

6 Now, the next procedural matter that we need

7 to take up is the guideline calculation. And the guideline

8 calculation here is a Total Offense Level of 24, Criminal

9 History Category II with a guideline custody range of 57 to

10 71 months.

11 Counsel, have you reviewed how the guidelines

12 were calculated here?

13 MR. SALUTI: Yes, ma'am.

14 THE COURT: Do you take any exception to the

15 guideline calculation?

16 MR. SALUTI: No, Judge.

17 THE COURT: Do you take any exception to any of

18 the factual matters contained in the report?

19 MR. SALUTI: Other than spelling my name wrong in

20 the first page, no.

21 MS. HAASNOOT: I apologize.

22 MR. SALUTI: No, I do not.

23 THE COURT: So it should be S-a-l.

24 MR. SALUTI: It's S-a-l, Judge.

25 THE COURT: Does the Government take any objection

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Sentencing 8

1 to any of the factual information?

2 MS. MERKL: No, your Honor.

3 THE COURT: Now, in terms of other submissions, I

4 have two letters from the Government; one is a 5K dated

5 February 17th, and the other is an addendum which I guess

6 fleshes out some of the material in the original letter at

7 least as I view it and the reason -- that was not submitted

8 to counsel.

9 MS. MERKL: That's correct, your Honor.

10 As set forth in our primary letter, the

11 primary 5K we describe that the ex parte submission contains

12 additional details pertaining to the fruits of

13 Mr. Caponegro's cooperation, and due to the fact that

14 Mr. Caponegro could potentially be a witness that could

15 testify at some future date, we would prefer that he not

16 become aware of all of the details of the fruits of his

17 cooperation so as not to inadvertently taint his testimony

18 or taint his memory in some way.

19 THE COURT: It was acceptable, Counsel, to you and

20 your client that the information be submitted ex parte to

21 the Court?

22 MR. SALUTI: It was, Judge.

23 THE COURT: And is that correct, Mr. Caponegro?

24 THE DEFENDANT: Yes, your Honor.

25 THE COURT: Well, I mean, there's certainly

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Sentencing 9

1 nothing negative in the letter that you would be called upon

2 to address in any way. It is, as the Government explained,

3 it just fleshes out various details.

4 Does the Government want to be heard on their

5 5K application?

6 MS. MERKL: Just very briefly, your Honor.

7 The Government obviously would rest primarily

8 on their papers but wanted to just highlight a couple of

9 things that we felt were notable about Mr. Caponegro's

10 cooperation.

11 First of all, the scope of his cooperation

12 was quite significant. As noted in the letter, the

13 Government had an ongoing investigation into various, sort

14 of crimes being committed by Genovese Family associates in

15 and around the ports of New Jersey for many years, and

16 Mr. Caponegro's assistance really enabled the Government to

17 further those investigations in some very important ways

18 leading to the arrest of 21 people so far and the

19 investigation still continues, and Mr. Caponegro's

20 cooperation is really the germ that allowed this

21 investigation to flourish.

22 So, you know, his cooperation truly was

23 significant in bringing a very historically important case

24 in the District of New Jersey, and we expect that his

25 cooperation will be used for quite awhile to come. We're

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Sentencing 10

1 still working hard on trying to dismantle that long

2 entrenched racket. So I think that that is the first

3 significant thing we wanted to note about Mr. Caponegro's

4 cooperation.

5 The second notable thing for the Government

6 with regard to Mr. Caponegro's cooperation was it was very

7 unexpected, I think. He comes from a crew of people in

8 New Jersey. He was not a full-fledged member of that crew,

9 but he knows some people in New Jersey from his past who

10 were very dangerous individuals and he came in to attempt to

11 cooperate under circumstances that could have put him in

12 significant jeopardy and he took responsibility for what

13 he's done and he himself took responsibility for relocating

14 himself.

15 THE COURT: He's not relocated by the Government?

16 MS. MERKL: The Government provided him some

17 assistance but he contributed a substantial portion of the

18 funds necessary for relocation because of his own financial

19 wherewithal and he is really taking responsibility not only

20 for the crime that he committed, but also for assisting the

21 Government in securing his security.

22 THE COURT: So he is not in the Program at the

23 moment?

24 MS. MERKL: Your Honor, the Government does not

25 publicly disclose that information. We did not relocate

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Sentencing 11

1 him.

2 THE COURT: You didn't?

3 MS. MERKL: Did not.

4 THE COURT: That was my question.

5 MS. MERKL: Right.

6 THE COURT: The report suggests he has the

7 capacity to pay a fine. I take it the Government doesn't

8 have anything that would dispute that; right?

9 MS. MERKL: Not at this time.

10 THE COURT: One thing, Ms. Merkl, is of some

11 concern is he began cooperating in '08.

12 MS. MERKL: Yes.

13 THE COURT: But he sustained an arrest after that.

14 MS. MERKL: There's the thing in New Jersey.

15 MR. SALUTI: He did.

16 THE COURT: The assault.

17 MS. MERKL: Yes, your Honor.

18 Our understanding is that there was a dispute

19 between the defendant and his wife, and Mr. Caponegro

20 disclosed that incident to the Government immediately upon

21 to occurring and he was fully forthcoming with regard to

22 what happened. My understanding is that the charges were

23 not pressed and it was ultimately dismissed.

24 MR. SALUTI: That's correct, Judge. I represented

25 Mr. Caponegro in that matter in Toms River New Jersey.

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Sentencing 12

1 MS. MERKL: The Government's understanding based

2 on the debriefing of Mr. Caponegro is that his wife was

3 drinking and there was a physical altercation on the

4 property leading the to neighbors to react.

5 THE COURT: Did you read the report?

6 MS. MERKL: Yes.

7 THE COURT: This is after an earlier incident in

8 '02 that resulted in his arrest. I think it results in the

9 two points for his criminal history category.

10 MS. MERKL: Correct. The incident earlier was

11 much more serious.

12 THE COURT: You don't think kneeing someone in the

13 stomach was or serious.

14 MS. MERKL: The other one was just more serious.

15 I'm not suggesting that this one was not serious, I believe

16 that the first one was more serious, your Honor.

17 THE COURT: This occurs while he's cooperating

18 with the Government.

19 MS. MERKL: That's correct, your Honor.

20 THE COURT: And I mean, in terms of the offense

21 with which he's charged this was a violent offense.

22 MS. MERKL: The issue with his wife?

23 THE COURT: No. I'm talking now about the offense

24 that he pled guilty to.

25 MS. MERKL: Yes.

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Sentencing 13

1 THE COURT: The report indicates that he was

2 choking the victim.

3 MS. MERKL: That's correct, your Honor.

4 THE COURT: This is caught on tape.

5 MS. MERKL: Yes.

6 THE COURT: So I suppose that would it be accurate

7 to state, Ms. Merkl, but for the cooperation, the Government

8 would probably be standing before the Court arguing that the

9 sentence should be certainly within the guidelines or at the

10 higher end of the guideline range were it not for his

11 cooperation.

12 MS. MERKL: I think that's probably fair to say,

13 your Honor, yes.

14 Mr. Caponegro obviously has a criminal

15 history, but given the importance of his cooperation I think

16 that deserves to be taken into consideration by the Court.

17 THE COURT: Well, how do you rate it? Do you

18 think this is more significant than most of the cooperation

19 that you see?

20 MS. MERKL: Yes. Yes.

21 In my experience in the Organized Crime

22 Program, I think that Mr. Caponegro's provision of the

23 information at the time that he provided it was certainly

24 very timely and very helpful to the Government advancing

25 several other investigative avenues that we had available to

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Sentencing 14

1 us at that time.

2 In addition, as noted in the letter, he

3 provided information about investigations that we're still

4 pursuing include information regarding a murder that he was

5 not involved in, and given that the nature of the

6 information that he's provided he falls on, certainly, the

7 more substantial end of the spectrum than some.

8 THE COURT: All right.

9 Counsel, do you want to be heard?

10 MR. SALUTI: I would, Judge.

11 Your Honor, I'm going to address the point

12 that was just raised. I think it's an important point

13 regarding the arrest in 2009.

14 The picture of who you're going to sentence

15 today, it's hard to accurately reflect what's gone on in

16 Mr. Caponegro's life between the time he was arrested and

17 the time he stands before this court. And the Assistant

18 United States Attorney, Ms. Merkl, has eloquently set forth

19 in great detail in her 5K letter what type of cooperation my

20 client tendered to the Government.

21 And he did so, Judge, almost immediately

22 after getting arrested. I think it was about three weeks

23 after getting arrested we started having proffer sessions

24 almost on a weekly basis to begin with, and Mr. Caponegro

25 understood at that point that whatever was going on in his

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Sentencing 15

1 life before that he needed to make a radical change in his

2 life to have a life, okay?

3 And that being said, Judge, he's married to a

4 wonderful woman and he had two beautiful children. And sad

5 to say had and I think it's one of the reasons, I think, you

6 see a problem in arise in 2009. In 2008, Judge, my client's

7 son, Joseph, died of a drug overdose, and the impact that

8 that had upon both his wife, Karen, and his daughter, Niki,

9 and also Mr. Caponegro himself I cannot tell you because I

10 was a part of it. I was there when Joseph died. I was at

11 the funeral. I tried to assist the family as best I could

12 in unravelling the son's affairs with regard to autopsies.

13 The devastation it caused the family was indescribable in

14 words, Judge.

15 And I truly believe that but for the fact

16 that his son had this untimely death in 2008 he would never

17 have seen another brush with the law from Mr. Caponegro. He

18 was still working through some significant anger issues at

19 that point. He was so angry at the world, so angry at God,

20 as was his wife as to what had happened to their son and I

21 can't even imagine standing here what it is to bury a child.

22 I have six of my own and the thought of it is overwhelming

23 to me. And the manner in which Mr. Caponegro chose to

24 handle that, Judge, was he continued to cooperate with the

25 Government.

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Sentencing 16

1 I think the Government had to kind of stop

2 him and tell him to take a break and gather yourself. I

3 think Mr. Caponegro tried to continue to cooperate to take

4 his mind off of the idea that he lost his 28-year-old son.

5 The events that occurred in 2009, I think, are a direct

6 result of that, and as a result.

7 THE COURT: He had problems before with anger, and

8 I know that obviously a child dying is a terrible, tragic

9 event that could cause obviously cause problems, but this

10 was something that predated that.

11 MR. SALUTI: What I'm trying to say is this. The

12 line of demarcation for when he got arrested and the life

13 change that occurred to him. I'm not trying to make light

14 of any of his prior criminal history, Judge, I don't

15 disagree with you at all.

16 What I'm trying to draw for you is a line in

17 the sand where I believe Mr. Caponegro started -- the went

18 light went off and he started to understand what needed to

19 do to become a better husband, become a better father, to

20 become a better member of society. And I think that's a

21 process and it took awhile for him to get it that and the

22 son dying really had an effect on that.

23 Now, part my getting the charges against

24 Mr. Caponegro get dismissed in Toms River I needed to have

25 him, or I wanted to have him go through some anger

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Sentencing 17

1 management counseling which he did and he successfully

2 completed it. And that's part of the reason that the case

3 against him in Toms River was dismissed not to mention

4 there's many other factors.

5 THE COURT: His wife didn't proceed with it.

6 MR. SALUTI: That is one issue, Judge, there was

7 also an issue of self-defense.

8 THE COURT: Self-defense?

9 MR. SALUTI: There really was, absolutely. The

10 wife was very intoxicated and I don't know how much you want

11 me to talk about that part of the case, Judge, but it is, I

12 think, an anomaly for the person that Mr. Caponegro became

13 postarrest. Not prearrest but postarrest.

14 And that being said, you know, Ms. Merkl

15 outlines for you what he's chosen to do instead of continue

16 on that path that he was on. He's 55 years old and he could

17 have easily decided let's not cooperate. I was surprised as

18 Ms. Merkl was that he was that willing to cooperate. And

19 once we started our proffer sessions, and I watched just to

20 the extent to which he was willing to go. I think there was

21 something like 11,000 hours of tape recordings that he made

22 of all these individuals and all these cases, and as he did

23 that he came to understand on a daily basis -- I'm going

24 down, I was in the wrong. These people were not my friends.

25 These people took advantage. I took advantage of people

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Sentencing 18

1 because of the people I was around. And it was interesting

2 to watch on a yearly basis how he changed with regard to his

3 opinion of the Government. These are his friends now as

4 opposed to the friends that he used to have. When he has a

5 problem he calls Chris from the FBI and not Danny from the

6 block anymore.

7 So in that regard, I think Mr. Caponegro has

8 made some tremendous strides towards being a better person,

9 a better citizen, and towards being helpful to the

10 Government even offering his cooperation post sentence to

11 the Government, if necessary, to continue to do what he's

12 been doing because he's enjoying it. He's enjoying making

13 right what was wrong. And I know that sounds strange, and I

14 know that's not something you probably hear every day with a

15 cooperating witness.

16 A lot of times what you hear is: Oh, it's

17 difficult. Oh, I don't want to rat on my friends and things

18 of that sort. But he absolutely abhors the life that he led

19 and has chosen to do something completely different now

20 which is a blessing obviously, and any leniency this court

21 can show Mr. Caponegro.

22 You and I are in such a different position

23 and I wish I was sitting where you were sitting because I

24 know him so well. This is a man, Judge, just so you know.

25 I have little children and I have older children and I have

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1 children. Every summer since we've known one another, while

2 the case is going on or not, every summer invites my family

3 to his house, takes my children out onto his boat, takes

4 them fishing. So it's such of a dichotomy of, you know,

5 what he used to be to what he is now, and I'd ask the Court

6 to take those things into consideration when fashioning an

7 appropriate sentence for him. And I most certainly, Judge,

8 I know you've ride the 5K letter. I know you're fully

9 conversant with the other letter which you got, although I

10 haven't seen it I'm sure is quite detailed in even greater

11 detail the lengths and extent to what Mr. Caponegro went

12 through to make things right. And that's what he tried to

13 do as best he could, he tried to make things right.

14 Judge, I hope you consider all the things

15 I've said, and if I can answer any questions for you I'd be

16 happy to try. If there's any point that you think needs

17 more fleshing out, I'd be happy to do it.

18 THE COURT: With respect to his financial

19 situation, you agree he is capable of paying a fine.

20 MR. SALUTI: I think the first answer to your

21 question is, yes, I do, Judge. And more importantly, not

22 only is he financially capable of paying a fine, I think

23 it's an important line of demarcation also to say he's

24 financially secure so he doesn't need to go back into the

25 life that he was leading.

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Sentencing 20

1 THE COURT: So the Government believes there

2 should be a substantial departure from the guideline range.

3 Is this how you would accurately describe

4 your position?

5 MS. MERKL: We believe that Mr. Caponegro has

6 provided substantial assistance, and normally that

7 translates to substantial departure. Exactly, obviously,

8 what the sentence should be we, of course, defer to the

9 Court's discretion.

10 THE COURT: All right.

11 Mr. Caponegro, do you want to be heard?

12 THE DEFENDANT: I just want to apologize, and this

13 should have happened years ago. These people are great

14 people and they opened my eyes. I mean, it might sound

15 crazy: I love them all. They made me see the light, and

16 I'm here to help them forever. You know, it was the way it

17 was years ago and I was blind, you know. They made me see

18 the light and I wish this happened years ago to be honest

19 with you, you know. I came across a bunch of good, honest

20 people and I thank them.

21 THE COURT: All right.

22 THE DEFENDANT: I do.

23 THE COURT: I'm sorry, did somebody want to say

24 something else?

25 MR. SALUTI: No, Judge.

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Sentencing 21

1 THE COURT: Well, I've read through the

2 presentence report and both of the Government's letters.

3 I've considered the guideline range here, which would

4 suggest a guideline sentence of 57 to 71 months. And the

5 Court has to take into account the factors under §3553 and

6 those include consideration of the seriousness of the

7 offense, the need to promote respect for the law, to provide

8 just punishment. This is, as extortions go, there are

9 obviously serious offenses in and of themselves, but this is

10 a particularly serious extortion. The facts weren't

11 challenged and, Ms. Merkl, you can correct me if I'm wrong,

12 this was an extortion conspiracy, an ongoing conspiracy.

13 The victim was assaulted once by the defendant's son

14 according to the facts. I take it those are accurate.

15 MS. MERKL: As far as the Government's evidence

16 and understanding, yes.

17 THE COURT: And then, on the latter occasion, the

18 victim was actually assaulted the second time by the

19 defendant himself according to what's set forth in

20 Paragraph 6, which, I guess, the Government, most of it was

21 being tape recorded, the Government was listening in, and

22 I'm surprised people didn't rush in at this point.

23 MS. MERKL: We have the consensual recording of

24 that incident.

25 THE COURT: In any event, according to what's

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Sentencing 22

1 described in the report he was choking the person.

2 MS. MERKL: That's how it sounds on the tapes.

3 THE COURT: And I guess had a tazer gun that was

4 used but not used on the victim.

5 MS. MERKL: Correct.

6 THE COURT: As I understand it.

7 MS. MERKL: It was displayed.

8 THE COURT: As far as extortionate collection of

9 credit conspiracies go, it's a serious offense to begin with

10 but the facts underlying this extortion seems to me were

11 very significant, and I think but for the cooperation would

12 have justified a sentence at the higher end of the guideline

13 range that's recommended just because of the severity of the

14 extortion in this case.

15 The defendant has a criminal history

16 category -- a lot of it, excuse me, a criminal history, a

17 lot of it because of its age wasn't counted in the Criminal

18 History Category of II.

19 The Government has indicated that he was

20 candid about his criminal history, and most of that I think

21 was recounted to the Government during the proffer session,

22 and when someone has come forth to the Government and

23 advises the Government of things that it didn't know and

24 wouldn't have known but for their cooperation I don't

25 ordinarily give that much weight to that. But in the

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Sentencing 23

1 criminal history category, there are, even though old, this

2 robbery conviction, there's the serious assault conviction.

3 Counsel has given some explanation for the

4 fact of how the defendant got in trouble again while

5 cooperating, and obviously, it's a complicated situation,

6 but still and I understand how something could come about

7 after the types of tensions that would arise after the death

8 of a child, but it still is not a helpful circumstance for

9 him to have gotten engaged in that kind of conduct while

10 cooperating.

11 I'm persuaded that based on the extent of the

12 defendant's cooperations and that his statements to the

13 Court that he is genuinely remorseful. I think that the

14 cooperation was very substantial, and I think justifies what

15 I think is a very substantial departure from the guideline

16 range.

17 The cooperation was quite extensive, two and

18 a half years, hundreds of phone calls. It resulted in what

19 seems the Court having reviewed it to be a very significant

20 prosecution in New Jersey as well as a prosecution here in

21 the Eastern District of New York. So I think that the

22 cooperation does justify a very substantial departure. As I

23 said, it's always very difficult to weigh the factors and to

24 try and counterbalance the various different factors.

25 Having taken all of this into account I'm

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Sentencing 24

1 going to sentence the defendant to the custody of the Bureau

2 of Prisons for a period of 14 months to be followed by a

3 three-year term of supervised release. I'm going to impose

4 a fine of $20,000 to be paid in equal increments over the

5 term of the three years of supervised release.

6 I'm going to direct that he provide full

7 financial disclosure to the probation office; that he not

8 associate with anyone who is affiliated with organized crime

9 in any way through mail, electronic mail, telephone,

10 meetings and that obviously he not possess any firearms or

11 weapons.

12 I'll impose a hundred dollar special

13 assessment and I imagine he had a cooperation agreement.

14 MS. MERKL: Yes, your Honor.

15 THE COURT: Does that mean that he retains his

16 right to appeal?

17 MS. MERKL: Yes, your Honor.

18 THE COURT: Okay.

19 Mr. Caponegro, you have retained your right

20 to appeal your sentence. If, for any reason, you think the

21 Court made any errors in your sentencing, any Notice of

22 Appeal would have to be filed in 14 days.

23 Do you understand that?

24 THE DEFENDANT: Yes.

25 MR. SALUTI: I do.

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Sentencing 25

1 THE COURT: Are there any outstanding indictments

2 or counts?

3 MS. MERKL: No, your Honor, but we would

4 respectfully request that your Honor include as a special

5 condition of his term of supervised release that he continue

6 to abide by the terms of his agreement.

7 THE COURT: I'm not sure that's an appropriate

8 thing for the Court to do.

9 MS. MERKL: Okay.

10 THE COURT: I knew that you made that

11 recommendation, but I just don't know that it's appropriate

12 for the Court to order someone to continue to cooperate.

13 Obviously, Mr. Caponegro, you have to obey

14 the law and let me explain it this way. If the Government

15 subpoenaed you to testify in a given proceeding, you would

16 have to comply with that subpoena. One of the conditions of

17 your release is that you continue to -- that you not violate

18 the law.

19 And so you also, if you were called upon to

20 testify at any proceedings the Government subpoenaed you to

21 a proceeding you would be required not only to testify but

22 it testify truthfully. So if you were to perjur yourself at

23 any proceeding like that that would constitute not only a

24 violation of the law, but committing crimes would be a

25 violation of your supervised release and the Court could

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Sentencing 26

1 revoke your supervised release and sentence you to 15 years.

2 Do you understand that?

3 THE DEFENDANT: Yes, ma'am. Yes, your Honor.

4 THE COURT: Is there anything else that we need to

5 take up?

6 MS. MERKL: Nothing from the Government, your

7 Honor.

8 THE COURT: Okay.

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Sentencing 29

2 CERTIFICATE OF REPORTER

3
I certify that the foregoing is a correct transcript of the
4 record of proceedings in the above-entitled matter.

8 __________________________________________
Anthony D. Frisolone, FAPR, RDR, CRR, CRI
9 Official Court Reporter

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